IN RE: the Determination of the Rights of Various Claimants to the WATERS OF LONG VALLEY CREEK SYSTEM WITHIN LASSEN

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Court of Appeal, Third District, California.

IN RE: the Determination of the Rights of Various Claimants to the WATERS OF LONG VALLEY CREEK SYSTEM WITHIN LASSEN, SIERRA AND PLUMAS COUNTIES, California. CALIFORNIA STATE WATER RESOURCES BOARD, Respondent, v. Donald E. RAMELLI, Appellant.

Civ. 16344.

Decided: August 22, 1978

Kronick, Moskovitz, Tiedemann & Girard, Adolph Moskovitz, Stephen A. Kronick, Sacramento, for appellant. Evelle J. Younger, Atty. Gen., R. H. Connett, Asst. Atty. Gen., Roderick E. Walston, Richard C. Jacobs, Deputy Attys. Gen., for respondent.

Donald Ramelli appeals from a judgment of the Lassen County Superior Court upholding (with certain exceptions not here significant) the order of determination of the State Water Resources Control Board (Board) determining water rights in the Long Valley Creek Stream System.

The Long Valley Stream System, which contains a 465 square mile watershed, “lies astride the California-Nevada border starting at its uppermost extremity about eight miles northwest of Reno, Nevada, and extending northwesterly about 45 miles in length to the East end of Honey Lake near Herlong, California.” Long Valley Creek and its main tributaries, Purdy Creek and Balls Creek, originate in the melting snow of the Sierra Nevadas in the vicinity of Babbit Peak. From there they flow into “a semi-arid and desert portion of the State of California.” In most years, there is a surplus of water early in the spring, with the flow receding rapidly when the snow has melted; this may occur as early as April or as late as June. After the snow-melt runoff is gone, there is only enough water to irrigate a small portion of the total irrigable land.

Ramelli owns the land upon which Balls Creek originates. For the past approximately 60 years he and his predecessors have irrigated only 89 acres thereof. However, he claims prospective riparian rights in the creek for an additional 2884 riparian acres. Presently only an estimated 4130 acres are irrigated in the entire Long Valley Creek watershed area. Significantly, Balls Creek contributes to Long Valley Creek the largest flow of any of its tributaries. Thus recognition of Ramelli's claim will cast an ominous shadow of uncertainty over the rights of every other downstream user in the watershed.

Because of the limited water supply, there has been extensive litigation between and among the various water claimants in the area since at least 1883. Finally, on April 4, 1966, nine claimants filed a petition with the Board for a statutory adjudication of all water rights in the Long Valley Stream System (pursuant to Wat.Code, s 2500 et seq.). The staff of the Board conducted a preliminary investigation and recommended in favor of the petition, which the Board then granted on September 5, 1968. Thereafter the Board prepared and published a notice of the proceedings (Wat.Code, ss 2526, 2527), and each claimant to the waters of the stream system notified the Board of his intention to file a claim. (Wat.Code, s 2528.) As required by Water Code section 2550, the Board then conducted an extensive investigation. The results thereof, in the form of a report, were published in June 1971.

Water Code section 2575 requires that after filing of the Board's report, each person who has notified the Board of his intention to file a claim must be advised that the claim, and proof in support thereof, must be formally presented. The failure to submit such claim and proof operates as a bar to a later claim and as a forfeiture of all water claims on the stream system. (Wat.Code, s 2774.) If more than 25 claims are presented, the Board is required to prepare abstracts thereof and file them for public inspection. (Wat.Code, ss 2625-2629.) Any claimant who then wishes to contest any other claim may file a notice of contest. Two hundred thirty-four claims and proofs, and forty-two contests thereto, were filed and heard by the Board.

Finally, after consideration of the claims, proofs and contests, the Board made and caused “to be entered of record in its office an order determining and establishing the several rights to the water of the stream system.” (Wat.Code, s 2700.) As required by Water Code section 2750, the order was then filed (together with the evidence considered by the Board) with the clerk of the Superior Court of Lassen County. (Wat.Code, s 2750.) The Board obtained a court order dated February 25, 1975 setting a time for hearing, furnished each of the claimants with a copy thereof, and published it. (Wat.Code, ss 2751-2756.)

The order of determination awarded Ramelli various amounts of water for the 89 acres as to which riparian rights were currently being exercised; it denied any water rights pertaining to the remaining 2884 riparian acres. Moreover, the amounts of water granted Ramelli were different from those previously adjudicated to him in an earlier action between Ramelli and two other claimants to the waters of Balls Creek.1

Ramelli unsuccessfully excepted to the order of determination. He first asserted that it should recognize his unexercised riparian rights in the 2884 acres on the ground that riparian rights “are vested in the owner of riparian lands as part and parcel of such lands” and cannot be “lost by non-use, but are available to be exercised whenever the owner wishes to do so for reasonable beneficial uses on the riparian land.” As an adjunct to that contention, he asserted that his unexercised riparian rights, once recognized were entitled to the same priority in the order of determination as all riparian rights currently being exercised; also that his unexercised riparian rights may not be quantified, since by nature a riparian right accrues to All reasonable and beneficial uses of the property rather than only to current uses or to specific potential uses. Finally, he contended that the judgment in the prior litigation between himself, Edith Evans, and the predecessor to Green Gulch Ranch, Inc., was res judicata as to his water rights on Balls Creek. These same contentions are now raised on appeal, after the trial court entered a decree consistent with the order of determination.

