STEVINSON WATER DIST v. RODUNER (1949)

The defendants in the above consolidated cases have appealed from judgments restraining them from diverting ‘any foreign water’ from Owens Creek in Merced County, to which their lands are riparian. The injunction permits defendants to divert from the ‘natural flow’ of Owens Creek the quantity of water necessarily and beneficially used upon their riparian lands, but prohibits the diversion of any foreign water flowing therein which is derived from the Marced River or any of its tributaries, or from the Merced Irrigation District canals or ditches.

Owens Creek is a natural watercourse having its source in the mountains in the easterly portion of Merced County and running thence westerly to and through the Merced Irrigation District to its junction with Bear Creek. The East Side Canal extends several miles westerly of Owens Creek at the point where the defendants' lands are riparian thereto.

Merced River has its source in the Sierra Nevadas and runs westerly to its confluence with the San Joaquin River.

East Side Canal extends from the San Joaquin River in a northerly direction, across Bear Creek, Owens Creek and other streams referred to in the pleadings. Plaintiffs own and operate the East Side Canal for public utility purposes. It supplies water for irrigation to the owners of some 8,000 acres of land in Merced and Stanislaus Counties. The Stevinson Water District, which owns and operates East Side Canal, was organized under the California Water District Act, Gen. Laws, Act 9125, and is operated as such. By agreement executed between the parties in October, 1929, the East Side Canal Company secured a large quantity of water from the Merced Irrigation District. During seasons when there is an excess of water beyond the quantity which East Side Canal is able to handle, said excess water is released ‘by means of several spills on the west side of said East Side Canal and by means of a siphon under said canal at a point where Owens Creek intersects the said East Side Canal.’ The respondents claim, and the court found, that such water and other excess water, derived from their operation of pumping apparatus, and dumped into the channel of Owens Creek, is ‘foreign water’ to which the defendants have acquired no riparian rights. But the court failed to find what quantity of water was thus conveyed from sources outside the watershed of Owens Creek into or through that natural channel. Nor did the court determine the quantity of the natural flow of Owens Creek at any period of the year, or at all. If we assume that the water derived from sources outside of the Owens Creek watershed, but which are conveyed into that natural channel is foreign water to which the defendants could acquire no riparian rights, it is impossible to distinguish between the water of Owens Creek which belongs to its natural flow, and such so-called foreign water, for the reason that it commingles and flows in one and the same stream. There is absolutely no finding which determines the natural flow of Owens Creek with or without the presence of such foreign water, or the quantity of the natural flow of that stream to which the riparian rights of the defendants attach. It would therefore seem that the findings and injunction are inadequate and ineffectual, since it is impossible to determine when defendants have exceeded their riparian rights or have invaded the claim of the respondents' appropriated rights by diverting from the stream any portion of the foreign water flowing therein.

This action is in the nature of a suit for the apportioning of the water of Owens Creek between the defendants, whose lands are riparian to that stream, and the respondents, who claim as statutory appropriators. The burden was on the plaintiffs to definitely show the quantity of water flowing in Owens Creek to which they claim superior rights by appropriation or otherwise.

The appellants concede that their riparian rights to the use of water flowing in Owens Creek do not attach as such to the ‘foreign water’ therein which is derived from Merced River, or the water secured from sources beyond the Owens Creek watershed which is drained into and augments the natural flow of that stream. Bloss v. Rahilly, 16 Cal.2d 70, 104 P.2d 1049; E. Clemens Horst Co. v. New Blue Point Mining Co., 177 Cal. 631, 171 P. 417, 419; 25 Cal.Jur. 1104, sec. 111. In the Horst Company case, supra, the court quoted with approval from Gallatin v. Corning Irrigation Co., 163 Cal. 405, 126 P. 864, Ann.Cas.1914A, 74, in that regard, as follows: “These decisions in effect establish the just rule that flood waters which are of no substantial benefit to the riparian owner or to his land, and are not used by him, may be taken at will, by any person who can lawfully gain access to the stream, and conducted to lands not riparian, and even beyond the watershed, without the consent of the riparian owner and without compensation to him. They are not a part of the flow of the stream which constitutes ‘parcel’ of his land, within the meaning of the law of riparian rights.”

