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District Court of Appeal, Second District, Division 3, California.


Civ. 14752, 15241.

Decided: May 06, 1947

Goodspeed, McGuire, Harris & Pfaff and Paul Vallee, all of Los Angeles, for appellant. A. E. Chandler, of San Francisco, Sp. Counsel, and H. Burton Noble, City Atty., of Pasadena, for respondent City of Pasadena. C. C. Carleton, Spencer Burroughs and Henry Holsinger, all of Sacramento, for referee-respondent Division of Water Resources. James C. Bone, City Attorney, of Arcadia, and Gerald E. Kerrin, of Los Angeles, for respondent City of Arcadia. Robert E. Moore, Jr., of Los Angeles, for respondent Lincoln Avenue Water Co. Hahn & Hahn and Edwin F. Hahn, all of Pasadena, for respondent Las Flores Water Co. Potter & Potter and Bernard Potter, Sr., all of Los Angeles, for respondents Mira Loma Mutual Water Co. and Canyon Mutual Water Co. Merriam, Rinehart & Merriam and Ralph T. Merriam, all of Pasadena, for respondent Pasadena Cemetery Ass'n. Laurence B. Martin, of Los Angeles, for respondent Sunny Slope Water Co. Frederick G. Stoehr, of Pasadena, for respondent A. V. Wagner. Emmett A. Tompkins, City Atty., and Kenneth K. Wright, Sp. Counsel, both of Los Angeles, for respondent City of Alhambra. Paul F. Garber, City Atty., of Monrovia, and Kenneth K. Wright, Sp. Counsel, of Los Angeles, for respondent City of Monrovia. Walter F. Dunn, City Atty., of Monrovia and Kenneth K. Wright, Sp. Counsel, of Los Angeles, for respondent City of Sierra Madre. Anderson & Anderson, Trent G. Anderson, and Kenneth K. Wright, all of Los Angeles, for respondent Rubio Canon Land & Water Ass'n. John C. Packard and Kenneth K. Wright, both of Los Angeles, for respondent El Campo Mutual Water Co. Bacigalupi, Elkus & Salinger, and Claude Rosenberg, all of San Francisco, and Kenneth K. Wright, of Los Angeles, for respondent California Water & Telephone Co. Derthick, Cusack & Ganahl, W. J. Cusack, and Kenneth K. Wright, all of Los Angeles, for respondent Crown City Ice Co. Wilton W. Webster, of Pasadena, and Kenneth K. Wright, of Los Angeles, for respondent Royal Laundry & Dry Cleaning Co. Dunn & Sturgeon and Walter F. Dunn, all of Monrovia, and Chandler & Wright, Howard Wright, and Kenneth K. Wright, all of Los Angeles, for respondents Stewart, Armstrong, and Graves. Bailie, Turner & Lake and Norman A. Bailie, all of Los Angeles, Cruickshank, Brook & Dunlap, of Pasadena, and Kenneth K. Wright, of Los Angeles, for respondent Ernest Crawford May, executor. Boyle & Holmes, John W. Holmes, and Kenneth K. Wright, all of Los Angeles, for respondent First Trust & Savings Bank of Pasadena. Frank P. Doherty and Kenneth K. Wright, both of Los Angeles, for respondent La Canada Irr. Dist. Gibson, Dunn & Crutcher, Ira C. Powers, and Kenneth K. Wright, all of Los Angeles, for respondents Trustees of Henry E. Huntington Library and Art Gallery. Kenneth K. Wright, of Los Angeles, for respondents San Gabriel County Water Dist., Valley Water Company, and Ross M. Lockhart.

Prior to rendition of judgment in this case two orders were made by the trial judge from which appeals were taken by the appellant California-Michigan Land & Water Company, a corporation (2nd Civil No. 14752). They were (1) ‘Order for interim or partial payment of referee's expense’ and (2) ‘Final order determining expense of reference and apportionment thereof.’ Following a protracted trial judgment was rendered on December 26, 1944, from which this appellant alone appeals (2nd Civil No. 15241).

Appellant filed a petition for a writ of supersedeas in this court to stay the enforcement of the judgment. On June 24, 1946, such a writ was ordered issued staying all proceedings in the trial court as against appellant until the final determination of the cause of appeal. See opinion—City of Pasadena v. City of Alhambra, 1946, 76 Cal.App.2d ——, 170 P.2d 499. The issues on the appeals from the two orders and the judgment are so closely related and intermingled as to justify, in the interest of clarity, their consideration herein as in effect one appeal.

Within the semi-arid San Gabriel Valley and a few miles northeast of the City of Los Angeles there lies a forty square mile alluvial-filled basin of ground water known as the Raymond Basin Area. This Area is highly urbanized and within it are found the City of Sierra Madre, virtually all of the City of Pasadena, and a portion of the cities of South Pasadena, San Marino, and Arcadia. Bordering it to the south are the cities of Alhambra and San Gabriel. Much of the remainder of the Area is urban in character although not incorporated into municipalities. It is definitely delimited from the Fault, also sometimes by the Raymond Fault, also sometimes known as the Raymond Dike. This is a natural fault in the bedrock which has extended its influence into the alluvium, rendering it more or less impervious so that the passage of water through it is impeded, thus creating an underground basin or field of water behind it. This fault runs slightly north of east across the valley floor and is evidenced on the surface by a sudden rise in the ground along part of its course and beneath by a water table which is two hundred to three hundred feet lower on the southern side of the fault than on the northern side. The referee's report shows, and the court found, that ground water of the Raymond Basin Area is divided into two practically separate units, that of Pasadena sub-area and Monk Hill Basin, together comprising a single unit, designated as Western Unit, and that of Santa Anita sub-area being called the Eastern Unit. The wells of the appellant are located within a well field in the Western Unit and draw their water entirely therefrom. This Unit constitutes the common and only source of water supply for all wells located within it. Appellant's contrary claims as to the source of the water supply for its wells must be rejected since the finding of the trial court otherwise is amply supported by the evidence.

Plaintiff is the chief water user within the Area and in September, 1937, instituted the litigation now before us in order to secure an adjudication of the main ground water rights within the Area and to obtain injunctive relief against an alleged annual overdraft constituting a withdrawal of water from the basin in excess of the average yearly supply. In February, 1939, the trial court, acting under then section 24 (now Water Code, secs. 2000 to 2050) of the Water Commission Act (Stats.1913, ch. 586, p. 1012, as amended; Deering's Gen.Laws 1937, Act, 9091), referred the matter to the Division of Water Resources, Department of Public Works, of the State of California, for investigation of and report upon the physical facts involved. Upon the basis of the referee's report plaintiff, in September, 1943, and during the early months of 1944, entered into a stipulation for judgment with all non-disclaiming defendants in the case, 26 in number, except the appellant herein. This stipulation purported to allocate the ground water of the Area among the parties to this suit on the basis of the safe yield thereof and set up a water exchange arrangement among substantially all of them under the supervision of a water master. The court then heard appellant's evidence in opposition to the referee's report and to the stipulation for judgment, thereafter causing to be entered the judgment from which this appeal is taken. This judgment in substance incorporated and enforced the terms of the stipulation against all parties, including the appellant, save as hereinafter noted.

Appellant urges three primary grounds for reversal: First. The trial court lost jurisdiction of the case by reason of its not having been brought to trial within five years after its commencement. Second. Improper and unconstitutional procedure was followed. Third. The final judgment of the trial court is fatally erroneous as a matter of law. Appellant also challenges the sufficiency of the evidence in numerous particulars to support the findings of the trial court, including the findings of the existence and the amount of the overdraft. The findings of the trial court relating to the physical facts involved, including those as to overdraft, are based largely upon the report of the referee, which report appellant attempted to rebut by other evidence. The trial court, however, resolved the conflict in evidence thus created against appellant. We have considered carefully appellant's various claims of insufficiency of evidence, and although the evidence is not without conflict it affords ample support for the trial court's findings except as specifically noted otherwise in this opinion.

With respect to its first primary ground appellant insists that the trial court lost jurisdiction of this action by reason of its not having been brought to trial within five years after its commencement, and the trial court erred in not granting its motions to dismiss. The respondents, in turn, argue that jurisdiction was not lost by the court and the motions to dismiss were correctly denied, in that (a) the cause was partially tried within the five year period, and (b) in any event it was impracticable and futile under the circumstances of this case to proceed with the trial within such period, thus tolling the five year statute. They further urge that, as these are now recognized exceptions to the mandatory application of such section, if either of them is established the action of the court in denying the motions to dismiss must be upheld.

The complaint herein was filed September 23, 1937. On March 24, 1943, appellant filed a written motion to dismiss the case pursuant to section 583, Code of Civil Procedure. The motion was denied by the court on March 29, 1943. Appellant then petitioned the Supreme Court for a writ of mandate to compel such dismisal (LA 18761). This petition was denied without the issuance of an alternative writ, without a hearing and without opinion on July 8, 1943. On November 29, 1943, plaintiff moved the court to set the case for trial and appellant thereupon filed its written objections and a motion to dismiss. The motion was denied and the case then set for trial on March 7, 1944. Appellant petitioned the Supreme Court for a writ of prohibition or other appropriate relief (SF 17005). This petition included substantially all matters contained in the former petition to such court, with the additional facts that the referee filed his report with the court on or about July 16, 1943, and the case had been set for trial. On March 13, 1944, the Supreme Court denied the petition in the same manner as before. Although these petitions directed the attention of the court to practically all the matters here presented on this appeal as grounds for directing the trial judge to dismis the case under section 583, we do not consider the ex parte denial thereof as being res judicata as to our consideration of this subject and deem such denial simply to constitute a refusal by the Supreme Court to exercise its original jurisdiction resulting in no decision upon the merits of the petitions having been made. Funeral Directors Ass'n v. Board of Funeral Directors, 1943, 22 Cal.2d 104, 106, 136 P.2d 785. The writs may have been denied solely on the ground that even though there was an excess of jurisdiction, the validity of the orders could be passed on by appeal, and that remedy was adequate. McConough v. Garrison, 1945, 68 Cal.App.2d 318, 329, 156 P.2d 983. The actual trial, after notice and consisting of the taking of evidence in the presence of the parties and their witnesses, began May 18, 1944.

The applicable portion of section 583, Code of Civil Procedure, as it read at the time here in question, it having been since amended, is as follows: ‘Any action heretofore or hereafter commenced shall be dismissed by the court in which the same shall have been commenced or to which it may be transferred on motion of the defendant, after due notice to plaintiff or by the court upon its own motion, unless such action is brought to trial within five years after the plaintiff has filed his action, except where the parties have stipulated in writing that the time may be extended.’ It is conceded that the appellant at no time stipulated either orally or in writing that the time of the trial might be extended.

The proceedings had subsequent to the filing of the complaint and prior to the trial date of May 18, 1944, which plaintiff claims constitute a partial trial of the action, thus tolling the running of section 583, are as follows: Following the appointment by the court, on February 8, 1939, of the Division of Water Resources of the State of California as referee to investigate all physical facts involved in this water rights action, with directions to report seasonably to the court thereon, such referee, on June 2, 1939, applied to the court for instructions as to the scope of the investigation. This matter came on for hearing June 9, 1939, and over the objections of appellant the court made its order relative to the issues and for the referee's expenses. On June 21, 1939, the referee filed its ‘Preliminary report upon use of water by those not parties and recommendations as to bringing in additional parties.’ The trial court thereupon, after notice to all parties in the action and hearing such arguments and objections as were presented, made its order directing plaintiff to bring in certain additional parties. On April 10, 1942, the referee filed a notice of motion for an order for interim or partial payment of its expenses and on April 24, 1942, plaintiff moved for reimbursement for costs claimed to have been advanced. Hearings were held on these motions and orders were made thereon by the court.

It is well settled that a partial trial within the prescribed five year period removes the case from the operation and effect of Code of Civil Procedure, section 583. City of Los Angeles v. Superior Court, 1940, 15 Cal.2d 16, 19, 98 P.2d 207; Meier v. Superior Court, 1942, 55 Cal.App.2d 675, 676, 131 P.2d 554; Mercantile Invest. Co. v. SuperiorCourt, 1933, 218 Cal. 770, 774, 25 P.2d 12.

