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Show 717 the result of a decision in 1926 34 which accorded to a riparian owner the right to the full flow of a river in order to support a flow over the riparian lands of a small fraction of the stream, the outcome of which was the adoption in 1928 of a constitutional amendment restricting riparian and other rights to the flow of watercourses to reasonable beneficial use under reasonable methods of diversion and use, and ac- knowledging riparian rights to that extent.35 The supreme court has sustained the validity of this amendment and has declared it to be effective in all controversies relating to the use of water.36 The riparian owner has a prior and paramount right to the reasonable beneficial use thus safeguarded him by the constitution; but excess waters above the quantities to which riparian and other lawful rights attach are public waters of the State, to be used, regulated, and controlled by the State or under its direction.37 Rights to the use of ground waters follow the legal distinction made in many jurisdictions between definite underground streams and perco- lating waters. A few decisions relating to defined underground streams have held that rights of use are subject to the same rules of law as those applying to surface streams;38 and such ground waters-and only such- are subjected to appropriation by the provisions of the Water Code.39 Most of the rather numerous cases dealing with ground waters in California have involved so-called percolating waters, including waters 84 Herminghaus v. Southern California Edison Co., 200 Calif. 81, 107-108, 252 Pac. 607 (1926). 85 Calif. Const, art XIV, § 3. A synopsis of the development of the two conflicting theories in California water law and of events leading up to the adop- tion of the constitutional amendment is given in the recent decision of the Supreme Court in United States v. Gerlach Live Stock Co., 70 S. Ct. 955, 964- 969 (1950). The United States Court of Claims, in Gerlack Livestock Co. v. United States, 76 Fed. Supp. 87 (1948), had allowed compensation to the owners of riparian lands that benefited from only the peak flood flows of San Joaquin River over their lands, such flows being eliminated by the operation of Friant Dam of the Central Valley Project. The court believed that these riparian landowners had not been deprived of all their rights by the 1928 amendment, and that they were entitled to continue to receive water that they could use beneficially, or else to compensation for deprivation of the right. The Supreme Court agreed that the Court of Claims had correctly applied the California law; and concluded that even if it were assumed that since the constitutional amend- ment claimants' right was no longer enforceable by injunction, it nevertheless would remain compensable (70 S. Ct. 969-970). "Peabody v. Vallejo, 2 Calif. (2d) 351, 365-368, 40 Pac. (2d) 486 (1935). 87 Meridian v. San Francisco, 13 Calif. (2d) 424,445, 90 Pac. (2d) 537 (1939). °*Los Angeles v. Pomeroy, 124 Calif. 597, 632, 57 Pac. 585 (1899); Vineland Irr. Dist. v. Azusa Irrigating Co., 126 Calif. 486, 495, 58 Pac. 1057 (1899). See dictum in Hanson v. McCue, 42 Calif. 303, 308, 10 Am. Rep. 299 (1871); and the refusal of the court to commit itself in Hale v. McLea, 53 Calif. 578, 584 (1879). 89 Calif. Water Code, § 1200. |