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Show 674 GROUND WATER RIGHTS IN SELECTED STATES which the owner of land containing a water-bearing stratum supplied by the floodwaters of a stream was held to have a primary right to the full flow of the waters in order to bring his stratum up to its full water-bearing capacity, such right being paramount to the right of an appropriator to divert any of the waters for use beyond the watershed. However, since the inauguration of the new State water policy by the constitutional amendment of 1928, the principle of reasonable beneficial use governs all uses of water in the State under all kinds of water rights.55 "In whatever respects the Miller case, or any other case, may be said to hold otherwise, they must be deemed to yield to the new constitutional policy with reference to the use of the waters of the state."56 Analogy between correlative and riparian rights. -The correlative right of an owner of land overlying a percolating ground water supply and the riparian right of an owner of land contiguous to a surface watercourse are in many respects analogous. The analogy was recognized early in the correlative doctrine's existence, but full acceptance came later, after some uncertainties had been clarified. To make the correlative right a real counterpart of the riparian right, the concept of individual ownership in the water while in the overlying land must yield to that of public ownership-at least that part of the public represented by the owners of all overlying lands-subject to individual rights of use, all of which are correlative with each other. As previously noted, under "Development of the correlative doctrine," there were two hearings and two decisions in Katz v. Walkinshaw.57 The view taken in the first opinion was that the English common law was only being modified, by adding, in certain cases, the element of reasonable use. The view taken in the second opinion (written by a different justice, the first one having died) proceeded on the theory of repudiation rather than modifications of the common law of absolute ownership. This difference of opinion is chiefly of historical interest; the view that the new rule adopted in the Katz case not only is not that of the common law, but is fundamentally different therefrom, has been indicated in later decisions. Thus, the California Supreme Court said, in 1935, "Notwithstanding the common-law rule to the contrary, this court, in the cases referred to, accorded to the underlying and percolating water right a status analogous to the riparian right."58 With respect to the question of public ownership of percolating water, the only dissident note appears to have been in a case decided in 1921 to the effect sSee "Effect of Constitutional Amendment of 1928," infra. 'Peabody v. Vallejo, 2 Cal. (2d) 351, 372, 40 Pac. (2d) 486 (1935). 'Katz v. Walkinshaw, 141 Cal. 116, 70 Pac. 663 (1902), 74 Pac. 766 (1903). *Peabody v. Vallejo, 2 Cal. (2d) 351, 372, 40 Pac. (2d) 486 (1935); accord, Tulare In. Dist. v. Lindsay-Strathmore In. Dist., 3 Cal. (2d) 489, 525, 45 Pac. (2d) 972 (1935); Hillside Water Co. v. Los Angeles, 10 Cal. (2d) 677, 686, 76 Pac. (2d) 681 (1938); Pasadena v. Alhambra, 33 Cal. (2d) 908, 925, 926, 207 Pac. (2d) 17 (1949); United States v. 4.105 Acres of Land in Pleasanton, 68 Fed. Supp. 279, 288 (N.D. Cal. 1946); Rank v. Krug, 90 Fed. Supp. 773, 787 (S.D. Cal. 1950). |