AZ vs. CA:19 California Exhibits, Vol. XIX; Nos. 4000-4044

page III-36

39 Pac. 807 (1895); Barrows v. Fox, 32 Pac. 8ll (1893). While perhaps most of the California cases on this point concern situations where one went on public land abutting a stream and took water for use on nonriparian land, whether public or privately owned, the court has applied the same rule in at least one case where the appropriation was made by an occupant of riparian public land for use on that land. McKinley Bros, v. MeCauley, supra; see also McGuire v. Brown, 39 Pac. 1060 (1895). Where riparian rights on a watercourse have been established before the appropriation is made on public land abutting the watercourse, the appropriation is subordinate to the previously established riparian rights. Hargrave v. Cook, 4l pac. 18 (1895), The California courts have applied a different rule in the case of appropriations made on private lands. The courts have held that where an appropriation is made on private lands, the appropriative right is inferior to the riparian rights of one who later acquires riparian public land upstream. Cave v. Tyler, 65 Pac. IO89 (1901); Cory v. Smith, 27^ Pac. 969 (1929); San Joaquin v. Kings River Canal & Irr. Co. v. Worswick, supra. Applying these principles to overlying rights to percolating waters, the State Water Rights Board apparently contends that the correlative right of an overlying landowner to percolating water underlying the land does not attach to public 2/ The principles just discussed are set forth in Hutchins, The California Law of Water Rights (1956), pp. 56-62. III-36