33 Cal.2d 908 (1949)

CITY OF PASADENA, Plaintiff and Respondent,
v.
CITY OF ALHAMBRA et al., Defendants and Respondents; DIVISION OF WATER RESOURCES, Referee and Respondent; CALIFORNIA-MICHIGAN LAND AND WATER COMPANY (a Corporation), Appellant.

L. A. No. 19610 In Bank.

Supreme Court of California.

June 3, 1949.

Goodspeed, McGuire, Harris & Pfaff, Paul Vallee, Richard C. Goodspeed and J. Donald McGuire for Appellant.

A. E. Chandler, Special Counsel, Harold P. Huls, H. Burton Noble, City Attorneys (Pasadena), C. C. Carlton, Spencer Burroughs, Henry Holsinger, James C. Bone, T. Guy Cornyn, City Attorneys (Arcadia), Gerald E. Kerrin, Robert E. Moore, Jr., Hahn & Hahn, Edwin F. Hahn, Potter & Potter, Bernard Potter, Sr., Merriam, Rinehart & Merriam, Ralph T. Merriam, Laurence B. Martin, Frederick G. Stoehr, Emmett A. Tompkins, City Attorney (Alhambra), Kenneth K. Wright, Special Counsel, Paul F. Garber, City Attorney (Monrovia), Walter F. Dunn, Thomas Reynolds, City Attorneys (Sierra Madre), Anderson & Anderson, Trent G. Anderson, John C. Packard, Bacigalupi, Elkus & Salinger, Claude Rosenberg, Derthick, Cusack & Ganahl, W. J. Cusack, Wilton W. Webster, Dunn & Sturgeon, Walter F. Dunn, Chandler & Wright, Howard Wright, Bailie, Turner & Lake, Norman A. Bailie, Cruickshank, Brooke & Dunlap, Boyle & Holmes, John W. Holmes, Frank P. Doherty, Gibson, Dunn & Crutcher, Ira C. Powers, Harold W. Kennedy, County Counsel (Los Angeles), and S. V. O. Prichard, Assistant County Counsel, for Respondents.

Martin J. Weil, Wm. J. De Martini, J. A. McNair, J. Arthur Tucker, W. F. Kiessig, Harrison Guio, L. A. Gibbons, Jerry H. Powell, Douglas C. Gregg, Lawler, Felix & Hall and Pillsbury, Madison & Sutro as Amici Curiae on behalf of Respondents. *916

GIBSON, C.J.

Plaintiff city, the chief producer of water from a 40 square mile alluvial-filled basin of ground water ^{[fn. *]} known as the Raymond Basin Area, instituted this litigation to determine the ground water rights within the area and to enjoin an alleged annual overdraft in order to prevent eventual depletion of the supply. Pursuant to section 24 of the Water Commission Act, which was then in force (Stats. 1913, p. 1012, as amended, Deering's Gen. Laws (1937), Act 9091; now Wat. Code, 2000-2050), the trial court referred the matter to the Division of Water Resources of the Department of Public Works for a determination of the facts, and the ensuing report of the division was received in evidence. On the basis of this report all of the nondisclaiming parties, with the exception of the defendant California-Michigan Land and Water Company, a public utility and the sole appellant herein, entered into a stipulation for a judgment allocating the water and restricting total production to the safe annual yield. The court, after hearing evidence presented by appellant in opposition to the report, rendered a judgment substantially enforcing the terms of the stipulation against all parties, including appellant.

The principal issues presented on this appeal are whether the trial court properly limited the amount of water that appellant may take from the ground in the Raymond Basin Area, and whether it erred in placing the burden of curtailing the overdraft proportionately on all parties. Before discussing these issues on the merits, we will consider certain contentions involving jurisdiction, procedure and remedy.