An examination of the record concerning the foregoing proceedings convinces us that they did not constitute a trial or a partial trial in any sense of the word. The hearings on these motions concerned matters preliminary only to the trial and were not for the purpose of determining any issue in the case or the merits of the action, nor were they in furtherance of the decisions made upon the issues in the case which form the basis of the judgment. They were merely steps directed toward instructing the referee concerning its duties, relating to its expenses and the bringing of the necessary parties into the suit in order that they might later litigate all relevant issues in a trial on the merits. Such a trial was subsequently had. In Superior Oil Co. v. Superior Court, 1936, 6 Cal.2d 113, 56 P.2d 950, an order to show cause why a preliminary injunction should not be granted was issued, voluminous affidavits were submitted as evidence and a hearing was had thereon. A subsequent motion to dismiss under section 583 was made wherein it was contended that the foregoing proceedings constituted a partial trial of the case. In holding to the contrary the Supreme Court said, 6 Cal.2d at pages 116, 117, 56 P.2d at page 952: ‘No authority is cited in support of this contention and none has been discovered. The term ‘trial’ as applied to one of the steps in the disposition of an action is well understood in the practice in this state. It is the trial of the issues of fact (Perrin v. Miller, 35 Cal.App. 129, 169 P. 426), the purpose of which is to determine the cause on the merits, and it is not completed until the decision of the court is made and filed with the clerk (Broder v. Conkin, 98 Cal. 360, 33 P. 211; sec. 632, Code Civ.Proc.), unless findings be waived (sec. 634, Code Civ.Proc.). Whether made and filed or waived, judgment may then be entered and the cause thus be disposed of on the merits. On the trial the parties have the right of cross-examination. (Sec. 2048, Code Civ.Proc.) On the hearings on the order to show cause the privilege of orally examining and cross-examining witnesses was denied by the court. All answers to the complaint were required to be filed on or before December 2, 1930, and it must be assumed that the cause was ready to be set for trial after the issues of fact were thus joined. In Bandini [Petroluem Co.] v. Superior Court, 284 U.S. 8, 52 S.Ct. 103, 76 L.Ed. 136, 78 A.L.R. 826, involving the effect of a preliminary injunction in a similar case, it was correctly assumed that under the practice in this state a trial on the merits would ordinarily follow the hearing and issuance of the preliminary injunction. In June, 1932, one of the defendants in said action moved the court to set the cause for trial. There was much discussion as to a trial date convenient to counsel for all parties, but no date prior to the service and filing of the notice to dismiss was fixed. The defendant's motion to set was continued from time to time until February 27, 1934, when said motion and other motions and matters on the calendar that day were, on motion of counsel for the plaintiff in said action, stricken from the calendar. It does not appear that the attention of the court was ever called to the fact that time was running under section 583, or that the five-year period thereunder was about to expire. It may be assumed that the trial court had considerable evidence before it in order to enable it to determine whether the preliminary injunction should issue, and it is undoubtedly true that this evidence, if properly introduced at the trial, would have been determinative of some or many issues of fact. But the dismissal of an action for lack of prosecution is without regard to the merits or demerits of the cause of action. [Citing cases.]' To the same effect see Breakstone v. Giannini, 1945, 70 Cal.App.2d 224, 230, 160 P.2d 887; Meier v. Superior Court, supra, 55 Cal.App.2d 675, 677, 131 P.2d 554. Plaintiff strongly relies on the case of O'Day v. Superior Court, 1941, 18 Cal.2d 540, 116 P.2d 621, in support of its position that the enumerated preliminary proceedings were in fact a partial trial. The O'Day case differs materially from our instant situation in that it concerned a hearing to determine heirship in an estate and a trial of the issues of fact, the purposes of which were to determine the cause on the merits, was actually begun. As pointed out in Meier v. Superior Court, supra, 55 Cal.App.2d at pages 677, 678, 131 P.2d at page 556: ‘In O'Day v. Superior Court, 18 Cal.2d 540, 116 P.2d 621, the court was passing upon a judgment of dismissal entered under subdivision 3 of section 581 of the Code of Civil Procedure for failure to appear at the trial. Respondent Meier relies on the statement therein made that a “trial’ includes all rulings of a court in proceedings before it made in furtherance of the decisions made upon the issues in the case which form the basis of the judgment.' It clearly appears that in using this language the court did not intend to hold that a ruling on a demurrer or some preliminary matter constitutes a trial within the meaning of section 583. The court pointed out that the rulings to which it had reference had been made after the trial court had commenced an examination of the evidence and in connection with its admissibility, and distinguished that case from the case of Superior Oil Co. v. Superior Court, supra, in which it had been held that the action had not been brought to trial within the meaning of section 583 of the Code of Civil Procedure.

‘It seems to have been clearly held that a trial within the meaning of section 583 is a hearing and determination of the issues of fact involved and that a ruling on a demurrer is not sufficient to take a case out of the operation of that statute. The same has been held with respect to a hearing on whether or not a preliminary injunction should issue. So far as material here, we see no difference in principle between such a preliminary hearing and one in connection with the setting aside of a default. The latter proceeding is not in any respect a trial of issues raised, but it involves merely a consideration of whether a party is entitled to relief which will enable him to raise issues in the case.’

Since the various hearings and other proceedings had prior to May 18, 1944, cannot be held to be a trial of the case, either in whole or part, we now consider the plaintiff's alternative argument that the denial by the trial court of the motions to dismiss was proper. It is simply this—that at all times between the commencement of the action and the trial a situation existed where, for all practical purposes, going to trial was both impracticable and futile due to excessive and unreasonable difficulty and expense.

In support of this position plaintiff points out, and the record of the case verifies, that this action involves the determination of the rights of 29 parties, including six municipal corporations, a county water district and an irrigation district, together with certain public utilities, mutual water companies and individuals, to take and divert water from the Raymond Basin Area and to prevent withdrawal of water from it in excess of the average annual supply of water thereto; that the issues are extremely complex and are of great importance to many thousands of people who are dependent upon the parties involved to furnish an adequate supply of water; that both prior to the trial date and the expiration of the period of five years from the commencement of the action many thousands of dollars had been expended on this litigation by the parties thereto and the referee; that pursuant to section 24 of the Water Commission Act, the trial court availed itself of the procedure established in this state by referring the case to the Division of Water Resources, Department of Public Works of the State of California, as referee to investigate all the physical facts involved and seasonably to report to the court thereon; the State of California, acting through its authorized agency, has an interest at stake herein by reason of the conservation of water in said basin sought by this action, and because of the expenditure of large sums in pursuit of its duties as referee.

In opposition to the appellant's two motions to dismiss the case pursuant to the provisions of section 583, Code of Civil Procedure, which were supported by affidavits by Richard C. Goodspeed, its attorney, affidavits were filed by Harold P. Huls, attorney for plaintiff. Such latter affidavits, dated March 29, 1943, and December 13, 1943, recite, in effect, that following the court's order of reference to the Division of Water Resources, as referee, the latter on June 3, 1939, made application for instructions upon the scope of its investigation and report, following which a hearing was had including appellant's objections, and on June 10, 1939, the court made an order instructing the referee and determining that the issues in the action embrace an adjudication of the rights of the defendants inter se and the rights of each and every party as against each and every other party, such referee to be entitled to its proper expenses for the performance of its work and to continue to investigate and report in accordance with said order. A preliminary report of the referee upon the use of water by parties not defendant in the action, and recommendations as to bringing in additional parties was filed, objections overruled and on July 13, 1939, the court made an order directing plaintiff to bring in additional parties. There followed motions by referee for interim payment of its expenses to be paid by all parties in the action and for reimbursement to plaintiff of costs advanced. A hearing was held, objections considered, appellant being represented and taking part, and on June 2, 1942, the trial judge made an order and judgment against all parties to the action whereby they were ordered to pay to the referee the sums of money therein stated, from which order and judgment appellant, on July 29, 1942, filed its notice of appeal, which appeal is now before this court. On March 3, 1943, the draft of report of the referee was served on all of the parties showing such referee to have expended approximately $52,516.17 to and including February 28, 1943, in the performance of its duties as referee pursuant to the order of the court. On July 12, 1943, the report of the referee and statement of the apportionment of its expenses was filed. On August 11, 1943, appellant filed objections thereto and after a hearing thereon the trial judge, on November 24, 1943, made and filed an order determining the expense of reference and apportionment thereof. On November 24, 1943, the stipulation of 26 of the 28 parties to this action was filed, whereby they consented to an order making the provisions of a proposed judgment herein effective as to them, which said order was thereupon made by the trial judge and filed. On November 26, 1943, plaintiff's motion to set a hearing on the objections and exceptions to the referee's report and to set the cause for trial was filed. Appellant's motion to dismiss and petition for writ of prohibition to the Supreme Court then followed; that since the year 1938 the parties to the action have discussed and taken steps toward ultimate settlement of the issues involved without the necessity of a costly and lengthy trial; that during the year and a half preceding March, 1943, numerous conferences and meetings pertaining to the settlement of the issues were held, at which appellant has been represented. That on January 15, 1943, appellant, through its attorney, wrote to Huls stating that it was very anxious to see the proposed settlement worked out substantially along the lines that were then under consideration, and made certain suggestions relative thereto.

Even a casual examination of the final report of the referee, as filed July 12, 1943, reveals the enormity of the task assigned to and assumed by it. The report itself (plaintiff's exhibit 1) consists of a large printed volume of 392 pages. It is supplemented by another similar volume of 555 pages entitled ‘Basic data submitted as exhibit to report of referee’ (exhibit 2). The report itself is fortified by numerous maps and tables and, among many other things, covers the history of development of water supplies, history of water development and use by municipalities, companies and individuals named in the action, the geology of the area involved and particularly that of the Raymond Basin Area, including the structural features and conditions pertaining to ground water movement; the subject of hydrology covering past, present and future of water flow into and out of the Area, sewage, consumptive use of water, storage of water underground and the changes in water table elevations over long periods; safe yield and overdraft by water users, deep percolation, quality of water and pumping tests to determine extent of influence on water tables. These were followed by the referee's extensive summary, conclusions and findings rendered to the court. The statement and apportionment of expense of referee (exhibit 3) was also submitted, showing such expense to total $53,274.73.

The trial judge was entitled, in his consideration of the motions to dismiss, to determine, under all the facts and circumstances of the case, whether the referee was proceeding with due diligence as to its duties and was following the court's instruction to report seasonably to the court the result of its investigation of the physical facts involved in its assignment. No time limit was imposed by the court upon the referee for the completion or filing of its report nor is any such limitation made by the Water Code. The reference to the Division of Water Resources for the purpose contemplated that all necessary work should be performed by the referee and its report thereof filed with the court as prima facie evidence of the physical facts therein found before any other evidence was to be received. A trial was then to be held at which time the court would hear such evidence as any party might desire to offer to rebut the report or the prima facie evidence. Water Code, sec. 2019.

A leading case on the subject of dismissal under section 583, Code of Civil Procedure, as here presented, is that of Christin v. Superior Court, 1937, 9 Cal.2d 526, 71 P.2d 205, 112 A.L.R. 1153. The the trial court had transferred the records in the case to another county and the case could not be tried without them. There was no reasonable ground to suppose that a motion to vacate the erroneous order would have been of any effect, or that a writ of mandate could be obtained to compel a retransference of the records and any trial held in the other county would have been a nullity. Under such circumstances the Supreme Court said, 9 Cal.2d at pages 530, 532, 71 P.2d at pages 207, 208, 112 A.L.R. 1153: ‘Petitioners relying upon the general language of such cases as Miller & Lux v. Superior Court, [192 Cal. 333, 219 P. 1006], and Rosefield Packing Co. v. Superior Court, [4 Cal.2d 120, 47 P.2d 716], argue that in the light of the plain language of the statute there is only one circumstance that can suspend the running of the period, and that is the written stipulation provided for by the section itself. These decisions cannot, however, be so narrowly interpreted. It may be true that they absolutely deny any means of suspension, save by written stipulation, where it is possible to bring the cause to trial. But, despite the mandatory language of the statute, implied exceptions have been recognized where it was not possible to bring the cause to trial. Thus, where an appeal from a judgment is taken, the trial court has no jurisdiction to proceed in the cause during the pendency of the appeal, and consequently the time consumed on appeal is not considered as part of the statutory period. Kinard v. Jordan, 175 Cal. 13, 164 P. 894. And where contestants of a will were induced by fraud to consent to a dismissal of their contest, and later had the dismissal vacated, the court held that the time between the dismissal and the reinstatement of the action was to be excluded in computing the five-year period. Estate of Morrison, 125 Cal.App. 504, 14 P.2d 102. See, also, Allyne v. Superior Court, 200 Cal. 661, 254 P. 564. * * *

‘The purpose of the statute is plain: To prevent avoidable delay for too long a period. It is not designed arbitrarily to close the proceeding at all events in five years, for it permits the parties to extend the period without limitation, by written stipulation. And, as we have already pointed out, despite the mandatory language implied exceptions are recognized. Are these exceptions based upon the technical concept of jurisdiction, and applicable only where the court is completely lacking in the legal power to proceed, or do they arise from the fact that the party is unable, from causes beyond his control, to bring the case to trial? The carefully reasoned opinion in Estate of Morrison, supra, is illuminating here. The court declared that the case of Kinard v. Jordan, supra, had ‘established the precedent of disregarding the time during which the jurisdiction of the trial court was suspended, thereby setting realty above artificiality.’ The opinion also states (at page 510 of 125 Cal.App., 14 P.2d 102, 106):

“Situations are thus recognized which repeal a strained construction of the statute.

