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Show 672 GROUND WATER RIGHTS IN SELECTED STATES The owner of overlying land who first begins to use percolating water thereon gains no priority in the use of the water as against other overlying owners solely because he used the water first. In the absence of a prescriptive right against it, the correlative right, like the riparian right, does not depend upon use and is not lost by disuse. And superior rights against other overlying owners may be obtained by grant, prescription, and condemnation-not by being first to exercise the correlative right.43 The correlative right may be exercised for any beneficial purpose of use on or in connection with the overlying land, so long as the taking of the water pursuant thereto works no unreasonable injury to other overlying land.44 With respect to the use of percolating ground waters as supporting subterranean supply for the benefit of farming operations, the California Supreme Court held that an injunctive order preventing the beneficial use of water beneath 98 percent of the area in litigation, in order to maintain the natural condition of the water table beneath 2 percent of the area, did not conform to the policy of reasonable beneficial use commanded by the constitutional amendment of 1928.45 A drainage operation that effects the removal from overlying land of a quantity of water greatly exceeding its reasonable proportion of that drained from the common source, and results in its waste, is not a reasonable use of the common water supply.46 Nor does the flooding of lands with well water pumped thereon in order to attract wild game and birds constitute a reasonable beneficial use of the land and water.47 Apportionment of water among overlying landowners.-The term "reason- able use" does not mean that one of two or more persons having correlative rights in a common supply of water may take all that is reasonably beneficial to his land, regardless of the needs of others, if there is not enough to supply the needs of all. Each is entitled to a fair and just proportion.48 "Hudson v. Dailey, 156 Cal. 617, 628-629, 105 Pac. 748 (1909). See Bun v. Maclay Rancho Water Co., 154 Cal. 428, 436, 438-439, 98 Pac. 260 (1908); Burr v. Maclay Rancho Water Co., 160 Cal. 268, 281-282, 116 Pac. 715 (1911). 44San Bernardino v. Riverside, 186 Cal. 7, 15, 198 Pac. 784 (1921);Revis v. /. S. Chapman &Co., 130 Cal. App. 109, 113, 19 Pac. (2d) 511 (1933). 45Hillside Water Co. v. Los Angeles, 10 Cal. (2d) 677, 685-688, 76 Pac. (2d) 681 (1938). Compare the holding in Tulare Jrr. Dist. v. Lindsay-Strathmore In. Dist., 3 Cal. (2d) 489, 526, 45 Pac. (2d) 972 (1935), respecting the claimed riparian requirement of underground flow to moisten the land, under the new doctrine of reasonable beneficial use. Regarding the constitutional amendment, see "Effect of Constitutional Amendment of 1929," infra. 46Revis v. /. S. Chapman & Co., 130 Cal. App. 109,112-113, 19 Pac. (2d) 511 (1933). 47/« re Maas, 219 Cal. 422, 426, 27 Pac. (2d) 373 (1933). The fact that this may contribute to the enjoyment of the owner of the hunting privilege is immaterial in this context. 4SKatz v. Walkinshaw, 141 Cal. 116, 135-136, 70 Pac. 663 (1902), 74 Pac. 766 (1903) |
