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Show 678 GROUND WATER RIGHTS IN SELECTED STATES courts which made determinations at various stages of the proceedings.72 Although the supreme court determined that those appropriators who commenced their appropriations after the start of the overdraft acquired prescriptive rights, the supreme court did not adopt the argument that prescriptive rights were acquired by the overlying owners. This would have been necessary if the doctrine of mutual prescription were to be applied according to the stipulation of the parties. In fact, in the writer's opinion, the supreme court did not decide the case upon the basis of any theory of mutual prescription, but rather on the basis of the concept of prescriptive rights in the classical sense and on the doctrine of correlative rights as developed in California. At no point in stating its holdings did the supreme court use the term mutual prescription. The following language from the court's opinion is indicative that mutual prescription was not adopted as a part of the law of water rights in California: We need not determine whether the overlying owners involved here retained simply a part of their overlying rights or whether they obtained new prescriptive rights to use water. [Citation omitted.] The question might become important in order to ascertain the rights of the parties in the event of possible future contingencies, but these may never happen.73 The reluctance of the supreme court to determine the controversy upon the basis of the novel concept of mutual prescription can, in part, be attributed to the forgotten opinion of the court of appeal in this controversy. The court of appeal decision indicated the lack of legal authority for the contention that mutual prescription was a part of the California law of water rights. Indeed, the argument for mutual prescription was not urged with much force according to the scathing opinion of the court of appeal.74 Although the court of appeal reversed the trial court while the supreme court modified and affirmed the decision of the trial court, the court of appeal-particularly the concurring opinion of Judge Shinn-set forth the troublesome nature of the doctrine of mutual prescription in the law of water rights. Representative of the reaction of the court of appeal to the argument for mutual prescription are the following excerpts from that opinion. The majority opinion stated: Respondents argue that the existence of the overdraft rendered the takings mutually adverse and, as a consequence, the missing 7233Cal. (2d)at928. 7333Cal. (2d)at932. Following the preparation of this subtopic by Mr. Fruth, in Los Angeles v. San Fernando, 28 Cal. App. (3d) 905, 105 Cal. Rptr. 77, 85-86 (1972), a California court of appeal said that the Pasadena case, "relied upon by the [lower] court for its application of the doctrine of mutual prescription, is not binding here" in part because "the cities there had stipulated that their water usage was ad verse, open and notorious and under a claim of right, and that issue was accordingly not raised upon appeal." "Pasadena v.Alhambra, 180 Pac. (2d) 699 (Cal. App. 1947). |