“No logical distinction can be made between a temporary suspension of proceedings in the trial court, consequent upon a dismissal induced by fraud or mistake, and a suspension of the power of the trial court to proceed by reason of the pendency of an appeal. In either case, the action or proceeding is withdrawn from the cognizance of the court of first instance during the period of suspension.'

‘The theory of this decision seems to us to be equally applicable to a situation where, for all practical purposes, going to trial would be impossible, whether this was because of total lack of jurisdiction in the strict sense, or because proceeding to trial would be both impracticable and futile. In this connection, a useful analogy may be drawn from the rules on impossibility as a defense in the enforcement of contract obligations. Modern cases recognize as a defense not only objective impossibility in the true sense, but also impracticability due to excessive and unreasonable difficulty or expense. See Mineral Park Land Co. v. Howard, 172 Cal. 289, 156 P. 458, L.R.A. 1916 F, 1; People v. Meyers, 215 Cal. 115, 8 P.2d 837; Restatement, Contracts, § 454.’

The latest expression on this subject by our Supreme Court is found in the case of Pacific Greyhound Lines v. Superior Court, 1946, 28 Cal.2d 61, 168 P.2d 665. On a petiton seeking mandate to compel, in effect, reversal of an order denying a dismissal under section 583, Code of Civil Procedure, for failure to bring the case to trial within five years, facts were presented showing three defendants to have answered the complaint. No stipulation in writing for any extension of the trial time was ever hd and the cause was once set for trial but went off calendar due to the failure of defendants to deposit jury fees. Some 15 months after the complaint was filed one of the defendants, Earl Bagby, Jr., entered the military service and it was orally agreed between counsel that the case should remain off calendar until such defendant returned to civilian status. After citing with approval and quoting from Christin v. Superior Court, supra, the court said 28 Cal.2d at page 64, 168 P.2d at page 667: ‘Again in Judson v. Superior Court, 1942, 21 Cal.2d 11, 14, 129 P.2d 361, 363, the rule was stated: ‘The courts have recognized that the statute relating to dismissals although mandatory in form, should not be applied where, although the defendant was not guilty of acts tending to obstruct the administration of justice, it would have been impracticable for the plaintiff to have brought the action to trial.’ (Italics added.) See, also, Westphal v. Westphal, 1943, 61 Cal.App.2d 544, 550, 143 P.2d 405, 408, wherein it was held that it would have been ‘practically futile’ and ‘for all practical purposes * * * impossible’ for certain plaintiffs to go to trial while their coplaintiffs' appeal was pending.' And 28 Cal.2d at page 68, 168 P.2d at page 669: ‘Whether, in the light of the issues raised by such pleadings, in the further light of the representation made by defendants' counsel ‘that the matter would have to remain off calendar,’ and the other evidence before the trial court, it was ‘impracticable and futile’ (Christin v. Superior Court, 1937, supra, 9 Cal.2d 526, 533, 71 P.2d 205, 208, 112 A.L.R. 1153) to bring the case on for trial during the military service of defendant Bagby Jr., was a question of fact which the trial court resolved in favor of plaintiffs.' See, also, Rauer's Law and Collection Co. v. Higgins, 1946, 76 Cal.App.2d 854, 174 P.2d 450.

Under all the facts and circumstances existing in this case the trial judge, in the exercise of a reasonable discretion, was justified in believing that the referee was taking all possible steps, under existing conditions, to expedite his investigation and report, and that an earlier partial report would fail to provide evidence necessary for the commencement of the trial. He was likewise justified in finding that, during the period between February 8, 1939, the date of the reference, and July 12, 1943, the date of filing the referee's report, the plaintiff was unable, from causes beyond its control, to bring the case to trial and that going to trial was both impracticable and futile. The motions to dismiss were therefore properly denied as the time consumed by the referee in its work as such between the dates mentioned, it not to be counted as part of the five-year period specified by section 583, Code of Civil Procedure.

With respect to its second primary ground appellant contends that improper and unconstitutional procedure was followed which has the effect of invalidating both the reference and the judgment. It asserts as one of its points that the judgment goes beyond the issues raised by the pleadings in that it determines the rights of the defendants inter se although the several defendants made no claims against each other and therefore tendered and joined no issues between themselves. We cannot accept this contention or the argument in support of it. Plaintiff initiated this action to quiet its title to a stated amount of the ground water of the Area, to secure a declaration of the rights of all parties therein, and for injunctive relief against an alleged overdraft of such water resulting from its use by both plaintiff and defendants. Specifically, plaintiff alleged in its complaint that it possessed a paramount right to the use of a stated quantity of such water and that each of the defendants likewise asserted a right to the use of such water. Plaintiff therefore prayed inter alia that each defendant be required to set forth the nature of its claimed right to the use of such water and that all such rights be defined and determined by the decree of the court. Defendants in their respective answers, aside from the three who disclaimed, denied plaintiff's allegation of paramount right and alleged ownership of various rights to the use of such water, each superior to that of the plaintiff. With but three exceptions defendants prayed that the rights claimed by them be decreed to them. Appellant is among those who thus sought affirmative relief.

In determining the issues raised by the pleadings, the pleadings of all parties must be considered. Estrin v. Superior Court, 1939, 14 670, 676, 96 P.2d 340; Woods etc. Ditch Co. v. Porter etc. Ditch Co., 1916, 173 Cal. 149, 152, 153, 159 P. 427. Further, it is necessary to consider their specific allegations. Luckey v. Superior Court, 1939, 209 Cal. 360, 366, 287 P. 450. As summarized above each party, with the exception of those disclaiming, was claiming a right to the use of an allegedly common overdrawn supply of water. These claims by their very nature raise issues inter se as to all such parties for the determination of one claim necessarily affects the amount available for the other claims. Marlett v. Prosser, 1919, 66 Colo. 91, 179 P. 141, 142. In quiet title actions, particularly where the plaintiff also is seeking declaratory relief as here, the rights of each defendant are in issue not only as against the plaintiff but also as against each and all of its codefendants. Strong v. Shatto, 1927, 201 Cal. 555, 557, 258 P. 71; Milton E. Giles & Co. v. Bank of America, 1941, 47 Cal.App.2d 315, 323, 117 P.2d 943; Altman v. Blewett, 1928, 93 Cal.App. 516, 523, 269 P. 751; Cummings v. Cummings, 1921, 55 Cal.App. 433, 441, 203 P. 452. Here not only did plaintiff specifically seek a definition of the right of each party, but most of the defendants, including appellant, pleaded their respective rights affirmatively and sought to have them adjudicated. In so doing they in effect asked the court to determine the rights of each defendant, not merely as between it and the plaintiff, but also as between it and its codefendants. Miller v. Thompson, 1903, 139 Cal. 643, 645, 73 P. 583.

In a suit to quiet title to water rights such as this the basic purpose is to determine the respective rights of all parties to the use of the water involved. A decree which leaves the controversy in any respect unadjudicated and consequently subject to future litigation defeats the very purpose for which the action was brought. Pacific Live Stock Co. v. Ellison Ranching Co., 1930, 52 Nev. 279, 286 P. 120, 123; Watson v. Lawson, 1913, 166 Cal. 235, 243, 135 P. 961. Article XIV, section 3 of the California Constitution and section 100 of the Water Code require that the water resources of this state be put to the highest beneficial use of which they are capable. To this end litigation over rights to the use of water enjoyed in common should be comprehensive in scope. As was done here all substantial users should be made parties and the issues between the parties should be so framed so as to make possible the complete adjudication of the rights of each party. Once the rights of all substantial users are thus conclusively determined the water resources in question may be devoted to their highest beneficial use without fear of further protracted litigation. The alternative method of ascertaining the rights of such users by individual suits, here urged by appellant, is necessarily piecemeal, unduly expensive, and plainly unsatisfactory. Meridian, Ltd., v. San Francisco, 1939, 13 Cal.2d 424, 457, 90 P.2d 537, 91 P.2d 105.

Appellant charges a denial of procedural due process to it because, notwithstanding the determination that the issues were as to the parties inter se, no service was had among the defendants. While this procedure might be regarded as irregular, we fail to perceive therein a denial of due process to appellant. The jurisdiction of the trial court over the parties and subject matter of this action is not and can not be challenged by appellant. Van Loben Sels v. Bunnell, 1901, 131 Cal. 489, 493, 494, 63 P. 773. The inter se determination was made after due notice and hearing thereon. Appellant was duly served with the referee's report, with the stipulation for judgment of the other nondisclaiming parties, and, after due notice, had its day in court to contest these matters. The essentials of procedural due process, adequate notice and a full hearing, were therefore accorded to appellant. Drummey v. State Board of Funeral Directors, 1939, 13 Cal.2d 75, 80, 87 P.2d 848; Dohaney v. Rogers, 1930, 281 U.S. 362, 369, 50 S.Ct. 299, 74 L.Ed. 904, 68 A.L.R. 434; Twining v. New Jersey, 1908, 211 U.S. 78, 111, 29 S.Ct. 14, 53 L.Ed. 97.

Briefly stated, appellant's objections to the reference follow: First, the reference procedure did not comply with the requirements of the Code of Civil Procedure governing references (secs. 638 to 645). Secondly, the reference procedure did not comply with its purported authority, section 24 of the Water Commission Act (now secs. 2000 to 2050 of the Water Code, but hereinafter in the discussion called section 24). Thirdly, the purported authority, section 24, is unconstitutional in many aspects. Reference will be made to the provisions of the sections as we proceed.

In view of the provision therein for the very type of reference here questioned compliance with the aforementioned general reference sections of the Code of Civil Procedure is not required since to do so would be to ignore completely the more specific authority. Brill v. County of Los Angeles, 1940, 16 Cal.2d 726, 732, 108 P.2d 443. Appellant's argument that only a natural person may be appointed by the court as referee and that consequently the appointment by court of the Division of Water Resources, department of Public Works, State of California, pursuant to the special provisions of section 24, is void, seems to have been adequately answered by the Supreme Court in Fleming v. Bennett, 1941, 18 518, 522, 116 P.2d 442, 445, when it said: ‘In ctions involving numerous conflicting water rights it has been deemed expedient, both by the legislature and by this court (see Wood v. Pendola, 1 Cal.2d 435, 35 P.2d 526; Peabody v. City of Vallejo, 2 Cal.2d 351, 40 P.2d 486; Tulare Irr. Dist. v. Lindsay-Strathmore Irr. Dist., 3 Cal.2d 489, 45 P.2d 972, 1014; City of Lodi v. East Bay Municipal Utility Dist., 7 Cal.2d 316, 341, 60 P.2d 439; Rancho Santa Margarita v. Vail, 11 Cal.2d 501, 559, 81 P.2d 533; Meridian, Ltd., v. City and County of San Francisco, 13 Cal.2d 424, 90 P.2d 537, 91 P.2d 105), that in the discretion of the trial court the investigation of the facts be confided to the division of water resources of the department of public works as referee.’

Appellant contends that section 24 was not followed because at the time the order of reference was made, February 8, 1939, the Division of Water Resources of the State Department of Public Works, the referee named in the order, was not the statutory successor of the Water Commission, the referee named in section 24. It is appellant's position that under sections 363c and 363e of the Political Code the director of public works, as the head of that department, was in February, 1939, the statutory successor of the Water Commission. It should perhaps be noted that under the Water Code at present such a reference is to the State Department of Public Works (Secs. 2001, 22), and is administered through the State Engineer (Sec. 1050.5) who is the Chief of the Division of Water Resources in such department (Sec. 23.) Since pending actions and accrued rights were expressly declared to be unaffected by the adoption of the Water Code in 1943 (Sec. 4), the appropriate statutory law as it read on February 8, 1939, would seem to control this point. On that date section 363e, Political Code, in so far as relevant, read: ‘* * * the department of public works shall succeed to and is hereby vested with all the duties, powers, purposes, responsibilities and jurisdiction of the * * * state water commission * * * and of the several officers, deputies and employees of such bodies and officers; and ‘* * * whenever by the provisions of any statute or law now in force or that may hereafter be enacted, a duty or jurisdiction is imposed or authority conferred upon any of said bodies, offices, officers, deputies or employees, or upon any other person by any statute, the administration or enforcement of which is transferred to the department of public works, such duty, jurisdiction and authority are hereby imposed upon and transferred to the department of public works and the appropriate officers thereof * * *.’ (Italics ours.)

