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Show CALIFORNIA 683 has been limited, as against an exporter of the percolating water for distant use, to the quantity of water reasonably necessary for beneficial use on his over- lying land. The one exception was the Miller decision in 1910,101 in which the supreme court in effect applied to the settlement of this controversy the then prevailing riparian principle of absence of any limitation to reasonableness on the part of the riparian. That principle is no longer effective in California. The constitutional amendment of 1928, provides, among other things, 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, method of use, or method of diversion of water.102 In its first major construction of this arnendment inPeabody v. Vallejo, the supreme court concluded that "the rule of reasonable use as enjoined by sec- tion 3 of article XIV of the Constitution applies to all water rights enjoyed or asserted in this state, whether the same be grounded on the riparian right or the right, analogous to the riparian right, of the overlying landowner, or the per- colating water right, or the appropriative right."103 In the Peabody case, the court noted that some of the parties placed "great reliance on the decision" in the Miller case, but declared, "In whatever respects the Miller case, or any other case, may be said to hold otherwise, they must be deemed to yield to the new constitutional policy with reference to the use of the waters of the state."104 Whether a particular use of percolating water is or is not a reasonable beneficial use under the amendment is a question of fact that must be passed upon in each case.10s Artesian Waters Rights of Use The artesian or nonartesian character of ground waters makes no difference in determining relative rights of use. The ground waters in Katz v. Walkinshaw were held under pressure within a "so-called artesian belt," but that fact did not determine either the classification of the waters as percolating waters, or the relative rights of the owners of overlying lands.106 In some of the subse- quent cases, the waters in controversy were under artesian head and in others they were not.107 Artesian waters flowing from abandoned oil wells on the 101 Miller v. Bay Cities Water Co., 157 Cal. 256, 272, 278, 281, 107 Pac. 115 (1910). 102 Cal. Const, art. XIV, § 3, discussed in chapter 13 at notes 236-251. The constitutional amendment, inter alia, fostered the principle of physical solutions in the settlement of water controversies. See "Exercise of Ground Water Rights-Substitution of Water and Physical Solutions," infra. l03Peabody v. Vallejo, 2 Cal. (2d) 351, 371, 40 Pac. (2d) 486 (1935). 104 2 Cal. (2d)at 372. 105See Rancho Santa Margarita v. Vail, 11 Cal. (2d) 501, 556, 81 Pac. (2d) 533 (1938). 106Katz v. Walkinshaw, 141 Cal. 116,138-140, 70 Pac. 663 (1902), 74 Pac. 766 (1903). 107Compare£wr v.Maclay Rancho Water Co., 154 Cal. 428, 433434, 98 Pac. 260 (1908). |