Opinion
As Modified on Denial of Rehearing March 23, 1979.
Opinion on pages 1-17 omitted.
HEARING GRANTED [*]
For Opinion on Hearing, see 162 Cal.Rptr. 30, 605 P.2d 859.
P. A. Towner and John R. Kramer, State of Cal., Dept. of Water Resources, Sacramento, for amicus curiae on behalf of plaintiff and appellant.
[153 Cal.Rptr. 144]Evelle J. Younger, Atty. Gen., Robert H. Connett, Asst. Atty. Gen., Joel S. Moskowitz, Deputy Atty. Gen., for plaintiff and appellant.
Green, Green & Rigby and Denslow B. Green, Madera, for defendants and respondents.
OPINION
FRANSON, Acting Presiding Justice.
This appeal presents a question which has been debated for over 60 years in California: Did the Legislature in enacting the 1913 Water Commission Act (Stats. 1913, ch. 586, p. 1012, now Wat. Code, §§ 1200 et seq.) intend to regulate the Prescriptive taking of surface water? For the reasons to be explained, we hold that the Legislature intended to regulate only the appropriation of surplus or uncommitted water in the rivers and streams of California. Since prescription involves the adverse taking of water which is committed to downstream riparian owners or prior appropriators, it is not within the regulatory scope of the act.
See Final Report, Governor's Commission to Review California Water Rights Law, December 1978, page 31; Kletzing, Prescriptive Water Rights in California: Is Application a Prerequisite ? (1951) 39 Cal.L.Rev. 369; Trowbridge, Prescriptive Water Rights in California: An Addendum (1951) 39 Cal.L.Rev. 525; Craig, Prescriptive Water Rights in California and the Necessity for a Valid Statutory Appropriation (1954) 42 Cal.L.Rev. 219; Hutchins, The California Law of Water Rights (1956) page 334; Rogers and Nichols, Water for California (1967) volume I, pages 326-327; see also Regulations and Information Pertaining to Appropriation of Water in California, State Water Resources Control Board, July 1977, page 68.
The procedural chronology and facts of the case are as follows: On March 1, 1976, the People of the State of California (State) at the request of the State Water Resources [153 Cal.Rptr. 145] Control Board (Board) filed a complaint for injunction against respondent Shirokow pursuant to Water Code section 1052. (All subsequent code citations refer to the Water Code unless specified otherwise.) This section declares to be a trespass the unauthorized diversion or use of water subject to the regulatory provisions of the Water Commission Act and provides that the Board may bring an action to have such trespass enjoined. The complaint alleged that prior to 1960 a dam had been constructed on respondent's property on Arnold Creek in Madera County and that the dam formed a reservoir in which water was stored each year without a permit from the Board to do so. Respondent admitted the construction and use of the dam without a permit but alleged as a defense that he and his predecessors in interest had impounded the water openly, notoriously, under claim of right and continuously since before 1960; that the diversion of water was adverse to all persons owning downstream property and that respondent and his predecessors had paid all taxes assessed thereon. Respondent alleged that in so doing a prescriptive right was acquired to continue the impoundment of the water. The trial court found in respondent's favor on his defense and denied the injunctive relief sought by appellant.
Respondent owns approximately 4,000 acres of land in the low mountain area of eastern Madera County. He acquired the property in 1965 and uses it for cattle grazing and recreational purposes. The major portion of the property is located within the watershed of Arnold Creek and is riparian thereto. The headwaters of Arnold Creek start approximately one mile north of respondent's acreage and run through his property into Finegold Creek which in turn flows to the San Joaquin River above Friant Dam. Arnold Creek is an intermittent stream which flows from mid-winter to early spring of each year and is normally dry in the summer and fall months.
Sometime before 1960 respondent's predecessor in interest built a diversion dam and reservoir on Arnold Creek to store water for livestock watering and fishing for the entire year. The reservoir has a capacity of 19.5 acre feet. The dam captures the first flows of Arnold Creek each winter until it is filled and then, except for evaporation, seepage and livestock watering, the flow passes over the spillway and continues down the creek to the San Joaquin River above Friant Dam where the water is stored and impounded for diversion into the Madera and Friant-Kern Canals or released down the San Joaquin River. All of the flow of Arnold Creek which passes respondent's dam eventually goes to downstream users. The water released at Friant is controlled by the United States government as part of the federal Central Valley Project and is not a part of the state water system. The State has no proprietary interest in the water.
