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District Court of Appeal, Fourth District, California.


Civ. 3427.

Decided: December 15, 1948

Ray L. Chesebro, City Atty., Gilmore Tillman, Chief Asst. City Atty., C. T. Waldo, Asst. City Atty., and Cecil A. Borden, Deputy City Atty., all of Los Angeles, for appellants. Fred N. Howser, Atty. Gen., Walter L. Bowers, Asst. Atty. Gen., and Burdette J. Daniels, Deputy Atty. Gen., for respondent.

The City of Los Angeles and its department of water and power have appealed from a judgment which enjoins them from releasing certain water into or onto Owens Lake.

For many years the City diverted into its aqueduct system virtually all of the water of the Owens River which had formerly flowed into Owens Lake. As a result of this long continued diversion the lake dried up to a large extent, leaving valuable mineral and soda deposits in the lake bed and its subsurface brines. In view of this changed condition a number of plants were installed upon and around the lake for the purpose of extracting therefrom and producing soda products and other chemicals.

By means of a dam at Intake, a few miles north of Owens Lake, water was and is diverted from the river into an aqueduct and conveyed therein and through certain storage reservoirs to Los Angeles. The water of the river was also partially controlled by a dam and reservoir at Tinemaha, a short distance north of Intake. For the purpose of adding to and controlling its water supply the City also owned, and operated at times, 188 water wells and some 17 ditches and canals in Owens Valley. In order to extend and assure its water supply the City also acquired certain water rights in Mono Valley, to the north of Owens Valley, and since 1935 has been bringing substantial quantities of Mono water through an 11-mile tunnel into the Owens River. This Mono water mixes with Owens Valley water and flows down the upper part of Owens River to the dam at Intake. This dam has gates by means of which the water thus impounded may be released into the old river bed below that point, in which case it will flow into Owens Lake. In 1940, the City completed another dam at Long Valley, a few miles north of Bishop, which furnishes 183,000 acre feet of storage and to that extent assists in controlling the waters flowing down the Owens River toward Intake.

In the spring of 1937 the City opened its gates at Intake and released 54,000 acre feet of water onto the lake, flooding it to a depth of three or four feet and damaging the value of the brines therein and some of the business plants which had been established for the purpose of utilizing those brines. Most of this water evaporated and again in 1938 the City released 249,000 acre feet, flooding the lake to a depth of seven or eight feet and completely inundating all operations by lessees upon the lake. In 1939, the City released more than 54,000 acre feet of additional water onto the lake. For many years theretofore, the State had been deriving a substantial income from a number of leases by which it, as owner of the bed of the lake, had granted the right to various operators to extract minerals from the subsurface brines.

Some of the principles which are controlling here were established in a former action. Natural Soda Products Co. v. City of Los Angeles, 23 Cal.2d 193, 143 P.2d 12. That case involved the City's release of water onto the lake during the year 1937, and a judgment for damages in favor of the holding of one of these leases from the State was affirmed. The court treated the City's storage and spreading facilities as a part of its aqueduct system, referred to the City's regulation of the flow of the river above Intake and the manner in which the aqueduct was operated, and rejected the City's contention that the water of Owens River was not taken into its system unless and until it passed the dam at Intake and entered the aqueduct proper, and that, therefore, the water which flowed onto the lake when the gates of this dam were open was a part of the natural flow of the river, for which the City was not responsible. It was held that the City had for many years diverted substantially all of the flow of the river and had augmented it from other sources; that the plaintiffs had a right to rely upon a continuance of the situation which had thus existed; that the water which was released could have been handled and prevented from flowing into the lake by properly using the existing capacity of the aqueduct system; and that the City was liable for its failure to do so. In practical effect, it was held that the City had taken this water into its system and assumed control over it, and that it was not free to then release such waters, to the damage of others, so long as those waters could be handled by the reasonable operation of the existing facilities of the City's aqueduct system. It was further held that the City was not obliged to release the water it might not need into the river channel below Intake by reason of the constitutional mandate forbidding the waste or unreasonable use of water.