Preliminary Contentions

[1] The complaint was filed on September 23, 1937, and the trial was not commenced until May 18, 1944. A dismissal is made mandatory by section 583 of the Code of Civil Procedure, except in certain cases, unless the action is brought to trial within five years after the plaintiff has filed his action. It is settled, however, that in computing the five- year period the time during which, "for all practical purposes, going to trial would be impossible, whether this was because of total lack of jurisdiction in the strict sense, or because proceeding to trial would be both impracticable and futile," is to be excluded. (Christin v. Superior Court, 9 Cal.2d 526, 533 [71 *917 P.2d 205, 112 A.L.R 1153] [time consumed by appeal from order granting change of venue]; Pacific Greyhound Lines v. Superior Court, 28 Cal.2d 61, 64 [168 P.2d 665] [time during which one defendant was in military service and stay might have been granted]; Judson v. Superior Court, 21 Cal.2d 11, 14 [129 P.2d 361] [time defendant avoided service of summons by evasion and concealment]; Westphal v. Westphal, 61 Cal.App.2d 544 [143 P.2d 405] [time during which coplaintiff had an appeal pending].)

The order of reference was made on February 8, 1939; the referee's report was filed on July 16, 1943, and, thereafter, respondents proceeded with reasonable dispatch to bring the cause to trial. The issues to be tried were dependent to a great extent upon the facts to be ascertained by the referee, and it would have been impracticable, if not futile, to proceed to trial prior to the completion of the report. It follows that the time consumed by the reference should be excluded in computing the five-year period, and that, therefore, the action was not subject to dismissal under the provisions of section 583.

The "Division of Water Resources, Department of Public Works, State of California," was appointed as referee pursuant to section 24 of the Water Commission Act which provided: "In case suit is brought in any court of competent jurisdiction for determination of rights to water or the use of water, ... the court may, in its discretion, refer such a suit to the state water commission for investigation of and report upon any one or more or all of the physical facts involved, in which event, said commission may, in its discretion, base its report solely upon its own investigation or investigations or in addition thereto may hold a hearing or hearings and take testimony and the report filed by the commission upon such a reference for investigation by it shall be prima facie evidence of the physical facts therein found. ..."

Every recent major water law decision of this court has expressly or impliedly approved the reference procedure provided by section 24 and has recommended, in view of the complexity of the factual issues in water cases and the great public interests involved, that the trial courts seek the aid of the expert advice and assistance provided for in that section. (See Fleming v. Bennett, 18 Cal.2d 518, 522 et seq. [116 P.2d 442]; Meridian, Ltd. v. San Francisco, 13 Cal.2d 424, 457 [90 P.2d 537, 91 P.2d 105]; Rancho Santa Margarita v. Vail, 11 Cal.2d 501, 558-559 [81 P.2d 533]; City of Lodi v. East *918 Bay Mun. Utility Dist., 7 Cal.2d 316, 341 [60 P.2d 439]; Tulare Irr. Dist. v. Lindsay-Strathmore Irr. Dist., 3 Cal.2d 489, 575 [45 P.2d 972, 1014]; Peabody v. City of Vallejo, 2 Cal.2d 351, 373-374 [40 P.2d 486]; Wood v. Pendola, 1 Cal.2d 435, 443 [35 P.2d 526].)

In sustaining and approving the reference procedure, it was stated in the Fleming case that "all of the pertinent constitutional safeguards were observed by the legislature in enacting the provisions of section 24. ..." (18 Cal.2d at p. 528.) The opinion did not mention whether section 24 conflicted with article III, section 1, of the Constitution, which provides for the separation of powers, or discuss whether such an order of reference invalidly subjects an executive branch or division and its officers to the control of the judiciary. It was, however, expressly held (18 Cal.2d at pp. 523-525) that section 24 does not provide for the exercise of judicial power by the division, and implicit in the decision is the conclusion that the separation of governmental powers is observed. (See, also, Wood v. Pendola, 1 Cal.2d 435, 442 [35 P.2d 526].) In effect section 24 provides that the court may appoint the division to act as an investigator and an expert witness, but there is nothing which authorizes the courts to control or regulate, in any particular, the proper functions of the division or the manner in which, pursuant to legislative mandate, it shall proceed in conducting its examination and making its report. The Fleming case also expressly held that section 24 is not unconstitutional and void as a special law providing for a variation from the general practice and procedure in the superior court in violation of article IV, section 25, of the Constitution. (18 Cal.2d at p. 528; cf., Wood v. Pendola, 1 Cal.2d 435, 442 [35 P.2d 526].)

