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Show ABANDONMENT AND STATUTORY FORFEITURE 289 (5) California. The California courts frowned upon the legislature's one attempt to subject the riparian right to forfeiture for failure to exercise the right, and expressed it in several decisions. Eventually the legislature discarded the judicially objectionable provision. The California Water Commission Act of 1913191-with amendments and deletions, reenacted in 1943 as a part of the present Water Code-contained a provision to the effect that nonapplication of water to riparian land for any continuous period of 10 years after passage of the act should be conclusive presumption that the water was not needed thereon for any useful or beneficial purpose, such water thereupon being subject to appropriation. After twice deciding that the provision had no application to the riparian rights in litigation, which had been exercised for many years,192 the California Supreme Court stated that the legislature was not justified in taking any portion of a vested property right from one person and investing it in another; and that while not saying that riparian rights might not under proper circumstances yield to the police power, this legislation did not purport to be an exercise of such power for any purpose.193 Shortly thereafter, in 1928, the voters added a section to the California constitution declaring, among other things, that "Riparian rights in a stream or water course attach to, but to no more than so much of the flow thereof as may be required or used consistently with this section, for the purposes for which such lands are, or may be made adaptable, in view of such reasonable and beneficial uses * * *."194 In one of the early major decisions construing and applying the constitutional amendment, the California Supreme Court held the legislative provision contrary to the letter and spirit of the constitutional amendment, which "expressly protects the riparian not only as to his present needs, but also as to future or prospective reasonable beneficial needs."195 Thus after having, on three occasions, expressed at least by dicta its belief that the provision was invalid, the supreme court now expressly held the provision unconstitutional. This portion of the section was omitted from the Water Code when enacted in 1943. Not pueblo water rights.-The pueblo water right, recognized in California and New Mexico, has been expressly said to be not subject to statutory l91Cal.Stat. 1913, ch. 586, §11. 192Herminghaus v. Southern Cal. Edison Co., 200 Cal. 81, 115-116, 252 Pac. 607 (1926); Scott v. Fruit Growers' Supply Co., 202 Cal. 47, 54, 258 Pac. 1095 (1927). 193Fall River Valley In. Dist. v. Mt. Shasta Power Corp., 202 Cal. 56, 67-69, 259 Pac. 444 (1927). 194 Cal. Const, art. XIV, §3. 195Tulare In. Dist. v. Lindsay-Strathmore In. Dist, 3 Cal. (2d) 489, 530-531, 45 Pac. (2d) 972 (1935). The California Supreme Court discussed the history of the cases under the amendment in Joslin v. Marin Mun. Water Dist., 67 Cal. (2d) 132, 429 Pac. (2d) 889, 60 Cal. Rptr. 377(1967). |