The present action was begun in 1941, by the State as owner of the bed of Owens Lake. It was tried before the decision in the Soda Products case but judgment was entered after that decision was rendered. Briefly stated, the complaint alleges the State's ownership of Owens Lake; the execution of various leases for extraction of minerals in the lake; the drying up of the lake by reason of the construction of the aqueduct and its diversions over some twenty years; the reliance of the State on the continuance of such diversions; the releases of water from the aqueduct system into the lake from 1937 to 1939, and the resulting damage; and the City's threats to continue such releases of water in the future. The answer, in addition to denials, alleges that the defendants have taken only such water as they were able to put to beneficial use; that any excess would by nature and law flow into Owens Lake; that the storms in 1937, and subsequently, produced flows far in excess of the City's needs; that such excess was not diverted but was permitted to flow into the lake; and that the City intends to pursue the same course of action in the future if not restrained from so doing.

Among other things, the court found that the waters of the Mono basin watershed would not, in the course of nature, reach the Owens Valley watershed but that when thus diverted into Owens Valley they become inseparably commingled with Owens Valley water; that through the manner of the construction and operation of the aqueduct system and its facilities and by its conduct for many years the City had evidenced its intention to take, and represented that it would take, into its system all of the flow of Owens River up to the reasonable capacity of the said system and its facilities; that in reliance upon the continuation of the situation brought about by the City's operation of its aqueduct system the respondent had leased large portions of the lake bed for long terms for the extraction of minerals from subsurface brines, with a substantial income therefrom to the State; that the City knew of the granting of these leases and that damage would result from flooding any water upon the lake bed; that because of the saline nature of the lake any water dumped thereon is wasted; that the dumping of water by the City in the years 1937 to 1939 was not in accordance with the prior operation of its aqueduct systems; that there would have been no necessity for wasting any water of the river upon the lake during the years 1937 to 1939 had the City operated its aqueduct system to its reasonable capacity; that this wastage would not have occurred if the system had been operated in the same manner as it had been prior to 1937 and was immediately subsequent to 1939; and that such conduct and such flooding will, if pursued in the future as threatened by the City, irreparably injure the State and its lessees.

A judgment was issued, the injunctive provisions of which are hereinafter quoted, and this appeal followed.

The appellants first attack a number of the findings as being ‘erroneous in fact and law.’ Most of these objections are criticisms of incidental statements contained in long findings, or contentions that certain findings fail to take into account or give sufficient weight to other facts which may be regarded as more or less conflicting. Most of these objections are based upon appellants' theory that the City was entitled to take virtually all of the flow of the river during many years of low runoff prior to 1937, but is not obligated to take more water than it desires to take to meet its needs at any particular time, especially when a higher runoff occurs. It is argued that throughout the existence of its aqueduct system the City has diverted water only for beneficial uses, that it could not beneficially use the large flow in the years 1937 to 1939, and that the appellants are not entitled to rely upon the City to control ‘any above average or large flows in said river or any amount in excess of the needs of the City for beneficial use.’ A few of the findings misstate matters, as in one where it is stated that the Long Valley dam ‘reaches entirely across Long Valley’, but these errors are entirely immaterial. One finding, ‘that said Mono Extension is not an integral part of defendant's whole aqueduct system’, is not supported by the evidence and is conflicting, in effect, with another finding that the waters brought from Mono basin into Owens Valley become inseparably commingled with waters in the Owens River. While this has a bearing upon the form of the injunction which should be issued all other findings which are material and essential to the judgment are fully supported by the evidence.

It is next contended that the respondent has no authority to destroy the navigability of Owens Lake. It is argued that Owens Lake is a navigable lake, citing City of Los Angeles v. Aitken, 10 Cal.App.2d 460, 52 P.2d 585 (which refers to Mono Lake), and that Owens Lake was actually navigated at one time; that there is no statute authorizing the State Lands Commission or any other agency to permit the lowering of Owens Lake; and that the respondent is seeking the assistance of the court to compel the creation of a public nuisance by directing the diversion of water from tributaries of a navigable lake. The contention seems to be that this judgment is illegal because it requires the City to destroy the navigability of Owens Lake in violation of Article XV, Section 2 of the State Constitution.

