CITY OF LOS ANGELES v. CITY OF SAN FERNANDO (1972)

This action was commenced in 1955 by the City of Los Angeles against more than 200 defendants,¹ including the Cities of Glendale, Burbank and San Fernando, who were extracting water from wells in the San Fernando Valley and adjoining areas within the watershed of the Los Angeles River. Los Angeles sought to quiet its title to native and imported foreign waters in the area, both surface and subsurface, and to enjoin any further pumping or other taking of such water by defendants.

In 1958, over Los Angeles' objection, the trial court referred the case to the State Water Rights Board (now called the State Water Resources Control Board) pursuant to Water Code section 2001. After the Board's report was filed and pretrial hearings completed, trial commenced on March 1, 1966.

In 1968, twelve and a half years after the filing of the complaint, the trial court rendered a judgment which was based upon the principle of ‘mutual prescription,’ as enunciated by the Supreme Court in 1949 in City of Pasadena v. City of Alhambra, 33 Cal.2d 908, 207 P.2d 17, restricting pumping by the various defendants as well as plainfiff City of Los Angeles. This appeal followed.

LEGAL AND FACTUAL HISTORICAL BACKGROUND

In 1933, the City of Los Angeles commenced a quiet title action against the City of Burbank in which it asked ‘that it be decreed that this plaintiff, City of Los Angeles, is the owner and possessor of the prior and paramount right to take and use all of the waters of said Los Angeles River, as well as its tributaries, and including all of the underground waters of said Los Angeles River from the surface of the ground down to bedrock of said river, sustaining, maintaining, contributing to, and forming a part of the surface and subsurface flow of said stream . . ..’ An identical action was commenced in 1936 against the City of Glendale, and the two matters were consolidated for trial. Los Angeles' claim was based upon its status as successor to the Pueblo of Los Angeles—the so-called ‘pueblo right’ and its right to store and use water imported by it through the Owens River Aqueduct.

That litigation was finally determined by the Supreme Court of this State in 1943 in City of Los Angeles v. Glendale, 23 Cal.2d 68, 142 P.2d 289 (hereafter ‘Glendale’). The following description of the components and configuration of the Los Angeles River from the opinion of Justice Traynor will serve to illuminate the holdings in that case and, with our additions, in this one as well.

‘Between bedrock and the surface soil and sand, on the floor of the San Fernando Valley, there is a layer of gravel and rocks into which most of the water reaching the floor of the valley sinks. As a result, the subsurface of the valley holds a large mass of water that fills the interstices between the rocks and flows toward the lower end of the valley, eventually rising to become part of the surface flow of the Los Angeles River. This water has four sources: (1) the waters normally present in the valley; (2) the flood waters of Pacoima Creek and Tujunga Creek, which formerly flowed violently into the Los Angeles River and thence into the Pacific Ocean during periods of heavy rainfall, but which are now dammed by the Los Angeles Flood Control Authority and released slowly during dry seasons to become part of the mass of water beneath the surface of the valley; (3) spread waters from the Owens River Valley, brought by plaintiff, city of Los Angeles, to the San Fernando Valley where they are spread on the gravels of the valley so that they can be stored in the subsurface thereof and reclaimed when they reach the lower end of the valley; (4) return waters, which comprise 27 per cent of certain water from the Owens River Valley sold to the farmers of the San Fernando Valley, and which settle after use beneath the surface and join the mass of water below, as anticipated when sold.’ (Pages 71—72, 142 P.2d page 292.)

A fifth source of water has since been added. Colorado River water is purchased by Los Angeles, Burbank, Glendale and Crescenta Valley County Water District (also a defendant in this action) as members of the Metropolitan Water District of Southern California (hereafter referred to as ‘MWD’), and delivered to users in the area. A portion of this water, after delivery, likewise joins the underground waters.

The entire watershed which feeds the Los Angeles River, both surface and subsurface, which lies above Gauging Station F—57 of the Los Angeles County Flood Control District located in the ‘Narrows' just above the confluence with the Arroyo Seco, constitutes what the trial court here, and we hereafter, refer to as the Upper Los Angeles River Area (ULARA).

The City of Glendale was incorporated in 1906, and by 1910 had a population of 2746 persons. The City of Burbank was incorporated in 1911 and by 1920 it had only reached a population of 2913 persons.