Sec. 363c, in so far as relevant, read: ‘The director of public works as head of the department of public works shall perform all duties, exercise all powers and jurisdiction, assume and discharged all responsibilities and carry out and effect all purposes now or hereafter vested by law in the department of public works * * *.’

The quoted language of section 363e plainly states that the Department of Public Works is the statutory successor of the Water Commission. East Bay M. U. D. v. Department of Public Works, 1934, 1 Cal.2d 476, 477, 35 P.2d 1027; Meridian Ltd. v. San Francisco, supra, 13 Cal.2d 424, 450, 90 P.2d 537, 91 P.2d 105. The difficulty, however, is to resolve the apparent conflict between the italicized words of section 363e and the quoted language of section 363c. In view of the ambiguity present, resort to judicial construction to ascertain the legislative intent is necessary. Cory v. Cooper, 1931, 117 Cal.App. 495, 500, 4 P.2d 581.

Section 1875(3) of the Code of Civil Procedure enables this court to take judicial notice of public and private official acts of the legislative, executive and judicial departments of this state and of the state laws. We are further empowered, for aid in these cases, to resort to appropriate books and documents of reference. By reference to Stats.1921, ch. 607, p. 1039, Stats.1929, ch. 373, p. 695, the biennial reports of the Division of Water Rights 1922–28, the forewords to the reprints of the Water Commission Act published by the Division of Water Resources (1930, 1931 and 1933), and the biennial budgets of the Governor 1933–41 (Allen v. Industrial Accident Commission, 1935, 3 Cal.2d 214, 215, 216, 43 P.2d 787; People v. Sanchez, 1942, 21 Cal.2d 466, 469, 132 P.2d 810; People v. Stralla, 1939, 14 Cal.2d 617, 620, 96 P.2d 941; Bell v. Southern Pacific Co., 1922, 189 Cal. 421, 425, 208 P. 970), we have ascertained the following facts, none of which are denied by appellant: In 1921 the Water Commission was abolished, the Department of Public Works was created, and the administration of the Water Commission Act passed from the Water Commission to the Division of Water Rights of the Department of Public Works. In 1929 the Division of Water Rights became the Division of Water Resources, and the latter took over the administration of the Act. It discharged this responsibility thereafter and was so acting in February, 1939. Consequently the Division of Water Resources, in February, 1939, was indubitably the de facto successor of the Water Commission.

This statutory succession has been recognized repeatedly both by the legislature and the courts. See Stats. 1927, ch. 286, p. 508; Stats. 1935, ch. 389, sec. 735, p. 1382; Crane v. Stevinson, 1936, 5 387, 398, 54 P.2d 1100; Wood v. Pendola, 1934, 1 Cal.2d 435, 438, 35 P.2d 526; Yuba River Power Co. v. Nevada Irrigation District, 1929, 207 Cal. 521, 522, 279 P. 128. In fact a few months after the making of the order of reference here challenged, the legislature made its recognition of the statutory succession express. Stats. 1939, ch. 838, p. 2420. As so amended the relevant portion of section 1 of the Water Commission Act read: ‘* * * and the Division of Water Resources of the Department of Public Works as statutory successor of the State Water Commission shall be regarded as performing a governmental function in carrying out the provision of this act.’

We see then that the statutory succession of the Division of Water Resources to the administration of the Water Commission Act has been recognized by the executive, legislative and judicial departments. This unanimous, uniform and long-established practical construction of the ambiguity present in sections 363c and 363e with respect to the administration of the Water Commission Act should and will be followed by us since it is in no sense clearly erroneous, but quite the contrary. Los Angeles v. Superior Court, 1941, 17 Cal.2d 707, 712, 112 P.2d 10; Hoyt v. Board of Civil Service Com'rs, 1942, 21 399, 402, 132 P.2d 804; 23 Cal.Jur. 775–777. Accordingly we hold that in February, 1939, the Division of Water Resources was the statutory successor of the Water Commission and was, therefore, the proper referee under section 24.

The constitutionality of Section 24, here attacked, was sustained generally in Fleming v. Bennett, supra, 18 Cal.2d 518, 116 P.2d 442, a case which involved the precise type of reference now before us, namely, a physical facts reference. The Supreme Court there said 18 Cal.2d at page 527, 116 P.2d at page 447: ‘It follows that all of the pertinent constitutional safeguards were observed by the legislature in enacting the provisions of section 24 * * *.’ In so stating the court was merely making express that which had been implicit in its earlier decisions commending the reference procedure of Section 24 and urging its use by the trial court. See Peabody v. City of Vallejo, 1935, 2 Cal.2d 351, 374, 40 P.2d 486; Tulare Irr. Dist. v. Lindsay-Strathmore Irr. Dist., 1935, 3 489, 575, 45 P.2d 972; City of Lodi v. East Bay Mun. Utility Dist., 1936, 7 Cal.2d 31l, 341, 60 P.2d 439; Rancho Santa Margarita v. Vail, 1938, 11 Cal.2d 501, 559, 81 P.2d 533; Meridian, Ltd., v. San Francisco, supra, 13 Cal.2d 424, 457, 458, 90 P.2d 537, 91 P.2d 105.

Nevertheless appellant contends that as applied in this case section 24 violates article III, section 1, and article IV, section 25, subsections 3 and 33, of the California Constitution, and further that the admission of the referee's report in evidence, as provided for in section 24, constituted a denial of due process of law to appellant since the report was unsworn, contained much inadmissible evidence, and was based upon an objectionable ex parte investigtion of the referee. We now proceed to a consideration of these grounds of appeal in the order just presented.

Article III, section 1, of the California Constitution is the separation of powers provision under which the government of the state is divided into three separate departments—the legislative, executive and judicial. In so far as here relevant, it provides: ‘[N]o person charged with the exercise of powers properly belonging to one of these departments shall exercise any functions appertaining to either of the others * * *.’ Since as stated in Fleming v. Bennett, supra, 18 Cal.2d at page 524, 116 P.2d at page 445, and developed at length thereafter, ‘It must be taken as settled that the division does not exercise judicial functions' the application of the provision to section 24 is not at once apparent. Appellant, however, argues that its applicability lies in the control exercised by the trial court under section 24 over the referee. The untenability of this position is apparent from an examination of the section. In the first place, the division may refuse the reference if it deems that the provisions for reimbursement to it of the expenses of the reference are inadequate. In the second place, it is the division which decides whether or not its investigation shall include any hearings. Once the court has issued its order of reference to the division together with any clarification order the latter may require, it retains no control over the work of the division. Thus the separation of powers compelled by article III, section 1, has been maintained in the reference procedure of section 24.

Article IV, section 25 prohibits local and special laws in certain cases, including (subsection 3) regulating the practice of the courts, and (subsection 33) all other cases where a general law can be made applicable. While appellant strongly relies upon the case of Mojave River Irr. Dist. v. Superior Court, 1927, 202 Cal. 717, 262 P. 724, in support of its contention that section 24 violates these constitutional provisions as being a special law providing for a variation from the general practice and procedure in the superior court, the Supreme Court has directly distinguished the holding in that case from the situation here presented by stating in Fleming v. Bennett, supra, 18 Cal.2d at page 528, 116 P.2d at page 447: ‘The case presents no special procedure differing from the ordinary practice and procedure of superior courts in original actions, such as was considered in the case of Mojave River Irr. Dist. v. Superior Court, 202 Cal. 717, 262 P. 724. As we have noted, the legislature has power to provide for reference in special classes of cases of which the present case is one.

‘It follows that all of the pertinent constitutional safeguards were observed by the legislature in enacting the provisions of section 24 * * *.’ (See also Wood v. Pendola, supra, 1 Cal.2d 435, 35 P.2d 526; Bray v. Superior Court, 1928, 92 Cal.App. 428, 268 P. 374, 1081.)

Appellant's final procedural objection is that it was denied due process of law in the admission of the division's report in evidence pursuant to section 24. This point was likewise decided adversely to appellant in Fleming v. Bennett, supra, 18 Cal.2d 527, 116 P.2d 442. Nevertheless it argues that decision is not controlling here because various objections raised by it were not specifically considered therein. We are unable to agree with this contention. The reference passed upon in the Fleming case is precisely the type of reference before us, and the objections advanced are substantially identical. With the exception of one point hereinafter discussed no objection is urged which is not fully answered by the court in that case when it said, 18 Cal.2d at page 525, 116 P.2d at page 446: ‘On the hearing before the trial court the appellants objected to the report on the ground that it was hearsay and incompetent. They also now claim that the report was inadmissible as evidence because it was compiled from ex parte investigations conducted by the division of water resources without hearings or the taking of testimony and without the presence of any of the parties to the suit.’ And, 18 Cal.2d at page 527, 116 P.2d at page 447: ‘The parties were not deprived of any constitutional right. They were afforded full opportunity to be heard in opposition to the report as evidence, and to introduce evidence contrary to the facts appearing therein. Constitutional mandates are observed where such facts are not made incontrovertible and opportunity is given to refute them in court.’

As the Supreme Court of the United States pointed out in denying a like contention in Pacific Live Stock Co. v. Lewis, 1916, 241 U.S. 440, at pages 453, 454, 36 S.Ct. 637, 60 L.Ed. 1084 the report made admissible in evidence is that of an official, disinterested, impartial expert, and opportunity is given to rebut it. Thus the fact that during the Division's investigation appellant was afforded no opportunity to confront and examine adverse witnesses, since the Division held no hearings, is of no consequence in view of the further fact that the report of the Division disclosed the identity of those chiefly responsible for both the investigation and the report, and, as the record shows, appellant examined such of those individuals at length as were available at the trial. Where appellant had and exercised its opportunity to offer evidence in rebuttal to the Division's report, there was no denial of due process to appellant in admitting it in evidence, particularly in view of its expert and impairtial character.

The one new point raised by appellant in this connection is entirely specious. In order to state the point it is necessary to quote both the first and second sentences of the section: ‘In case suit is brought in any court of competent jurisdiction for determination of rights to water or the use of water, the court may, in its discretion, order a reference thereof to the state water commission, as referee, which reference may include any issue or issues, or all issues, involved in such suit. Also, the court may, in its discretion, refer such a suit to the state water commission for investigation of and report up on any one or more or all of the physical facts involved, in which event, said commission may, in its discretion, base its report solely upon its own investigation or investigations or in addition thereto may hold a hearing or hearings and take testimony and the report filed by the commission and the report filed by the commission by it shall be prima facie evidence of the physical facts therein found; provided, however, that the court shall hear such evidence as may be offered by any party to rebut such report or the state water commission or such prima facie evidence.’ Appellant construes the word ‘solely’ in the second sentence of section 24 to preclude participation by the parties in the Division's investigation such as admittedly took place, and contends that by reason of such participation the referee did not base its report solely upon its own investigtion. Read in its context the word ‘solely’ carries no such import as is urged by appellant. Its true effect is to establish that the eferee, in a physical facts reference such as we have here, has the choice of basing its report solely upon its own investigation or basing it as well upon hearings conducted by it. An investigation is no less the referee's own by reason of its having accepted the assistance of the parties, thereby possibly expediting the reference and reducing its cost.

It should be noted that appellant's attack has been exclusively upon the validity of the reference itself and no question has been advanced as to the propriety of the total expense of the reference nor of its proportionate allocation.

This brings us to a consideration of appellant's third primary ground for reversal, that the final judgment of the trial court is fatally erroneous as a matter of law. Appellant initially contends that the trial judge erroneously assumes the ground water at issue to be, as a matter of legal category, percolating water. Ground water is divided, when discussing water rights, into (1) water flowing in defined subterranean streams and (2) percolating water. Appellant's position is that the ground water here involved is a subterranean stream since, according to the referee's report, it consists of two fields moving slowly in definite directions and accustomed locations to their junction.

In order for ground water to be considered a subterranean stream, it must possess all the attributes of a surface body of water except location upon the surface. City of Los Angeles v. Pomeroy, 1899, 124 Cal. 597, 626, 57 P. 585; Maricopa etc. Dist. v. Southwest Cotton Co., 1931, 39 Ariz. 65, 4 369, 376, 377. Its channel or boundaries must be known and well defined. Its course or location must be traceable with an exactness comparable to that possible with respect to surface bodies of water. The explanation for these requirements is that the law of surface bodies of water applies to subterranean streams. City of Los Angeles v. Pomeroy, supra, 124 Cal. at pages 632–634, 57 P. at page 585. Percolating water, on the other hand, is ground water which is not part of the subsurface flow of a surface body of water and which does not possess the above-named characteristics of a subterranean stream (Vineland Irr. Dist. v. Azusa Irr. Co., 1899, 126 Cal. 486, 494, 58 P. 1057, 46 L.R.A. 820), although it may possess both movement and direction and be interdependent with surface bodies of water.