[2] There is no merit in the contention that the reference should have been made to the Department of Public Works as the statutory successor of the Water Commission. Since the abolition of the Water Commission in 1921, it has been repeatedly recognized that, under section 24, the court may properly refer a pending water rights case to the Division of Water Resources or its predecessor, the Division of Water Rights. ^{[fn. *]} (Fleming v. Bennett, 18 Cal.2d 518, 521 [116 P.2d 442]; Rancho Santa Margarita v. Vail, 11 Cal.2d 501, 559 [81 P.2d 533]; City of Lodi v. East Bay Mun. Utility Dist., 7 Cal.2d 316, 341 [60 P.2d 439]; Tulare Irr. Dist. v. *919 Lindsay-Strathmore Irr. Dist., 3 Cal.2d 489, 575 [45 P.2d 972, 1014]; Peabody v. City of Vallejo, 2 Cal.2d 351, 373 [40 P.2d 486].)

[3] The complaint is made that some of the men who worked on the report of the referee were not available for cross-examination at the time of the trial. It appears, however, that the man who prepared the report and supervised the investigation testified at length and that others who worked on the report also testified at the trial. Appellant was afforded ample opportunity to examine these witnesses, and there is no showing that it sought to obtain the testimony of persons who were not present. It was permitted to introduce evidence contrary to the facts appearing in the report, and, under all the circumstances, there was no denial of an opportunity to be heard in opposition to the report.

[4] Appellant claims that the trial court improperly enlarged the scope of the proceedings. In response to a request of the referee for instructions, the court, after a hearing, ruled that the issues should "embrace an adjudication of rights of the defendants inter se and the rights of each and every party as against each and every other party." Although the answers of the respective defendants did not present claims against the other defendants and were not served on them, the action was tried on the theory that these matters were at issue, and the ensuing judgment limiting the amount of water that each could pump was also based on this theory. The trial court has authority, under section 24, to include, in the matters which are to be submitted to the referee and determined by the judgment, any issues necessary to a proper determination of the controversy. (See Fleming v. Bennett, 18 Cal.2d 518, 523 [116 P.2d 442].) It was within the discretion of the trial court to determine whether it was necessary to adjudicate inter se the amount of water to which each party was entitled, and the record indicates that it would have been impracticable to decide the matter solely between plaintiff and each defendant. [5] Moreover, appellant had ample time to prepare its case after notice of the scope of the proceedings, and there is no basis for any claim that it was misled to its prejudice or that it was denied due process of law.

[6] The objection is also made that the court erred in allocating water without the joinder of a number of private users who pumped comparatively small amounts. The referee filed a preliminary report which stated that it would be impracticable to attempt to include all such parties. It recommended, *920 however, that certain named parties who used fairly substantial amounts be joined in the action, and the court ordered them brought in over the objections of appellant. No request was made by appellant for the inclusion of any party who had not been joined, and there is no showing that its interest was injuriously affected by the failure to require the joinder of all possible claimants. (See Smith v. Cucamonga Water Co., 160 Cal. 611, 617 [117 P. 764].) The line must be drawn somewhere in order to bring the proceeding within practical bounds, and it would have been impossible to reach a solution of the problems involved and to render a valid judgment if jurisdiction to make an allocation depended upon the joinder of every person having some actual or potential right to the water in the basin and its sources of supply. The persons not made parties are, of course, not bound by the judgment, nor are they injured by the injunction.