Justice Traynor continued in Glendale: ‘Before 1913, when plaintiff completed its aqueduct from the Owens River Valley, plaintiff used substantially all of the water in the San Fernando Basin for the needs of its inhabitants. Thereafter, plaintiff used only part of the water in the valley, and defendants city of Glendale and city of Burbank were able to pump sufficient water from the valley to satisfy their needs. In 1917 and subsequent years, the city of Glendale spent $5,602,075.94, in the acquisition of lands, drilling of wells, and installation of a distribution system. The amount of water taken by the city of Glendale steadily increased through this period. Meanwhile, the city of Burbank expended $2,090,160 for similar purposes, and took water in constantly increasing amounts from the valley. Both cities took the water under a claim of right. Both cities have available other sources of water, since they are members of the Metropolitan Water District, and can purchase Colorado River water from it. A substantial part of defendants' investment in distribution systems would presumably be useful for the distribution of water from this source as well as from the present source.’ (P. 72, 142 P.2d p. 292.)

The trial court in Glendale had rendered judgment for Los Angeles, declaring that the city did have a prior and paramount right to both the native and foreign waters in the basin, but not the impounded flood waters from Pacoima and Tujunga creeks which are tributary to the Los Angeles River. (Los Angeles had withdrawn its prayer for an injunction against extractions by the defendant cities because it was stipulated that there was still a surplus of water in the basin.)

The Supreme Court unanimously upheld Los Angeles' right to all surface and underground waters in the basin and (modifying the trial court's judgment) the impounded flood waters as well. Los Angeles' right to use the basin to store its impounded water from the Owens River was confirmed, along with the right to recapture that portion of such water which sinks into the underground reservoir after delivery to farmers for irrigation.

The declared policy underlying the water law of the State of California is enunciated in article XIV, section 3 of the California Constitution and is essentially that there shall be no waste. No one has a right to extract from a natural stream or watercourse more water than is reasonably necessary for the beneficial use to be served. Hence the existence of surplus water in a river precludes the issuance of an injunction in favor of a riparian owner to prevent the extraction of such surplus.

In the instant case Los Angeles alleged that the surplus was now exhausted and that it was now entitled to prevent any taking of the water from the basin because its needs were equal to the entire supply. It prayed for an injunction against all further pumping by defendants.

Defendants in their answers, among other things (1) denied the existence of the ‘pueblo right,’ (2) claimed that, in any event, they were taking Owens River water, not native water, (3) contended that the water they were taking was and is surplus, and (4) alternatively, that there was no surplus but in fact a shortage of water in the basin and that they had been extracting water therefrom for more than five years and had acquired a prescriptive right by such adverse taking.

Throughout the course of the trial the defendants mainly focused upon denying the existence of the pueblo right and establishing the prescriptive right. They abandoned the contention that the water was surplus. The claim to a prescriptive right was predicated upon a showing that since 1942 there has existed in the basin a state of what is known as ‘hydrologic overdraft;’ that is, that the average annual extractions were exceeding what was defined as a ‘safe yield.’

The reference to the State Water Rights Board called for an investigation and report upon specified physical facts involved in the case which were relevant to the issues posed from the court's view of the law of the case as summarized below.

Based upon that report plus extensive testimony concerning the hydrology of the basin, and after hearing voluminous expert testimony on water rights under Spanish and Mexican law, the trial court made 145 findings of fact (many of which were in reality conclusions of law) and 29 conclusions of law, upon which it based its 20-page judgment. The portions of the findings, conclusions and judgment pertinent to our decision may be summarized as follows:

1. Los Angeles has no pueblo water right. The question is not governed by Stare decisis, because earlier decisions to the contrary were ill-considered and based on erroneous translations, and their holdings were dicta because no injunction was ever granted to protect such right in any city in California. Changes in fact and law occurring since the decision in Glendale would make it inequitable to hold that the question was res judicata as to Glendale and Burbank.

2. The ULARA consists of four separate sub-basins: the San Fernando Sub-Basin (by far the largest), the Sylmar Sub-Basin, the Verdugo Sub-Basin and the Eagle Rock Sub-Basin. Each of the four sub-basins is independent of the others, and the smaller ones are not tributary to the subsurface water supply of the Los Angeles River system contained in the San Fernando Sub-Basin. Each sub-basin contains a common source of supply to parties pumping or otherwise taking water therefrom.

