Joslin v. Marin Municipal Water District

Plaintiffs, owners of lands riparian to Nicasio Creek in Marin County, appeal from a summary judgment for defendant entered in an action in inverse condemnation for damages resulting from defendant’s construction of a dam across said creek at a point above plaintiffs ’ lands.

Plaintiffs’ third amended complaint (complaint) alleges that since March 1955 plaintiffs have been, and now are, the owners of a parcel of five acres of land; that a stream (Nicasio Creek) runs through their property; that the normal flow of the waters of the stream carried in suspension rock, sand and gravel which were deposited on plaintiffs’ lands; that plaintiffs operated on their property a rock and gravel business in the course of which they sold and used the deposits of rock and gravel; that defendant is a municipal water district organized and existing under the Municipal Water District Act of 1911; that prior to May 1962 defendant constructed a dam across Nicasio Creek; that as a result the normal flow of waters in said stream was obstructed to such an extent that “the normal and usual replenishment of rocks *135 and gravel’’ upon plaintiffs’ lands ceased; that the value of plaintiffs’ lands was thereby diminished in the amount of $250,000, and that plaintiffs had been deprived of gravel and rock having an accrued value of $25,000 at the time of filing the complaint.

Defendant moved for summary judgment. The declaration of its general manager, filed in support of the motion, states that defendant duly filed its application with the State Water Rights Board (board) for a permit to appropriate and store unappropriated waters from Nicasio Creek for municipal water supply purposes (Wat. Code, §§ 1250-1266) ; that it published notices of its application as required by law (Wat. Code, §§ 1300-1316); that protests to the application (Wat. Code, § 1330), none of which were by plaintiffs, were filed with and duly resolved by the board; that the board issued its permit on May 31, 1961 (Wat. Code, §§ 1340-1353); that pursuant to plans approved by the board (see Wat. Code, §§ 1382, 1393) the dam was constructed and completed on August 21, 1961, and defendant began to store water pursuant to its permit; that defendant had no notice that plaintiffs claimed any right to use the waters of Nicasio Creek for the purposes stated in their complaint until plaintiffs’ claim was presented to defendant on April 3, 1963; that plaintiffs’ lands are approximately one mile downstream from defendant’s dam with other riparian owners intervening; and that defendant did not physically enter upon or take by eminent domain any of plaintiffs’ real property by constructing the dam or reservoir.

Plaintiffs’ declaration filed in opposition to the motion merely states that at no time up to the completion of the Nicasio Dam on August 21, 1961, did - plaintiffs have actual knowledge of any application made to the board to use, store or divert water nor did they receive any notice of defendant "s intention to do so.

The court granted defendant’s motion for summary judgment “upon the ground there was no substantive right of plaintiffs violated by defendant. ’' 1

With some variance in language the parties assert *136 that the principal issue before us is whether defendant, an upstream appropriator of water, is liable in damages to plaintiffs, downstream riparian owners, by reason of having appropriated the waters of the creek under the above-mentioned circumstances.

To bring this appeal into focus, we must first briefly review the growth and development of California water law. In its first stage which began with the “gold rush,” this law dealt mainly with those who diverted water from streams in the public domain for mining purposes and sought to adjudicate the competing claims of the parties using such water on the basis of a principle of prior appropriation. 2 Subsequently with the increasing importance of agriculture over mining, the courts became more involved with riparian rights. (See fn. 2, ante, address by Shaw, C. J., 189 Cal. 779, 789-791.) This doctrine which had its genesis in the common law of England initially was made to rest in California on the basic principle “that the riparian proprietor is entitled to the full flow of the stream, reduced only by the proper riparian uses which may be made of the water by proprietors above him.” (Miller & Lux v. Enterprise Canal etc. Co. (1915) 169 Cal. 415, 443 [147 P. 567] ; see Lux v. Haggin (1886) 69 Cal. 255, 390-394 [4 P. 919, 10 P. 674] ; Herminghaus v. Southern Cal. Edison Co. (1926) 200 Cal. 81, 94-96 [252 P. 607].) 3 Such riparian rights extended to “the entire flow of the waters of [a] river considering the same with its seasonal accretions as the usual and ordinary flow of said stream during each and every year.” (Herminghaus v. Southern Cal. Edison Co., supra, at p. 91.)

