OCR Text |
Show CALIFORNIA 681 taking; nor is the taking subject to injunction.89 But an overlying owner not presently injured by such a taking may apply to the court for a judgment declaring his right to be paramount and protecting it against future impair- ment.90 Necessarily, however, if there is no surplus in the ground water area, no right to appropriate the water can be acquired in that supply and hence exportation of the water from the area is subject to injunction,91 without acquiring such a right as against particular overlying owners by such means as purchase, condemnation, or prescription. In addition to the right that an appro priator may acquire in the surplus percolating water, he may acquire a provisional right in the supply allocated to the use of the overlying owner during such times-and only during such times-as the overlying owner does not himself make use of the water. The court has power to make reasonable regulations for the use of such water by the respective parties, provided that the paramount right be adequately pro- tected.92 Many of the leading cases decided by the California courts with respect to rights in percolating waters involved controversies between (1) claimants of overlying rights and (2) claimants of appropriative rights to take water and export it from the area for distant use. In summary, rights of exportation are confined to the surplus water in the area, or to situations in which no injury results to overlying rights from the taking; and such rights are denied if the taking to distant points deprives landowners within the area of their rightful supply of the ground water.93 Public use. -Public use of percolating water ordinarily is treated as a non- overlying use, whether the lands that receive such public service are overlying lands or whether they are located outside of the ground water area. Such public use is therefore an appropriative use of the water. The owner of overlying land served with water taken from the underlying ground water supply by the administrator of a public use, and delivered there- by to his land in the execution of that public trust, ordinarily is not receiving the water in fulfillment of his overlying right. On the contrary, the landowner receives the water as a member of the public and a beneficiary of the public use "Peabody v. Vallejo, 2 Cal. (2d) 351, 368-369, 40 Pac. (2d) 486 (1935); Pasadena v. Alhambra, 33 Cal. (2d) 908, 926, 207 Pac. (2d) 17 (1949); Cohen v. La Canada Land & Water Co., 151 Cal. 680, 692, 91 Pac. 584 (1907). "San Bernardino v. Riverside, 186 Cal. 7,15-16, 198 Pac. 784 (1921). 91 Moreno Mut. Irr. Co. v. Beaumont Irr. Dist., 94 Cal. App. (2d) 766, 779, 211 Pac. (2d) 928 (1949); Corona Foothill Lemon Co. v. Lillibridge, 8 Cal. (2d) 522, 525, 529, 532, 66 Pac. (2d) 443 (1937). nBurr v.Maclay Rancho Water Co., 154 Cal. 428, 436437, 98 Pac. 260 (1908). 93See, e.g., Moreno Mut. Irr. Co. v. Beaumont Irr. Dist., 94 Cal. App. (2d) 766, 779, 211 Pac. (2d) 928 (1949); Cohen v. La Canada Land & Water Co., 151 Cal. 680, 692, 91 Pac. 584 (1907); Orchard v. Cecil F. White Ranches, Inc., 97 Cal. App. (2d) 35, 42, 217 Pac. (2d) 143 (1950). |