3. There has been a state of hydrologic overdraft of water existing in the ULARA for more than five years since 1941—1942: that is, the total water taken during each of such years exceeded the Average annual re-supply. Not stated, but necessarily implied by this in light of the evidence, was a conclusion of law that Los Angeles had no right to manage the San Fernando basin as a natural reservoir by deliberately lowering its ground water level from 1942 to 1953 in order to provide storage for excess water in ‘wet’ years of above-average supply.

4. The parties have acquired mutual prescriptive rights in various specified quantities in the limited supply in the basin and its sub-basins, based upon their past use.

5. The parties may pump specified amounts from their wells in the basin and the various separate sub-basins, under the supervision of a court-appointed Watermaster and subject to change under the continuing jurisdiction of the court.

6. To avoid economic hardship to San Fernando, that city may pump the additional water it needs, within a specified limit, and Los Angeles must reduce its pumping by an equal amount, provided San Fernando reimburses Los Angeles for the necessary replacement water at a rate equal to the MWD ‘delivered water’ price charged Los Angeles, plus $10 per acre foot.

7. Los Angeles may no longer ‘spread’ any Owens River water, to artifically recharge the basin, without court approval after notice and hearing.

8. Los Angeles must pay all of the approved costs of defendants. In a separate judgment, Los Angeles was also ordered to pay the entire costs of the reference to the State Water Rights Board.

I. LOS ANGELES' PUEBLO RIGHT: STARE DECISIS AND RES JUDICATA

In 1943 the California Supreme Court, in its decision in Glendale, supra, at page 73, 142 P.2d, at page 292, said: ‘It has long been established that as successor to the pueblo of Los Angeles, the city of Los Angeles has a right, Superior to that of a riparian or an appropriator, to satisfy its needs from the waters of the Los Angeles River. Lux v. Haggin, 69 Cal. 255, 329, 4 P. 919, 10 P. 674; Vernon Irr. Co. v. City of Los Angeles, 106 Cal. 237, 39 P. 762; City of Los Angeles v. Pomeroy, 124 Cal. 597, 57 P. 585; Hooker v. Los Angeles, 188 U.S. 314, 23 S.Ct. 395, 47 L.Ed. 487, 63 L.R.A. 471; Devine v. City of Los Angeles, 202 U.S. 313, 23 S.Ct. 652, 50 L.Ed. 1046.’ (Emphasis added.)

Lux v. Haggin (1886) had discussed pueblo water rights under Spanish and Mexican law, but its comments were expressly dicta. (See 69 Cal. p. 332, 4 P. 919, 10 P. 674.) However, the Court, in Vernon Irr. Co., supra, decided in 1895, undertook a further review of Spanish and Mexican law, together with the history of the pueblo and city of Los Angeles, and confirmed the existance of that city's prior and paramount right to the use of the water of the Los Angeles River.

Thirty-five years later, in City of San Diego v. Cuyamaca Water Co., 209 Cal. 105, 287 P. 475, the Court stated: ‘We are of the opinion that . . . the subject is No longer an open one for further consideration and review before this court, and that . . . the proposition that the prior and paramount right of such pueblos and their successors to the use of the waters of such rivers and streams necessary for their inhabitants and for ordinary municipal purposes, has long since Become a rule of property in this state, which at this late date (1930) in the history and development of those municipalities which became the successors of such pueblos we are not permitted, under the rule of Stare decisis, to disturb.’ (P. 122, 287 P. p. 484; emphasis added.)

Thirty-six years later the trial court in this case nevertheless received, over Los Angeles' objection, evidence on the Spanish and Mexican law relating to pueblo water rights and made various conclusions of law culminating in the following: ‘15. The City of Los Angeles did not and does not own, hold, possess, exercise or enjoy a prior or paramount right to the use or benefit of all, or any part, of the waters of the Los Angeles River or of the Upper Los Angeles River Area by reason of its being the successor of the pueblo of Los Angeles. 16. . . . (or) by reason of the doctrine of res judicata.’

This was error. ‘Courts exercising inferior jurisdiction must accept the law declared by courts of superior jurisdiction. It is not their function to attempt to overrule decisions of a higher court.’ (Auto Equity Sales, Inc. v. Superior Court, 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 324, 369 P.2d 937, 940.) The rule applies with particular force to questions of law concerning property rights, as to which the Supreme Court itself recognizes the special need for certainty. ‘Where judicial decisions . . . have become established as rules of property, it is the duty of the court, on the principle of Stare decisis, to adhere to such decisions without regard to how it might be inclined to decide if the question were new.’ (Abbott v. City of Los Angeles, 50 Cal.2d 438, 457, 326 P.2d 484, 495, quoting 21 C.J.S. s 216, pp. 396—400.)

