YANKWICH, Chief Judge.
On January 25, 1951, the Government of the United States began an action to declare its rights to the water of the Santa Margarita River, which it acquired when it purchased, in 1942, certain lands from the Rancho Santa Margarita.
The complaint in the action has been fully summarized and analyzed by the writer in a previous opinion.
Following pre-trial conference, a Pre-Trial Order was entered on August 25, 1952, defining the issues as they affect two of the defendants, Fallbrook Public Utilities District and Santa Margarita Mutual Water Company, public service corporations of the State of California, and the State of California, which is a defendant in intervention. We shall refer to Fallbrook Public Utilities District as "Fallbrook", and to Santa Margarita Mutual Water Company as "Santa Margarita".
The Pre-Trial Order contains the following finding:
The Stipulation to which reference is made, and which was adopted by the Court, contained the following agreements:
With the issues thus delimited, the cause is now set for trial for October 29, 1952, as to the three named defendants. The pre-trial hearings made it apparent that certain questions of law could, with great propriety, be argued and determined in advance of trial. The parties are of the view that a legal determination of these questions might be a guide to counsel in the presentation of the case and reduce the trial time materially.
The following facts bearing on the legal questions involved need be adverted to.
Fee simple title resides in the United States of America to 135,000 acres of land, which is situated largely in San Diego County, California.
The lands were acquired by the United States of America in the year 1942.
Lands riparian to the Santa Margarita River are owned in fee simple by the United States of America and comprise part of the military establishment in question.
Lands riparian to the Santa Margarita River are owned by the defendant Vail Estate.
By a stipulated judgment, Exhibit A of the Complaint, the respective rights in the Santa Margarita River of the United States of America and the Vail Estate, insofar as this litigation is concerned, have been established.
It is contended by the United States that approximately 38,000 acres of the 135,000 acres owned by the United States of America, are riparian to the stream in question. Of that total riparian acreage, approximately 18,700 acres, it is contended, are susceptible of practicable and profitable irrigation. At variance with that figure is the assertion by the defendants that less than 12,000 acres of the lands of the United States within the watershed of the Santa Margarita River are susceptible of practical irrigation.
Fallbrook has been a public utility district since 1922, and has engaged in supplying irrigation and domestic water to the lands within its boundaries and to the people living thereon.
It has installed in the channel of the Santa Margarita River a dam impounding water to which the United States claims to be entitled. It has also installed a pump in the channel of that stream. With that pump the defendant Fallbrook is now, and has been for the past two years, pumping and extracting approximately 1,800 acre-feet of water from the Santa Margarita River to which the United States claims to be entitled.
The diversion by Fallbrook is made pursuant to Permit No. 7033, issued by the Department of Public Works, Division of Water Resources, State Engineer, State of California.
Fallbrook, pursuant to Permit No. 8511, issued by the Department of Public Works, Division of Water Resources, State Engineer, State of California, asserts a right to construct a dam on the Santa Margarita River with a capacity of 32,000 acre-feet, and to divert from the Santa Margarita River 10,000 acre-feet of water annually.
On October 4, 1946, there was filed an application with the State of California Department of Public Works, Division of Water Resources, on behalf of Santa Margarita.
Pursuant to this application, Santa Margarita claims to have the right to divert not to exceed 60 cubic feet per second from the stream flow of the Santa Margarita River and its tributaries, and to store 5,000 acre-feet of the waters of the Santa Margarita River under and pursuant to any permit which may hereafter be issued by the State of California pursuant to the application mentioned. On the 12th day of November, 1947, Santa Margarita filed its application with the Division of Water Resources of the State of California for permission to store 60,000 acre-feet of the waters of the Santa Margarita River under and pursuant to any permit which may be issued by said Division of Water Resources.
On the 30th day of June, 1948, the plaintiff, the United States of America, filed its application with the Division of Water Resources of the State of California, wherein the plaintiff requested the issuance of a permit authorizing it to store 165,000 feet of water of the Santa Margarita River. All said applications are still pending before the Division of Water Resources. And no diversion of water has been made by Santa Margarita.
Riparian Rights and Appropriation
So far as the defendants Fallbrook and Santa Margarita are concerned, the issue
In the prior opinion, the history of the development of riparian rights in California and their modification by constitutional revision was gone into.
The Water Code, which carried into effect this constitutional provision, reasserts the principle that it is the policy of the State to insure the fullest beneficial use of its water resources.
The Water Code redefines the right in identical language.
subject to the right to use of water by appropriation, and with full recognition of riparian rights.
The Supreme Court of California has stated that the object of the Water Commission Act, later codified in the Water Code, was
In this respect, the right does not rise above the limitation imposed by the constitutional amendment of 1928. The Supreme Court of California has said:
The water rights of a riparian owner stem from his ownership of the land
Other than the limitation to place the water to beneficial use, the right of the riparian owner is limited by the rights of other riparian owners. As to this, the Supreme Court of California has said:
Beneficial Use, Present and Prospective
In impressing the limitation of beneficial use on riparian water rights, California law does not limit the owner to present use. To the contrary, giving, in this respect, effect to the constitutional enactment, it envisages uses to which lands may not be put at the time, but to which they may be made "adaptable".
