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Show 516 ADJUDICATION OF WATER RIGHTS IN WATERCOURSES (2) Power of trial court. The power of the courts to impose physical solutions in the settlement of water controversies had never been broadly declared by the California Supreme Court prior to its interpretation of the 1928 amendment. Indeed, in 1936, this court declared that: "It may also be assumed that it was the law prior to 1928 that the prior appropriator could not be compelled to accept in lieu of his vested prior property right a physical solution, other than the actual maintenance of the water table."406 In its first comprehensive interpretation of the constitutional amendment, the principle of physical solutions was approved and adopted by the California Supreme Court. If the trial court could find a physical solution which would minimize or eliminate damages to landowners by reason of the defendant's project, then in lieu of damages it should prescribe such solution and direct the defendant city to provide and maintain it permanently at its own expense, and should enforce such requirements by prohibitory or mandatory injunction. The trial court had the power to do this, and should retain jurisdiction to modify its orders as occasion might demand.407 The principle was further developed in subsequent cases. For example, if the trial court should conclude that substantial saving could be effected at reasonable cost by repairing or changing some of the ditches, it undoubtedly had the power to make its injunctive order subject to conditions which it might suggest and to apportion the cost as justice might require, keeping in mind that the holders of the prior rights could not be required lawfully to incur any material expense in order to accommodate the junior claimant.408 (3) Duty of trial court. In various decisions, the California Supreme Court has gone farther and has held that it is the duty of the trial courts to seek physical solutions in controversies over the use of water. In one such case, the court was concerned over the "tremendous releases" of water from a river that would be required to maintain the water levels of a city's ground water supply, which releases after serving their purpose for the most part waste into the sea. Under such circumstances, it was held, the 1928 constitutional amendment409 compels the trial courts before issuing such a decree to explore the possibility of a physical solution. Other suggestions as to possible physical solutions were made during the trial. With respect to this the supreme court said:410 *06Lodi v. East Bay Municipal Util. Dist., 7 Cal. (2d) 316, 337, 60 Pac. (2d) 439 (1936). 401Peabody v. Vallejo, 2 Cal. (2d) 351, 379-380, 383-384, 40 Pac. (2d) 486 (1935). wtTulare In. Dist. v. Lindsay-StrathmoreIn. Dist.,3 Cal. (2d) 489, 573-574, 45 Pac. (2d) 972 (1935). See Hillside Water Co. v. Los Angeles, 10 Cal. (2d) 677, 688, 76 Pac. (2d) 681 (1938); Allen v. California Water & Tel. Co., 29 Cal. (2d) 466,485-486,488, 176 Pac. (2d) 8 (1946). See also Williams v. Rankin, 245 Cal. App. (2d) 803, 54 Cal. Rptr. 184, 191-194 (1966), indicating that the trial court's physical solution was apparently reasonable and would not be changed on appeal. 409 See note 402 supra, regarding the 1928 constitutional amendment. ™Lodi v. East Bay Municipal Util. Dist., 7 Cal. (2d) 316, 339-344, 60 Pac. (2d) 439 (1936). |
