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Show CALIFORNIA 673 When the natural supply of water is not sufficient for all overlying owners, each is entitled to a reasonable proportion of the whole, and "may apply to the courts to restrain an injurious and unreasonable taking by another and to have the respective rights adjudicated and the use regulated so as to prevent unnecessary injury and restrict each to his reasonable share."49 Correlative rights to water needed are paramount. -The rights of the overlying owner to the quantity of water necessary for use on his overlying land are paramount to an appropriation for distant use.50 In the event of a shortage, the right of an appropriator, being limited to the surplus, must yield to that of the overlying owner unless the appropriator has gained prescriptive rights through the adverse taking of nonsurplus waters.51 The question as to whether equity could be invoked to protect the unused overlying right after an appropriation for distant use had begun was unanswered in the Katz case52 but was decided several years later in Burr v. Maclay Rancho Water Company.53 Important points are: (a) No overlying owner can, to the injury of others, take water from the water-bearing strata and conduct it to distant nonoverlying lands. (b) As between an appropriator for distant use and an overlying owner already using water, the overlying owner's rights are paramount but extend only to needed water. The appropriator may take the surplus. (c) After an appropriator has begun to take water to distant land for use thereon, the overlying owner may invoke the aid of a court of equity to protect him in his latent right of use and thus prevent the appropriator from defeating his right by prescription. (d) The appropriator for distant use has the right to any surplus, whether or not overlying owners have previously used the water, and may take the regular supply to distant land until the overlying owners are ready to use it. (e) In controversies between overlying owners and an appropriator for distant use, the court has power to make reasonable regulations for use of water by all parties, fixing the times and quantity of use by each. Correlative rights are limited to reasonable beneficial use, as held in the Katz and Burr cases. An exception was provided in a case decided in 1910,54 in Eckel v. Springfield Tunnel & Dev. Co., 87 Cal. App. 617, 624, 262 Pac. 425 (1927); Orchard v. Cecil F. White Ranches, Inc., 97 Cal. App. (2d) 35, 42-43, 217 Pac. (2d) 143 (1950). A9San Bernardino v. Riverside, 186 Cal. 7, 15, 198 Pac. 784 (1921). See Pasadena v. Alhambra, 33 Cal. (2d) 908, 924, 207 Pac. (2d) 17 (1949). "Allen v. California Water & Tel. Co., 29 Cal. (2d) 466, 483-486, 176 Pac. (2d) 8 (1946). 51 Pasadena v. Alhambra, 33 Cal. (2d) 908, 926, 207 Pac. (2d) 17 (1949). SeeAlpaugh In. Dist. v. County of Kern, 113 Cal. App. (2d) 286, 292, 248 Pac. (2d) 117 (1952). See chapter 14 for elements of prescription pertaining to watercourses. S2Katz v. Walkinshaw, 141 Cal. 116, 70 Pac. 663 (1902), 74 Pac. 766 (1903). "Burr v. Maclay Rancho Water Co., 154 Cal. 428, 435-437, 98 Pac. 260 (1908). "Miller v. Bay Cities Water Co., 157 Cal. 256, 272, 281, 107 Pac. 115 (1910). |