But the appellants in this case do assert that the findings and judgment in this case are fatally defective and ineffectual because the injunction prohibits them from acquiring by appropriation or otherwise any portion of said foreign water and the injunction prohibits them from diverting any portion thereof notwithstanding the fact that they actually filed their application for permission to appropriate a definite, necessary and beneficial portion thereof pursuant to Section 11 of the California Water Commission Act, Stats. of 1913, pp. 1012, 1017, 2 Deering's Gen. Laws of 1937, pp. 4229, 4236, Act 9091, since the findings fail to determine what portion plaintiffs require, as necessary or beneficial to their rights, and that, in effect, the court awards plaintiffs all of said foreign water. Section 1201 of the Water Code provides that: ‘All water flowing in any natural channel, excepting so far as it has been or is being applied to useful and beneficial purposes upon, or in so far as it is or may be reasonably needed for useful and beneficial purposes upon lands riparian thereto, or otherwise appropriated, is hereby declared to be public water of the State and subject to appropriation in accordance with the provisions of this code.’

The findings determine that at least a portion of the foreign water which was discharged from the Merced River into Owens Creek was excess water not required by plaintiffs for irrigation of the lands served by their system.

In recognition of the fact that the foreign water which was drained from Merced Irrigation District into Owens Creek included an excess of water beyond that which was required by plaintiffs for beneficial use, the court determined in Finding Number XXIII that: ‘During periods of heavy run-off of water in the Sierra Nevada Mountains and during periods when the quantity of water in the irrigating system of Merced Irrigation District exceeds the requirements of consumers of said district the amount of water delivered to plaintiffs at the western boundary of Merced Irrigation District exceeds the capacity of said East Side Canal. At such times, plaintiff East Side Canal & Irrigation Company is required to and does release said excess water.’ (Italics added.)

The court failed to find what quantity or proportion of said foreign water was excess water not required by plaintiffs for beneficial use. It is apparent that whatever excess water the foreign water of Owens Creek contained, which had not been previously appropriated, under Section 1201 of the Water Code belongs to the State and would be open to appropriation by the defendants or any other person in accordance with the provisions of the statute. Yet the court erroneously assumed such excess water belonged to plaintiffs and restrained the defendants from diverting any portion of it.

It is true that respondents had acquired certain rights to the water of Owens Creek by appropriation. Permit No. 5726, which was granted April 1, 1941, gave them the right to divert, from March 1st to November 1st of each year not to exceed 163 cubic feet per second from that stream to make up a deficiency of that maximum quantity of water, when said deficiency existed in Bear Creek. In other words, plaintiffs were entitled to 163 cubic feet per second from the flow of Bear Creek, and when Bear Creek furnished them with less than that amount, they were entitled to make up the deficiency from Owens Creek. Permit No. 5729, also issued on the last-mentioned date, gave plaintiffs the right to divert from Owens Creek, from March 1st to November 1st of each year, 40 cubic feet of water per second, provided that the total amount of water diverted from the sources set forth in the approved application should not exceed 163 cubic feet per second. Apparently those permits attached not only to the natural flow of the water of Owens Creek, but also to any foreign water which was flowing therein to the extent only that it was necessary and beneficial. The respondent East Side Canal Company was the owner of and entitled to prior rights under Permit No. 5733 to divert from the natural flow or foreign water in Owens Creek 40 cubic feet of water per second, from January 1st to December 31st of each year, provided, however, that the total quantity of water so diverted from the sources set forth in the application should not exceed the maximum of 160 cubic feet per second. Plaintiffs also acquired certain water rights in Owens Creek, in water dumped therein from Merced River by virtue of an agreement dated October 29, 1929, between the James J. Stevinson Corporation and Merced Irrigation District, to which the defendants were not parties. By the terms of that agreement, the Merced Irrigation District conveyed to the James Stevinson Corporation 24,000 acre feet of water per annum, plus ten per cent additional to replace anticipated loss from seepage and evaporation, to be delivered between April and September of each year, in consideration of the Stevinson Corporation's consent that the former should exercise an easement to take additional water from Merced River, to which right there was a dispute between the parties. The aforesaid prior appropriated rights and said contractual rights were ratified and approved in the decrees which were rendered by the Superior Court in Merced County, in three suits involving water rights between plaintiffs and George S. Bloss, Jr., et al., Numbered 8919, 8960 and 8964. The appellants in these cases were substituted for John Doe defendants in two of those cases. But their rights to excess foreign water of Owens Creek, as distinguished from their riparian rights, were not involved or determined in those cases. We think the judgments in those cases are not res judicata of that particular issue in this suit.

