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Show PUEBLO WATER RIGHTS IN CALIFORNIA 15 7 automatically endowed with an unlimited preference right to stream water for uses within the original pueblo limits rests, so far as the authorities quoted in the American decisions show, on a very narrow foundation. The Ever-Expanding Pueblo Water Right The extension of the original pueblo water rights principle to encompass the future needs of a city after outgrowing the original pueblo limits was first made in Los Angeles v. Pomeroy in 1899 by a divided court. The prevailing opinion sets forth the purpose of establishing pueblos pursuant to the royal regulations of Spain, the original plan of which was for a primitive village, to aid and encourage the settlement of the country. Then, said the court:58 Unquestionably it was contemplated and hoped that at least some of them would so prosper as to outgrow the simple form of the rural village. It is in the nature of things that this might happen, and when it did, and the communal lands were required for house lots, we must presume that under Mexican or Spanish rule they could be so converted, and that when the population increased so as to overflow the limits of the pueblo that such extension could be legally accomplished. Had this happened under Mexican rule, can it be doubted that the right vested in the pueblo would have been construed to be for the benfit of the population, however great the increase would be? [Emphasis added.] The significance of this is that the court's attention could not have been called to any Spanish or Mexican law or regulation to that effect-of which it could have taken judicial notice-but "must presume" that one would have been promulgated had the occasion called for it. Thus this vitally important principle that has enabled great cities to monopolize the entire flows of streams, regardless of water developments thereon by others-solely because the cities originated from primitive villages organized as pueblos-was added to the jurisprudence of California as the result of a presumption. Later decisions of the California Supreme Court reaffirmed and buttressed the principles thus decided, but without adding anything to the authorities on which they rested. After all, there was no need to add to the foundation already established. The successive decisions of this court on the subject of pueblo water rights are definitely held to be stare decisis-to have established a rule of property.59 The preferred water rights of the California cities that succeeded pueblos are matters of law. Prospective developers of waters of the same stream are on notice. Those who fail to take account of the situation have no ground for complaint when the city elects to assert its latent rights. 58Los Angeles v. Pomeroy, 124 Cal. 597, 649, 57 Pac. 585 (1899). 59San Diego v. Cuyamaca Water Co., 209 Cal. 105, 122, 287 Pac. 475 (1930). |
