Herminghaus v. Southern California Edison Co.

—This appeal is' from a judgment in the plaintiffs’ favor in an action brought by them to obtain an injunction preventing the defendants from an alleged actual and proposed diversion of the waters of the upper San Joaquin River and its tributaries to the irreparable injury of the plaintiffs through the interference thereby with riparian rights of the latter in and to the flow and use of the waters of said river upon, along, and across their lower lying lands contiguous to the banks and course of said river. The plaintiffs in their original complaint herein allege that they are the owners and tenants in possession of a certain large tract of land containing about 18,000 acres in the counties of Fresno and Madera, state of California, and extending along the bank of the main channel of the San Joaquin River for a distance of about twenty miles, the said land being as to the whole thereof riparian to said river and the said plaintiffs having, for many past years, in the exercise of their riparian rights therein, made appropriate use of the -waters of said river for the irrigation, overflow, and enrichment of their said lands and of the whole thereof. The plaintiffs proceed to allege that the defendants, being the occupants of *87 lands lying along the reaches of the San Joaquin River and its tributaries above to the location of the plaintiffs’ lands, claim some right in and to the waters of said river and to the use thereof adversely to the rights of the plaintiffs therein and by virtue of such claims are threatening by dams, reservoirs, and other works to stop the flow of said river and to impound the waters thereof in and thereby to divert the waters of said river impounded and to convey the same away from said river at points above the plaintiffs’ said lands so as to prevent the waters of said river from flowing through the courses and channels thereof down to and along, across, and over the said lands of plaintiffs, and to thus deprive the latter of the use and enjoyment thereof to their great and irreparable injury. The fuller particulars of the plaintiffs’ utilization of the waters of said river and of the nature of the defendants’ actual and threatened interference with such uses as alleged in said complaint will be set forth at a later point in this opinion. To the plaintiffs’ complaint the defendants presented their answer, wherein and in certain amendments thereto they proceeded by denials and by affirmative averments to set forth twelve separate defenses to the plaintiffs’ alleged cause of action. The particulars of these will also be adverted to in their proper order in.the course of this decision. It is sufficient here to state that the said defendants by their said answer and defenses put in issue the averments of the plaintiffs’ complaint respecting the nature of the rise and flow of the waters of said river as related to the plaintiffs’ asserted right to the use thereof as lower riparian owners along the banks and courses thereof, and also put in issue the question as to the fullness and extent to which the plaintiffs’ said lands, or certain portions thereof, are riparian to said stream. To these two primary considerations the trial court addressed itself in its findings of fact and in its conclusions of law based thereon; and it would seem that these should be the first to receive our consideration before passing to the other questions discussed upon this appeal and which must necessarily be to a greater or less degree predicated thereon.

The trial court found upon sufficient evidence, which was not materially conflicting, that the San Joaquin River was a natural stream of water with well-defined channels and banks *88 which, with its tributaries, took its rise in the Sierra Nevada Mountains and descended thence in a general westerly course to the plains of the San Joaquin Valley, and thence in a general northwesterly direction through the counties of Madera, Fresno, Merced, Stanislaus, and San Joaquin to the San Francisco Bay; that the said river in its usual, ordinary, and' natural flow passed along and over the lands of the plaintiffs herein; that the natural flow of water in the said San Joaquin River is, and has always been and always will be, if unobstructed, variable in quantity in the course of each and every year; that is to say, the same is, has been, and will be largest and most abundant at times of heavy rainfall over its watershed in said mountains in each winter season, and will also have a larger accretion in the spring and summer season by reason of the melting of the snows in said mountains; that these annually occurring accretions in the amount and flow of the waters of said river are natural and regular, and occur in their usual, expected, and accustomed seasons and result in an increased amount and flow of the waters of said river as they proceed by, along, and across the lands of said plaintiffs, lasting through several months in the annual change of seasons of every year. From these findings of fact based upon evidence which is indisputable the conclusion is inevitable that the waters of the San Joaquin River annually flowing therein before and during and after these regularly occurring accretions in the volume thereof constitute the usual and ordinary flow of said river and are in no sense “storm” or “flood” or “vagrant” or “enemy” waters as these terms are understood in law. This has in fact been so definitely determined by the decisions of this and other courts having precise reference to the waters of this and of other similar streams taking their sources in the same range of mountains and owing their periodical accretions to the same general causes, as to be no longer a matter susceptible of serious dispute. In the case of Miller & Lux v. Madera Canal etc. Co., 155 Cal. 59 [22 L. R. A. (N. S.) 391, 99 Pac. 502], this court was called upon to determine the nature of the annual flow of the waters of the Fresno and also of the San Joaquin Rivers, which streams take their rise in the same general region and are subject to the same periodic and climatic conditions. It was in that case contended by the defendant that the waters it proposed to divert did not *89 constitute any part o£ the ordinary or usual flow of these rivers, but were waters occurring during periods of heavy rains and were storm, freshet, and flood waters as distinguished from the ordinary and usual flow of said rivers, and that as such the defendant was entitled to impound, divert, and use the same. On the other hand, it was claimed by the plaintiff that the rise in the flow of the waters in said rivers was not extraordinary, occurring upon rare occasions, but that such flow and overflow occurred in all years of ordinary rain and snowfall and constituted the regular annual and usual flow of said rivers. The trial court found in that case, as in this case, that the claim of the plaintiff relative to such waters was correct, and this court in sustaining such finding and conclusion used the following language:

“Upon this showing it cannot be said that a flow of water, occurring as these waters are shown to occur, constitutes an extraordinary and unusual flow. In fact, their occurrence is usual and ordinary. It appears that they occur practically every year and are reasonably expected to do so, and an extraordinary condition of the seasons is presented when they do not occur; they are practically of annual occurrence and last for several months. They are not waters gathered into the stream as the result of occasional and unusual freshets, but are waters which on account of climatic conditions prevailing in the region where the Fresno River has its source are usually expected to occur, do occur, and only fail to do so when ordinary climatic conditions are extraordinary— when a season of drouth prevails.”