Whether Los Angeles' pueblo right is also considered a matter of res judicata as against defendants Glendale and Burbank is immaterial. As a rule of property, it affects all defendants equally, regardless of which ones may have participated in earlier litigation over the question.²

II. SCOPE OF THE PUEBLO RIGHT: SEPARATE BASINS

In Glendale the Supreme Court said: ‘The past decisions of this court have stated unequivocally that the pueblo right includes the right to All of the waters of the Los Angeles River and the waters supplying it.’ (Page 74, 142 P.2d page 293, citing Los Angeles v. Hunter, 156 Cal. 603, 105 P. 755, and Pomeroy and Vernon, supra; emphasis added.) Appellant's right to use the San Fernando Valley for underground storage of native water was established in Pomeroy (124 Cal. pp. 630—631, 57 P. 585) and Hunter (156 Cal. pp. 607—608, 105 P. 755).

Further 23 Cal.2d at page 75, 142 P.2d at page 293, the court stated: ‘(T)he pueblo right has always been measured, and therefore circumscribed, by the needs of the city. It thus insures a water supply for an expanding city . . . with a minimum of waste by leaving the water accessible to otheres until such time as the city needs it.’

It is undisputed that in 1913, when the Owens aqueduct water was introduced into the basin, Los Angeles was already using all of the ‘safe yield’ of native water then in existence. Any surplus which existed in the basin thereafter was the result of the imported water introduced by the City of Los Angeles. It is further uncontroverted that the needs of that portion of the present City of Los Angeles such as lies within the original pueblo boundary alone now exceeds the safe yield of the native waters in the basin.

The scope of the pueblo right in terms of the area and the character of the water has also been previously settled. Again quoting from Glendale, at page 73, 142 P.2d at page 292, ‘Because the flow of the river is dependent on the supply of water in the San Fernando Valley, it has also been held that the pueblo right includes a prior right to all of the waters in the basin.’ An examination of the pleadings, findings and judgment which were approved in the Glendale decision establishes beyond peradventure that the ULARA as described and covered by the judgment in this case is identical with the area covered by the judgment in Glendale.

Whether the underground storage area consists of four separate basins or is considered as one water field, the previous judgment quieting Los Angeles' title to the use of the water in ULARA covers each of the four basins. Even conceding the existence of such separate basins, it does not follow that water trapped in them constitutes a ‘source of supply’ separate from Los Angeles' pueblo right. Every acre foot of water pumped out of each tributary basin will inevitably leave an equal volume of empty storage capacity which will be filled by rainfall and water from the tributary streams sinking into the ground—water which would otherwise flow over the top of the impervious rock barrier and down into the San Fernando Basin. It has long been established that one entitled to surface flow can prevent the pumpting of underground ‘support water’ which diminishes that flow. (Barton Land and Water Co., et al. v. Crafton Water Co., 171 Cal. 89, 95, 152 P. 48; Verdugo Can on Water Co. v. Verdugo, 152 Cal. 655, 699, 93 P. 1021; Montecito Valley Water Co. v. Santa Barbara, 144 Cal. 578, 588, 77 P. 1113; Vineland Irr. Dist. v. Azusa Irr. Co., 126 Cal. 486, 496, 58 P. 1057; Lemm v. Rutherford, 76 Cal.App. 455, 457—460, 245 P. 225.) We hold that this rule applies even though the underground water supporting surface flow is held in a natural basin from which the support water could not itself escape by underground flow. It follows that, as a matter of law, Los Angeles' pueblo right includes ground water underlying all portions of the ULARA, except that resulting from the importation of water by defendants which has percolated into and become part of the supply as discussed below.

It is also not open to question that the City of Los Angeles has the right to use the basin to store and transport its imported water and to recapture its imported water for use either within or outside the limits of the original pueblo.³ (Glendale, supra, 23 Cal.2d pp. 76—77, 142 P.2d 289.)

