MERIDIAN v. CITY AND COUNTY OF SAN FRANCISCO (1939)

On petition for rehearing the plaintiff calls attention to an obvious omission in the modification of paragraph IV of the judgment. In that paragraph the trial court, among other things, definitely fixed the extent of the city's prescriptive right. The city also suggests a correction to the same effect. The purpose of the suggested or any modification of paragraph IV was and is to retain in the judgment the determination of the trial court with reference to the city's prescriptive right and to eliminate therefrom the restriction against the increased storage by the city within that right. The opinion and judgment of this court is therefore modified by striking therefrom the quoted paragraph following the words ‘Paragraph IV is modified to read as follows:’ (appearing on page 537 of 90 P.2d), and substituting in lieu thereof the following:

‘That the defendant, the City and County of San Francisco, is the owner by prescription of a right, prior and superior to the plaintiff's riparian right, to store in its Lake Eleanor Reservor and Hetch Hetchy Reservoir the waters, including the excess waters, of the Tuolumne River and its tributaries, up to 234,000 acre feet of water, and no more, at any one time, and up to a total of 235,465 acre feet of water, and no more, in any seasonal year, extending from and including October 1st of any year to and including September 30th of the next succeeding year, and to release the water so stored and use it for the generation of hydro-electric power; provided that when there is not flowing at the plaintiff's land the quantity of water to which it has been found to be entitled, and of a quality substantially unimpaired by any act of the city beyond the exercise of its prescriptive right, the waters so stored and then being used for power purposes shall be returned after such use to the Tuolumne River at a point above the works of the defendant, Turlock Irrigation District, Modesto Irrigation District and Waterford Irrigation District, and above the lands of the plaintiff.’

It is further urged by the plaintiff that the judgment as modified does not accord to the plaintiff adequate protection of its rights, nor direct a physical solution, and that a rehearing should be granted so that the parties might, after further opportunity for consultation and study, arrive at a permanent agreement to be embodied in a possible stipulated judgment. There is nothing in the judgment as modified herein which would prevent the trial court from providing a physical solution in carrying out the purpose and intent of the judgment of from making further orders in protecting the rights of the parties. The trial court has safeguarded its jurisdiction in that respect by the reservation contained in paragraph IX of the judgment as follows: ‘That the court hereby reserves jurisdiction and authority, at any time, and upon application of any party affected by this judgment and decree, to make such modifications of, or such additions to, the provisions of this judgment, or to make such further orders, as may be necessary for the adequate enforcement, protection or preservation of the rights of the respective parties as declared in this judgment.’ This paragraph of the judgment has been in no wise affected by the decision of this court and is left undisturbed.

The petition for rehearing is denied.

PER CURIAM.