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Show 152 THE PUEBLO WATER RIGHT thereby inconsistent with the 1928 amendment of the California Consti- tution.35 The supreme court said that:36 The declared policy of the constitutional amendment against waste of water is thus implemented by its rule that no one has the right to more water than is reasonably necessary for the beneficial use to be served. Such a rule in no way diminishes the rights of the successor to the pueblo, for the pueblo right has always been measured, and therefore circumscribed, by the needs of the city. The court went on to point out that the surplus water over existing needs is left accessible to others for beneficial use until such time as the city needs it, and that neither before nor after adoption of the amendment did the pueblo or its successor city have the right to object to use by others of water not presently needed. Preservation of the pueblo right.- The pueblo right is available for the use of the city whenever the city is ready to exercise it. No method by which the pueblo right can be lost to the city has yet been declared by the California Supreme Court. On the contrary, the decision in Los Angeles v. Glendale specifically ruled out some suggested ways in which the right might be lost or impaired. These include nonuse and statutory forfeiture.37 Specifically, the portion of section 11 of the Water Commission Act38 providing that, among other things, waters not put to use by riparian owners for any consecutive period of 10 years thereby became subject to appropriation, had no application to pueblo rights. Nor does section 20a of the Water Commission Act39 -providing that failure for 3 years to beneficially use water for the purpose for which it was appropriated or adjudicated, causes such water to revert to the public-apply to the pueblo water right, which is not based upon appropriation or adjudication. The court also held that the pueblo water right is not lost or impaired by prescription because of the taking (during the period prescribed by the statute of limitations) of part of the water by others while the city does not need that portion. Inasmuch as the pueblo right enables a city to take only what it needs at any time, it has no occasion to object to the taking of the remainder by others.40 An appropriation must invade the rights of another before it can destroy them by the establishment of a prescriptive title. "Cal. Const, art. XIV, § 3. 36Los Angeles v. Glendale, 23 Cal. (2d) 68, 74-75, 142 Pac. (2d) 289 (1943). 3723Cal.(2d) at 74-79. MCal. Stat. ch. 586, § 11 (1913). This portion of § 11 was omitted from the Water Code, enacted in 1943. 39 Cal. Water Code § 1241 (West 1956). 40See Los Angeles v. Glendale, 23 Cal. (2d) 68, 75, 79, 142 Pac. (2d) 289 (1943); San Diego v. Sloane, 272 Cal. App. (2d) 663, 77 Cal. Rptr. 620, 622, 624-625 (1969). |
