Bulletin 1.pdf - California Department of Water Resources - State of ...

WATER RESOURCES OF CALIFORNIA 21
Department of Public Works, pursuant to Divisions 1 and 2 of the State
Water Code (formerly the Water Commission Act). In contrast with
either a riparian right to surface water or an overlying right to ground
water, an appropriative right is created by use and is lost by nonuse.
The opposing riparian doctrine as now established in California consists
ofthe old common law rule, as modified by California court decisions,
and particularly by Section 3 of Article XIV of the State Constitution
adopted in 1928, and decisions following and applying it. rnder this
doctrine, a riparian landowner is entitled to a reasonable use of water
correlative with all other riparian owners bordering on the same stream,
lake, or watercourse, except that all the water may be consumed by an
upper riparian owner if necessary for domestic use. The State Supreme
Court in a line of decisions between 1886, Lux v. Haggin and 1927 Herminghau$
v. Southern California Eduon Co., vacillated between strict
application and liberalization of the old common law rule. The harsh construction
of the rule in the latter case brought about a general demand
for modification. The result was adoption of the constitutional amendment
of 1928. This amendment, which has repeatedly been upheld by the
courts of the State, imposed reasonable and beneficial use on riparian as
well as other water users. It provides as follows:
"Sec. 3. It is hereby declared that because of the conditions
prevailing in this State the general welfare requires that the water
resources of the State be put to beneficial use to the fullest extent of
which they are capable, and that the waste or unreasonable use or
unreasonable method of use of water be prevented, and that the conservation
of such waters is to be exercised with a view to the reasonable
and beneficial use thereof in the interest of the people and for
the public welfare.
" The right to water or to the use or flow of water in or from any
natural stream or water course in this State is and shall be limited
to such water as shall be reasonably required for the beneficial use to
be served, and such right does not and shall not extend to the waste
or unreasonable use or unreasonable method of use or unreasonable
method of diversion of water. Riparian rights in a stream or water
course attach to, but to no more than so much of the flow thereof as
may be required or used consistently with this section, for the purpose
for which such lands are, or may be made adaptable, in view of
such reasonable and beneficial uses; provided, however, that nothing
herein contained shall be construed as depriving any riparian owner
of the reasonable use of water of the stream to which his land is
riparian under reasonable methods of diversion and use, or of depriving
any appropriator of water to which he is lawfully entitled. This
section shall be self-executing, and the Legislature may also enact
laws in the furtherance of the policy in this section contained. "
In 1935, the Supreme Court of California in the case of Peabody v.
City of Vallejo, 2 Cal.2d 351, fully approved and upheld the constitutional
amendment, saying in part as follows:
"The limitations and prohibitions of the constitutional amendment
now apply to every water right and every method of diversion.
Epitomized the amendment declares:
"1. The right to the use of water is limited to such water as
shall be rt>asonably rt>quired for the beneficial use to be served.