It was inevitable that the claims of appropriators and riparian owners would collide and that the legal principles upon which they were asserted would appear to be in conflict. *137 Reconciling these principles, 4 this court in the leading case of Lux v. Haggin, supra, 69 Cal. 255, declared “ ‘that the rights of the riparian owners to the use of the waters of the abutting stream were paramount to the rights of any other persons thereto; that such rights were parcel of the land and that any diminution of the stream against the will of the riparian owner by other persons was an actionable injury. The question was settled by that case and the riparian right has never since been disputed.’ ” (Herminghaus v. Southern Cal. Edison Co., supra, 200 Cal. 81, 95, quoting from address of Shaw, C. J., see fn. 2, ante.) As a result the principle emerged that an upstream appropriator could not deprive a downstream riparian owner of his right to the use of the full flow of a stream, even though only a small percentage of the flow was utilized to benefit the lands of the downstream riparian. (Herminghaus v. Southern Cal. Edison Co., supra, 200 Cal. 81, 94-103 ; see also Tulare Irr. Dist. v. Lindsay-Strathmore Irr. Dist. (1935) 3 Cal.2d 489, 523-524 [45 P.2d 972] ; Miller & Lux v. Madera Canal etc. Co. (1909) 155 Cal. 59, 64 [99 P. 502, 22 L.R.A. N.S. 391] ; Lux v. Haggin, supra, 69 Cal. 255.)

Thereafter, and in apparent response to the Herminghaus decision (see Gin S. Chow v. City of Santa Barbara (1933) 217 Cal. 673, 699-700 [22 P.2d 5], the California Constitution was amended in 1928. (Art. XIV, §3.) 5 The amendment *138 was generally construed as applying a rule of reasonable use “to all water rights enjoyed or asserted in this state, whether the same be grounded on the riparian right or the right, analogous to the riparian right, of the overlying land owner, or the percolating water right, or the appropriative right.” (Peabody v. City of Vallejo (1935) 2 Cal.2d 351, 383 [40 P.2d 486].) Thus the rule of reasonableness of use as a measure of the water right which had theretofore been applied as between other contesting claimants 6 but bad been denied application as between riparian owners and appropriators was finally extended to include the latter. (Peabody v. City of Vallejo, supra, at p. 367 ; Gin S. Chow v. City of Santa Barbara, supra, at pp. 703-705 ; see generally 1 Waters and Water Rights (Clark 1967) §19.1.)

As epitomized in Peabody, the amendment is said to declare: “1. The right to the use of water is limited to such water as shall be reasonably required for the beneficial use to be served. 2. Such right does not extend to the waste of water. 3..Such right does not extend to unreasonable use or unreasonable method of use or unreasonable method of diversion of water. 4. Riparian rights attach to, but to no more than so much of the flow as may be required or used consistently with this section of the Constitution.” (2 Cal.2d 351, 367.)

It has been long and clearly settled in California that the effect of the passage of article XIV, section 3, “has been to modify the long-standing riparian doctrine . . . and to apply, by constitutional mandate the doctrine of reasonable use between riparian owners and appropriators, and between overlying owners and appropriators.” (Tulare Irr. Dist. v. *139 Lindsay-Strathmore Irr. Dist., supra, 3 Cal.2d 489, 524 ; 7 see also Gin S. Chow v. City of Santa Barbara, supra, 217 Cal. 673, 703-705 ; Peabody v. City of Vallejo, supra, 2 Cal.2d 351, 367 ; City of Lodi v. East Bay Mun. Utility Dist. (1936) 7 Cal.2d 316, 339 [60 P.2d 439] ; Miller & Dux v. San Joaquin L. & P. Corp. (1937) 8 Cal.2d 427, 435 [65 P.2d 1289] ; Rancho Santa Margarita v. Vail (1938) 11 Cal.2d 501, 556-557 [81 P.2d 533] ; Ivanhoe Irr. Dist. v. All Parties (1957) 47 Cal.2d 597, 623 [306 P.2d 824].) “The right to the waste of water is not now included in the riparian right.” (Peabody v. City of Vallejo, supra, at p. 368.) What is a reasonable use or method of use of water is a question of fact to be determined according to the circumstances in each particular case. (Gin S. Chow v. City of Santa Barbara, supra, at p. 706.)

