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Show REMEDIES FOR INFRINGEMENT 243 factors involved, including reasonable methods of use and reasonable methods of diversion. The court must then determine whether there is a surplus in the water field subject to appropriation. The court must find expressly the quantity of water required and used for the riparian's reasonable beneficial uses before enjoining the appropriator from interfering with those uses. As to future or prospective reasonable beneficial uses, the court does not attempt to fix in advance the quantity needed, but declares such prospective uses paramount to any right of the appropriator, by which the rights of the riparian owner will be fully protected against the ripening of the adverse appropriative use into a right by prescription. In the meantime, pending the time the riparian is himself ready to use the water, the appropriator may make an interim use of it. The effect of the foregoing rules, then, is not to prohibit the appropriator from making any use of the water. It is to prohibit his using the water only at such times as the riparian owner under his paramount right wishes to use it, and to prevent the destruction or impairment of the riparian right by adverse use on the part of the appropriator.243 (3) The United States Supreme Court, in United States v. Gerlach Live Stock Company, recognized that the 1928 California constitutional amend- ment attempted to serve the general welfare of the State by preserving and limiting both riparian and appropriative rights while curbing either from being exercised unreasonably or waste fully.244 The Court indicated that the riparian right, which was actually damaged by reason of the deprivation of use of water that the proprietor had been putting to beneficial use, remained compensable even though the circumstances might be such that the right no longer was enforceable by injunction.245 (4) In Joslin v. Marin Municipal Water District, decided in 1967, the California Supreme Court said that in view of the State's 1928 constitutional amendment limiting the use of water only to beneficial uses "to the fullest extent of which they are capable," and providing that "waste or unreasonable use" shall be prevented and that conservation shall be exercised "in the interest of the people and for the public welfare," "in the instant case the use of such waters as an agent to expose or to carry and deposit sand, gravel and rocks, is as a matter of law unreasonable within the meaning of the constitutional amendment."246 The court said that "since there was and is no property right in an unreasonable use, there has been no taking or damage of property by the 243 See Federal Judge Peirson M. Hall's analysis of the California riparian owner's right of prospective reasonable beneficial use and of its protection in Rank v. (Krug) United States, 142 Fed. Supp. 1,104-115 (S.D. Cal. 1956). 244United States v. Gerlach Live Stock Co., 339 U.S. 725, 751-755 (1950), affirming 76 Fed. Supp. 87 (Ct. Cl. 1948). 245 339 U.S. at 752-755. The case arose upon claims for compensation by riparian owners for deprivation of the natural overflow of the San Joaquin River by reason of operation of Friant Dam. 246 In this regard, see chapter 6, note 239. |