III. PRESCRIPTION AGAINST MUNICIPAL WATER RIGHTS

After concluding that Los Angeles did not possess a ‘pueblo right,’ the trial court held that the various parties, having all taken water from the ULARA for more than five years after depletion of the surplus, had gained mutually prescriptive rights to the ground water in the area. The court then determined such rights by establishing quantities of annual entitlement, enjoining any further taking except under the court's continuing supervision through a Watermaster.

Pasadena v. Alhambra, 33 Cal.2d 908, 207 P.2d 17 (1949), relied upon by the court for its application of the doctrine of mutual prescription, is not a binding precedent here, for two reasons. First, it did not involve any city with a pueblo right, but only cities and other parties claiming as appropriators and overlying owners. Los Angeles' pueblo right, and its clear title to the Owens River water imported as a result of its foresight and at its sole expense, gave it a priority of legal claim which removes the required element of mutuality. Second, the cities there had stipulated that their water usage was Adverse, open and notorious and under a claim of right, and that issue was accordingly not raised upon appeal. (Page 922, 207 P.2d 17.)

Defendants here claimed a prescriptive right to take Los Angeles' pueblo-right water or its imported Owners River water of both. They introduced evidence tending to prove that there had been an absence of surplus since 1942, and that their continued extraction of water had constituted an Adverse appropriation lasting for more than five years. We must accordingly decide whether prescriptive title to water rights can be acquired by one city against another or whether in any event, under these facts, prescriptive title could be acquired against Los Angeles.

The trial court's finding that adverse use, and thus the prescriptive period, began in 1942 cannot withstand scrutiny. One of the defendant's own experts testified in the case at bar that as of 1942, when the alleged condition of overdraft was supposed to have commenced, the basin was full and overflowing.

Thus, Los Angeles had in 1943 established its right to all of the native waters in the basin and its right to recapture its imported water, but because of a surplus which was then flowing in the basin, it was unable to obtain an injunction. The result is that any pumping by the defendants since that date has been subordinate to and presumptively consistent with the rights of the City of Los Angeles. In the absence of notice to the contrary, Los Angeles had a right to rely on its previously obtained judgments.

Assuming arguendo that defendants could legally obtain prescriptive water rights against Los Angeles evidence on the issue of notice to Los Angeles was insufficient to support the court's finding of prescription in either of two respects: it failed to establish (1) notice that the taking was adverse, or (2) notice that the taking was under a claim of right.

In the absence of actual notice to the record owner, establishing a prescriptive right requires that the taking be so open and notorious that a prudent owner can be presumed to realize not only the fact of the taking, but that such taking was Adverse to his interests. (Kerr Land & Timber Co. v. Emmerson, 268 Cal.App.2d 628, 634, 74 Cal.Rptr. 307.)

Defendants here between 1942 and 1955 did not give Los Angeles any formal notice of an adverse taking. The mere pumping of the water, concededly known to Los Angeles, was not tantamount to notice that the taking was adverse. Defendants' claim of adversity was based on the fact that there was a shortage of water in the basin. The proof of that fact was so technically complicated, occupying the referee and the trial court here as extensively as it did, that knowledge of its existence could not be presumed.

Actual or constructive notice that the defendants were taking under a claim of right was also required. (Kraemer v. Kraemer, 167 Cal.App.2d 291, 306, 334 P.2d 675.) Again, mere knowledge of defendants' pumping was insufficient because there are two levels of right to consider. Defendants had a right to Use surplus water because of the constitutional policy against waste. But such use was consistent with Los Angeles' more basic right—its legal Title to the water. There mere taking without more raised no presumption that Los Angeles was aware that defendants claimed legal title to the water.

We turn to the basic question of whether municipal water rights are subject to prescription. If only Los Angeles' pueblo-right water were involved here, that right would itself suffice to preclude defendants from gaining prescriptive rights so long as Los Angeles was taking all the water it needed. In Glendale the Supreme Court said: ‘Since the pueblo right entitled plaintiff (Los Angeles) to take only the water that it needed, however, it had no occasion to object to the taking of the remainder by defendants. City of San Diego v. Cuyamaca Water Co., Supra (209 Cal. pp. 134—135, 287 P. 475). It is settled that an appropriation must invade the rights of another before it can destroy them by the establishment of a prescriptive title. (Citation.)’ (23 Cal.2d, page 79, 142 P.2d, page 295.)

Apart from that special effect of the pueblo right, however, when, as here, there is a claim of prescriptive right to water which is a mixture of native pueblo-right and foreign water owned by a city, two statutes must be considered.