In Peabody, several lower riparian owners sought to enjoin the City of Vallejo, as an appropriator, from storing the waters of a creek by the construction of a dam and thereafter diverting them to municipal uses. Peabody, one of the plaintiffs, asserted a right to have all the waters flow without interruption since by normally overflowing his land they not only deposited silt thereon but also washed out salt deposits on portions of the land. The court held that “this asserted right does not inhere in the riparian right at common law, and as a natural right cannot be asserted as against the police power of the state in the conservation of its waters. This asserted right involves an unreasonable use or an unreasonable method of use or an unreasonable method of diversion of water as contemplated by the Constitution.” (Peabody v. City of Vallejo, supra, 2 Cal.2d 351, 369.) 8

*140 Although, as we have said, what is a reasonable use of water depends on the circumstances of each ease, such an inquiry cannot be resolved in vacuo isolated from statewide considerations of transcendent importance. Paramount among these we see the ever increasing need for the conservation of water in this state, an inescapable reality of life quite apart from its express recognition in the 1928 amendment. 9 On the other hand, unlike the unanimous policy pronouncements relative to the use and conservation of natural waters, we are aware of none relative to the supply and availability of sand, gravel and rock in commercial quantities. Plaintiffs do not urge that the general welfare or public interest requires that particular or exceptional measures be employed to insure that such natural resources be made generally available and should therefore be carefully conserved.

Is it “reasonable,” then, that the riches of our streams, which we are charged with conserving in the great public interest, are to be dissipated in the amassing of mere sand and gravel which for aught that appears subserves no public *141 policy? We cannot deem such a use to be in accord with the constitutional mandate that our limited water resources be put only to those beneficial uses “to the fullest extent of which they are capable,” that “waste or unreasonable use” be prevented, and that conservation be exercised “in the interest of the people and for the public welfare. ” (Cal. Const., art. XIV, §3.) We are satisfied that in the instant case the use of such waters as an agent to expose or to carry and deposit sand, gravel and rock, is as a matter of law unreasonable within the meaning of the constitutional amendment. (See Peabody v. City of Vallejo, supra, 2 Cal.2d 351, 369.)

Plaintiffs argue that Los Angeles County Flood Control Dist. v. Abbot (1938) 24 Cal.App.2d 728 [76 P.2d 188], conclusively establishes that a riparian owner has a right to receive rock, sand and gravel deposited by a stream on his land, that such use of the stream is reasonable, and that any interference with such right by one not a riparian is actionable. We do not agree.

In Abbot the plaintiff district condemned an easement over a portion of defendant’s property for the construction of a concrete flood control channel to confine and carry off the waters of the Alhambra wash. Such waters had naturally overflowed defendants’ lands depositing thereon a considerable amount of sand and gravel which defendant collected in bunkers and sold. The construction of the concrete channel prevented this overflow and brought to an end the replenishment of rock, sand and gravel. Affirming an award of severance damages in respect to defendants’ lands, not taken for improvement of the channel, the court declared: “We are not here dealing with flood waters which, when of no benefit to a riparian owner or to his land and not used by him, may be taken at will by any person who can lawfully gain access to the stream, but are concerned with a natural flow of water, which, under the established doctrine of the California decisions, is annexed to the soil, not as an easement or appurtenance, but as a parcel. (Herminghaus v. Southern Cal. Edison Co., 200 Cal. 81 [252 P. 607].) The beneficial use of the flow of the water in the Alhambra wash by respondents Yonker had become a property right vested in them by thirty years of usage.” (24 Cal.App.2d at p. 733.) It concluded that by diverting the waters, plaintiff took from defendants " a valuable property right”; that this could not be done except “under and by virtue of the sovereign right of eminent *142 domain, and upon making just compensation”-, and that the use to which the water was put by defendants “in no way contravened the provisions of section 3, article XIV, of the Constitution of this state.” (Los Angeles County Flood Control Dist. v. Abbot, supra, 24 Cal.App.2d 728, 736-737, passim.)

