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Show 134 CALIFORNIA between rights under the two systems is essential to an understanding of California water law and the settlement of water rights disputes. (1) Pre-1928 amendment *7 Prior to the imposition of the reasonable-beneficial use limitation by the 1928 constitutional amendment, vested riparian rights were superior to and could not be divested by appropriative use, even though appropriative rights were recognized in many situations. In 1884, the leading case of Lux v. Hagginis established the supremacy of the riparian doctrine, holding that the State adopted that doctrine at the time of statehood (1850) as part of the common law. The court set forth standards by which the two doctrines could be applied in determining the priorities of rights, which were (1) the source of title to the lands and (2) the date of title to land or commencement of water use. Appropriative rights were recognized on Federal lands, and as between two users of water on Federal land, the first to commence use had priority. No riparian right would be recognized because there was no private riparian land. It was only after the land passed to private ownership by patent that riparian rights could be ac- quired. The rule was that, as between a patentee of Federal lands making a riparian claim and an appropriator, the dates of appropria- tion and patent control. Riparian rights were superior only to those appropriative rights acquired after the date of patent.49 As to lands acquired by patent from the State, the same general rule applied. When California was granted land from the United States, it received riparian rights as an incident thereto, and these rights, in turn, were transferred to private patentees. When the Civil Code was adopted in 1872, however, the State consented to appropria- tions in derogation of the State's riparian rights. Thereafter, any ap- propriation perfected prior to patent from the State was superior to riparian claims by the patentee. (2) Post-1928 amendment The 1928 amendment made one substantial change in the inter- relationship of appropriative and riparian rights-it added the limi- tation of reasonable beneficial use.50 The effect of this addition, en- acted to maximize beneficial use of the State's limited water resources, was illustrated in 1967 in the case of Joslin v. Marin Municipal Water District.51 In that case, the California Supreme Court held that the use of water to carry suspended rock, sand, and gravel to riparian land where plaintiff owned and operated a rock and gravel business was unreasonable as a matter of law, and that plaintiff's riparian claims could not preclude an upstream appropriation by defendant. This was so even though plaintiff's land had been patented prior to defendant's appropriation. The Court relied on the restrictions imposed by the 1928 amendment, which in 1935 had been held applicable to riparian rights in the case of Peabody v. Vallejo.52 47 This discussion Is based on a summary of the law appearing in Meyers and Tarlock, Water Resource Management, The Foundation Press, 1971, pp. 152-153. «69 C. 255, 384, 387, 4 P. 919 (1884), 10 P. 674 (1886). 19 One exception might be the case where the point of diversion for a prepatent ap- propriation was on land not then part of the public domain. See Meyers and Tarlock, supra, at 152, 50 Cal. Const, art. XIV, sec. 3. See sec. 3.2, infra. 51 67 C. 2d 132, 429 P. 2d 889 (1967). 62 2 C. 2d 351, 383, 40 P. 2d 4S6 (1935). |