[7] Appellant further contends that it cannot be enjoined since the water which it produces is devoted to a public use. Reliance is placed upon cases holding that when a public use has attached, inverse condemnation proceedings may be invoked and compensation in lieu of a prohibitory injunction is preferred in most circumstances. (See Hillside Water Co. v. Los Angeles, 10 Cal.2d 677, 688 [76 P.2d 681]; Peabody v. City of Vallejo, 2 Cal.2d 351, 377-380 [40 P.2d 486]; Newport v. Temescal Water Co., 149 Cal. 531, 538 [87 P. 372, 6 L.R.A.N.S. 1098].) This rule has its foundation chiefly in the inconvenience to the public if service is interrupted by the issuance of an injunction to restrain the use (Miller & Lux v. San Joaquin L. & P. Corp., 8 Cal.2d 427, 436 [65 P.2d 1289]; Burr v. Maclay Rancho Water Co., 160 Cal. 268, 280 [116 P. 715]), and has no application to the problem which confronts us here. The purpose of this litigation is the protection of the interests of both public and private users by preventing further depletion of the water supply. Excepting appellant, all parties, public as well as private, have consented to be enjoined to effect this purpose. There is nothing in the record to indicate that the public interest would be better served by depriving private users of their pumping rights and compensating them therefor. If this were done they would have to purchase their water from municipalities or public utilities which take water from the same underground area, and the total supply available to the public would not be increased. Moreover, it would be exceedingly *921 difficult to fix the monetary loss of each private party and then apportion it among the numerous public users. In these circumstances, the trial court was justified in concluding that the rule against enjoining public utilities was not applicable.

Findings and Judgment

The Raymond Basin Area, a field of ground water located at the northwest end of San Gabriel Valley, includes the city of Sierra Madre, almost all of the city of Pasadena, and portions of South Pasadena, San Marino, and Arcadia. The field of ground water contains alluvium consisting of sands, gravels and other porous materials through which water percolates. The northern side is formed by the San Gabriel range of mountains which rise back of the valley to a general elevation of from 5,000 to 6,000 feet. The area comprises 40 square miles and is separated from the rest of the valley along its southern boundary by the Raymond Fault, sometimes known as Raymond Dike, a natural fault in the bedrock constituting a "Barrier in the alluvium ... which greatly impedes the sub-surface movement of water from the area, although it does not entirely stop it, thus creating a vast underground storage reservoir." There is a pronounced slope to the south from elevations of 1,000 feet above sea level at the mountains to a general elevation of 500 to 700 feet at Raymond Fault.

In this part of the state there is ordinarily a series of wet years followed by a number of dry years, making it necessary during periods of above-normal rainfall to store water for future use. It appears, however, that the ground water storage capacity is adequate to store the excess during wet years for the following dry years.

Natural underground formations divide the area into two practically separate units. The Western Unit, the larger of the two, consists of the Monk Hill Basin, which is to the northwest, and the Pasadena Subarea. The Eastern Unit, or Santa Anita Subarea, lies immediately to the east of the Pasadena Subarea. At the present water table elevations movement of ground water from the Western to the Eastern Unit is so small as to be immaterial but it might be increased by an overdraft in the Eastern Unit. Movement from the Eastern to the Western Unit is almost totally lacking.

Our concern is with the Western Unit where the principal ground water movement is from north and west of Monk Hill to the south and east and across Raymond Fault. The water *922 in this unit is replenished by rainfall, by return water arising from the use of water in the unit, and by the runoff and underflow from the San Gabriel Mountains to the north and from the San Rafael hills to the west. Appellant's wells, from which it obtains all its production, are in the southeastern part of this unit, and the underlying water constitutes one ground water body which is a common source of all parties taking water therefrom. The water pumped from the ground in the Western Unit has exceeded the safe yield thereof in every year since 1913-14 (commencing October 1) except during the years 1934-35 and 1936-37. The safe yield of the unit was found to be 18,000 acre feet per year, but the average annual draft was 24,000 acre feet, resulting in an average annual overdraft of 6,000 feet.