The taking of such a relatively small amount of water for livestock watering and fishing is obviously a reasonable and beneficial use of the water; hence, it would appear to qualify as a riparian use. However, it has been held that seasonal or periodic storage of water for use on riparian land is a nonriparian use. (Moore v. Cal. Oregon Power Co. (1943) 22 Cal.2d 725, 731-735, 140 P.2d 798.) The storage is "as much adverse (to downstream owners) and could have been as readily enjoined as if the diversion had been to another watershed for use on nonriparian lands" (Id. at p. 731, 140 P.2d at p. 802). Respondent apparently concedes that his diversion constitutes a nonriparian use.
Since its construction, the dam, reservoir and impounded water have been taxed by Madera County as an improvement on the real property, and all taxes thereon have been paid by respondent and his predecessors in interest. In the communities of North Fork and O'Neals in Madera County, it has been common knowledge that the dam was used to impound and store water. When purchasing the property on which the dam is located, respondent relied upon the fact that the dam had impounded the water of Arnold Creek at that point for more than five years preceding the purchase. The water, however, had not been diverted or stored before December 19, 1914, the effective date of the Water Commission Act.
[153 Cal.Rptr. 146]No permit or license has ever been obtained by respondent or his predecessors in interest from the Board to appropriate or divert the waters of Arnold Creek.
We begin our journey through the elusive concepts of water rights law by describing the three doctrines that historically have governed the right to the use of water in the streams of California. They are the appropriative, the riparian, and the prescriptive rights doctrines. The Appropriative doctrine is defined as follows: "The appropriative right is an exclusive right, acquired under the procedure provided by law, to divert from a public water supply a specific quantity of water provided it is available there In excess of the requirements of all existing vested rights and to apply such water to a specific beneficial use . . . in preference to all appropriative rights of later priority" (Hutchins, Water Rights Laws in the Nineteen Western States (1971) vol. 1, at p. 226, emphasis added). The water may be used on or in connection with lands away from streams, as well as lands contiguous to streams. The first appropriator of water from a particular water course has the prior exclusive right to the use of the available water to the extent of his appropriation. Each subsequent appropriator has a like priority with respect to all later appropriators. The appropriative right relates to a specific quantity of water, and is good as long as the right continues to be exercised. The right may be acquired for any use of water that is beneficial and reasonable. (Hutchins, The California Law of Water Rights, Supra, p. 40.)
We have omitted any discussion of the pueblo water right which is the paramount right of a city as successor of a Spanish or Mexican pueblo to the use of water naturally occurring within the pueblo limits for the use of the inhabitants of the city. (Hutchins, The California Law of Water Rights, Supra, at pp. 256-262.)
Prior to 1872, appropriative water rights could be acquired simply by taking and beneficially using water. This was based on the custom which had originated in the use of water to extract gold from the Sierra foothills often on lands some distance from the streams. (Id., at p. 41; see also Powell, Compromises of Conflicting Claims. A Century of California Law, 1760-1860 (1977) pp. 180-181; Chief Justice Show, Development of the Law of Waters in the West (1922) 189 Cal. 779.) In 1872, Civil Code sections 1410 to 1422 were enacted establishing an optional permit procedure for perfecting an appropriation. Provision was made for posting a notice of appropriation at the proposed point of diversion and recording a copy with the county recorder. If the statutory procedure were followed and the appropriation completed with due diligence, priority related back to the date of posting; otherwise, the appropriator's priority did not attach until water was beneficially used (Hutchins, The California Law of Water Rights, Supra, at pp. 89-92).
