CALIFORNIA WATER RESOURCES
ASSIGNMENT 7
Evolution of the Law of Reasonable Use
in California Water Law: 1855-1967
“[T]he constitutional power of the State to insist that its natural advantages shall remain unimpaired by its citizens is not dependent upon any nice estimate of the extent of present use or speculation as to future needs. The legal conception of the necessary is apt to be confined to somewhat rudimentary wants, and there are benefits of a great river that might escape a lawyer’s view. But the State is not required to submit even to an aesthetic analysis. Any analysis may be inadequate. It finds itself in possession of what all admit to be a great public good, and what it has it may keep and give no reason for its will.”
Justice Oliver Wendall Holmes, Jr., writing for a unanimous Supreme Court in Hudson County Water Co. v. McCarter, 209 U.S. 349 (1908)
Reading:
Brian E. Gray, In Search of Bigfoot: The Common Law Origins of Article X, Section 2 of the California Constitution
Notes and Questions:
1. The purpose of this assignment is to provide a bridge between the traditional law of riparian and appropriative rights, which was primarily about private property rights and promotion of economic uses of water, to the modern era in California water law in which environmental protection and promotion of reasonable use have become important, if not dominant, factors.
2. In the article that I have asked you to read, I attempted to do three things.
First, I sought to explain the development of the common law doctrine of reasonable use before the 1928 amendment that placed that doctrine in the California Constitution. That amendment, now codified as ArticleX, Section2, provides:
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 purposes 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 the owner's land is riparian under reasonable methods of diversion and use, or as depriving any appropriator of water to which the appropriator 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.
Second, I wanted to explain the historical (and often difficult) relationship between riparian rights and appropriative rights. Curiously, even though both types of rights were created by the courts through their common law powers, the California courts regarded only riparian rights as true property rights. Appropriators could acquire rights vis-à-vis one another, but in a dispute between a riparian and an appropriator the non-riparian (i.e., appropriative) use was treated as a trespass. One effect of the 1928 constitutional amendment was to elevate appropriative rights to the same legal status as riparian rights.
Third, my primary purpose in writing the article was to respond to criticisms of three important water law decisions--Joslin v. Marin Municipal Water District, 67Cal. 2d 132 (1967); National Audubon Society v. Superior Court, 33 Cal. 3d 419 (1983); and United States v. State Water Resources Control Board, 182 Cal. App. 3d 82 (1986) (the “Delta Water Cases”)—which we will study over the next few weeks. The excerpts from the article pick up at this point.
3. I have omitted the first portion of the article, which analyzes the three cases, because we will review them in detail beginning with the next assignment. I also have made some minor revisions to the footnotes. The strange title comes from a paper written by Professor Harrison Dunning in which he described the reasonable use doctrine of ArticleX, Section2 as “something of a sleeping giant, which may be awakened in future years as water grows shorter in supply and the interest in water conservation increases.” HarrisonDunning, Water Allocation in California: Legal Rights and Reform Needs 29 (Univ. of California 1982). Following ProfessorDunning's lead, I decided to borrow the name of California's most famous giant, Sasquatch.
4. Do you agree with the thesis of the article that water rights in California are (and always have been) utilitarian and dynamic and that the property right in water therefore is a “fragile” one?
5. What are the advantages and disadvantages of an expansive and flexible definition of reasonable use? On balance, is the California courts’ interpretation and application of the reasonable use doctrine a salutary aspect of California water law?
6. Is a judicial or administrative finding of unreasonable use—particularly under California’s malleable standard—a legitimate basis for the reallocation of water from an existing, vested water rights holder to a new consumptive user or to nonconsumptive environmental uses?
7. Although the law of nuisance has not played as important a role in the water resources field as it has in the area of real property, the California Supreme Court occasionally has relied on nuisance principles to hold certain uses of water illegal because of their effects on the water resources downstream.
As described in the Bigfoot article, in People v. Gold Run Ditch & Mining Co., 66 Cal. 138 (1884), the Supreme Court enjoined hydraulic mining in the American River watershed because the mining caused sedimentation in the Lower American and Sacramento Rivers, which impaired navigation and exacerbated flooding of farmlands and the city of Sacramento. The Court held:
Undoubtedly, the fact must be recognized, that in the mining regions of the State, the custom of making use of the waters of streams as outlets for mining debris has prevailed for many years; and as a custom it may be conceded to have been founded in necessity; for without it, hydraulic mining could not have been economically operated. In that custom the people of the State have silently acquiesced, and upon the strength of it mining operations, involving the investment and expenditure of large capital, have grown into a legitimate business, entitled equally with all other business pursuits in the State to the protection of the law. But a legitimate private business, founded upon a local custom, may grow into a force to threaten the safety of the people, and destruction to public and private rights; and when itdevelops into that condition, the custom upon which it is founded becomes unreasonable, because dangerous to public and private rights, and cannot be invoked to justify the continuance of the business in an unlawful manner. Every business has its laws, and these require of those who are engaged in it to so conduct it as that it shall not violate the rights that belong to others. Accompanying the ownership of every species of property is a corresponding duty to so use it as that it shall not abuse the rights of other recognized owners.
