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Show 670 GROUND WATER RIGHTS IN SELECTED STATES Alhambra, the California Supreme Court stated that the "overlying right," or right of the owner of the land to take water from the ground underneath for use on his overlying land, "is based on ownership of the land and is appurtenant thereto." 33 Grant of right ofuse.- A right to use percolating water in one's land may be granted by the owner. Such grant will be protected against impairment by adverse use.34 Former Doctrine of Rights of Use The English rule of absolute ownership. -As late as 1899 the California Supreme Court had said, "Percolating waters are a part of the soil, and belong to the owner of the soil. He may impound them at will, and the proprietor of lower lands injuriously affected cannot be heard to complain."35 Qualification regarding absence of malice. -The English rule, then, allowed the landowner the free and unlimited use of such percolating water as he could reduce to physical possession while still in his land, but with one exception: That in so depriving others of the use of the water he be not actuated solely by malice, without seeking some benefit to his own land, such as "intentionally, unnecessarily, and without benefit" to himself injuriously divert the water. "This the law characterizes as a malicious injury."36 The California Doctrine of Correlative Rights The doctrine of correlative rights to the use of percolating waters in California accords to each owner of land overlying a common water supply a right to the reasonable beneficial use of the water of that supply on or in connection with his overlying land. Such right of use of each landowner is correlative with similar rights of all other overlying owners. An insufficient supply may be apportioned among them by a court decree. Any surplus may be appropriated for nonoverlying uses. This principle supplanted the formerly recognized English doctrine of absolute ownership. It was established by the California Supreme Court in 1902-1903 in Katz v. Walkinshaw, which departed from the English doctrine and adopted what was referred to therein both as "the doctrine of reasonable use" and "this rule of correlative rights."37 Several decisions of the courts of ^Pasadena v. Alhambra, 33 Cal. (2d) 908, 925, 207 Pac. (2d) 17 (1949). 34 United States v. 4.105 Acres of Land in Pleasanton, 68 Fed. Supp. 279, 289 (N.D. Cal. 1946). 35 Vineland Irr. Dist. v. Azusa Irrigating Co., 126 Cal. 486, 494, 58 Pac. 1057 (1899). See also Hanson v.McCue, 42 Cal. 303, 309 (1871); Cross v. Kitts, 69 Cal. 217, 222,10 Pac. 409 (1886); Southern Pac. R.R. v. Dufour, 95 Cal. 615, 617-620, 30 Pac. 783 (1892); Copper King v. Wabash Min. Co., 114 Fed. 991, 993-994 (S.D. Cal. 1902). 36Bartlett v. O'Connor, 102 Cal. XVII, 4 Cal. U. 610, 613, 36 Pac. 513 (1894). 37Katz v. Walkinshaw, 141 Cal. 116, 136-137, 70 Pac. 663 (1902), 74 Pac. 766 (1903). |