With respect to the water rights acquired by the various parties it was stipulated by all of them, including appellant, that "all of the water taken by each of the parties to this stipulation and agreement, at the time it was taken, was taken openly, notoriously and under a claim of right, which claim of right was continuously and uninterruptedly asserted by it to be and was adverse to any and all claims of each and all of the other parties joining herein."

The findings set forth in terms of acre feet per year "the highest continuous production of water for beneficial use in any five (5) year period prior to the filing of the complaint by each of the parties in each of said units, as to which there has been no cessation of use by it during any subsequent continuous five (5) year period." This was designated, for convenience, the "present unadjusted right" of each party, and the court concluded that each party owned "by prescription" the right to take a certain specified amount of water, and that the rights of the parties were of equal priority. The total of the unadjusted rights for the Western Unit was found to be 25,608 acre feet per year, and water pumped by nonparties to the action was 340 acre feet per year. The court also found that a continued draft in these amounts will result in an unreasonable depletion and the eventual destruction of the ground water as a source of supply; that any increase in the amounts taken in the Eastern Unit will deplete the ground water supply in that unit; that in order to protect the supply it is necessary that the parties in the Western Unit be limited by reducing the "present unadjusted right of each such party in the proportion that the safe yield of said unit, less the water taken therein by nonparties hereto, bears to the aggregate *923 gate of such rights of parties hereto in said unit, and that each of the parties pumping or otherwise taking water from the ground in the Eastern Unit be limited to the amount of its present unadjusted right." The amount of water limited to each party, designated the "decreed right," was set out in the findings, and this allocation gave each party about two-thirds of the amount it had been pumping.

The court enjoined all pumping in excess of the decreed right and appointed a "Water Master" to enforce the provisions of the judgment. It reserved jurisdiction to modify the judgment or make such further orders as might be necessary for adequate enforcement or for protection of the waters in the Raymond Basin Area from contamination.

Sufficiency of Evidence

Appellant takes the position that the ground water in the Western Unit is not contained in a single storage basin or reservoir as found by the court, but, rather, flows in certain defined underground streams from the northwestern portion to the southeastern section in much the same manner as water flows in surface streams, and that these streams, together with a flow of water from the Eastern Unit, converge at the lower level where appellant's wells are located. It argues that its taking of water cannot possibly injure the upper claimants because once the water has reached a lower level it cannot flow back upstream to the wells of the other parties.

The report states that no substantial quantity of water from the Eastern Unit now reaches appellant's wells. It also indicates that the ground water of the Western Unit is analogous to water stored in a large lake or reservoir, through which several currents slowly flow from inlet to outlet. Raymond Fault is similar to a dam in that it impedes the movement of water and backs it up over a considerable area, and pumping tests established that when the water table was lowered in one well, the effect could be measured in wells almost 2 miles away. These tests were conducted over comparatively short periods of time, the greatest being about three days, and since the water moves very slowly through the alluvium, it could be inferred that the effect would have been much more widespread if the test-pumping had been continued for a longer time.

There is nothing in the record which would compel a finding that the difference in elevation between the Monk Hill Basin and the Pasadena Subarea is so great that wells in the *924 northwest will be entirely unaffected by long-continued excessive pumping elsewhere in the unit. Moreover, as the referee points out, the serious overdraft is in the area where appellant takes its water, and its pumping directly reduces the supply where water is most needed. The record shows that in view of the smaller overdraft in the Monk Hill Basin the parties situated there suffered a greater ratable cut under the injunction than persons in the Pasadena Subarea, and that appellant has been helped rather than injured by inclusion of the Monk Hill Basin as part of the underground storage area.