Since neither the findings which were adopted in these cases nor the decrees determine the unit flow or quantity of water in Owens Creek, with or without the presence of foreign water, or the relative proportions of the excess water over and above the quantity of said foreign water required by plaintiffs for necessary or beneficial use, the decrees are uncertain and the injunctions are unenforcible because it is impossible to determine when the plaintiffs' prior rights are invaded.

The case of Bloss v. Rahilly, supra [16 Cal.2d 70, 104 P.2d 1050], upon which the respondents rely, appears to determine this issue of uncertainty of the findings and decree adversely to their contention. That was a suit to determine the respective rights of a riparian owner of land bordering on Duck Creek in Merced County and the rights of lower appropriators of water in that creek, including the rights to foreign water which was mingled and flowing with the natural water therein. The court determined that plaintiff, Bloss, was entitled to ‘all the rights of a riparian owner with respect to said creek; that he was also the owner of the right to appropriate 20 cubic feet of water per second of the water of said creek for the irrigation of his lands; that defendants herein, Mamie F. Rahilly and Peter Rahilly Jr., owned certain lands riparian to Duck creek and were entitled to all the rights of riparian owners but that none of their riparian rights extended to any water in said creek which had its origin in the Merced river’. (Italics added.) Regarding plaintiff's right to a portion of the foreign water in Duck Creek, the Supreme Court said: ‘* * * It [the trial court] further decreed that ‘plaintiff is the owner of the right to take, divert and appropriate twenty cubic feet per second of the foreign water flowing in said creek, referred to and described in the complaint and answers herein, but that defendants have no right, title, interest or estate of, in or to any of the foreign water flowing in said creek.’' (Italics added.)

Judgment was rendered accordingly. That judgment was affirmed on appeal for the expressed reason that the proportion of the foreign water to which the plaintiff was entitled was definitely and specifically stated by the court, in its decree, to be ‘twenty cubic feet per second.’ There was no evidence that plaintiff took more than his designated lawful proportion or quantity of the foreign water in Duck Creek. The clear inference from the language of the Supreme Court is that if the trial court had failed to ascertain and determine the definite amount of the foreign water to which plaintiff was entitled it would have been necessary to reverse the judgment for uncertainty and indefiniteness. The issue in that case with respect to the rights to the foreign water was almost exactly the same as that which is presented in this suit. The Supreme Court said in that regard: ‘The final contention of defendants is that, ‘The judgment is uncertain and insufficient.’ * * * They state that, ‘From the judgment it is impossible to determine when the foreign waters begin to flow, in what quantities they flow, what particular waters they include or what portion of the stream can be attributed to natural flow.’ We do not believe it was either necessary or possible for the court to adjudicate these matters. The judgment decreed with certainty that plaintiff was the owner of the right to appropriate twenty second feet of the foreign water flowing in said creek. It is entirely apparent from the facts above set forth that the foreign flow, as well as the natural flow, was and is variable. Obviously, when there is less than twenty second feet of foreign water in said stream, plaintiff's right to appropriate then extends only to such foreign water as may be present. The claimed difficulty which defendants may have in determining what amount of water they may take at any given time by virtue of their riparian rights is a difficulty inherent in the nature of the flow of this stream and is not a difficulty caused by any deficiency in the provisions of the judgment. In our opinion, the judgment was as definite and certain as it could be made under the circumstances.' (Italics added.)

Applying that case to the same issue which is presented on this appeal, it seems to be clear that, in the absence of any finding or decree determining the maximum quantity of foreign water in Owens Creek to which either the plaintiffs or defendants are entitled, or the relative proportions thereof to which they are entitled, or the unit flow of the creek with or without the foreign water, it is impossible to decide when the rights of the respondents in this case shall have been invaded. It follows that the findings and judgments in these cases are inadequate and uncertain, and the judgments must therefore be reversed on that account.

The judgments are reversed.

THOMPSON, Justice.

ADAMS, P. J., and PEEK, J., concur.