| OCR Text |
Show 558 DIFFUSED SURFACE WATERS above the point of diversion in the watershed in which such stream or other source originates, which practices do not themselves constitute an appropriation for which a permit is required by this part. The only reference to the applicability of appropriative rights to use diffused surface waters that has been found in the California Supreme Court decisions is as follows:100 It is not perceived why surface water from rains and melting snow, which naturally drained into this ditch (though not the subject of appropriation), to the extent to which it adds to the quantity of water which was received into the ditch from Connor's Creek, does not add to the value of the ditch, nor why its loss does not cause injury. Insofar as the author is aware, no appellate court of California has ever held that riparian rights can attach to diffused surface waters; but there appears to be little direct authority for the proposition that riparian rights cannot attach to such waters-perhaps because it appears so obvious. Direct support seems to rest chiefly on the holding in Lux v. Haggin, that if plaintiffs were owners only of swamplands through which there was no watercourse, they could not have a cause of action for invasion of riparian rights because they would then not be riparian proprietors.101 Indirect support may be derived from California Supreme Court decisions defining and acknowledging the existence under specific circumstances of watercourses to which riparian rights attach, as against contentions to the contrary; thus at least by implication excluding from attachment of riparian rights waters existing under circumstances that fail to meet the requirements of a watercourse.102 And in a 1964 case dealing with a claim of interference with downstream riparian rights, a district court of appeal stated:103 [D] efendants set up several defenses. The one which was successful in the trial court was based on the theory that defendants' right to impound water was not governed by the law applicable to riparian owners; that defendants were not riparian owners, there being no "watercourse" on defendants' property; rather that defendants' dam and reservoir collected only vagrant and flood waters, the use of which according to existing law can be unrestricted. 100 Jacob v. Lorenz, 98 Cal. 332, 339-340, 33 Pac. 119 (1893). 101 Lux v. Haggin, 69 Cal. 255, 413, 4 Pac. 919 (1884), 10 Pac. 674 (1886). 102See Lindblom v. Round Valley Water Co., 178 Cal. 450, 453, 173 Pac. 994 (1918); Huffner v. Sawday, 153 Cal. 86, 90-91, 94 Pac. 424 (1908). 103South Santa Clara Water Conservation Dist. v. Johnson, 231 Cal. App. (2d) 388, 41 Cal. Rptr. 846, 848 (1964). The court of appeals cited no authority for its quoted statement indicating a lack of riparian rights with respect to "vagrant and flood waters." |