The City itself effectively destroyed the navigability of Owens Lake many years before the period here in question. The State has acquiesced and permitted the diversion from the river, with its necessary effect upon the lake, to continue for a long period of time. Not only is the former navigability of Owens Lake a theoretical and potential, rather than a practical, matter but it is one which may well give way to higher uses in considering the conflicting duties imposed upon State by the Constitution. The point now raised is one which may be raised only by the public authorities (Antioch v. Williams Irr. Dist., 188 Cal. 451, 205 P. 688), and the appellants are now in no position to rely upon this contention. Miller & Lux v. Enterprise, etc., Co., 142 Cal. 208, 75 P. 770, 100 Am.St.Rep. 115. There is nothing in the cases of Mt. Shasta Power Corporation v. McArthur, 109 Cal.App. 171, 292 P. 549; Boone v. Kingsbury, 206 Cal. 148, 273 P. 797, and People v. Russ, 132 Cal. 102, 64 P. 111, which compels a reversal of the judgment in this case for this reason. Any navigability of Owens Lake has long since been destroyed, in a practical sense, by the City's operations. Any occasional flooding of the kind here in question would not restore the lake as an actual navigable body of water, and the City is in no position to now maintain that the State has no right to object to the release of water from the City's system and the wasting of those waters upon the dry bed of what may have been, formerly, a navigable lake.

It is next contended that there is no ground for the issuance of the injunction here granted, and that the State's rights, if any, would be adequately protected by an action for damages. Cases are cited in support of the contention that where a public use has attached or where an inequitable burden will be placed upon a defendant, and where a party may be adequately compensated in damages, an injunction should not be issued.

No public use can be said to have attached to, nor will any public use be promoted by, the occasional release from appellants' system of such waters and the wasting of the same into this lake bed. On the other hand, this release and waste seriously injures the property rights of the respondent and its lessees, and a determination of the amount of the damage is not only difficult in particular cases but may involve extensive and unnecessary litigation. After one such damage action, involving the year 1937, the City again released water as it saw fit during 1938 and 1939, and continues to assert its right so to do. In their answer herein the appellants allege that they intend ‘to exclude and/or discharge from said aqueduct’ so much of this water as they deem necessary from time to time, and admit that they will continue to do this unless they are restrained therefrom. Under such circumstances, the issuance of an injunction was proper. Nelson v. Robinson, 47 Cal.App.2d 520, 118 P.2d 350; Phoenix Water Co. v. Fletcher, 23 Cal. 481; Lindsay-Strathmore Irr. Dist. v. Superior Ct., 182 Cal. 315, 187 P. 1056; City of Lodi v. East Bay Mun. Utility Dist., 7 Cal.2d 316, 60 P.2d 439.

However, the purpose and intent of such an injunction should be reasonable regulation for the purpose of preventing any unnecessary injury to others, while interfering as little as possible with the beneficial use of the system. It should merely prohibit the release of such waters as are not in excess of the capacity of this aqueduct system, when reasonably operated, and should not unnecessarily prevent the normal use of the City's existing facilities.

The injunction as issued goes beyond this and restrains the appellants to an extent which is not justified by the evidence or the findings. In its present form it contains inconsistent provisions, is unworkable from a practical standpoint, and places an undue burden on the operation of this aqueduct system. This seems to have resulted from the erroneous finding that the City's Mono Extension is not an integral part of its aqueduct system, although it was further found that waters brought in from the Mono Basin become inseparably commingled with waters in the Owens River.

The judgment entered enjoins and restrains the defendants from:

‘(1) Diverting any or all waters from the Mono Basin watershed or waters partially comprised of, or augmented by said foreign Mono waters, out of defendants' aqueduct system into or onto Owens Lake, Inyo County, California, or in any way releasing such foreign Mono waters from the Mono Basin watershed, or waters partially comprising of or augmented by said foreign Mono waters, to be deposited into or onto said Owens Lake;

‘(2) Diverting any or all waters of the Owens River and its tributaries out of defendants' aqueduct system onto Owens Lake, Inyo County, California, or in any way releasing waters of said Owens River, or its tributaries to be deposited into or onto said Owens Lake, which are not in excess of an amount equal to the reasonable capacity of defendants' aqueduct system and all of its component facilities reasonably operated.’

