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Show 242 PROTECTION OF WATER RIGHTS IN WATERCOURSES might be put by holders of water rights including riparian owners. "Upon the adoption of the amendment, it superseded all state laws inconsistent therewith."237 (2) Two basic rules now are that: (a) An appropriative use of water that causes substantial damage to a paramount riparian right, taking into considera- tion all present and reasonably prospective recognized uses, is an impairment of the right for which compensation must be made either in money or in kind, and in the event public use has not attached,238 the riparian proprietor is entitled to injunctive relief, (b) If such appropriative use causes no substantial infringement by materially diminishing the riparian water supply, the riparian proprietor is entitled to a judgment declaring his preferential and paramount right and enjoining the assertion of an adverse use which might otherwise ripen into a prescriptive right.239 In the first major construction of the 1928 constitutional amendment, in Peabody v. Vallejo, the California Supreme Court held that since its adoption the technical infringement of the paramount right of the riparian owner by the exercise of an appropriative right has not been actionable, except to establish the paramount right.240 In the application of these rules, under the new doctrine enunciated and commanded by the constitutional amendment of 1928, the California Supreme Court stated, "it is clear that when a riparian or overlying owner brings an action against an appropriator, it is no longer sufficient to find that the plaintiffs in such action are riparian or overlying owners, and, on the basis of such finding, issue the injunction."241 On the contrary, declared the court,242 the trial court must now determine whether the complaining riparian or overlying owner, considering all the needs of those in the particular water field, is putting the water to any reasonable beneficial use, giving consideration to all ™Gin S. Chow v. Santa Barbara, 217 Cal. 673, 700, 22 Pac. (2d) 5 (1933). In another case the court said, "It was undoubtedly the purpose of the proponents of the amendment of 1928 to make it possible to marshall the water resources of the state and make them available for the constantly increasing needs of all of its people." Met idian v. San Francisco, 13 Cal. (2d) 424, 449, 90 Pac. (2d) 537 (1939). 238 In the latter regard, see "Reverse or Inverse Condemnation," infra. 239Peabody v. Vallejo, 2 Cal. (2d) 351, 374-375, 40 Pac. (2d) 486 (1935). In the latter regard, see "Declaratory Decree and Reservation of Continuing Jurisdiction," infra. Most California law with respect to conflicting riparian-appropriation interrelation- ships was made in controversies in which the riparian right was adjudged superior. Regarding differences, as against appropriative rights, that may arise due to the time that lands passed into private ownership, and related factors, see in chapter 6, "Interrelationships of the Dual Water Rights Systems-The Status in Summary: By States-California." 240 2 Cal. (2d)at374. 241 Tulare In. Dist. v. Lindsay-Strathmore In. Dist, 3 Cal. (2d) 489, 524, 45 Pac. (2d) 972 (1935). 242 3 Cal. (2d) at 524-525. |