The Riparian doctrine accords to the owner of land contiguous to a water course a right to the use of water on such land. The riparian right is a species of real property and is appurtenant to the land. The use of the water is limited to the riparian land and it may be used for domestic, agricultural and other beneficial purposes. The use must be reasonable in relation to the reasonable requirements of all other owners of lands contiguous to the same water course; hence, the riparian right is proportionate, not exclusive and is not measured by a specific quantity of water. Important to our decision is the rule that in the absence of prescription a riparian right is not lost by disuse; it extends to all future reasonable and beneficial use of water on the riparian land. (Id. at pp. 40-41.) The concept of unexercised or Prospective riparian water rights is affirmed in the 1928 constitutional amendment of article XIV, section 3 (now article X, section 2) which provides, "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. . . ." (Emphasis added.) [153 Cal.Rptr. 147] In Tulare Dist. v. Lindsay-Strathmore Dist. (1935)3 Cal.2d 489, 45 P.2d 972, our Supreme Court confirmed the existence and preference accorded to prospective riparian rights. "The new doctrine not only protects the actual reasonable beneficial uses of the riparian but also the prospective reasonable beneficial uses of the riparian. As to such future or prospective reasonable beneficial uses, it is quite obvious that the quantity of water so required for such uses cannot be fixed in amount until the need for such use arises." (Id., at p. 525, 45 P.2d at p. 986; Meridian, Ltd. v. San Francisco (1939) 13 Cal.2d 424, 90 P.2d 537; Gin S. Chow v. City of Santa Barbara (1933) 217 Cal. 673, 22 P.2d 5; In re Waters of Soquel Creek Stream System (1978) 79 Cal.App.3d 682, 685-686, 145 Cal.Rptr. 146, 147-148, hg. den.)
The Prescriptive right doctrine is a method by which the right to water may be acquired by an open, adverse and continuous use of water for a five-year statutory period and under a claim of right. (Civ. Code, § 1007; Hutchins, The California Law of Water Rights, Supra, p. 301.) The acquisition of a prescriptive water right results in a corresponding proportionate loss of water rights by prior appropriators and riparian owners on the stream. The loss occurs upon the expiration of the statutory period when the prescriptive title vests. "Title by prescription in California is not based upon a fictitious lost grant but rests upon the more realistic statutes of limitation." (Id., at pp. 298-299.)
Because the use of water must be adverse to other users on the stream, prescriptive rights cannot be acquired in surplus waters, i. e., waters not committed to prior appropriators, riparian owners or other prescribers. (Id., at pp. 308-310.)
We turn now to the background and pertinent provisions of the 1913 act. In 1911, the Legislature asserted the State's ownership of its natural water resources by amending Civil Code section 1410 to read: "All water or the use of water within the State of California is the property of the people of the State of California, but the right to the use of running water flowing in a river or stream or down a canyon or ravine may be acquired by appropriation in the manner provided by law . . . ." (Stats. 1911, ch. 407, p. 821; see Wat. Code, § 102.) In the same year, the Legislature created the Conservation Commission (Stats. 1911, ch. 408, p. 822). The commission was directed to "prepare and recommend to the legislature laws, statutes and constitutional amendments revising, systematizing and reforming the laws of this state upon forestry, water, the use of water . . . " (Ibid.). Pursuant to this authorization the commission submitted to the Legislature a draft of a "Water Commission Act" which, as revised and amended, was enacted in 1913. (Stats. 1913, ch. 586, p. 1012.) The major purpose of the act was to regulate the acquisition of rights to appropriate water. The commission was authorized and empowered to investigate streams and other bodies of water, to take testimony in regard to rights to use of water, to ascertain whether such water, theretofore attempted to be appropriated, was appropriated under the laws of this state (Id., § 10, p. 1017). The act provided that "(A)ll waters flowing in any river, stream, canyon, ravine or other natural channel, Excepting so far as such waters have been or are being applied to useful and beneficial purpose upon, or in so far as such waters are Or may be reasonably needed for useful, and beneficial purposes upon lands riparian thereto, or otherwise appropriated, . . . are . . . public waters of the (s)tate . . . and subject to appropriation in accordance with the provisions of this act" (Id., § 11, p. 1018, emphasis added; see Wat. [153 Cal.Rptr. 148] Code, § 1201.) Finally, the act declared that no right to appropriate or use water subject to appropriation shall be initiated or acquired except upon compliance with the provisions of the act. (Stats. 1913, ch. 586, § 1c, added Stats. 1923, ch. 87, p. 162, § 1; see Wat. Code, § 1225.) Any unauthorized diversion of waters subject to the provisions of the act was declared to be a trespass for which an injunction could be sought by the regulatory body (Stats. 1913, ch. 586, § 38, p. 1032; see Wat. Code, § 1052).