I

We sustain Ramelli's first contention. The Board and the trial court erred in limiting his riparian rights to present use only and failing to recognize his right of prospective, albeit unexercised, use.

The right of prospective use fundamentally distinguishes an appropriator from a riparian. The latter's water right does not depend in any way upon user. “His rights are not easements, nor appurtenances to his holding. They are not the rights acquired by appropriation or by prescriptive use. They are attached to the soil and pass with it (Lux v. Haggin, 69 Cal. 255, 10 P. 674), and may be lost only by grant, condemnation, or prescription.” (Hargrave v. Cook (1895) 108 Cal. 72, 77, 41 P. 18, 19.) Case after case prior to 1928 affirmed and reaffirmed this right of prospective use on the part of a riparian owner. (Parker v. Swett (1922) 188 Cal. 474, 205 P. 1065; Fresno Canal, etc. Co. v. People's Ditch Co. (1917) 174 Cal. 441, 163 P. 497; Burr v. Maclay Rancho Water Co. (1908) 154 Cal. 428, 98 P. 260; Duckworth v. Watsonville, etc. Co. (1907) 150 Cal. 520, 89 P. 338; Heilbron v. Land and Water Co. (1889) 80 Cal. 189, 22 P. 62.)

In Herminghaus v. Southern California Edison Co. (1926) 200 Cal. 81, 252 P. 607, the Supreme Court upheld an injunction against appropriation of water from the upper San Joaquin River on the ground that the lower “riparian owners have a right to have the stream flow past their land in its usual course” (200 Cal. at p. 112, 252 P. at p. 620), even though 99 percent of that flow was wasted. This decision brought about the addition in 1928 of article XIV, section 3 (now art. X, s 2), to the California Constitution, which states in its entirety:

“It is hereby declared that because of the conditions prevailing in this State the general welfare requires that the water resources of the State be put to beneficial use to the fullest extent of which they are capable, and that the waste or unreasonable use or unreasonable method of use of water be prevented, and that the conservation of such waters is to be exercised with a view to the reasonable and beneficial use thereof in the interest of the people and for the public welfare. The right to water or to the use or flow of water in or from any natural stream or water course in this State is and shall be limited to such water as shall be reasonably required for the beneficial use to be served, and such right does not and shall not extend to the waste or unreasonable use or unreasonable method of use or unreasonable method of diversion of water. Riparian rights in a stream or water course attach to, but to no more than so much of the flow thereof as may be required or used consistently with this section, for the purposes for which such lands are, or may be made adaptable, in view of such reasonable and beneficial uses; provided, however, that nothing herein contained shall be construed as depriving any riparian owner of the reasonable use of water of the stream to which the owner's land is riparian under reasonable methods of diversion and use, or as depriving any appropriator of water to which the appropriator is lawfully entitled. This section shall be self-executing, and the Legislature may also enact laws in the furtherance of the policy in this section contained.”

The key phrase of this constitutional provision, insofar as pertinent here, is: “(r)iparian rights in a stream or water course attach to, but to no more than so much of the flow thereof as may be required or used consistently with this section, for the purposes for which such lands Are, or may be made adaptable, in view of such reasonable and beneficial uses.” (Emphasis added.) This language makes it clear that the amendment did not intend to abrogate the right of prospective use on the part of a riparian owner.

Whenever it has undertaken to discuss article X, section 2, the Supreme Court of California has consistently held in accordance with the foregoing. In Tulare Dist. v. Lindsay-Strathmore Dist. (1935) 3 Cal.2d 489, 45 P.2d 972, the Court thrice reaffirmed both the existence of and the preference accorded to prospective riparian water rights. Interpreting the effect of the constitutional amendment upon riparian rights, the Tulare court stated (3 Cal.2d at p. 525, 45 P.2d at p. 986): “The new doctrine not only protects the actual reasonable beneficial uses of the riparian but also the Prospective reasonable beneficial uses of the riparian. As to such future or prospective beneficial uses, it is quite obvious that the quantity of water so required for such uses cannot be fixed in amount until the need for such use arises. Therefore, as to such uses, the trial court, in its findings and judgment, should declare such prospective uses paramount to any right of the appropriator. By such declaratory judgment, the rights of the riparian will be fully protected against the appropriative use ripening into a right by prescription, but, until the riparian needs the water, the appropriator may use it, thus, at all times, putting all of the available water to beneficial uses.” (Emphasis added.)

Again at a later point, commenting once more upon the 1928 amendment, the Tulare court stated: “That amendment, while limiting the riparian as against an appropriator, to reasonable beneficial uses, . . . expressly protects the riparian Not only as to his present needs, but also as to future or prospective reasonable beneficial needs.” (Emphasis added.) (3 Cal.2d at p. 531, 45 P.2d at p. 989.)