The California Supreme Court, in applying this section, has stressed the prospective reasonable beneficial uses which the law has in mind. In one of the first leading cases involving the interpretation of the new constitutional amendment, the Court said:
This feature has been reasserted in later cases.
Nature of Beneficial Use
Ever since the recognition of riparian rights in California, the courts have laid down very broad rules relating to what constitutes beneficial use. Among those which have received recognition are household and domestic needs,
Illustrative of the realistic approach is a recent case in which the use of riparian water for the purpose of furnishing water to guests at a resort was held within the scope of domestic use. The Court used very broad and significant language:
This portion of the opinion is more or less expository. It is not our intention to draw definite conclusions until we reach the end. However, while professing that
the brief filed by the State of California joins the corporate defendants in insisting, with much emphasis, that the use of water for military purposes is not a riparian use.
Surprisingly, the State of California, in all seriousness, would limit the right of the Government to the stationing of a few soldiers to guard the stream and to supplying them with water. Indeed, the State's brief uses a term which seems to have been coined for the occasion, "urban service", — as representing the type of service which the Government has established and which the State insists should be supplied in another manner. We quote from the brief:
While the courts have held that furnishing water by a municipality to its inhabitants is not a riparian use, we know of no California case which has limited the number of beings who can be supplied with domestic water per acre of ground. We believe that a military population of 50,000 on 130,000 acres of ground would not be considered "urban" concentration. We know of no rule which states that "urban" concentration must be supplied through appropriation when riparian waters are available. To the contrary, the cases heretofore referred to do not exclude a military use of the type under consideration.
For, if a riparian owner may develop power for use on his riparian lands or transport the power elsewhere, if he may operate a mill or mining establishment, if he may use the water to satisfy cattle and humans and may use water to satisfy the needs of paying guests in hotels located on the premises, certainly the United States Government could house soldiers on a huge ranch which it purchased, and use the water for the purpose of training and housing of military and allied personnel, and for conducting hospital facilities, and also carry on, either directly or indirectly, such incidental, temporary agricultural activities as it does, and of the type which admittedly is being conducted by the Government at Camp Pendleton.
California has many military establishments. We are quite certain that if the interpretation of the defendants concurred in by the State were adopted, and the Government were to announce that it intends to abandon Camp Pendleton, many persons would protest the removal from the State of the economic value of 50,000 soldiers and the purchasing power which their maintenance entails. California is one of the states which sanctions what is known as "exploitation funds", — money raised by taxation by counties, which is turned over to various groups, such as the Chamber of Commerce, All-Year Clubs and similar organizations, with the idea of exploiting the availability of California for the establishment of industry and other facilities.
California has competed in the Congress with other states to secure such military establishments. If it had been known that California would insist that a military use of waters is not riparian, I am quite certain
What precedes expresses our conclusion that, while the question of reasonableness of the particular use is a question of fact, the contention that a military use is not per se a reasonable riparian use, must be rejected.
Ever since the inception of water law in California, the Courts have held that because water is a species of property, title by prescription could be acquired by adverse use for the five-year period prescribed by the California Code for acquiring title by adverse possession.
The most important element is that the taking of water invade the rights of another. For this reason, a right to use water acquired by permission or license from another can never ripen into a title.
The bearing of these principles upon the facts, as they are disclosed by the pleadings and the pre-trial order, is this:
1. Granting that the Government and its predecessor in interest may have put the water to non-riparian use, whether by using it in other watersheds or not, the Government will have the right to establish that they and their predecessors have acquired a prescriptive right to such use.
2. Under the same principles, Fallbrook cannot assert any prescriptive rights during the period when it received water under a revocable license received on July 20, 1932, from the predecessor in interest of the United States, which was revoked by the United States on July 31, 1948, and pursuant to which Fallbrook was permitted to divert, for domestic use only, ten miners inches of water ( 1/5 of a cubic foot of water per second of time).
Santa Margarita is not a riparian owner. Fallbrook claims only ownership of a possible 400 acres as riparian. Fallbrook has used some of the water which it secured under a revocable license of the United States Government for distribution among its patrons for domestic and agricultural purposes. Its first appropriation under the law of California is dated October 11, 1946. The first application for appropriation by Santa Margarita was October 4, 1946.
The Supreme Court of California has found that the normal flow of water in the Santa Margarita River is insufficient to satisfy the needs of the riparian owners.
This rule does not, however, relieve the riparian owner of proving the amount of water required for beneficial use. Both facets of this problem have been succinctly stated by the Supreme Court of California:
The Rights of Lower Riparian Owners
All three defendants argue the proposition that a lower riparian owner cannot, ordinarily, acquire any adverse rights to the same stream against an upper owner.