In Palmer etc. v. Railroad Commission (1914) 167 Cal. 163, 138 P. 997, the Supreme Court pointed out that although the 1911 amendment might be effective as a dedication to the public of whatever riparian rights the state had by virtue of its ownership of lands bordering streams, it could not divest riparian rights held by private owners nor could the amendment affect prescriptive rights acquired from riparian owners (Id., at pp. 175-176, 138 P. 997).
Section 11 of the act also included a provision that if any portion of the waters of any stream shall not be put to a reasonable and beneficial purpose upon lands riparian to the stream for a period of 10 consecutive years after the passage of the act, such water is declared to be in the use of the state and subject to appropriation in accordance with the provisions of this act. This provision was held to be an unconstitutional legislative attempt to declare a statutory forfeiture after 10 years nonuse, contrary to the spirit and intent of the 1928 constitutional amendment. (Tulare Dist. v. Lindsay-Strathmore Dist., supra, 3 Cal.2d 489, 531, 45 P.2d 972; see also Scott v. Fruit Growers Supply Co. (1927) 202 Cal. 47, 54, 258 P. 1095; also conc. opn. of Shenk, J., in Irrigation Dist. v. Mt. Shasta P. Corp. (1927) 202 Cal. 56, 73-75, 259 P. 444; and his dissent in Herminghaus v. South. California Edison Co. (1926) 200 Cal. 81, 252 P. 607.) These cases forcefully reaffirmed the private ownership of prospective riparian rights to the use of water.
We first emphasize that in determining the legislative intent of a statutory scheme enacted some 64 years ago we cannot be influenced by what we perceive today to be the most desirable social policy for the regulation of the waters of our state; rather, we must confine ourselves to ascertaining the legislative meaning of the language used in the 1913 statute. Certain rules of interpretation aid us in this task. First, every word, phrase or provision is assumed to have a meaning and perform a useful function (45 Cal.Jur.2d, Statutes, § 99, p. 613). Second, it will not be presumed that the Legislature intended to overthrow long established principles of law unless the intention is made clear by express declaration or necessary implication (Id., at p. 614). Third, it will be assumed that the Legislature, in enacting a statute, was familiar with the common law rules, the acts of previous Legislatures, and existing judicial decisions construing the statutes, and that it enacted the new statute in light of these precepts (Id., at p. 615). Where a word or phrase has a definite well known legal meaning, it will be construed to have the same meaning when used in a statute, unless it appears to have been used in a different sense (Id., at p. 649). Finally, statutes must be given a fair, reasonable and common sense interpretation and one that is practical rather than technical and that will lead to a wise policy rather than to mischief or an absurdity (Id., at pp. 623-624).
Although a literal reading of the regulatory provisions of the 1913 act might suggest its applicability to any taking of water from a stream other than for riparian purposes ("appropriate" in its nontechnical sense means "to take"), nevertheless, we are convinced that the Legislature did not intend to impose the regulatory procedures governing the appropriation of water to the prescriptive taking of water; rather, its sole purpose was to change the procedure for the acquisition of appropriative rights in the surplus waters of the state. Section 11 of the act (now Wat. Code, § 1201) expressly limits the water to be regulated as water other than that which is being applied or may be reasonably needed in the future for useful and beneficial purposes upon riparian lands or otherwise appropriated. As stated in Wood v. Pendola (1934) 1 Cal.2d 435, at p. 439, 35 P.2d 526, at p. 528. "The main purpose of the act is to regulate the right to appropriate and the issuance of permits for the appropriation of Unappropriated waters of the state, through the administrative offices of a state water commission thereby created." (Emphasis added.) Thus, the appropriable waters of the state to which the 1913 act applies are those waters which are surplus and uncommitted to present or future riparian use. Water Code section 1225 [153 Cal.Rptr. 149] requires compliance with the statutory permit procedures only when the water which is taken is subject to appropriation; hence, nonsurplus waters are not governed by that section. Since none of the water diverted by respondent from Arnold Creek is surplus water it was committed to downstream riparian owners and prior appropriators long before the diversion occurred the taking is exempt from the regulatory provisions of the act.
In Meridian, Ltd. v. San Francisco, supra, 13 Cal.2d 424, 90 P.2d 537, Justice Shenk explained:
"The question is presented . . . as to who has the power of control over the waters in the rivers and streams of the state which are in excess of the present and future needs of riparian owners and prior appropriators." (Id., at p. 444, 90 P.2d at p. 547.)