From the foregoing it is apparent that ground water which may not be classed as a subterranean stream must be classed as percolating water. Since ground water is invisible, it is presumed to be percolating water and consequently the burden of proof is upon the party asserting the contrary. Arroyo Ditch & Water Co. v. Baldwin, 1909, 155 Cal. 280, 284, 100 P. 874. To satisfy this burden the boundaries of the subterranean body of water must be located with considerable certainty. The referee's report does no more than suggest the possible boundaries of the broad movements of ground water in the Area. Appellant did not supply this hiatus in proof. Under the rules of law stated the ground water of the Area must be held to be percolating water.

Appellant's principal authority for its contrary claim is the Pomeroy case. That case involved merely the subsurface flow of a surface stream. The record before us clearly shows that the ground water of the Area is in no sense subsurface flow. Its movement does not correspond in direction or location with any of the surface bodies of water in the Area. It may be accurately described as a large, completely underground lake or reservoir, the boundaries of which cannot be traced with any exactness. Such underground bodies of water are commonly called basins. This basin very strongly resembles the one held to be percolating water in Katz v. Walkin-shaw, 1903, 141 Cal. 116, 138–140, 70 P. 663, 74 P. 766, 64 L.R.A. 236, 99 Am.St.Rep. 35. Ground water basins of this character consistently have been treated as percolating water. See Newport v. Temescal Water Co., 1906, 149 Cal. 531, 532, 87 P. 372, 6 L.R.A., N.S., 1098; San Bernardino v. Riverside, 1921, 186 Cal. 7, 11–13, 198 P. 784; Corona Foothill Lemon Co. v. Lillibridge, 1937, 8 Cal.2d 522, 524, 66 P.2d 443; Hillside Water Co. v. Los Angeles, 1938, 10 Cal.2d 677, 679–682, 76 P.2d 681; Allen v. Calif. Water & Tel. Co., 1946, 29 Cal.2d 466, 472, 176 P.2d 8.

Appellant's second contention respecting the final judgment of the trial court is that it erroneously assumes appellant's ground water rights to be equal to those of the other parties, whereas they are in fact prior and paramount to those of various other parties. It should be noted that the equality of ground ater rights among all parties, other than appellant, is not in issue since this equality was expressly stipulated by these parties.

The trial court concluded that the ground water rights of all parties, including appellant, are prescriptive in character and therefore are equal in priority. This legal conclusion is supported by the record in only two particulars, which respondents contend are sufficient. The first is a stipulation in which all parties to the suit, including appellant, joined, as follows: ‘That all of the water taken by each of these parties to this stipulation and agreement, at the time it was taken, was taken openly, notoriously and under a claim of right, which claim of right was continuously and uninterruptedly asserted by it to be and was adverse to any and all claims of each and all of the other parties joining therein.’ The second supporting factor is the circumstances, established by the referee's report, that during all of the claimed prescriptive periods an overdraft of the ground water in issue existed. Two elements necessary to the perfecting of a prescriptive right, the running of the prescriptive period and adverse use, are omitted from the stipulation. While hostility of claim is covered by its terms it is silent as to hostility of use. Aside from appellant's taking of water since the institution of the suit, however, the running of the prescriptive periods is conceded.

Respondents argue that the existence of the overdraft rendered the takings mutually adverse and, as a consequence, the missing element of adverse use was supplied by the existence of the overdraft. We cannot agree with the conclusion of the trial court as to the prescriptive character of all the ground water rights in issue or with the argument of respondents in support thereof. It is thoroughly established that the existence of adverse use is fundamental to the acquisition of prescriptive status. City of San Diego v. Cuyamaca Water Co., 1930, 209 Cal. 105, 134, 287 P. 475. Adverse use of water involves the invasion of the usufructuary right of another in a water supply common to body. City of Los Angeles v. City of Glendale, 1943, 23 Cal.2d 68, 79, 142 P.2d 289. What constitutes an invasion of a water right depends upon the nature of the right involved.

In California, aside from the special pueblo right, water rights are riparian, overlying, appropriative or prescriptive. A riparian right is reciprocal in character as to other riparian rights in the same body of water, extends only to the water during its passage by the land to which the riparian right attaches, and embraces both present and propective reasonable beneficial riparian use. Pabst v. Finmand, 1922, 190 Cal. 124, 129, 211 P. 11; Miller & Lux, Inc., v. Enterprise Canal etc. Co., 1915, 169 Cal. 415, 441, 147 P. 567; Meridian Ltd., v. San Francisco, 1939, 13 424, 445, 90 P.2d 537, 91 P.2d 105. The very nature of the right precludes its being fixed in amount. Seneca Consol. Gold Mines Co. v. Great Western Power Co., 1930, 209 Cal. 206, 220, 287 P. 93, 70 A.L.R. 210. A riparian right may be invaded either by an excessive upper riparian use interfering with its present exercise or by any upper nonriparian use. Peake v. Harris, 1920, 48 Cal.App. 363, 380, 381, 382, 192 P. 310; Moore v. California Oregon Power Co., 1943, 22 Cal.2d 725, 734, 735, 140 P.2d 798. The reason why an upper nonriparian use constitutes an invasion of a lower riparian right is that it, per se, infringes upon the prospective aspect of the lower riparian right. Pabst v. Finmand, supra, 190 Cal. at page 132, 211 P. at page 11. An overlying right is analogous in nature to a riparian right since both originate in the juxtaposition of land and water. Consequently it may be invaded in much the same manner as a riparian right. San Bernardino v. Riverside, supra, 186 Cal. 7, 15, 16, 198 P. 784. The riparian concept of upper and lower use, however, has not been applied to percolating water.

In contrast to riparian and overlying rights, appropriative and prescriptive rights are dependent for their existence upon reasonable beneficial exercise thereof, have no prospective aspect, and are absolute in amount. Northern Calif. Power Co. v. Flood, 1921, 186 Cal. 301, 304–306, 199 P. 315; Akin v. Spencer, 1937, 21 Cal.App.2d 325, 328, 332, 69 P.2d 430. Accordingly, appropriative or prescriptive rights may be invaded only by interference by another resulting in actual diminution of the amount of water covered by such right. Faulkner v. Rondini, 1894, 104 Cal. 140, 147, 37 P. 883; E. Clemens Horst Co. v. Tarr Mining Co., 1917, 174 Cal. 430, 440, 163 P. 492; cf. Peck v. Howard, 1946, 73 Cal.App.2d 308, 329, 167 P.2d 753; City of San Diego v. Cuyamaca Water Co., supra, 209 Cal. 105, 133, 134, 287 P. 475.

Appellant has never suffered any involuntary diminution in its ground water production and has alays had more water available than its use required. Consequently, under the principles of law stated the taking of ground water of the Area by the other parties has not been adverse to appellant's appropriative rights in the water supply common to the other parties and appellant.

Moreover, the acquisition of prescriptive title is a species of forfeiture. Forfeiture should not be permitted without notice thereof during the prescriptive period to the one suffering the forfeiture. This principle has been recognized in water right law. The taking of water by a riparian owner is presumed to be in the exercise of his riparian right. Oliver v. Robnett, 1922, 190 Cal. 51, 55, 210 P. 408. An upper riparian owner cannot gain a prescriptive title against a lower riparian owner unless there has been either actual notice to the lower owner of such upper owner's adverse claim or the circumstances are such, as substantial interference with the lower flow or a nonriparian use, as to bring home to the lower riparian owner the adverse nature of the upper riparian owner's use. Morgan v. Walker, 1933, 217 Cal. 607, 615, 616, 20 P.2d 660; Scott v. Fruit Growers' Supply Co., 1927, 202 Cal. 47, 52, 258 P. 1095. We do not consider the existence of the overdraft as such a circumstances in view of the facts that appellant at all times had more water available to it than its use required, and, so far as the evidence shows, has had no notice, either actual or constructive, that any overdraft of the ground water in issue existed.

The nature of appellant's ground water rights is in dispute. Appellant claims both overlying and appropriative rights, while respondents assert that appellant's rights are purely appropriate. At the time these proceedings were initiated by plaintiff and for over ten years at least prior thereto, appellant, a public utility, exported about three-fourths of its water production annually to customers located outside of the overlying area. To the extent of these exports, appellant's rights are appropriative. Burr v. Maclay Rancho Wter Co., 1908, 154 Cal. 428, 434, 435, 98 P. 260. The other one-quarter of its water production, it is claimed by appellant, has been devoted to beneficial uses on lands overlying the area. About ninety percent of these lands are owned in fee by others but appellant retains title to the ground water rights thereof. The finding of the trial court to the effect that appellant did not introduce any evidence as to the extent of the use of water by it upon property overlying the area which it owns or to which it retains the ground water rights is borne out by the record of the case. Such evidence as there is on the subject, aside from the export proportion mentioned, shows that appellant merely produces water which it sells to others, some of whom own property within and others without the area. The water, when taken and reduced to possession, is impressed with a public use, is carried to reservoirs for distribution and is there sold without reference to the underlying basin from which it was taken. As will be developed below, we believe appellant's rights to be entirely appropriative.

Our conclusion that the other parties have gained no prescriptive rights against appellnt leaves without basis the trial court's action in distributing the burden of the overdraft equally between all parties including appellant. For, as will be hereafter shown, appellant's water rights are prior and paramount to those of various of the other parties.

This does not mean, however, that the trial court may not restrict appellant's water production in accordance with the exact priority of its water rights. We do not subscribe to appellant's view that, under the circumstances of this case, its established public use of water is immune to injunctive restraint. The immunity of an established public use of water is not absolute. The right to such use may be lost completely by prescription. San Joaquin etc. Irrigation Co. v. Worswick, 1922, 187 Cal. 674, 694, 203 P. 999; Big Rock M. W. Co. v. Valyermo Ranch Co., 1926, 78 Cal.App. 266, 275, 248 P. 264. Accordingly, under proper circumstances it should be liable to restriction by injunction. The basis of this immunity lies almost wholly in the inconvenience caused the public should the service to it be interrupted by injunction. Miller & Lux, Inc., v. San Joaquin L. & P. Corp., 1937, 8 Cal.2d 427, 436, 65 P.2d 1289. In this case we are hereafter directing the trial court to take into consideration in restricting appellant's production of Area ground water the availability to appellant in equitable and reciprocal terms of the excess water of the other parties, irrespective of the origin of such water. Consequently, no interruption of appellant's service to its customers should result from any restriction of its production as a result of this suit. Under these circumstances appellant's defense of the intervention of its public use is scarcely apposite. Furthermore, independent of the foregoing considerations, this defense is without basis in the facts of this case. It rests upon two grounds, estoppel and public policy. Peabody v. City of Vallejo, supra, 2 Cal.2d 351, 377–379, 40 P.2d 486; Miller & Lux, Inc. v. Enterprise Canal etc. Co., 1915, 169 Cal. 415, 423-434, 147 P. 567. The circumstances of this case furnish no ground for an estoppel in favor of appellant. Plaintiff's development of additional water from the San Gabriel River and its subsequent substitution therefor, in availability of use, of Colorado River water merely has made the overdrawn condition of the ground water of the Western Unit less critical. Public policy, as embodied in Article XIV, section 3, of the California Constitution, demands that this supply be protected from eventual exhaustion by continued overdraft. See Burr v. Maclay Rancho Water Co., supra, 154 Cal. 428, 438, 98 P. 260. Public use by parties other than appellant already exceeds the safe yield of this supply. We see no reason why appellant should be treated differently from these other public users.

This case then must be returned to the trial court for retrial to determine the exact priority of appellant's water rights in the common supply so that its water production may be restricted accordingly to the end of terminating the overdraft. The determination of appellant's priority of water right will alter not only the water allocation made to it but also those made to the other parties. Appellant by appealing from the entire judgment of the trial court has drawn into issue the validity of every allocation made. The redetermination of the various allocations should be for the limited purpose of ascertaining the correct allocation to be made to appellant. In accordance with the express stipulation of the parties other than appellant, the adjustment in their allocations shall be made so that the proportions now obtaining among them will be maintained.