Despite the aforementioned passing reference to article XIV, section 3, the opinion in Abbot does not appear to discuss, nor to treat as issues raised therein, questions as to the reasonable use or the reasonable methods of the use of water according to the constitutional test prescribed by article XIV, section 3. It appears especially significant that the opinion not only relied on Herminghaus which preceded and indeed precipitated the passage of the 1928 constitutional amendment but also ignored this court’s interpretation of the amendment in Peabody, decided only three years before. As we read Abbot, the basic reason for this seems to be that the court there was not presented with a controversy between users of water as such, that is between a riparian owner on the one hand and an appropriator on the other, such as prevailed in Peabody and now confronts us in the present case. Abbot therefore involved no issue of reasonableness which required resolution in adjudicating competing claims to the use of the water. Rather, it was concerned with the determination of severance damages consequent upon the condemnation of an easement by a flood control district which did not seek to appropriate or use the waters in question. We need not, and do not, here determine whether the court in Abbot properly concluded that the riparian rights in that case extended to the receiving of deposits of rock, sand and gravel and that the interference therewith under the circumstances of that ease was actionable. We point out only that because of the problem confronting it, the Abbot court measured the riparian’s property right for severance damage purposes according to the “beneficial use of the flow of the Avater” (Los Angeles County Flood Control Dist. v. Abbot, supra, 24 Cal.App.2d 728, 733) Avithout being-faced with the issue as to whether such right was of should be ‘' limited to such Avater as shall be reasonably required for the beneficial use to be served, ...” (Cal. Const., art. XIV, § 3; Peabody v. City of Vallejo, supra, 2 Cal.2d 351, 366-367.)

Apart from their reliance upon Abbot, plaintiffs have not shown how their claimed use of the stream in the instant case, when measured by the constitutional mandate, is a reasonable one. In essence their position is that such use is a *143 beneficial one encompassed within their riparian rights and that all beneficial uses are reasonable uses. Such a position ignores rather than observes the constitutional mandate. Article XIV, section 3, does not equate “beneficial use” with “reasonable use.” Indeed the amendment in plain terms emphasizes that water must be conserved in California “with a view of the reasonable and beneficial use thereof in the interest of the people,” that the right to use water “shall be limited to such water as shall be reasonably required for the beneficial use to be served,” and that riparian rights “attach to, but to no more than so much of the flow” as may be required “in view of such reasonable and beneficial uses.” (Italics added.) (Cal. Const., art. XIV, § 3; see fn. 5, ante.) Thus the mere fact that a use may be beneficial to a riparian’s lands is not sufficient if the use is not also reasonable within the meaning of section 3 of article XIV and, as indicated, plaintiffs’ use must be deemed unreasonable. Anything to the contrary in Los Angeles County Flood Control Dist. v. Abbot, supra, 24 Cal.App.2d 728, is disapproved.

Assuming arguendo the unreasonableness of their use of the stream, plaintiffs contend that in any event they are entitled to be compensated for the damage to their property interests. Article XIV, section 3, they say, was only a procedural as opposed to a substantive change in the law and had the effect of merely denying injunctive relief to protect certain riparian uses. Article I, section 14, 10 on the other hand confers on them a cause of action for money damages for the injury to their real property resulting from the district’s public improvement.