"There are waters in the rivers and streams of the state to which the riparian right first attaches. The rights of other lawful users on the streams also rightfully attach. In addition there are in many of the rivers and streams of the state great volumes of water which pass on unused to the sea or to an inland drainage basin. In a real sense this excess water is a great natural resource available for the benefit of this and future generations, as the occasion for its use may arise. These excess waters constitute the public waters of the state to be used, regulated and controlled by the state or under its direction." (Id., at p. 445, 90 P.2d at p. 547, emphasis added.)
In United States v. Fallbrook Public Utility Dist. (S.D.Cal.1952) 108 F.Supp. 72, Chief Judge Yankwich stated the principle as follows: "What the (riparian) owner loses by limitation, the adverse possessor acquires by prescription (citations). Prescriptive rights to water or any property are extra-legal. . . . (N)either the Water Commission Act of 1913 . . . Nor the constitutional amendment of 1928, could, or did affect the prescriptive rights to water and the manner of their acquistion." (Id., at p. 82, fn. 24, emphasis original.)
It is noteworthy that the regulations of the State Water Resources Control Board admit the possibility that prescriptive rights may be acquired regardless of the 1913 act. After stating that a permit is required to obtain an appropriative right, the Board says, "It would appear to follow that although one who now uses water without a permit for a sufficient period of time may, under certain circumstances, foreclose objection by those who have been adversely affected, he does not thereby acquire a right to prevent diversions by others . . . ." (Regulations and Information Pertaining to Appropriation of Water (July 1977) p. 68.) The Board acknowledges that its conclusion about the prescriptor's inability to prevent diversion by others has not been determined by the courts (Ibid.). In the amicus brief filed by the Board in the present case it is stated, "The Department has no quarrel with the trial court's conclusion that prescriptive rights may exist in proper circumstances. Prescriptive rights which do not require a permit or license are outside the requirements of the Water Code. These include riparian use in excess of a correlative share, . . . " Apparently the Board's theory is that although a prescriptive right may exist in the waters of a stream as between private owners, the state nonetheless has an overriding right to regulate the exercise of the prescriptive right by requiring a permit as in the present case. While such regulatory control over vested prescriptive rights may well be a proper exercise of the police power, we find nothing the 1913 act or the Water Code as it exists today to authorize such control.
We must assume that the Legislature understood and recognized the difference between the appropriative and prescriptive rights doctrines that had been established over the years preceding the 1913 act. We must also assume that the Legislature was aware of Civil Code section 1007, enacted in 1872, which expressly recognizes the prescriptive taking of water. If the Legislature had intended to abolish prescription as an independent method of acquiring water rights after 1913, it surely would have deleted the language concerning prescriptive water rights from section 10017. That this omission was not inadvertent is further demonstrated by the 1968 amendment to section 1007 which provides in pertinent part, "but no possession by any person, . . . no matter how long continued [153 Cal.Rptr. 150] of any . . ., water right, . . . whatsoever dedicated to a public use by a public utility, or dedicated to or owned by the state or any public entity, shall ever ripen into any title, interest or right against the owner thereof." (Stats. 1968, ch. 1112, § 1, p. 2125.) The limited exemption from prescription established by the 1968 amendment manifests by necessary implication that the prescriptive doctrine is alive today as between private owners of water rights.
Water Code section 103, adopted by the Legislature in 1943 when it codified the Water Commission Act and its subsequent amendments, closes the door on appellant's contention that the 1913 act abolished the acquisition of prescriptive rights to water without a permit. Section 103 provides: "In the enactment of this code, the Legislature does not intend thereby to effect any change in the law relating to water rights." (Stats. 1943, ch. 368, § 103, p. 1606.) The Code Commission Notes to this section provide in pertinent part:
" . . . (I)nasmuch as the sections of this draft preceding this one refer to certain types of water rights, i. e., appropriative and riparian rights, it is thought advisable to negative any possible implication that it is intended to abolish other types of rights Such as prescriptive rights. It is intended that this section has no operative effect other than to make it clear that such other rights are not affected and that as to them the law is left as it is, subject, of course, to such modification as may develop through court decisions or subsequent legislation." (Emphasis added.)
Although a legislative declaration in 1943 is not determinative of the legislative intent 30 years earlier, it nonetheless constitutes a clear recognition of the existence and viability of the prescriptive rights doctrine.