Admittedly, this is a correct general statement of the law of California, although there have been deviations in the cases.
It is to be noted that the inference that, ordinarily, the use of the upper riparian owner is not hostile is based upon the assumption that there was an adequate supply of water for all. This may be overcome by a showing that there was an adverse use, (a) either because of insufficiency of the water flow, or (2) for other reasons showing hostile use. If there is water enough for all, under the doctrine of correlation, the benefit goes to the lower riparian owners. The appropriator cannot benefit by the situation unless, after the correlative needs of all riparian owners have been satisfied, there is a surplus capable of appropriation.
So, here, again, the rights of the two corporate defendants depend upon the existence of a surplus as to which their right of appropriation could attach.
Control, Federal or State
In view of what precedes, the question of control by the United States within the
As to the other large riparian user, — the Vail interest, — the matter is covered by a stipulation which makes the stipulated judgment in the case between the Vails and the Government's predecessor the measure of their rights. Even the right to impound water temporarily
This stipulation recognizes, as do the cases just cited, the right to store water temporarily with a view of putting the water to better use for whatever operations may be conducted by the Government. The Government concedes that it gives full recognition to the rights of other riparian owners. Indeed, its brief states:
What the Government is contesting is the possible contention that the cession of exclusive jurisdiction by the State of California to the United States Government over these and kindred lands acquired by it does not extend to land not used for military purposes. It is accepted law that any act of cession by a state gives the United States exclusive jurisdiction regardless of the use to which a portion of the land might be put. The contention to the contrary is answered in the very succinct language of Mr. Justice Brewer:
This carries into effect the constitutional mandate which gives the Congress the power to "exercise exclusive Legislation" over such lands within a State as may
There has been no deviation from this principle either in cases which preceded or those which followed the cases just cited.
The only exception exists in those instances wherein, either by general law, or by a special cession statute, certain laws are allowed to coexist with the federal law, — there being no inconsistency between the two.
The variety of cases in which these principles have been applied, ranging from attempts to tax persons within government reservations, or to collect taxes on goods, down to the fencing of a railroad right-of-way, which ran through a military enclave,
Granted that, in certain instances, federal and state legislation might be exercised without conflict, it is inconceivable that,
In what precedes, we have discussed the main legal questions involved which, in the opinion of the Court, can be determined in advance of trial.
Supplemental problems are referred to in the notes to the text. Others discussed in the briefs are not touched on at all because they should not, in the opinion of the Court, be decided until a record of all the facts is before the Court. Because the defendants have filed three separate briefs, it has not been easy to ascertain their true position as to all issues. At times, they drew different conclusions from identical principles or authorities.
The following conclusions may, however, be stated in answer to some of the contentions made in this case:
"The rights of riparian proprietors on the same stream, with respect to each other, are mutual and reciprocal. Neither has a right to the whole stream as against the rights of the others. Each is entitled only to his reasonable share thereof, considering the rights and needs of the others, and such rights must be exercised and the use must be made only on the parcel to which the rights attach." Parker v. Swett, 1922, 188 Cal. 474, 475, 205 P. 1065, 1069. (Emphasis added.)
In a later case, City of Pasadena v. City of Alhambra, supra, the same principle is expressed and contrasted with the lack of such correlation as to appropriators:
"As between overlying owners, the rights, like those of riparians, are correlative and are referred to as belonging to all in common; each may use only his reasonable share when water is insufficient to meet the needs of all. Katz v. Walkinshaw, 141 Cal. 116, 70 P. 663, 74 P. 766, 64 L.R.A. 236, 99 Am.St.Rep. 35; see 26 Cal.Jur. 269-273, 276; cf. 25 Cal.Jur. 1063-1067. As between appropriators, however, the one first in time is the first in right, and a prior appropriator is entitled to all the water he needs, up to the amount that he has taken in the past, before a subsequent appropriator may take any." City of Pasadena v. City of Alhambra, supra, 33 Cal. 2d at page 926, 207 P.2d at page 29.
"It is hereby declared to be the established policy of this State that the use of water for domestic purposes is the highest use of water and that the next highest use is for irrigation." California Water Code, Sec. 106.
"The constitution of the United States declares that congress shall have power to exercise `exclusive legislation' in all `cases whatsoever' over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards and other needful buildings. When therefore a purchase of land for any of these purposes is made by the national government, and the state legislature has given its consent to the purchase, the land so purchased by the very terms of the constitution ipso facto falls within the exclusive legislation of congress, and the state jurisdiction is completely ousted. This is the necessary result, for exclusive jurisdiction is the attendant upon exclusive legislation; and the consent of the state legislature is by the very terms of the constitution, by which all the states are bound, and to which all are parties, a virtual surrender and cession of its sovereignty over the place." 25 Fed.Cas. p. 648. (Emphasis added.)