While plaintiffs correctly argue that a property right cannot be taken or damaged without just compensation, they ignore the necessity of first establishing the legal existence of a compensable property interest. Such an interest consists in their right to the reasonable use of the flow of the water. Their riparian rights attach to no more of the flow of the stream than that which is required for such use. (Cal. Const., art. XIV, § 3; see fn. 5, ante.) As we said in Ivanhoe Irr. Dist. v. All Parties, supra, 47 Cal.2d 597, 623: “Within the scope of reasonable beneficial use, vested rights of the riparian owner continued to attach to his land as a part and parcel of the land itself, and as such was necessarily protected from *144 unlawful encroachment by both state and federal Constitutions. The result is that this vested right as now defined may not be destroyed or infringed upon without due process of law or without just compensation under either Constitution.” (Italics added.) There is now no provision of law which authorizes an unreasonable use or endows such use with the quality of a legally proteetible interest merely because it may be fortuitously beneficial to the lands involved.

Moreover plaintiffs’ claim to money damages under the circumstances of the instant case is foreclosed by the decision of this court in Gin S. Chow v. City of Santa Barbara, supra, 217 Cal. 673. In that case it is made clear that the constitutional amendment (Cal. Const., art. XIV, §3) was adopted for the purpose of redefining water rights rather than merely of providing remedies for the invasion of such rights. Plaintiffs in that case sought a determination that the City of Santa Barbara was not entitled to divert storm, flood and freshet waters from the Santa Ynez River for the purpose of storage. In meeting the argument that the amendment was not intended to affect property rights deemed as vested prior thereto, the court stated: ‘' There is a well recognized and established distinction between a ‘taking’ or ‘damaging’ for public use and the regulation of the use and enjoyment of a property right for the public benefit. The former falls within the realm of eminent domain, and the latter within the sphere of the police power. That the constitutional amendment now under consideration is a legitimate exercise of the police-power of the state cannot be questioned. It is the highest and most solemn expression of the people of the state in behalf of the general welfare. . . . [T]he amendment purports only to regulate the use and enjoyment of a property right for the public benefit, for which reason the vested right theory cannot stand in the way of the operation of the amendment as a police measure. A vested right cannot be asserted against it because of conditions once obtaining. [Citation.] It has been long established that all property is held subject to the reasonable exercise of the police power and that constitutional provisions declaring that property shall not be taken without due process of law have no application in such cases. [Citation.] ” (217 Cal. at pp. 701-703.)

In discussing the limitation of reasonable use of natural waters as a reasonable exercise of the police power, the court continued: ‘ ‘ There is nothing novel about the limitation of the riparian right to a reasonable, beneficial use of water. *145 Other western states which first adopted the common-law doctrine of riparian rights have effectually changed it to meet modern conditions. ... A general survey . . . discloses that whenever the riparian right has been deemed a vested right such right has become defined to be, or limited to, the right of the riparian owner to make a reasonable . . . use of water. Although the riparian right in this state has not heretofore been so defined and limited, a limitation of the right as thus defined has now become the law of this state whenever, under situations of fact calling for its proper exercise in behalf of the people of the state, the doctrine of police power may be applied. The present case presents such a situation of fact, and the eminent domain provisions of the Constitution have no application.” (217 Cal. atpp. 704-705.)

From the foregoing we arrive at the conclusion that since there was and is no property right in an unreasonable use. there has been no taking or damaging of property by the deprivation of such use and, accordingly, the deprivation is not compensable. (See Peabody v. City of Vallejo, supra. 2 Cal.2d 351, 369 ; Ivanhoe Irr. Dist. v. All Parties, supra. 47 Cal.2d 597, 623 ; Crum v. Mt. Shasta Power Corp. (1934) 220 Cal. 295, 307 [30 P.2d 30].)