Paragraph (1) of this injunction forbids the diversion from its system and onto the lake of any water from the Mono Basin or of any water which may be partly composed of, or augmented by, said Mono waters. Paragraph (2) forbids the release of any Owens River water unless it is in excess of what can be handled by reasonably operating the aqueduct system to its reasonable capacity. These two provisions are inconsistent and conflicting since, in any practical operation of the system, waters from these two sources cannot be segregated at any point where any release of water, which the injunction purports to authorize, would have to be made. Moreover, the appellants are deprived of the right ostensibly given them in Paragraph (2), that of releasing Owens water which is in excess of the capacity of their system, since they are forbidden, under Paragraph (1), to release any water which may be in part composed of Mono water.

Under a natural and reasonable operation of this aqueduct system there will always be some Mono water commingled with Owens River water when any release of water into Owens Lake may become necessary, after operating the system to its reasonable capacity, and those waters cannot be segregated on short notice for the purpose of complying with Paragraph (1) or of securing the privilege intended to be conferred by Paragraph (2) of the injunction. Once brought in, the Mono water cannot be segregated and it would be an unreasonable operation of the system to keep such water out entirely because in occasional, and exceptional, periods of high runoff that water would have an effect upon the capacity which the system would otherwise have. It cannot be foretold when such sudden storms are coming and the appellants cannot reasonably be required to empty their entire system before such a storm occurs, in order to be in a position to comply with the injunction as it was worded.

The Mono Extension had been planned as a part of this system for many years. It had been put into operation in 1935, more than six years before this action was filed and before the City began to make any releases from its system into the lake, and that extension is an integral part of this aqueduct system which cannot be separately treated in a regulatory injunction designed to forbid and prevent the City from operating its aqueduct system in an unreasonable manner and below its reasonable capacity. If an excessive amount of Mono water should be brought in at any particular time, thus adding unduly to the possibility of a dangerous condition, this might constitute an unreasonable use of the system but it should be treated as such and not as a separate matter. It should be treated neither as a separate and distinct problem nor in a manner the logical effect of which would be to destroy entirely the use and usefulness of an important part of an existing and necessary system.

The important thing in meeting the practical situation here involved, in view of the basic principles established in the Soda Products Company case, is to regulate the City's use of its aqueduct system in a manner which will reasonably protect the rights of others, but which will not unncessarily or unfairly interfere with the normal and beneficial use of that system. While the State, as owner of Owens Lake, is entitled to have the City reasonably operate this aqueduct system to its reasonable capacity, before discharging waters therefrom which will flow upon and damage the State's property, it is entitled only to such reasonable operation and not to such an interference with the normal, usual and reasonable operation as would necessarily result from a full compliance with the terms of this injunction, as it was entered. Regardless of whether or not the State might otherwise have claims for damages it is not entitled to injunctive relief in this action except and only as it is based upon, and forbids any unreasonable operation of that system. The injunctive provisions of this judgment should be modified to this end.

The next point raised is that ‘nobody can rely on nonexistent facilities.’ It is argued that the State was not entitled to rely upon the construction and operation of the Long Valley dam in the years prior to 1937, since this dam was not placed in operation until 1941. This judgment does not rest upon any such reliance and it affects only the use and operation of existing facilities.

Finally, it is contended that it was incumbent upon the trial court to work out a physical solution of the Owens Lake problem. Cases are cited in which the desirability and necessity of physical solutions of water right problems by trial courts have been considered. Such cases have been concerned with the practical problems which sometimes arise in fairly distributing water in accordance with the various rights of several appropriators who are claiming the same waters. The instant case relates to water already appropriated and taken into a system, and the claimed right to thereafter release portions of that water upon the lands of others to their detriment. The best physical solution of the present problem is to require the appellants to reasonably operate their aqueduct system to its reasonable capacity and, in effect, to require them to refrain from releasing from their system any more water than is reasonably necessary under the circumstances.

The judgment herein is modified as follows: by striking therefrom all of Paragraph (1); and by striking from Paragraph (2) the words ‘of the Owens River and its tributaries' and the words ‘of said Owens River, or its tributaries' so that said Paragraph (2) shall thus read: ‘Diverting any or all waters out of defendants' aqueduct system onto Owens Lake, Inyo County, California, or in any way releasing waters to be deposited into or onto said ‘Owens Lake, which are not in excess of an amount equal to the reasonable capacity of defendants' aqueduct system and all of its component facilities reasonably operated.’

As so modified, the judgment is affirmed. Each party to pay its own costs on appeal.

BARNARD, Presiding Justice.

GRIFFIN and MUSSELL, JJ., concur.