Appellant contends that the safe yield was greatly understated, and that there was little, if any, overdraft. Eighteen thousand acre feet per year was found to be the safe yield in the Western Unit, and this figure was based upon the report of the referee which calculated the amount from changes in the water stored underground and in the water table elevation as compared with the amount of water extracted by pumping. It is asserted that the referee failed to measure and include the underflow from the San Gabriel Mountains and the waters conserved upon the surface by artificial means. All sources of underground water, however, were automatically included by the method of calculation employed by the referee, and it was not necessary to make the specific measurements mentioned by appellant. Moreover, it is obvious from many statements in the report that surface conservation and underflow were given full consideration by the referee.

The Main Issue

[8] There can be no question that the trial court had authority to limit the taking of ground water for the purpose of protecting the supply and preventing a permanent undue lowering of the water table. (Burr v. Maclay Rancho Water Co., 154 Cal. 428, 438 [98 P. 260]; City of San Bernardino v. City of Riverside, 186 Cal. 7, 16 [198 P. 784]; cf., Allen v. California Water & Tel. Co., 29 Cal.2d 466, 485-486 [176 P.2d 8].) The main problems presented are which of the parties should bear the burden of curtailing the total production of the unit to the safe yield and what proportion, if any, of the pumping by each particular party should be restricted. Since the stipulation made by the other parties as to the reduction in pumping by each is not binding upon appellant, it is necessary to determine appellant's rights in relation to the other producers in the same manner as if there had been no agreement. *925

The question of who shall bear the burden of curtailing the overdraft, and in what proportion, depends upon the legal nature and status of the particular water right held by each party. Rights in water in an underground basin, so far as pertinent here, are classified as overlying, appropriative, and prescriptive. [9] Generally speaking, an overlying right, analogous to that of a riparian owner in a surface stream, is the right of the owner of the land to take water from the ground underneath for use on his land within the basin or watershed; the right is based on ownership of the land and is appurtenant thereto. (See Hillside Water Co. v. Los Angeles, 10 Cal.2d 677, 686 [76 P.2d 681]; Miller v. Bay Cities Water Co., 157 Cal. 256, 279-280 [107 P. 115, 27 L.R.A.N.S. 772]; 26 Cal.Jur. 271-277; 2 Wiel, Water Rights [3d ed., 1911], 1100-1105, pp. 1040-1045.) [10] The right of an appropriator depends upon an actual taking of water. (See 26 Cal.Jur. 277.) The term "appropriation" is said by some authorities to be properly used only with reference to the taking of water from a surface stream on public land for non-riparian purposes. (See Wiel, Water Rights [3d ed., 1911] 228, 1107, 1158, 1159, and 231 in the "reprint ed." of the 3d ed.; Farnham, Waters and Water Rights [1904] 672a; 56 Am.Jur. 599.) The California courts, however, use the term to refer to any taking of water for other than riparian or overlying uses. (City of San Bernardino v. City of Riverside, 186 Cal.7, 13-14 [198 P. 784]; Burr v. Maclay Rancho Water Co., 154 Cal. 428, 436 [98 P. 260]; Katz v. Walkinshaw, 141 Cal. 116, 135 [70 P. 663, 74 P. 766, 99 Am.St.Rep. 35, 64 L.R.A. 236]; see 26 Cal.Jur. 273-274.) Where a taking is wrongful, it may ripen into a prescriptive right.

