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Show 682 GROUND WATER RIGHTS IN SELECTED STATES and public trust. The agency that serves him has formal appropriative title to the use of the water, impressed with this public use and trust.94 In San Bernardino v. Riverside,95 the plaintiff city of San Bernardino con- tended that the ground waters of the underlying artesian basin were subject to public use for the common benefit of the overlying lands, of which the city had become the administrator. The California Supreme Court, however, re- jected this theory and held that the city had not acquired this status unless it had acquired the right from the landowners and then only for use on their particular lands. This was not the case here. However, the validity and effectiveness of a statute providing that county water districts authorized under it should proceed in a representative capacity to protect the rights of all landowners, and other users of water within the district, were sustained by the supreme court.96 The fact that the district, as such, was not asserting title in itself to any of such rights was deemed of no consequence. In 1953, the California Legislature added to the Water Code two sections relating to purposes and powers of irrigation districts, authorizing them to engage in litigation respecting waters and water rights useful to their purposes. This includes proceedings to prevent interference with or diminution of the natural flow of any stream, or any natural or artificially created subterranean supply of waters.97 Effect of wrongful taking of water.-k purported appropriative taking of water that is not surplus is wrongful and may ripen into a prescriptive right "where the use is actual, open and notorious, hostile and adverse to the original owner, continuous and uninterrupted for the statutory period of five years, and under claim of right."98 When the prescriptive period has run, an appropriative right to take water from a ground water basin for public use both within and without the area of production becomes vested as against the overlying landowners, to whatever extent it infringes their rights.99 Effect of Constitutional Amendment of 1928 Ever since the initial decision in Katz v. Walkinshaw,100 with one exception noted below, the overlying landowner under the California correlative doctrine 9*San Bernardino v. Riverside, 186 Cal. 7, 10-11, 24-26, 198 Pac. 784 (1921); Eden Township County Water Dist. v. Hayward, 218 Cal. 634, 640, 24 Pac. (2d) 492 (1933). 95San Bernardino v. Riverside, 186 Cal. 7, 198 Pac. 784 (1921). 96Coachella Valley County Water Dist. v. Stevens, 206 Cal. 400, 409410, 274 Pac. 538 (1929). 97Cal. Stats. 1953, chs. 226 and 227, Water Code § § 22654 and 22655 (West 1956). 9SPasadena v.Alhambra, 33 Cal. (2d) 908, 926-927, 207 Pac. (2d) 17 (1949). "Eden Township County Water Dist. v. Hayward, 218 Cal. 634, 640, 24 Pac. (2d) 492 (1933). 100Katz v. Walkinshaw, 141 Cal. 116,135, 70 Pac. 663 (1902), 74 Pac. 766 (1903). |