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Show 638 GROUND WATER RIGHTS This case gave protection to both the overlying owner and the appropriator. Thus, the final result was a true correlative rights application. An application of Katz v. Walkinshaw41 in its purest form would have resulted in a finding that the overlying owners had priority over the appropriators. To the extent that the overlying owners did not exceed the safe yield of Raymond Basin, they had established no prescriptive rights. The appropriators would have been pri- marily, if not entirely, responsible for the overdraft. Their use would ripen into a prescriptive right. Therefore, under the correlative rights doctrine, the overlying owners would be required to reduce their withdrawals in order to keep the total draft within the safe yield and the appropriators would be allowed to continue their usage to the full extent of their respective prescriptive rights. The above argument was made in California Water Service Company v. Edward Sidebotham & Son, Incorporated,48 but the court rejected it. The court based its holding on the reasoning of Pasadena v. Alhambra which held that it is preferable for those contributing to the overdraft to proportionately share in curtailing it, rather than having a few users carry the entire burden. Percolating waters in California were earlier described as not including those waters that "form a vast mass of water confined in a basin filled with detritus, always slowly moving downward to the outlet, in the effort, in conformity with physical law, to attain a uniform level."49 The court indicated that the common law concept of "vagrant, wandering drops moving by gravity in any and every direction along the line of least resistance" might prevail.50 It must be noted that the court also said that the common law doctrine of percolating waters had been modified in California to meet local conditions which the authors of that body of law had never encountered nor conceived as being possible. It is clear that the court was referring to the right to use percolating waters, but it is not clear whether it also referred to the common law definition of the term.51 The court subsequently defined subterranean streams as possessing "all the attributes of a surface body of water except location upon the surface," concluding that ground water not classified as a subterranean stream must be classified as percolating.52 In California, a collection of ground water which lacks any of the characteristics of surface streams other than location is subject to withdrawal 47Katz v. Walkimhaw, 141 Cal. 116, 70 Pac. 663 (1902), 74 Pac. 766 (1903). 48California Water Sen. Co. v. Edward Sidebotham & Son, Inc., 202 Cal. App. (2d) 256, 37 Cal. Rptr. 1 (1964). 49Los Angeles v. Hunter, 156 Cal. 603, 105 Pac. 755, 757 (1909). 50 Id. 51 Regarding other considerations in the case, see chapter 20 at note 165. "Pasadena v. Alhambra, 180 Pac. (2d) 699, 720 (Cal. App. 1947), modified in other respects, 33 Cal. (2d) 908, 207 Pac. (2d) 17 (1949), certiorari denied, 339 U.S. 937 (1950). |