[11] Although the law at one time was otherwise, it is now clear that an overlying owner or any other person having a legal right to surface or ground water may take only such amount as he reasonably needs for beneficial purposes. (Katz v. Walkinshaw, 141 Cal. 116 [70 P. 663, 74 P. 766, 99 Am.St.Rep. 35, 64 L.R.A. 236]; Peabody v. City of Vallejo, 2 Cal.2d 351 [40 P.2d 486]; Cal. Const., art. XIV, 3.) [12] Public interest requires that there be the greatest number of beneficial uses which the supply can yield, and water may be appropriated for beneficial uses subject to the rights of those who have a lawful priority. (Peabody v. City of Vallejo, 2 Cal.2d 351, 368 [40 P.2d 486].) Any water not needed for the reasonable beneficial uses of those having prior rights is excess or surplus water. [13] In California surplus *926 water may rightfully be appropriated on privately owned land for nonoverlying uses, such as devotion to a public use or exportation beyond the basin or watershed. (Peabody v. City of Vallejo, 2 Cal.2d 351, 368-369 [40 P.2d 486]; City of San Bernardino v. City of Riverside, 186 Cal. 7, 29, 30 [198 P. 784]; Burr v. Maclay Rancho Water Co., 154 Cal. 428, 436 [98 P. 260]; Katz v. Walkinshaw, 141 Cal. 116, 135 [70 P. 663, 74 P. 766, 99 Am.St.Rep. 35, 64 L.R.A. 236]; see 26 Cal.Jur. 32 et seq., 273-274.)

[14] It is the policy of the state to foster the beneficial use of water and discourage waste, and when there is a surplus, whether of surface or ground water, the holder of prior rights may not enjoin its appropriation. (Peabody v. City of Vallejo, 2 Cal.2d 351, 368-369, 372 [40 P.2d 486]; see 26 Cal.Jur. 277.) [15] Proper overlying use, however, is paramount, and the right of an appropriator, being limited to the amount of the surplus, must yield to that of the overlying owner in the event of a shortage, unless the appropriator has gained prescriptive rights through the taking of nonsurplus waters. [16] As between overlying owners, the rights, like those of riparians, are correlative and are referred to as belonging to all in common; each may use only his reasonable share when water is insufficient to meet the needs of all. (Katz v. Walkinshaw, 141 Cal. 116 [70 P. 663, 74 P. 766, 99 Am.St.Rep. 35, 64 L.R.A. 236]; see 26 Cal.Jur. 269-273, 276; cf., 25 Cal.Jur. 1063-1067.) [17] As between appropriators, however, the one first in time is the first in right, and a prior appropriator is entitled to all the water he needs, up to the amount that he has taken in the past, before a subsequent appropriator may take any. (City of San Bernardino v. City of Riverside, 186 Cal. 7, 26-28 [198 P. 784]; cf., Civ. Code, 1414.)

[18] Prescriptive rights are not acquired by the taking of surplus or excess water, since no injunction may issue against the taking and the appropriator may take the surplus without giving compensation; [19] however, both overlying owners and appropriators are entitled to the protection of the courts against any substantial infringement of their rights in water which they reasonably and beneficially need. (Peabody v. City of Vallejo, 2 Cal.2d 351, 368-369, 374 [40 P.2d 486].) [20] Accordingly, an appropriative taking of water which is not surplus is wrongful and may ripen into a prescriptive right where the use is actual, open and notorious, hostile and adverse to the original owner, continuous and uninterrupted for the statutory period of five years, and under *927 claim of right. (City of San Bernardino v. City of Riverside, 186 Cal. 7, 22-23 [198 P.784]; Katz v. Walkinshaw, 141 Cal. 116, 135 [70 P. 663, 74 P. 766, 99 Am.St.Rep. 35, 64 L.R.A. 236]; 25 Cal.Jur. 1178, 1157-1158; 1 Cal.Jur. 585; 26 Cal.Jur. 278-279; cf., Wutchumna Water Co. v. Ragle, 148 Cal. 759, 764-765 [84 P. 162].) To perfect a claim based upon prescription there must, of course, be conduct which constitutes an actual invasion of the former owner's rights so as to entitle him to bring an action. (City of Los Angeles v. City of Glendale, 23 Cal.2d 68, 79 [142 P.2d 289].) [21] Appropriative and prescriptive rights to ground water, as well as the rights of an overlying owner, are subject to loss by adverse user. This is in accord with the rule announced in cases dealing with water i