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Show 244 PROTECTION OF WATER RIGHTS IN WATERCOURSES deprivation of such use and, accordingly, the deprivation is not com- pensable."247 (5) The case of Peabody v. Vallejo,248 discussed above, was an appeal from a judgment permanently enjoining the defendant, City of Vallejo, as an appropriator, from storing any of the waters of a certain creek. Operation of the injunction was stayed on certain conditions pending a determination of the appeal. After discussing at considerable length the constitutional amendment, the mandates in which "are plain, they are positive, and admit of no exception," in relation to various aspects of the California law of water rights,249 the supreme court concluded in part that the rule of reasonable use as enjoined in the amendment applies to all water rights in the State-riparian, overlying, percolating, appropriative; that this test was not applied in the present action, so that the judgment must be reversed and the cause remanded for trial as a condemnation action; and that on a retrial the rights of the parties should be determined in harmony with the new constitutional policy and in accordance with the views expressed in the opinion. (6) One of the issues in Peabody v. Vallejo, discussed and passed on separately, reached a solution that exemplifies the practical application of the State constitutional water policy. The town of Suisun, one of the plaintiffs, based its asserted rights on ownership of a small tract of land overlying a ground water supply and on an appropriation by use prior to that of defendant. The trial court permanently enjoined the defendant from impound- ing and diverting certain waters as against Suisun. After discussing the facts and pointing out the minimal damage that would accrue to Suisun, the supreme court stated that:2S0 No attempt appears to have been made to show any interference with these [Suisun's] wells by the storage by the defendant. Can the town of Suisun, because of its municipal status, compel the use of the entire stream flow to feed such a percolating right, the enjoyment of which is limited to the operation of a well or wells usually inactive and necessary only in years of great shortage? The answer must be in the negative. Any interference by the defen- dant's storage with the underground supply on this acre of land is 247Joslin v. Mann Mun. Water Dist., 67 Cal. (2d) 132, 142-143, 429 Pac. (2d) 889, 60 Cal. Rptr. 377 (1967). The court, at 429 Pac. (2d) 898, distinguished United States v. Gerlach Live Stock Co., 339 U.S. 725 (1950), discussed at note 245 supra, as a case involving the natural overflow for irrigation, a recognized reasonable use. Regarding such use, see the discussion in chapter 10 at notes 578-579 and 660-662. ^Peabody v. Vallejo, 2 Cal. (2d) 351, 40 Pac. (2d) 486 (1935). 249 2 Cal. (2d) at 367. "As the subject is approached, it is readily apparent that it is for this court, which has largely created the water law of this state without constitutional direction, to cause the law to conform to the state policy now commanded by our fundamental law." 2 Cal. (2d) at 365. 2502 Cal. (2d) at 382-383. |