Civil Code section 1007, as it read from 1935 to 1968, provided, in pertinent part, as follows: ‘(N)o possession by any person, firm or corporation no matter how long continued of any . . . water right . . . dedicated to or owned by any . . . city . . . shall ever ripen into any title, interest or right against such . . . city . . .’ Any doubt as to whether ‘corporation’ as used in that statute includes a municipal corporation, is resolved by Code of Civil Procedure, section 1240, which provides in part: ‘(3) (P)roperty appropriated to the use of any . . . incorporated city . . . may not be taken by any other . . . incorporated city . . . while such property is so appropriated and used for the public purposes for which it has been so appropriated.’ As the Supreme Court pointed in Glendale, ‘The acquisition by the municipality of the water right, for which the holder of the right receives only damages, is ‘inverse condemnation’ (Hillside Water Co. v. Los Angeles, Supra, 10 Cal.2d (677) at page 688, 76 P.2d 681), and property belonging to one municipality cannot ordinarily be condemned for the benefit of another. Code Civ.Proc., s 1240.' (23 Cal.2d, p. 80, 142 P.2d, p. 296.)

Statutes dealing with the same subject are, if possible, to be construed so as to harmonize them. (Select Base Materials v. Board of Equalization, 51 Cal.2d 640, 645, 335 P.2d 672; Merrill v. Department of Motor Vehicles, 71 Cal.2d 907, 918, 80 Cal.Rptr. 89, 458 P.2d 33.) To interpret Civil Code section 1007 as allowing a city to acquire a water right indirectly from another city, without compensation, when acquisition directly by condemnation with compensation is expressly forbidden by section 1240 of the Code of Civil Procedure, would result in an incongruity which we cannot assume the legislature intended.

We conclude that the conbined effect of the two statutes quoted above is to prevent the acquisition by either a private party or another city of prescriptive title to water owned by a city.

IV. LOS ANGELES ENTITLED TO INJUNCTION: SCOPE

Los Angeles has a prior and paramount right to all native waters in the ULARA, including captured flood waters as well as all water imported into the ULARA by Los Angeles through the Owens River Aqueduct and from other sources, together with water from all of these sources which percolates into the underground storage. Los Angeles has the further right to use all of the underground basins in the ULARA for storage of native and imported waters.

Los Angeles is therefore entitled to an injunction against all defendants to prevent their further pumping of any of said waters belonging to Los Angeles.

Not all of the water in the basin, however, belongs to Los Angeles. Defendants Glendale, Burbank and Crescenta Valley County Water District purchase water from the MWD, some portion of which, after use, becomes ‘returen water’ which percolates into the underground reserviors.

The issue thus presented, and one which was not dealt with by the trial court, is the defendants' right to recapture the return water or its equivalent.

One who imports water and uses a natural stream to convey it may recapture an equal amount in spite of its having been mingled with the natural waters of the stream. (Butte Canal & Ditch Co. v. Vaughn, 11 Cal. 143; Stevens v. Oakdale Irrigation Dist., 13 Cal.2d 343, 90 P.2d 58; see Wiel, ‘Mingling of Waters' (1915), 29 Harv.L.R. 137, 147—152.) The Supreme Court applied this rule in Glendale, holding that Los Angeles had a right to recover the return water which results from the deep percolation of Owens River water after it has been sold to farmers and used for irrigation. (23 Cal.2d, pp. 77—78, 142 P.2d 289.) (See also Moskovitz, ‘Quality Control and Re-use of Water in California’ (1957), 45 Cal.L.R. pp. 586, 595—603.)

The rule applies equally to the recapture of return waters by those defendants who purchase MWD water.

The report of the State Water Rights Board as Referee included a finding that during water years 1949—1950, 1954—1955 and 1957—1958 the portion of all imported waters which returned to the underground reservoirs was 25.9% And 27.0% And 26.5%, respectively. No finding was made, however, as to the percentage of such return water attributable to imports by each party separately. Nor was any calculation made of the net credit for return waters due to the re-use of the return water after recovery.⁴ Such findings must be made upon remand, in order to prepare a judgment in accordance with our conclusions.