In order that the retrial may be a limited one, we now set forth, for the guidance of the trial court, our views on the priority of appellant's water rights, and the correctness of the judgment both with respect to the allocations made and otherwise. To determine the exact priority of appellant's water rights, the nature of the water rights of all parties must be ascertained. The present record is too incomplete in regard to the character of the use of water made by each party for us to make this determination; but it is nevertheless sufficient to establish the incorrectness of respondents' contention that such rights of all parties are purely appropriative or prescriptive. As already stated, by analogy to the rule prevailing for riparian rights, overlying use should be presumed to be an exercise of an overlying right. Many of the parties are using and have used the water underlying them upon their overlying land for purely private purposes. We refer to such users as Altadena Golf Club, Crown City Ice Company, the Hastings and Kinneloa Ranches, the Huntington Library, Pasadena Cemetery Association and Royal Laundry and Dry Cleaning Co. Their use is clearly and exclusively an overlying use, and their water rights are therefore purely overlying rights. Burr v. Maclay Rancho Water Co., supra, 160 Cal. 268, 280, 116 P. 715. Further, several of the parties are mutual water companies which apparently serve and have served only their own overlying stockholders. To the extent of such service, such companies are likewise only overlying users since their use is a private use. Stratton v. Railroad Commission, 1921, 186 Cal. 119, 122, 198 P. 1051.

On the other hand all parties who devote and have devoted the water produced by them to public use are to the extent of such use making and have made a non-overlying and therefore appropriative use. San Bernardino v. Riverside, supra, 186 Cal. 7, 30, 198 P. 784; Eden Township Water Dist. v. Hayward, 1933, 218 Cal. 634, 640, 24 P.2d 492. Appellant as a public utility is such a public user as to its entire production notwithstanding its claim to overlying rights in so much of its production as is used on land, the overlying rights to which it owns. The fact that water devoted to a public use is taken from overlying land owned by the taker does not affect the appropriative character of the use. San Bernardino v. Riverside, supra, 186 Cal. at page 29, 198 P. at page 784. Likewise the fact that water devoted to a public use is used on overlying land is without effect upon the appropriative character of the use. Eden Township Water Dist. v. Hayward, supra. While it is true that appellant owns and has owned certain overlying rights, since 1913 its exercise of those rights has been by appropriative use by virtue of both the character of such use and its public utility status. The essential nature of a water right is determined by the character of its exercise. Duckworth v. Watsonville etc. Co., 1907, 150 Cal. 520, 532, 89 P. 338. Admittedly appellant's service to its overlying customers has been made on precisely the same basis and by identical means as its service to its non-overlying customers. We see no reason under the principles of law just stated to make a distinction in character of right where none exists in character of use. Accordingly, since 1913 appellant's rights with respect to its entire water production have been exclusively appropriative.

So far as the priority of appellant's rights are concerned all ground water rights here involved are either appropriative or overlying. The appropriative rights are of two kinds—those based upon public use and those based upon export of the water from the overlying area. All appropriative rights, whatever their source, have, where the prescriptive period has run, ripened into prescriptive rights as against the overlying rights. This is so under the stipulation relating to the elements of prescriptive title quoted earlier and under the principles of law set forth in our exposition of adverse use. By analogy to the rule prevailing for riparian rights, the prospective aspect of an overlying right is invaded by any appropriation from a source common to both the holder of the overlying right and the appropriator. However, appellant's appropriative right to the increase in its water production made since the filing of this suit has not ripened into a prescriptive right. We have determined this suit to be inter se so far as the defendants, including appellant, are concerned. This inter se character has prevented the running of the prescriptive period of this particular appropriative right. Alta Land etc. Co. v. Hancock, 1890, 85 Cal. 219, 227, 228, 24 P. 645, 20 Am.St.Rep. 217. An appropriative right is subordinate to existing rights. Duckworth v. Watsonville etc. Co., supra, 150 Cal. 520, 530, 531, 89 P. 338. Accordingly, appellant's appropriative right to its increase in production made since this suit was filed is subordinate to all overlying rights.

Finally, under the reasoning set out in our discussion of adverse use, the appropriative rights of the parties hereto are not prescriptive between themselves because their exercise has not been mutually adverse. The record discloses no facts showing that any appropriator has suffered an involuntary diminution in its production of Area ground water as a result of the production of other users. As a consequence, in accordance with section 1414 of the Civil Code, among themselves, their respective priority in time is their respective priority in right. It is to be remembered, however, that what we have said regarding the relative priorities of the water rights of the parties applies only to the redetermination of the priority of such rights of appellant. As mentioned previously, the question of the priorities of such rights of the other parties between themselves is not before us, and between themselves they remain unchanged.

We now turn to a consideration of the correctness in amount of the various allocations made. Under Article XIV, section 3 of the California Constitution one's right to use water in California, irrespective of the kind of right, is limited to the amount required for reasonable beneficial use. This constitutional limitation means that an allocation may not be based upon an unreasonable method of obtaining or using water or upon an unreasonable use or waste thereof. Peabody v. City of Vallejo, supra, 2 Cal.2d 351, 366, 367, 40 P.2d 486. Appellant's argument that, under these principles, it is the only party which has established a right to any allocation of water, ignores facts contained in the referee's report showing the amounts of the extractions and diversions of the parties and in general the use to which all water has been put. While it is true that the record is silent as to the detail of the use of each party, proof of long-continued use of a definite quantity under proper circumstances gives rise to the presumption that the use has been reasonably beneficial. The use required is not the most efficient possible but merely a reasonable one in keeping with the general custom of the locality so long as the custom does not involve unnecessary waste. Tulare Irr. Cist. v. Lindsay-Strathmore Irr. Dist., supra, 3 Cal.2d 489, 547, 548, 45 P.2d 972.

Appellant claims that plaintiff has been guilty of wasteful use in its storm drainage, sewerage, street-cleaning and fire-fighting operations. According to Meridian, Ltd., v. San Francisco, supra, 13 Cal.2d 424, 447, 90 P.2d 537, 91 P.2d 105, waste occurs when water is used needlessly, prodigally and without serving a purpose. Manifestly the use of water attacked has been for ordinary municipal purposes. City of Los Angeles v. Pomeroy, supra, 124 Cal. 597, 640, 57 P. 585. There is no evidence in the record even suggesting wasteful methods of use by the plaintiff. The fact that as a consequence of these operations a certain amount of water escapes from the Area that would not otherwise escape does not in itself, under the principles just stated, establish waste on the part of the plaintiff. Furthermore, since the entire Area is highly urbanized the bulk of the water here involved is used for domestic purposes including domestic irrigation, and in such use there can be little waste. The finding of the trial court as to reasonable beneficial use by each of the parties is amply supported by the evidence; accordingly, the allocations are unassailable on that ground. Allen v. Calif. Water & Tel. Co., supra, 29 Cal.2d 466, 483, 484, 176 P.2d 8.

Obviously, so far as appellant's rights are concerned, certain of the allocations attacked are incorrect in amount. Those parties holding only overlying rights should be allocated water upon that basis. But since the priority of the appropriative rights over the overlying right is dependent upon the prescriptive status of the former with respect to the latter, the computation of amounts to be allocated to those appropriators properly is made on a prescriptive basis. The prescriptive allocations made purport to be the highest continuous annual ground water production of the party made within any five-year period preceding the institution of this suit which was not thereafter forfeited by a lessened continuous annual production during a subsequent five-year period. This is the established method of computation for acquisition and forfeiture of prescriptive rights in surface bodies of water. E. Clemens Horst Co. v. Tarr Mining Co., 1917, 174 Cal. 430, 439, 163 P. 492; Lindblom v. Round Valley Water Co., 1918, 178 Cal. 450, 454–456, 173 P. 994. We see no objection to its application to percolating water.

Appellant, however, attacks this formula as applied by the trial court on two grounds. In the first place, objection is made to the basing of the prescriptive amount upon the overall production of a party instead of its production well by well. Where a party has frequently shifted its production from well to well as plaintiff has done here, plainly the suggested method would yield a smaller total. To us the objection appears to be without merit. A water user is privileged to shift his points of extraction from an underground supply as he desires so long as he does not thereby injure other users thereof. Barton v. Riverside Water Co., 1909, 155 Cal. 509, 517, 101 P. 790, 23 L.R.A.,N.S., 331. The overall production method is an incident of such privilege.

Appellant's second objection is to the five-year forfeiture period for nonuse, the contention being that the three-year forfeiture requirement of section 1241 of the Water Code governs. This section is substantially section 20a of the Water Commission Act (Stats. 1917, ch. 554, p. 746), now repealed. By its terms it applies to appropriative or adjudicated rights. Although the rights now being discussed are prescriptive as to the overlying rights involved, they are as to each other entirely appropriative. Nevertheless we do not think that section 1241 applies to the rights in question. Section 20a was enacted in 1917 as an amendment to section 20 which deals with permits and licenses for the appropriation of water. Under section 42, now section 1200 of the Water Code, the term ‘water’ when used in relation to such permits and licenses refers only to surface water and subterranean streams flowing through known and definite channels. We have already held the ground water in controversy here to be percolating water, and the record discloses that all the parties, together with the referee as administrator of the Water Commission Act and the successor provisions of the Water Code, seem always to have treated it as such. Under the reasoning stated, section 1241 has no application to appropriative rights in percolating water.

A final word is necessary as to the correctness of the prescriptive allocations in amount. The quoted stipulation of the parties setting forth all of the elements of prescription except the running of the prescriptive period and adverse use plainly applies only to taking of water by the various parties themselves; it does not cover taking by any of their predecessors in interest. Consequently, there is no basis in the present record for including in any party's prescriptive amount any taking by a predecessor in interest. Further, a successor in interest stands in no better position than his predecessor as to the latter's taking. Mt. Shasta Power Corp. v. McArthur, 1930, 109 Cal.App. 171, 189, 190, 292 P. 549. To illustrate, a taking by an overlying owner for private use is not affected in character and therefore in priority by the acquisition of the water rights of that owner by an appropriator for public use or for export. However, aside from these stated objections, we see no basis whatsoever for attack upon the correctness in amount of the allocations made to those holding prescriptive rights and it will not be necessary to retry the correctness of the prescriptive allocations except to the extent our stated objections apply to any particular allocation.

We now turn to consideration of the correctness of the judgment otherwise. As mentioned at the start of this opinion the judgment before us is substantially the one proposed by stipulation of all parties save appellant. The trial court accepted with slight modifications the judgment proposed after a hearing thereon. Aside from the evidence offered upon the acquisition of rights in issue since the commencement of the suit and evidence directed to the issues of estoppel and laches, substantially the only evidence introduced at such hearing in support of the judgment proposed and accepted was the stipulations previously mentioned and the referee's report.

Appellant urges us to set the judgment aside on the broad grounds of public policy, estoppel and laches. As to the first ground, we only wish to comment that any judgment in water rights litigation must conform to and be in furtherance of the fundamental policy of this state with regard to the waters thereof which is set forth in Article XIV, section 3, of our state constitution. That is the basic requirement for affirmance of any such judgment. As to estoppel, we do not see how plaintiff or any other appropriator is estopped from asserting its appropriative rights. It is well established that where one's right has not been invaded, he is not estopped to assert it even against an established public use. Empire West Side Irr. Dist. v. Stratford Irr. Dist., 1937, 10 Cal.2d 376, 382, 383, 74 P.2d 248; City of San Diego v. Cuyamaca Water Co., supra, 209 Cal. 105, 142, 287 P. 475; San Joaquin etc. Irrigation Co. v. Worswick, supra, 187 Cal. 674, 693, 694, 203 P. 999; Miller & Lux, Inc., v. Enterprise Canal etc. Co., supra, 169 Cal. 415, 430, 147 P. 567. Nevertheless we shall consider appellant's claims as to estoppel in detail in order to show that, no matter how broadly construed, they are completely without merit.

Appellant, in its answer, alleged that plaintiff was estopped from asserting its right to the use of water in issue by reason of its excessive taking and wasteful use thereof, its use of San Gabriel River water, and its acquiescence in appellant's notorious and established public use of the water at issue. We have already sustained the trial court's finding that each party is making and has made a reasonable beneficial use of the ground water of the Area. Further, it is apparent from the record that this conclusion is equally sound as regards the use of the tributary surface water diverted by various of the parties. This leaves for present consideration merely plaintiff's use of the San Gabriel River water, in availability of use now supplanted by Colorado River water, and appellant's established public use of the water at issue.

The supplementation by any party of its local water supply by the use of water from outside the Area is no ground for estoppel of that party in favor of appellant. The record is barren of evidence opposed to the trial court's finding that the importation of water did not induce any action by appellant. The referee's report shows that as the Area developed and the population increased most of the parties, including appellant, increased their production of Area ground water. Appellant made no particular increase in its production following the inception of plaintiff's use of San Gabrief River water; the recent substantial increase in its production occurred after the institution of this action. Since importation of water by various parties induced no action on the part of appellant, it can claim no estoppel by reason of that circumstance. Verdugo Canon Water Co. v. Verdugo, 1908, 152 Cal. 655, 673, 674, 93 P. 1021. The existence of appellant's known public use likewise is insufficient to create an estoppel in appellant's favor. Standing alone, appellant's public use, the knowledge of the other parties thereof, and their failure to object thereto are inadequate. In the absence of a showing of some degree of moral turpitude in the conduct of the other parties toward appellant, the assertion of their rights in a court of equity cannot be estopped. Stevens v. Oakdale Irr. Dist., 1939, 13 Cal.2d 343, 353, 90 P.2d 58.

