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Show SOME GENERAL PROCEDURAL MATTERS IN WATER RIGHTS LITIGATION 515 Physical Solution Following are two States in which physical solutions have been applied or suggested. Arizona.-In the interest of economy of water and equity to all parties under the circumstances involved, the Arizona Supreme Court has suggested physical solutions in the settlement of conflicting claims to water rights. In each decision, it was recommended that the organization obligated to yield water to other parties do so through its own canal system at no greater expense to the prevailing parties than would be occasioned by their own methods of diversion, rather than to release the water through natural channels with resulting losses.401 California.-(1) Development of the principle. The finding and application of the principle of physical solutions in the settlement of water controversies, in furtherance of more complete utilization of the State's water resources, have engaged the attention of the California courts in a number of cases decided since adoption of the California constitutional amendment of 1928.402 It proved to be a valuable concomitant in implementation of the new State water policy. Before issuing a decree entailing a great waste of water in order to safeguard a prior right to a small quantity of water, the constitutional amendment compels trial,courts in water cases to ascertain whether there exists a physical solution of the problem that will avoid the waste and at the same time not unreasonably and adversely affect the property right of the paramount holder.403 That the idea of physical solution was not altogether new when this new State water policy was adopted, however, is shown by decisions rendered in 1904 and 1927.404 Furthermore, while the doctrine of physical solution was not involved in a leading case decided in 1931, it was foreshadowed in that decision.405 *aiPima Farms Co. v. Proctor, 30 Ariz. 96, 112-113, 245 Pac. 369 (1926); Maricopa County M. W. C. Dist. v. Southwest Cotton Co., 39 Ariz. 367, 370, 7 Pac. (2d) 254 (1932). 402Cal. Const, art. XIV, § 3. The amendment provides inter alia that water rights are to be limited to such quantity as is reasonably required and are not to extend to the waste or unreasonable use of water. This amendment is discussed in chapter 13 at notes 236-251. 403Lodi v. East Bay Municipal Util. Dist., 7 Cal. (2d) 316, 339-340, 60 Pac. (2d) 439 (1936). "In attempting to work out such a solution the policy which is now part of the fundamental law of the state must be adhered to." ™*Montecito Valley Water Co. v. Santa Barbara, 144 Cal. 578, 592, 602, 77 Pac. 1113 (1904); Eckel v. Springfield Tunnel & Dev. Co., 87 Cal. App. 617, 625, 262 Pac. 425 (1927). 405 Collier v. Merced In. Dist., 213 Cal. 554, 562-563, 2 Pac. (2d) 790 (1931). |