Similarly, in Joerger v. Pacific Gas & Electric Co., 207 Cal. 8 (1929), the Supreme Court concluded that PG&E was liable for damages to a downstream appropriator for the alteration of the flow of Hat Creek, a tributary of the Pit river. PG&E’s impoundment of water for generation of hydroelectric power diminished the quantity and flow of water in the creek, causing the water to stagnate and become infested with algae and rendering the water “unfit for domestic or dairy purposes.” PG&E argued that its status as a riparian gave it the right to impound the waters of Hat Creek to the detriment of downstream users. The Court held that PG&E did not have the right to exercise its water rights in a manner that created a nuisance:
The law is well settled that any use of a stream which materially fouls and adulterates the water, or the deposit or discharge therein of any filthy or noxious substances that so far affect the water as to impair its value for the ordinary purposes of life, or anything that renders the water less wholesome than when in its ordinary state will constitute a nuisance, which courts of equity will enjoin, and for which a lower riparian owner, injured thereby, is entitled to redress. Conceding, therefore, defendants' generation of power to be a riparian use, that fact does not entitle them to pollute the water to the injury of others entitled to it. It is a matter of common knowledge that pure and wholesome water for domestic uses, and in farming operations, is a valuable asset, and its presence or absence materially affects the value of farm property, and such rights cannot be destroyed by a riparian owner in a stream to such an extent as to render the water unfit for use.[1]
8. How does the reasonable use doctrine differ from the law of nuisance?
9. Is there such a thing as a “vested” water right in California?
BRIAN E. GRAY, IN SEARCH OF BIGFOOT: THE COMMON LAW ORIGINS OF ARTICLE X, SECTION 2 OF THE CALIFORNIA CONSTITUTION
17 Hastings Con. L.Q. 225, 237-72 (1989)
Read in conjunction, Joslin, Audubon, and the Delta Water Cases are emblematic of the modern era in California water resources law. According to these opinions, Article X, Section 2 confers broad authority on the state to modify existing water rights to ensure that the current apportionment of California's water resources serves contemporary economic, social, and environmental goals in a reasonably efficient manner. This dynamic and utilitarian conception of California water rights means that such rights are fragile. In California, the property right in the state's water resources is good only for so long as the holder exercises the right in a manner that comports with present societal values.
Not surprisingly, this view of California water rights has been controversial. For example, two prominent water lawyers have written:
It is difficult to conceptualize a more fundamental departure from stare decisis and traditional rules of property than evidenced by the Audubon and [Delta Water Cases] decisions. California law has truly moved into an era where water use is viewed as a government granted privilege to be monitored by the Board and the courts and, when necessary, reallocated among competing users to achieve the greatest social good.[2]
After reviewing the early common law of water rights and the 1928 amendment to the Constitution that added Article X, Section 2, they conclude that these recent cases are unprecedented and represent a dramatic break with the historical conception of water rights under California law.[3]
IV. The Common Law Development of California Water Rights: 1850-1928
As the remainder of this essay will demonstrate, this conclusion is unfounded. Well before the enactment of Article X, Section 2 in 1928—indeed, since the earliest days of statehood—the California Supreme Court has crafted the state's water rights law in an explicitly utilitarian manner. As economic conditions have changed, and as social goals have evolved, the Court has not hesitated to modify both the law and the water rights based on that law to facilitate California's economic growth and social well-being. Before examining this doctrinal development, however, it is necessary to describe the backdrop against which the evolution of California water rights took place. We begin, appropriately, with the founding of the state in 1850.
A. Adoption of the Common Law: Riparian Rights
Among the first acts of the new state legislature was enactment of a statute that adopted the common law of England as the rule of decision in all California courts.[4] One effect of this legislation was to recognize the law of riparian rights.[5] Developed in England and on the continent during the late eighteenth and early nineteenth centuries, the riparian doctrine provides that the right to water is based exclusively on ownership of riparian land--i.e., land adjacent to a river or other watercourse.[6] The central characteristics of the riparian right are the limitation on where water may be used and the method by which water is apportioned in times of shortage. Under the riparian system, water may be used only on land that abuts the watercourse from which the water is taken; in times of shortage, all riparians along the watercourse are entitled to a reasonable or "correlative" share of the available water.[7]
Unfortunately, the doctrine of riparian rights, borrowed from a "rainy country where water was no problem,"[8] was ill-suited to California. In England and the Eastern United States, there was an abundance of water for all purposes. Cities located along major rivers, the mills used hydro-power—literally the power of the flowing waters—to power their machinery, and the natural rainfall was adequate to irrigate crops. Throughout the West, however, water is scarce and the places where an abundant supply could be found were not necessarily the same places where people wanted to use it. In California, for example, the most desirable sites for the cities—nascent centers of international trade—were along the coast. Yet, the native water supplies in the San Francisco Bay area and in the Los Angeles coastal plain were only sufficient to support small pueblos. The major industry of the new state was mining, not mills, and the miners did not own land on which to base a riparian right. Moreover, the earlier gold miners were among the first to recognize that to use the available water they had to find a way to get the water from the streambeds to where it was needed—the hillsides in which the gold ore lay. Similarly, it was not possible to grow most crops in California without irrigation, and the land that the early settlers wanted to farm was not always located along a river or other natural watercourse.