V. SAN FERNANDO'S PROBLEM AND THE ‘PHYSICAL SOLUTION’

The trial court found that San Fernando was entitled to 2,370 acre feet per year as its share in the mutually prescriptive rights, and eecreed that it could pump 2,737 acre feet in ‘restricted pumping,’ subject to change under court supervision through the Watermaster. The court also found that San Fernando would need up to an additional 850 acre feet per year, averaging an estimated 318 acre feet, and that it ‘has no other present source of water supply to meet its needs (other than its wells).’ If San Fernando were forced to join MWD to obtain the additional 318 acre feet, according to the trial court, its cost would be $150,709 or $502⁵ per acre foot, exclusive of facilities to deliver the water, ‘which facilities to not now exist and would be very costly to construct,’ and this would cause ‘great and grievous hardship’ to San Fernando. The judgment accordingly provided that San Fernando could pump up to 850 additional acre feet per year as needed, provided it paid Los Angeles $10 per acre foot ‘plus the average cost per acre foot to the City of Los Angeles for water purchased by it from M.W.D. (to replace the water taken) . . .’

This hardship was more apparent than real. However, the problem is now moot. We are advised that since the entry of the judgment in this matter, City of San Fernando had joined the Metropolitan Water District.

VI. COSTS

In light of its findings of fact and conclusions of law, the trial court awarded a total of $59,834.80 in ordinary costs to various defendants, and, by additional sums in such award plus a separate judgment, also ordered Los Angeles to pay 97 1/2% Of the costs of reference to the State Water Resources Control Board, a sum of $480,836.00. The total cost award against Los Angeles thus aggregated $540,670.80.

We need not discuss the correctness of the details of those rulings because our conclusions set forth above require a complete redetermination of liability for costs. As to ordinary costs, section 1032 of the Code of Civil Procedure reads, in pertinent part: ‘In the superior court, except as otherwise expressly provided, costs are allowed of course: (a) . . . To plaintiff upon a judgment in his favor: . . . in an action which involves the title or possession of real estate . . ..’

‘It has been repeatedly held that the Code provisions awarding costs apply to an action affecting conflicting claims of water rights. (Citations.)’ (Witherill v. Brehm, 74 Cal.App. 286, at 299, 240 P. 529, at 534.) The judgment to be entered upon remand, in accordance with our decision, is one in favor of plaintiff City of Los Angeles, within the meaning of that section.

Water Code section 2048 provides that where, as here one or more parties objects to the apportionment of reference costs first made by the State Water Resources Control Board the court ‘shall determine the expense and its apportionment as the court deems equitable and shall enter judgment against the parties in favor of the board in the amounts apportioned to them.’

Los Angeles objected to the order of reference from the first. In the light of our conclusions, the only factual question which might have required reference was one for which the court did not request an answer: the percentage of MWD water imported by the various defendants which in the past became, and can be expected in the future to become, return water by ‘deep percolation’ after use, as discussed under IV above. Los Angeles should not be required to pay any part of the costs of the original reference. If the trial court on remand finds it necessary to make a further reference of the above mentioned issue, Los Angeles should pay one-half of the costs, and the other half should be apportioned among the defendants involved in such manner as the court deems equitable.

The principal judgment and the judgment in favor of the State Water Rights Board are both reversed. The cause is remanded with directions that the trial court make findings and enter judgment in accordance with the principles we have stated.

FOOTNOTES

1.  Thirty-one defendants were actively represented by counsel throughout and stipulated judgments were filed by 17 others. The remaining defendants either disclaimed, defaulted or were dismissed.

2.  The court found applicable the exception to res judicata which is justified by three circumstances, all of which it found to exist: (1) a change of law (Pasadena v. Alhambra, discussed below), (2) a change of facts (urban growth since the decision of Glendale), and (3) because ‘Great public interests are here involved and a rigidly legalistic application of the doctrine of res judicata in this case would defeat the ends of justice.’ (Finding No. 59(a).) The court did not explain the last item.

3.  Although not necessary to our decision here because of our conclusion that prescription does not lie against Los Angeles' water rights, we believe the exclusive right to use an underground basin as a natural reservoir must include the right to lower the water level in years of relative drought in order to provide capacity to capture excess water in years of above-average supply.

4.  The necessary calculation involves a simple problem of algebra which the trial court can solve as to each importing defendant.

5.  The court's figure is apparently a miscalculation. The correct amount is $474 per acre foot.

COMPTON, Associate Justice.

ROTH, P.J., and FLEMING, J., concur.