| OCR Text |
Show 63 6 GROUND WATER RIGHTS resolution of future disputes.36 These guidelines are: (1) As between those transporting for use beyond the overlying land, the right is only usufructuary and priority of appropriation applies. (2) As between an appropriator transporting beyond the overlying land and one using the water on overlying land, two situations arise: (a) Where the landowner was using the water before the appropriator began, the former's rights are paramount to the extent of the quantity necessary for use on his land and the appropriator may take the surplus, (b) Where the appropriator was using the water before the landowner's use began, the landowner's rights are restricted to the quantity necessary for use. (3) Where two overlying landowners are competing for a limited supply of water, both are to be given a fair and just proportion. The court chose not to answer the question of priority of rights where the competing users commenced their withdrawals at different times. This strongly suggests that "correlative rights" may embrace more than co-equal or proportionate sharing. The court held that the above defined rights could be impaired by laches in certain circumstances or by non-exercise. In a brief dissent, Justice F. M. Angellotti concurred in the desirability of the American rule, but characterized the clarification of the doctrine of correlative rights as dictum only.37 Regardless of the observations in the dissent, the Katz case has been accepted by the California courts and the dictum applied as though it had been essential to the decision.38 Some significant decisions have further clarified or modified the rule of this case. The unanswered question of conflicting rights between an appropriator who commenced his use prior to that of the overlying owner was reached in Burr v. Maclay Rancho Water Company.39 The court held that the overlying owner's rights to the quantity of water necessary for use were unaffected by the fact his use was commenced after the appropriator's had begun. In a subsequent decision in the same controversy40 the court held that priority of use was not a factor in adjusting rights of competing overlying owners. In 1949, the case of Pasadena v. Alhambra*1 was decided by the Supreme Court of California. This case added a new principle to the long-established correlative doctrine of California. The locus of the controversy was Raymond Basin, a "field of ground water"42 from which the parties to this litigation had been pumping for many years. The safe yield was shown to be 18,000 acre-feet per year and the average annual draft was 24,000 acre-feet. The safe yield had been exceeded in all except 2 years since 1913. 36 74 Pac. at 772. 3774Pac. at 773. 38 See Hutchins, W. A., "The California Law of Water Rights" 436-444 (1956). 39Burr v.Maclay Rancho Water Co., 154 Cal. 428, 98 Pac. 260 (1908). ™Burr v.Maclay Rancho Water Co., 160 Cal. 268, 116 Pac. 715 (1911). "Pasadena v. Alhambra, 33 Cal. (2d) 908, 207 Pac. (2d) 17 (1949), modifying 180 Pac. (2d) 699 (Cal. App. 1947), certiorari denied, 339 U.S. 937 (1950). 42 207 Pac. (2d) at 25. |