Appellant relies on dicta in Crane v. Stevinson (1936) 5 Cal.2d 387, 54 P.2d 1100 to support its contention that compliance with the statutory procedure is required to obtain a prescriptive right. The court stated:
"Since the effective date (year 1913) of the Water Commission Act, an intending appropriator has been required to file his application with the water commission (now the division of water resources). This the plaintiff did not do. To sustain his claim, the appropriation made by him must have been actually complete at some time prior to said 1913 date, and even that is not sufficient if the evidence shows a subsequent failure to maintain the beneficial use for the period of time prescribed by the statute, . . . " (Id., at p. 398, 54 P.2d at p. 1105.)
However, this statement was purely gratuitous since prescription was not an issue in the case. The plaintiff was claiming as a riparian and appropriator; he could not claim as a prescriptor because the acts of the defendants were performed upstream from plaintiff's point of diversion and prescriptive rights may not be acquired against an upstream user. The court properly held that because the plaintiff had not complied with the statutory requirements he had not acquired an appropriative right. The court did not address the need for a permit to gain prescriptive rights.
Appellant also cites Meridian, Ltd. v. San Francisco, supra 13 Cal.2d 424, 90 P.2d 537, where, after referring to the provisions of section 1052 the court said, "There need be no apprehension therefore lest rights become vested, by prescription or otherwise, in an excessive use of water or in a use for unauthorized purposes." (Id., at p. 450, 90 P.2d at p. 550.) Contrary to appellant's interpretation of the quoted passage, the court did not state that prescriptive rights could not be acquired after 1914; it merely indicated that prescriptive rights could not be acquired in an excessive use or for unauthorized purposes. The court's discussion preceding this passage concerned the effect of the 1928 constitutional amendment, which limited all water rights to the amount which can be put to a reasonable and beneficial use (Id., at pp. 443-450, 90 P.2d 537). The import of the quoted statement [153 Cal.Rptr. 151] is that since the 1928 amendment, a water user may not acquire, by prescription or any other means, a right to waste water. We find nothing in Meridian to suggest that prescription is not a viable method for obtaining water rights, so long as the water is applied to a reasonable and beneficial use.
Appellant's final argument is that even if respondent has obtained a valid prescriptive right as against downstream users, the state nonetheless can enjoin the diversion in the public interest of allocating the state's scarce water resources to their fullest beneficial use citing California Constitution article XIV, section 3 and Water Code section 100. The argument assumes too much that the state has the authority to allocate all of the water in California. Under the Constitution and the Water Code as it exists today, the state has no authority to allocate water already committed to riparians, pre-1913 appropriators, prescriptors whose rights have vested, or ground water users. (See Meridian, Ltd. v. San Francisco, supra, 13 Cal.2d 424, 445, 90 P.2d 537.) In In re Waters of Soquel Creek Stream System,supra, 79 Cal.App.3d 682, 145 Cal.Rptr. 146 (hg. den.), the Board attempted in a statutory adjudication under section 2525 to permanently quantify the riparian rights of an individual and to place riparian rights below appropriative rights in priority. The court held that the Board had no power to change riparian rights in this manner or to modify the rights that had vested in the riparian owners (Id., at pp. 687-689, 145 Cal.Rptr. 146). Other than the power to prevent waste, unreasonable use, unreasonable method of use or unreasonable method of diversion of water (Wat. Code, § 275), the Board's authority to regulate water is limited to the surplus waters of the state. (See Wat. Code, § 120 and Code Commission Notes following that section.) Prescriptive rights once established are entitled to the same protection as riparian rights. Nothing in the 1928 constitutional amendment or the Water Code suggests otherwise.
We fully recognize that the Legislature has the power to confer on the Board the authority to regulate the prescriptive taking of water. The Final Report of the Governor's Commission to Review California Water Rights Law (Dec. 1978) recommends that the Legislature prohibit all further acquisition of water rights by prescription (Id., at p. 31), and further recommends that the Board and the courts be authorized to quantify all riparian rights and to accord unexercised riparian rights lower priorities than actual users of water (Id., at p. 29). (The report recognizes that the constitutionality of the legislative power to limit riparian rights in this manner is currently before the California Supreme Court (In re Waters of Long Creek Stream System (1978) 84 Cal.App.3d 682, 145 Cal.Rptr. 146, hg. granted Oct. 18, 1978).)
