OCR Text |
Show INTERRELATIONSHIPS OF THE DUAL WATER RIGHTS SYSTEMS 209 Most California law with respect to conflicting riparian-appropriation interrelationships was made in controversies in which the riparian right was adjudged superior. The riparian doctrine was firmly established in 1886 in Lux v. Haggin.234 Forty years later in Herminghaus v. Southern California Edison Company, prevailing riparian principles were so interpreted and applied by the supreme court as to result in segregating a large quantity of water from appropriative use to accomplish a comparatively small riparian benefit.235 Among other things, the supreme court repeated an observation that it had made twice before to the effect that as against an appropriator, a riparian owner "is not limited by any measure of reasonableness."236 The cumulative effect of this 40-year period of litigation, culminating in the Herminghaus case, was that the position of the riparian owner in California in relation to that of an appropriator, whether or not the riparian had made any use of the water, became so fortified in judicial law-and so unbearable to advocates of resource development-that the voters of the State were constrained to write into their constitution a mandate that beneficial utilization of the State's water resources be made "to the fullest extent of which they are capable."237 The amendment forbids waste or unreasonable use or unreasonable method of use or unreasonable method of diversion of water. It declares that riparian rights in a stream attach to only so much of the flow as may be required or used for reasonable and beneficial purposes. The constitutional amendment has been construed, accepted as command- ing a new State water policy, and applied by the courts in a number of key cases.238 The present situation in California is that the riparian owner as well as the appropriator is now limited to reasonable beneficial use of water under reasonable methods of diversion and use. The riparian owner can no longer insist that an upstream appropriator refrain from diverting water the taking of which will prevent the riparian owner from using the full natural flow of the stream for the sole purpose of lifting a comparatively small quantity of water over the banks for natural flooding and irrigation of the riparian land by natural processes. But the amendment did not destroy the riparian right. It merely restricted the unreasonable exercise of the right. The riparian owner is 234Lux v. Haggin, 69 Cal. 255, 4 Pac. 919 (1884), 10 Pac. 674 (1886). 23SHerminghaus v. Southern California Edison Co., 200 Cal. 81, 252 Pac. 607 (1926). 236Id at 100-101, quoting, Miller & Lux v. Madera Canal & In. Co., 155 Cal. 59, 64, 99 Pac. 502 (1907). See also Pabst v. Finmand, 190 Cal. 124, 132, 211 Pac. 11 (1922). 237Cal. Const., art. XIV, § 3, adopted November 26, 1928. 238In particular, Peabody v. Vallejo, 2 Cal. (2d) 351, 365-375, 40 Pac. (2d) 486 (1935); Tulare In. Dist. v. Lindsay-Strathmore In. Dist., 3 Cal. (2d) 489, 524-530, 45 Pac. (2d) 972 (1935); Meridian v. San Francisco, 13 Cal. (2d) 424, 445^50, 90 Pac. (2d) 537 (1939); Pasadena v. Alhambra, 33 Cal. (2d) 908, 934-935, 207 Pac. (2d) 17 (1949); United States v. Gerlach Live Stock Co., 339 U. S. 725, 752-755 (1950). 450-486 O - 72 - 16 |