OCR Text |
Show CALIFORNIA 135 The 1928 amendment thus provides an exception to the rule of Lux v. Hag gin. Another is found in the doctrine of prescription, dis- cussed in section 3.4.c, infra. b. PROCEDURES TO RESOLVE DISPUTES (1) Protection of water rights Court actions to protect a variety of water rights are recognized. Inchoate rights (those rights not yet perfected, pending completion of diversion works and applying the water to the proposed use) are protected for those rights acquired under the water code application procedures.53 Early nonstatutory and civil code appropriative rights may likewise be protected by court action. Vested riparian rights54 and perfected appropriative rights5S may also be protected by court action, both as to quantity and quality.56 Courts have also protected means of diversion.57 In court proceedings, relief may be legal or equitable. Damages may be redressed if they are actual and substantial.58 Injunctions may be obtained to restrain interference with water rights,59 with relief being either temporary or permanent. The water code authorizes the water resources control board to bring suit in State court to enjoin the unauthorized appropriation of water.60 California courts favor physical solutions to water disputes where practical.61 In other words, the courts are inclined to order implemen- tation of water plan to maximize reasonable beneficial use. The order is enforceable by the court, which retains jurisdiction to determine the effectiveness of the solution.62 (#) Reference of disputes from the courts to the Water Resources Control Board Courts are authorized to order a reference to the Board of any or all issues involved in any pending case to determine rights to water.63 The Board makes its own investigations and conducts its own hearings and issues a report to the court containing findings of fact and conclusions of law. Parties may file exceptions to the report and obtain judicial review thereof. The report serves as prima facie evidence of the facts found. (3) Statutory adjudications The California water code authorizes statutory adjudications for all kinds of right to use water of any stream system.64 The State Water Resources Control Board may determine all rights to water of ™Yuba River Power Co. v. Nev. Irr. Dist., 207 C. 521, 522-528, 279 P. 128 (1929). ** Fall R. Valley Irr. Di8t. v. Mt. Shasta Power Corp., 202 C. 65, 259 P. 444, 56 ARL 264 (1927). 65 Sprague v. Heard, 90 C. 221, 230, 27 P. 198 (1891). 88 Meridian, Ltd. v. Saw Francisco, 13 C. 2d 424, 447, 90 P. 2d 537, 91 P. 2d 105 (1929). « Duckworth v. Watsonville Water d Light Co., 150 C. 520, 527, 533, 89 P. 338 (1907) (protection against depletion of lake). This case antedated the reasonableness require- ment of the 1928 amendment, however. 88 Moore v. Calif-Ore. Power Co., 22 C. 2d 725, 738-739, 140 P. 2d 798 (1943). 58E. Clemens Horst Co. v. Tarr Mining Co., 174 C. 430, 163 P. 492 (1913). "OW.C, Bee. 1052. 61 See Rogers and Nichols, sec. 404, pp. 547-549. «*Rancho Santa Margarita v. Vail, 11C. 2d 501, 558-561, 81 P. 2d 533 (1938). 68W.C, sees. 2000-2050 (reference from State courts), and 2075-2076 (reference from Federal courts). "W.C., sees. 2500-2900. |