Plaintiffs direct our attention to United States v. Gerlach Live Stock Co. (1950) 339 U.S. 725 [94 L.Ed. 1231, 70 S.Ct. 955, 20 A.L.R.2d 633], as compelling a different conclusion. Tn that case riparian owners sought compensation for the loss of irrigating waters which overflowed the banks of the San Joaquin River onto their lands when the river flooded each year. There was no question but that the use of water for irrigating riparian lands was a reasonable use, within the meaning of the constitutional amendment. The court concluded that the use in question was a property interest which survived the amendment and was compensable.

Gerlach, of course, is distinguishable from the instant case in that plaintiffs here are not making a use of the natural flow of waters which can be deemed reasonable, and it was on the determination of a reasonable use that Gerlach turned: ' ‘ Any hazard to claimants’ rights lurks in the following clause: ‘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.’ Since riparian rights attach to, and only to, so much of the flow of the San Joaquin as may be put to beneficial use consistently with this clause, claimants can enforce no use of wasteful or unreasonable. *146 character.” (339 U.S. at p. 752.) Accordingly, Gerlach affords no aid to plaintiffs. To the same effect is Hillside Water Co. v. City of Los Angeles (1938) 10 Cal.2d 677 [76 P.2d 681], where overlying landowners were compensated for the deprivation of their underground water supply by a pumping operation.

Our foregoing conclusion disposes of plaintiffs’ contention that they have a right to recover damages under section 1245 of the Water Code. As we have explained, since there was and is no property right in the instant unreasonable use, there has been no taking or damaging of property. Since by constitutional fiat no property right exists, none is created by statutory provisions intended to provide compensation for the deprivation of protectible property interests. Thus plaintiffs’ reliance upon section 1245 which imposes liability upon municipal entities for damage caused to any “property, business, trade, profession or occupation” by the municipality’s entry into a watershed “for the purpose of acquiring or increasing a water supply” is misplaced for the reason that there is no damaging of any property interest to which plaintiffs have a lawful right.

Finally, having in mind these legal principles and the conclusions which we have reached, we turn to inquire whether the judgment properly rests upon them under the rules governing the summary judgment procedure (Code Civ. Proc., § 437c) 11 invoked by defendant. 12 We have summarized these well-settled rules as follows: " The matter to be determined by the trial court in considering such a motion is whether the defendant (or the plaintiff) has presented any facts which give rise to a triable issue. The court may not pass upon the issue itself. Summary judgment is proper only if the affidavits in support of the moving party would be sufficient *147 to sustain a judgment in his favor and his opponent does not by affidavit show such facts as may be deemed by the judge hearing the motion sufficient to present a triable issue. The aim of the procedure is to discover, through the media of affidavits, whether the parties possess evidence requiring the weighing procedures of a trial. In examining the sufficiency of affidavits filed in connection with the motion, the affidavits of the moving party are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of granting the motion should be resolved in favor of the party' opposing the motion. Such summary procedure is drastic and should be used with caution so that it does not become a substitute for the open trial method of determining facts."’ (Stationers Corp. v. Dun & Bradstreet, Inc. (1965) 62 Cal.2d 412, 417 [42 Cal.Rptr. 449, 398 P.2d 785].) 13

Addressing ourselves first to the sole affidavit filed in support of defendant's motion, the matters alleged therein tend to establish but one material fact—that defendant is a proper appropriator of the waters of Nicasio Creek. Thus the affidavit, primarily because it neglects to delineate the nature and relationship of the plaintiffs' property interest claimed to have been damaged by defendant’s appropriation of the water, at first blush appears to fail in establishing that the “action has no merit,” or that defendant is entitled “to a judgment in the action.” (Code Civ. Proe., § 437c.)

Where a plaintiff moves for summary judgment, he cannot depend upon allegations in his complaint to cure deficient affidavits, but must set out in his affidavits facts in support of all elements entitling him to a recovery. (Kimber v. Jones (1954) 122 Cal.App.2d 914, 918 [265 P.2d 922] ; see also Coyne v. Krempels (1950) 36 Cal.2d 257, 261, 262-263 [