Finally, the Tulare Court declared (3 Cal.2d at p. 533, 45 P.2d at p. 990): “. . . the riparian as against an appropriator, has two major rights: (1) In the event a public use has not attached, and in the absence of a condemnation suit, he is entitled to an injunction to protect his prior right to the amount of water he Presently needs for reasonable beneficial purposes; and (2), he is entitled to a judicial declaration of his prior right To whatever quantity he may in the future need for such uses.” (Emphasis added.)

Cases both prior and subsequent to the Tulare case are consistent with this recognition of right of prospective user (see Gin S. Chow v. City of Santa Barbara (1933) 217 Cal. 673, 22 P.2d 5; Peabody v. City of Vallejo (1935) 2 Cal.2d 351, 40 P.2d 486; Carlsbad etc. Co. v. San Luis Rey etc. Co. (1947) 78 Cal.App.2d 900, 178 P.2d 844; Meridian, Ltd. v. San Francisco (1939) 13 Cal.2d 424, 90 P.2d 537.)

II

We also sustain Ramelli's contention that his prospective riparian rights cannot be quantified. “As to such future or prospective reasonable beneficial uses, it is quite obvious that the quantity of water so required for such uses cannot be fixed in amount until the need for such use arises.” (Tulare, supra, 3 Cal.2d at p. 525, 45 P.2d at p. 986.)

Water Code section 27692 requires direct quantification of all water rights, and despite Ramelli's exhortations, we cannot read it otherwise. But to the extent that it requires quantification of prospective riparian rights, it is unconstitutional because in conflict with article X, section 2 as interpreted by our Supreme Court (see In re Water of Soquel Creek Stream System (1978) 79 Cal.App.3d 682, 688-689, 145 Cal.Rptr. 146).

“The trial court might well, by appropriate provisions in its judgment, retain jurisdiction over the cause, so that when a riparian claims the need for water, the right to which was awarded him under such a declaratory decree, the trial court may determine whether the proposed new use, under all the circumstances, is a reasonable beneficial use and, if so, the quantity required for such use.” (Tulare, supra, 3 Cal.2d at p. 525, 45 P.2d at p. 986; see also Meridian, Ltd. v. San Francisco, supra, 13 Cal.2d at p. 452, 90 P.2d 537; Williams v. Rankin (1966) 245 Cal.App.2d 803, 819, 54 Cal.Rptr. 184; Tehachapi-Cummings County Water Dist. v. Armstrong (1975) 49 Cal.App.3d 992, 998, 122 Cal.Rptr. 918.) That procedure is appropriate here.

III

The parties to Evans v. Flagg (see fn. 1, Ante p. 4) were Ramelli, Edith M. Evans (a claimant in this proceeding), and Morgan and Clare E. Flagg (predecessor in interest to Green Gulch Ranch, Inc., also a claimant herein). Evans v. Flagg was a final adjudication of all the rights of the three parties to the waters of Balls Creek and its tributaries.

The order of determination and the trial court's decree allocated water rights among Ramelli, Evans and Green Gulch in a manner inconsistent to some extent with the Evans v. Flagg adjudication. Ramelli claims error in this regard on the basis of res judicata. We agree.

The res judicata doctrine (4 Witkin, Cal.Procedure (2d ed. 1971) Judgment, s 147 et seq., p. 3292 et seq.) applies with equal force to cases adjudicating water rights. (Montezuma Canal Co. v. Smithville Canal Co. (1910) 218 U.S. 371, 385-386, 31 S.Ct. 67, 54 L.Ed. 1074.) Although Evans v. Flagg was not binding upon anyone not a party to it, it was binding upon the three parties involved and the Board was obligated to formulate later orders in a manner not inconsistent with it. Any deviation in the order of determination was erroneous.

The trial court's judgment is reversed, with directions to amend its decree of August 4, 1976 (entered Aug. 9, 1976) so as to:

(1) Recognize (but not quantify) Ramelli's unexercised riparian rights to the use of water from riparian sources on all his riparian land;

(2) Reserve jurisdiction to allot and/or reallot water if, as, and when changes in water uses and needs require such action;

(3) Make said decree consistent with the final judgment after remittitur in Evans v. Flagg, Sierra County Superior Court action No. 2809 (3 Civ. 12300) insofar as said decree adjudicates rights among and between Ramelli, Edith M. Evans, and Green Gulch Ranch, Inc.

FOOTNOTES

1.  See our unpublished opinion in Evans v. Flagg (1971) 3 Civil 12300, Sierra County Superior Court action No. 2809.

2.  Water Code section 2769 provides: “The decree shall in every case declare as to the water right adjudged to each party, the priority, amount, season of use, purpose of use, point of diversion, and place of use of the water; and as to water used for irrigation, the decree shall also declare the specific tracts of land to which it is appurtenant, together with such factors as may be necessary to define the rights.”

PARAS, Associate Justice.

PUGLIA, P. J., and REGAN, J., concur.