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Show PRESCRIPTION 385 before obtaining an injunction to show actual present damage. The California Supreme Court indicated that it was then the California law that as against an appropriator the riparian owner was not limited by any measure of reasonableness. The court said:662 [A] riparian owner, as against a nonriparian owner, is entitled to the full flow of the stream without the slightest diminution. The initial step in the diversion of the water by the nonriparian owner is therefore an invasion of the right of the lower riparian owner, and every subsequent diversion is a further invasion of that right. Against a person who seeks to divert water to nonriparian lands, the riparian owner is entitled to restrain any diversion, and he is not required to show any damage to his use. Although no damage to the present use of the riparian owner results from the diversion, yet damage to the future use may result, and an injunction will be granted to prevent the diversion from growing into a right by the lapse of the statutory period. (b) Since the adoption of the constitutional amendment, the rule in California is that any use of water by an appropriator that causes substantial damage to the paramount riparian right, taking into consideration all of the present and reasonably prospective recognized uses, is an impairment of the right entitling the riparian proprietor to injunctive relief. But that when the use causes no substantial infringement of the riparian right by materially diminishing the water supply which the riparian proprietor is presently putting to beneficial use, instead of such injunctive relief he 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.663 In view of the current California State water policy commanded by the constitution, an appropriative diversion would not be wrongful so long as it is confined to surplus waters, that is, waters in excess of the reasonable beneficial requirements of riparian owners and prior appropriators. The statute of limitations would be set in motion only at such time as the appropriative diversion exceeds such surplus quantities of water and actually infringes the superior right.664 (c) Correlative rights of riparian owners. With respect to their respective uses of stream waters on riparian lands, riparian owners are possessed of correlative rights and no riparian is a trespasser unless he diverts more than his share.665 In the absence of a showing that the upper riparian is using the water under a claim of prescriptive right, the lower owner has the right to presume 662Pabstv. Finmand, 190 Cal. 124, 132, 211 Pac. 11 (1922). 663jPeabody v. Vallejo, 2 Cal. (2d) 351, 374-375, 40 Pac. (2d) 486 (1935); Tulare In. Dist. v. Lindsay-Strathmore In. Dist., 3 Cal. (2d) 489, 524-525, 45 Pac. (2d) 972 (1935). 664The impact of the California constitutional amendment is discussed in some detail in chapter 13 under "Injunction or Damages or Both-Some State Riparian-Appropri- ation Situations-California." 665 Anaheim Union Water Co. v. Fuller, 150 Cal. 327, 334-335, 88 Pac. 978 (1907). |