Appellant's claim of laches is also without merit. Each party has been exercising its asserted water rights for years; they have been therefore under no obligation to have them adjudicated. Miller v. Thompson, supra, 139 Cal. 643, 645, 73 P. 583. Of course, as previously set forth, overlying rights have lost priority to appropriative rights exercised adversely to them for the prescriptive period and prescriptive rights have suffered diminution to the extent of nonuser thereof. The appropriative rights herein, not having been invaded, are immune to the charge of laches. City of San Diego v. Cuyamaca Water Co., supra, 209 Cal. 105, 135, 287 P. 475.

In essence laches is delay prejudicial to another in asserting a right. Newport v. Hatton, 1924, 195 Cal. 132, 148, 231 P. 987; 10 Cal.Jur. 520, sec. 60. What constitutes laches depends on the facts of the particular case. Austin v. Hallmark Oil Co., 1943, 21 Cal.2d 718, 734, 134 P.2d 777. The trial court found in effect that no party was guilty of laches in regard to appellant. This finding is supported by the evidence, as recounted with respect to appellant's claim of estoppel. It will not be disturbed. Wolpert v. Gripton, 1931, 213 Cal. 474, 483, 2 P.2d 767.

Having disposed of appellant's broad objections to the judgment, we shall now consider its specific objections. Appellant objects to the provision of the judgment permitting certain parties to continue their diversion of surface water contributing to the supply of ground water here in controversy in certain specified amounts purporting to be the maximum capacities of their respective diversion works and facilities within the five-year period prior to the institution of this litigation. This objection appears to us to be well taken. While it is true that this provision expressly exempts appellant from its operation, its mere existence reduces the amount of water that would otherwise be available to appellant. We see no reason why a restriction entirely comparable to that imposed on the takers of ground water should not be placed upon diverters of surface water contributing to the ground water supply. It has long been recognized in California that the rights of users of a common supply of water are, subject to their respective priorities, correlative; and, consequently, when the supply is insufficient for all, it will be apportioned in accordance with priorities of right. Eckel v. Springfield Tunnel etc. Co., 1927, 87 Cal.App. 617, 624, 262 P. 425. This principle of allocation of the common supply between users thereof has been applied not only where percolating water fed a stream but also where a stream fed percolating water. Hudson v. Dailey, 1909, 156 Cal. 617, 628, 105 P. 748; Miller v. Bay Cities Water Co., supra, 157 Cal. 256, 278–280, 107 P. 115, 27 L.R.A.,N.S., 772; City of Lodi v. East Bay Mun. Utility Dist., supra, 7 Cal.2d 316, 337–339, 60 P.2d 439; Peabody v. City of Vallejo, supra, 2 Cal.2d 351, 370–372, 40 P.2d 486. We leave to the trial court the formulation of the restriction upon diversion of surface water contributing to the supply of Area ground water. Upon retrial all parties should be afforded the opportunity of supplementing or rebutting the evidence upon the matter in the referee's report.

Appellant attacks two provisions of the judgment which are contained in the water exchange agreement incorporated in the judgment. Appellant and the other two parties to the suit who did not join in the agreement are expressly exempted in the judgment from compliance with the agreement. Nevertheless we feel that appellant may properly attack the agreement upon a showing that its enforcement may adversely affect appellant in the exercise of its rights here at issue.

The first provision attacked permits plaintiff to restrict its production from the Monk Hill basin and to produce instead from the Pasadena sub-area. Monk Hill basin is the northwestern and higher portion of the Western Unit, the Pasadena sub-area being the remainder thereof. Appellant's wells are located in the southeastern corner of the Pasadena sub-area. Appellant fears that if plaintiff should increase its production materially in the vicinity of appellant's wells, the water levels of those wells would drop to its injury. That this fear may not be groundless is indicated by the referee's finding ‘that from the standpoint of economics of operation, reductions in pumping draft in the Western Unit would be preferable in the southern part of the Unit.’ The second provision of the agreement within the judgment attacked is that setting forth the varying duration of the agreement. Plaintiff, the major water producer, is obligated to exchange excess water for fifteen years only, while certain of the other parties are so obligated for greater terms up to fifty years.

There is no evidentiary support in the record for these attacked provisions. They appear to have been agreed upon without regard for the referee's report. We find no reasonable basis for their acceptance by the trial judge nor their inclusion in the judgment. The trial court was not required to accept without substantial change the solution to the controversy reached by the parties other than appellant. Rather, it had the affirmative duty to work out a solution in accordance with the state's avowed policy with respect to its water resources embodied in Article XIV, section 3 of the California constitution. Tulare Irr. Dist. v. Lindsay-Strathmore Irr. Cist., supra, 3 Cal.2d 489, 574, 575, 45 P.2d 972; Rancho Santa Margarita v. Vail, supra, 11 Cal.2d 501, 559, 81 P.2d 533. These attacked provisions were not shown to conform to this policy.

In apportioning Area ground water on the basis of its safe yield the trial court must recognize the established and public nature of appellant's use and seek therefore to protect the public which appellant serves from an interruption in their water supply. The existence of the water exchange agreement indicates the expectation of the various water users that there will be excess water available for exchange on equitable and reciprocal terms. The trial court may be without power to order the exchange of excess water from all sources among the parties, a question we do not decide, but it may properly refuse to make a part of its judgment any water exchange agreement which does not conform to the state's constitutional water policy to which we have so frequently alluded. In addition it has the positive duty to see that no discrimination, whether by way of the existence of an improper water exchange agreement or otherwise, is practiced against appellant so far as availability of excess water is concerned. Finally in making its apportionment of the water in controversy it may properly and should take into consideration the availability to appellant on equitable and reciprocal terms of the excess water of the other parties to this suit, irrespective of the origin of such water. In this connection we note a finding of the trial court to the effect that appellant has available for its use a water supply outside the Area which may be developed at a reasonable cost. This finding is, however, so far as we are able to ascertain from the record, without support in the evidence. A re-examination of the attacked provisions of the judgment is indicated, and upon retrial the parties should be afforded the opportunity to present additional evidence as to them.

Appellant challenges the reservation in the judgment of continuing jurisdiction in the trial court. The jurisdiction of that court is reserved not only to modify or add to the judgment or to make such further orders ‘as may be necessary or desirable for the adequate enforcement, protection, or preservation of the rights of the respective parties' but also is specially reserved in a more limited manner. According to the terms of this special reservation the court may review its determination of the safe yield of the Units at five-year intervals or the rights in the aggregate of the parties to the ground water of the Units at any time for the purpose of giving effect to material changes in the demand and supply of such ground water by adjusting the allocations in such manner as to preserve the proportions obtaining between the parties in the original judgment. The reservation of continuing jurisdiction by the trial court in order to provide the means of adjusting its solution in the future to changed conditions is to be commenced since it is in furtherance of the basic water policy of this state to utilize the water resources thereof to the fullest extent of which they are capable. Allen v. Calif. Water & Tel. Co., supra, 29 Cal.2d 466, 468, 176 P.2d 8. In our opinion however the special limitation upon the reserved jurisdiction requires reexamination upon retrial in view of appellant's priority in right and in view of the directed inclusion within the allocations of tributary surface water. We think a broad retention of jurisdiction, to be exercised upon a satisfactory showing of the necessity therefor, is preferable. The trial court should preserve in its judgment its continuing jurisdiction to change its decree and its orders thereunder as the occasion may require. City of Lodi v. East Bay Mun. Utility Dist., supra, 7 Cal.2d 316, 344, 60 P.2d 439; Peabody v. City of Vallejo, supra, 2 Cal.2d 351, 380, 40 P.2d 486. As was said in the Peabody case, 2 Cal.2d at page 380, 40 P.2d at page 497: ‘Therein may lie a solution of many of the difficulties and uncertainties in safeguarding the rights of the parties.’

Appellant takes exception to the following language of the judgment: ‘That, except as provided herein, and except as rights decreed herein may be abandoned or forfeited by non-user, in whole or in part, each and every right decreed herein hereby is fixed as of the date hereof.’ We think the exception is well taken. A judgment is ineffectual until entered. Code Civ.Proc., sec. 664; Tulare Irr. Dist. v. Superior Court, 1925, 197 Cal. 649, 669, 242 P. 725. The rights adjudicated by a judgment are ordinarily those existing at the time of the commencement of the action save as rights acquired pendente lite have been brought into issue by supplemental pleading. Brown v. Brown, 1915, 170 Cal. 1, 6, 147 P. 1168; Code Civ.Proc., sec. 1908(2); 2 Freeman, Judgments, 5th Ed. 1925, sec. 716.

The findings of fact, save as noted otherwise in this opinion, are fully supported by the evidence. Upon the retrial the court should ascertain the exact priority of appellant's rights to Area ground water and should make an equitable allocation of such water to appellant in accordance with the priority found.

Nothing in this opinion should be construed as holding that the water exchange agreement is invalid as between the parties to it or that it is so invalidated by a reversal of the judgment before us.

The objections to the reference procedure having been found to be without merit, the orders of the trial court allocating to appellant its proportionate share of the expense thereof, from which appeal has been taken, are affirmed. The judgment is reversed and the case is remanded to the trial court for a new trial in accordance with the views herein expressed and as herein limited.

I concur in the foregoing opinion and judgment. It states conclusions in which we all agree upon the points presented on the appeal. We hold that appellant's rights are purely appropriative. The judgment declares them to be equal in right to those of all other parties upon what we consider to be an erroneous theory as to the governing principles of law. The point at issue is of great moment, not only to appellant but to others who may be similarly situated. Our views differ widely from those of the trial court. For these reasons I feel that I should state the reasons for my agreement with the views stated in the main opinion upon the principal point, even though they may only supplement what has already been said.

The basic substantive issues between appellant and respondents in this case are (1) the legal character of the body of ground water involved; (2) the existence of an overdraft of such water, and (3) the legal effect of such an overdraft. I agree that under the evidence the body of ground water involved was properly treated as percolating water and that an overdraft of such water exists. This separate opinion states the basis for my concurrence in the third conclusion of the main opinion, as to the legal effect of the overdraft.

The principal question between appellant and the respondents as to the effect of the overdraft is how the burden of the curtailment of withdrawals should be borne. The trial court found in favor of respondents' contention that the rights of all parties are equal in priority and therefore the burden of the overdraft must be shared ratably by each. Appellant contends that its rights are prior to those of various of the other users and that such priority must be recognized in making the reduction. The main opinion upholds this contention of appellant, and it is upon this point that I wish to supplement what my associates have said.

The trial did not result in a determination as to original priorities, but in a determination that such priorities as had existed in favor of any of the parties had been lost by reason of the acquisition by all users of prescriptive status as against all other users. Upon this phase of the case the principal questions were (1) whether the uses made by the appropriators were adverse to the rights of each other and (2) whether they were adverse to the rights of overlying owners. It was the theory of the respondents that the existence of the overdraft and the circumstances under which waters were withdrawn from the basin rendered the takings of each of the parties adverse to the uses of all other parties. This theory was adopted by the court and carried into the conclusion that all titles are prescriptive and without priority. We may consider first the sufficiency of the evidence to support this finding as it applies to the rights of the appropriators. I agree that there was a failure of proof to establish prescriptive status of the several appropriators against each other and equality of right, and that the judgment is therefore erroneous as between all appropriators. In reaching the conclusion that the rights were prescriptive, the court failed to distinguish between the proof required to establish a prescriptive title against an appropriator and that which is required to establish a prescriptive title in an appropriator against the owner of an overlying right. It held that a use which amounted to an invasion of the rights of an overlying owner which would initiate a prescriptive right would also constitute a like invasion of the rights of appropriators. The law, as I understand it, is to the contrary. The nature of the rights is basically different. The rights of an appropriator originate in and are dependent upon use. Those of an overlying owner exist irrespective of use and are part and parcel of the land itself. These characteristics are vital in determining what constitutes an invasion of one right or the other.