Having determined that the prescriptive taking of water is outside the regulatory scheme of the 1913 act, we must decide whether respondent has perfected a prescriptive title to the right to divert the 19.5 acre feet of water from Arnold Creek. Suffice it to say, the diversion has occurred for a period longer than the required statutory period of five years, both before and after respondent purchased the property; the diversion has been open, notorious, under [153 Cal.Rptr. 152] claim of right and hostile to downstream owners; and respondent and his predecessors have paid all taxes assessed against the water and the improvements to divert the water.
Conceptually, it can be argued that since the state does not have the power to regulate respondent's adverse taking of the water from the downstream owners because it is not surplus or unappropriated water, the question whether respondent has perfected his title under the statutory requirements for adverse possession becomes irrelevant. Appellant has argued that a theft of our precious water reserves would result if the state cannot enjoin an adverse taking of water short of that expiration of the statutory period of limitations and absent proof that the other essential elements for a prescriptive title have been satisfied. We respond that (1) the taking must be for a reasonable and beneficial use or it will be prohibited as a waste of water (Wat. Code, § 275), and (2) being adverse to the interests of downstream owners, the latter presumably will act diligently to protect their interests by seeking to enjoin the diversion. Thus, under existing law, the state has no bona fide interest in regulating the adverse taking of water between private owners of water rights.
Appellant's argument that the diversion has been without notice to downstream users and without a bona fide claim of right will not stand. Under the stipulated facts, the entire flow of Arnold Creek is diverted until the reservoir is full. In drought years, no water passes the dam it is all diverted. In the neighboring downstream community of O'Neals, it was common knowledge that the dam was used to store water.
"An upper riparian owner may gain a right by prescription as against the rights of the lower riparian owner by proof . . . that the circumstances were such, as for instance the use of all the water of the creek, that the lower owner must be presumed to have known of the adverse claim." (Morgan v. Walker (1933) 217 Cal. 607, 615-616, 20 P.2d 660, 664.)
" 'While one who asserts a prescriptive right to take water from a stream or other source must assume the burden of establishing it, proof of the continuous occupancy and use of the water as though he were the owner, for more than five years, establishes a Prima facie case. It then devolves upon the original owner to show that the use of the water was permissive only or without his knowledge.' " (Id., 615, 20 P.2d 662, quoting 25 Cal.Jur., p. 1155; emphasis added.)
We must presume that all inferences from the facts were drawn in favor of respondent. Notice of respondent's diversion to downstream riparian owners between respondent's land and the Friant Dam can be reasonably inferred from the facts.
The claim of right element of a prescriptive taking does not require an announcement by the prescriptor to downstream owners that he is taking the water under a claim of right. As is stated in Anaheim Union Water Co. v. Ashcroft (1908) 153 Cal. 152 at page 160, 94 p. 613 at page 616:
"But, assuming there was no express declaration, it was not essential to support a right by prescription that there should be. Satisfactory proof of a continuous, open, notorious, and uninterrupted use of the waters on their lands for the statutory period, and of such a character as to unquestionably indicate that the use was being exercised in hostility to the right of any person to interfere with its exercise, was sufficient proof that they claimed a right to use it. It was not necessary to declare such right any further than their conduct indicated it." (See also Hutchins, The California Law of Water Rights, Supra, at pp. 317-318.)
Moreover, respondent in good faith claimed ownership of the right to the use of the water when he purchased the property in 1965. In Wood v. Davidson (1944) 62 Cal.App.2d 885 at page 888, 145 P.2d 659 at page 661, it is stated:
"The adverse claim was one asserted in the good faith belief that the water belonged to defendants. Such a claim may ripen into title. A claim of right does not cease to be adverse because asserted under mistake. (Park v. Powers, 2 Cal.2d 590, 42 P.2d 75."
We conclude that respondent has perfected a prescriptive title to the use of the 19.5 acre feet of water from Arnold Creek in accordance with the requirements of the law. The trial court properly denied appellant's request for an injunction.
The judgment is affirmed.
HOPPER and VILAS (Sitting under assignment by the Chairperson of the Judicial Council), JJ., concur.
[*] See 26 Cal.3d 301 for Supreme Court opinion.