The rights of an appropriator are not invaded by withdrawals of water by others which do not interfere with his present use and give him a right to legal redress. A use which does not amount to such interference is not legally adverse so as to initiate a claim of prescriptive status. The cases so holding are cited in the main opinion. Respondents contend that a different rule applies to prescriptive claims to percolating water, and that appropriative rights therein are invaded by every use that is made of it when he total uses exceed the average annual supply. This alleged invasion, they claim, renders all uses mutually adverse. It is a novel theory, unsupported by authority and, in my opinion, insupportable in reason. Respondents rely upon certain statements of the court in Burr v. Maclay Rancho Water Co., 154 Cal. 428, 98 P. 260, 264, and San Bernardino v. Riverside, 186 Cal. 7, 198 P. 784, 788. In the Burr case the court made an apportionment of percolating water and restrained the defendant, who was an appropriator, from taking such quantities as would cut off or interfere with plaintiff's use of water from its wells in the exercise of his overlying right. Respondents quote from the opinion as follows: ‘It is manifest that, if the quantity taken therefrom exceeds the average annual amount contributed thereto, the underground store will be gradually depleted and eventually exhausted. This should not be permitted. The judgment should be so modified as to provide for or permit the prevention of such a catastrophe, and to limit the amount taken by all the consumers to a quantity, as near as may be equal to the average constant supply from the rainfall. It should also be framed so as to prevent the lowering of the permanent level to such an extent that the plaintiff will be unable to obtain by his pumps sufficient water therefrom for use upon his lands.’ The effect of this judgment was to recognize the paramount right of the overlying owner and to restrain the appropriator from interfering therewith. By the express provisions of the judgment the overlying right was protected against the acquisition of prescriptive rights by the appropriator. The protection was expressly extended by the Supreme Court to the future increment of use upon the overlying lands. Nothing was decided in the Burr case which lends support to respondents' argument on the point under discussion. The San Bernardino case was between appropriators of percolating water. Respondents quote from the opinion in that case as follows: ‘With respect to such cases—‘The court unquestionably has power to make reasonable regulations for the use of such water by the respective parties, fixing the times when each may take it and the quantity to be taken, provided they be adequate to protect the person having the paramount right in the substantial enjoyment of that right and to prevent its ultimate destruction.” These cases are authority for a decree ordering a reduction of use of the available supply of percolating water upon a basis which gives effect to priorities. Insofar as the present decree limits withdrawals to the average annual supply, it accords with the principles stated in those cases. There can be no doubt that withdrawals of water from the Raymond Basin should be curtailed, but this cannot be done in disregard of rights of priority. No question was presented or discussed in the cited cases as to prescriptive rights nor as to whether the uses that were being made of the water were mutually adverse. In the San Bernardino case the court, after observing that the priority of right of an appropriator does not become an important question until there is an interference with his use, stated, 186 Cal. on page 28, 198 P. on page 793: ‘We understand the true rule to be that, when a conflict arises between two appropriators of water, and their rights are otherwise equal, the prior appropriator will prevail so far as the conflict extends. It necessarily follows that in an action to quiet his title the prior appropriator is entitled to have his prior right declared to be superior to that of subsequent appropriators. We do not hold that the findings show that the diversions of water by the respective parties have not interfered with the diversion and use of water by the other parties. On the contrary, the facts found indicate that the several diversions have interfered with each other. We do not take up this question, but leave the extent and effect of the interferences from the facts found, as well as the question of priorities, for the consideration of the trial court when the case is remanded for further proceedings.’ The trial court was directed to confine itself to an adjudication of the existing rights and priorities of the parties to the waters involved. Certainly, neither of these decisions can be read as an abrogation of the established rule that a prescriptive title against an appropriator can be initiated only by a taking which deprives him of the use of the full quantity of water covered by his appropriation.

The policy of the state to protect paramount rights—and as between the appropriators this means rights of priority—has not been abandoned. The limitations imposed by the reasonable use doctrine, and declared in section 3, Article XIV, of the Constitution, which section was adopted November 6, 1928, were not intended to permit interference with rights of priority. The absence of such intention was expressly stated in the section with reference to riparian and appropriative rights. It has not been held, either before or after the constitutional amendment, that the use of the water resources of the state to the fullest extent of which they are capable may be controlled by the court to the length of decreeing equality of right where it does not exist, whether the rights in question be riparian, overlying, or appropriative. This was made clear in Peabody v. City of Vallejo, 2 Cal.2d 351, at page 374, 40 P.2d 486, at page 494, where the court said: ‘There is and should be no endeavor to take from a water right the protection to which it is justly entitled. The preferential and paramount rights of the riparian owner, the owner of an underground and percolating water right, and the prior appropriator are entitled to the protection of the courts at law or in equity. When there is no substantial infringement of the right, that is, when there is no material diminution of the supply by reason of the exercise of the subsequent right, the owner is entitled to a judgment declaring his preferential and paramount right and enjoining the assertion of an adverse use which might otherwise ripen into a prescriptive right.’ It may not be questioned that the form of judgment that was entered here affords a satisfactory solution of the problems of the parties who stipulated to the judgment. They wished to eliminate the overdraft, as the Burr and San Bernardino cases held may be done in cases of percolating water. For convenience, or other reason, they waived their priorities, which they had a right to do. They were willing to agree that the rights of appellant were upon an equality with their own, but appellant was unwilling to waive its claimed priority in right. The judgment places appellant upon an equality with the other appropriators, without evidence that such equality exists, unless the existence of the overdraft furnished such evidence. It cannot be determined from the record to what extent its rights may be prejudiced by the judgment. That will depend upon the priorities, if any, which it may be able to establish upon a new trial.

Respondents' authorities do not sustain their contention, and their argument that as between the appropriators all their titles had acquired prescriptive status is not convincing. I cannot agree that when the overdraft developed and the withdrawals continued, each appropriator was a violator of the rights of every other appropriator. There were originally priorities of right between all the appropriators. These priorities could not have been lost except through their being invaded for the prescriptive period. Invasion, under the authorities, means a violation of a right giving ground for legal redress. Under the principle stated, the early appropriators, whatever their relative priorities may have been, could not have claimed that their rights were being invaded by the withdrawals of those having lower priorities so long as the former were receiving all the water to which they were entitled. The earlier appropriators would have had no cause of action for legal redress. The later appropriators could claim only the water which remained after prior rights had been satisfied. The fact that continuance of the overdraft would eventually render unavailable to them the full amount of their appropriations would have given them no right to limit the withdrawals of the earlier appropriators or to encroach upon their priorities. The existence of the overdraft gave them no ground for legal redress.

Respondents are unable to point to any invasion of an appropriator's right. The findings, except by inference, are silent as to such invasion. There was a failure to distinguish between the exclusive, or adverse, nature of the several titles to water, and the non-interfering and non-adverse enjoyment of the rights. Every exclusive right or title is adverse in the sence that it is held against the world. The assertion of an exclusive title against all others is the assertion of an adverse claim. But a use within the owner's rights is adverse to no one, and it is adverse use alone which we are considering. It is true, as stipulated by the parties, including appellant, that they claimed their respective titles to water to be exclusive of the rights of all other users. This was by no means a stipulation that the use of any one of them infringed upon the rights of any other, nor was it a stipulation that any two or more of them used, or asserted the right to use, the same water. They were claiming separate and independent rights in a common water supply. So far as disclosed by the stipulation or the evidence, each was using water without interfering with or attempting to infringe upon such priorities of right as existed. How, then, could there have been any adverse use as between appropriators, or by overlying owners against appropriators?

The foregoing reasoning has no application to the exercise of appropriative rights against overlying rights. As will be pointed out later, an appropriative use is adverse to overlying rights, as it is adverse to lower riparian rights. It is true that there has been no interference with the present taking by the overlying owners, but such interference was not necessary to render the uses of the appropriators adverse. Any withdrawal of water from the basin by the appropriators was necessarily adverse to the rights of all overlying owners, in that it diminished the total supply which would be available for their use. They had a right to all the supply if they had need for it. The overlying rights presumably were initially superior to those of the appropriators, and any use by the appropriators which would have interfered with the immediate reasonable use by the overlying owners would have furnished occasion for injunctive relief. But, although no such interference was shown, the withdrawal of water from the basin by the appropriators was nevertheless an invasion of the rights of the overlying owners which gave the latter a right to a decree establishing their priorities over the appropriative rights, enjoining interference therewith, and protecting them against the appropriative rights ripening into a prescriptive status. Burr v. Maclay Rancho Water Co., supra. The prospective aspects of the overlying rights were invaded, in that the withdrawals by the appropriators might well have prevented increase in use by the overlying owners and even rendered necessary a ratable apportionment of the remaining available supply among the overlying owners. In this respect the rights of overlying owners are similar to those of riparian proprietors. In Anaheim Union Water Co. v. Fuller, 150 Cal. 327, 333, 88 P. 978, 11 L.R.A., N.S., 1062, which was an action by a riparian proprietor to enjoin diversion to non-riparian lands, the court quoted from Southern California Inv. Co. v. Wilshire, 144 Cal. 68, 77 P. 767, 769, as follows: ‘It is not necessary in such cases for plaintiff to show damages, in order that it may be entitled to a judgment. It is enough if it appears that the continuance of the acts of the defendant will deprive it of a right of property—a valuable part of its estate. * * * The taking of the water beyond the watershed would therefore be an injury to the plaintiff's riparian right, which under the pleadings and findings in the case, the plaintiff was entitled to have enjoined.’ And again, 150 Cal. at page 335, 88 P. at page 982, 11 L.R.A., N.S., 1062: ‘The theory of the law of riparian rights in this state is that the water of a stream belongs by a sort of common right to the several riparian owners along the stream; each being entitled to sever his share for use on his riparian land. * * * Nor can it be said that plaintiffs, on account of the present abundance, could safely permit defendants to acquire, as against them, a right to a part of the water. The riparian right is not lost by disuse, and other riparian owners above may take or others below may be entitled to take, and may insist upon being allowed to take, all of the stream, excepting only sufficient for the plaintiffs' land. In either alternative, the taking of a part of the water by the defendants would not leave enough for the plaintiffs' use.’

These statements and illustrations with respect to the nature of riparian rights and the uses by others which amount to an invasion of such rights apply directly and with equal force to overlying rights. It was the circumstance of the withdrawals by the appropriators from the western unit of the basin, rather than the extent of them, which furnished the basis for the claims of the appropriators to title by prescription as against the overlying owners. It was not necessary that there should have been interruption of the overlying owners' use. The water, to the extent of their needs, belonged to the land. Unlike the rights of the appropriators, the rights of overlying owners are not dependent upon use. Equality of right as between all parties was a necessary prerequisite to a ratable reduction in the withdrawal of water from the basin. Otherwise, priorities would have prevailed. The theory that all rights were prescriptive was adopted as a basis for declaring them to be equal in right.

The blanket finding that all titles were prescriptive was an implied finding that even the uses of the overlying owners had been adverse to each other. This merely shows the extent to which the parties to the stipulated judgment were willing to go in order to lay a foundation for a judgment ordering a ratable reduction of drafts upon the supply. The use of water upon overlying land is not, of course, adverse to the rights of other overlying owners when there is sufficient water for all.

The theory that withdrawals from a diminishing supply amount to mutual adversity of use as a principle of law is novel, and has been shown to be unsound. It is in irreconcilable conflict with settled principles of the law of prescriptive titles, whether to water rights or other classes of property. It assumes adverse use where none exists and would set up prescriptive titles to obliterate vested rights of priority. Priority of right is as sacred as any other type of ownership. It is the rule rather than the exception in our water law. The appropriative system is wholly one of priority. The superior rights of riparian and overlying owners are in reality priorities of right, although not based, as appropriative rights are, upon priority in time. Priority of right in the use of water is not dependent upon there being a sufficient supply for all users. Upon the contrary, priority is of consequence only in times of actual or threatened deficiency of supply, and if it is not to be protected under such conditions, the right means nothing.

If priority of right is to be abandoned in the law of percolating water, in times of overdraft, it must be by legislative action. Even if that were done, vested rights of priority would have to be protected. Such vested rights of priority, as this appellant has, have been overridden by the judgment.

One further thought upon this subject. The main opinion makes clear that a prescriptive title cannot be established against one who has no actual or constructive knowledge of the assertion of the adverse right. There was no evidence and no finding that appellant had knowledge of the existence of the overdraft. But if appellant had possessed such knowledge it would not have made a different case. The earlier appropriator would have continued his withdrawals in the exercise of his prior right. The later appropriator would have been presumed to be continuing his withdrawals with the knowledge that he would be the first to suffer when the demand exceeded the supply. Under what theory could it be said that priorities were being invaded? There may have been an intention to respect them, but if not there still would have been no invasion. Adverse use consists of acts, not merely of undisclosed intentions.

KINCAID, Justice pro tem.

WOOD, J., concurs.