Again, the court says:

“This is the character of the waters of the Fresno River, the flow of which it is shown the defendant intends to divert. These overflow waters, occasioned through such usually recurring floods and freshets, are not waters which flow beyond the natural channel boundaries of the stream which nature has designed to confine their flow; they are not waters which depart from the stream or are lost or wasted; they flow in a well-defined channel in a continuous body and in a definite course to the San Joaquin River, and while they spread over the bottom lands, or low places bordering on the main channel of the Fresno River as it carries its stream during the dry season, still this is the usual, ordi *90 nary, and natural channel in which they flow at all periods of overflow, the waters receding to the main channel as the overflow ceases.”

And finally the court concluded:

“In the present case the storm and freshet waters are not something distinct and separate from the ordinary waters of the Fresno River. As a fact, and under the authorities, being annually recurring floods and freshets flowing in a clearly defined channel, they constitute a part of the ordinary flow of the waters of such river.”

In the case of Piper v. Hawley, 179 Cal. 10, 17 [175 Pac. 417], this court expressly approved the doctrine laid down in the foregoing case to the effect that annually recurring floods, even though the flow of their waters made the stream wider during the period thereof so as to include adjoining lands, are yet to be deemed a part of the ordinary flow of the stream. In the case of California Pastoral etc. Co. v. Enterprise C. & C. Co., 127 Fed. 741, the circuit court of the United States, sitting in and for the southern district of California, and having under consideration a case wherein the particular lands affected by the present controversy and the riparian rights of the owners and occupants thereof in relation to the San Joaquin River were involved, decided that the waters of the San Joaquin River which the defendant in that case was proposing by means of a canal and dam to divert from their accustomed flow in said river along and over the Herminghaus lands were not storm or freshet waters which any person who can may impound and use, but that such waters constituted the usual and ordinary flow of said river in which the full riparian rights of the owners of said lands inhered. In the ease of Lindblom v. Bound Valley Water Co., 178 Cal. 450 [173 Pac. 994], this court said with relation to the facts of said ease: ‘ ‘ The evidence is clear to the effect that the water running into Round Valley (and, except as interrupted by the defendant down North Canyon) consisted of the runoff from the usual and annually recurring fall of rain and snow. Such water, when running in a defined stream, constitutes«a watercourse to which the riparian proprietor’s rights attach.” (Citing Miller & Lux v. Madera etc. Co., supra.)

*91 In the presence of the foregoing consistent rulings of this court and of the federal court having reference to the precise or similar conditions relative to the annual, usual, ordinary, and regularly recurring outflow of the San Joaquin River during the varying seasons of each and every year we are constrained to hold that in so far as the lands of said plaintiffs shall be found to be riparian to said river they are entitled to the exercise and enjoyment of whatever riparian rights they shall be determined to be invested with, in the entire flow of the waters of said river considering the same with its seasonal accretions as the usual and ordinary flow of said stream during each and every year.

The next question to which our consideration should logically be directed is as to what are the riparian rights of the plaintiffs in respect to said river and the waters thereof. This question is divisible into several parts, the first of which involves the inquiry as to how much of the plaintiffs’ said tract of land is riparian to the San Joaquin River. The findings of the trial court germane to this inquiry show that the plaintiffs’ large tract of land lies in a position of peculiar and unique vantage in its relation to the San Joaquin River, since said tract of land not only extends for a goodly number of miles along the bank of the main channel of said river, but also lies just at the base of the lower reaches of the Sierra Nevada Mountains, from which the river makes its immediate debouchment into the plain, and in the apparent stress of which it has cut numerous minor channels or sloughs, so called, twenty-two in number, which parallel or intersect each other and which extend into and in some instances across the plaintiffs’ tract of land and which convey the waters of said river which enter the same at different seasons of the year out upon or over said lands and finally conduct the residue of such waters back into the main channel of the river. Upon this subject the findings of the trial court are, we think, fully sustained by the evidence and are quite lengthy and detailed but are also very instructive. The opinion of the trial court rendered in deciding this cause makes the following summary of these detailed findings which will suffice for the purposes of this decision: “The evidence in this case shows that some of the sloughs that traverse the Herminghaus property, such as sloughs 19, 20 and 22, take from the river at all stages and carry their *92 water in well-defined channels, with banks and bottoms, to Fresno Slough. Others of the sloughs, such as number 1 and number 9, take directly from the river at higher stages and likewise conduct their water in similar channels across the Herminghaus property to Fresno Slough, a distance of some miles. Others of the main sloughs have no mouths entering the river’s banks, but take water either by seepage from the main river or at times when the river overflows its adjoining banks. After the water has entered these sloughs, they conduct the same in well-defined channels across the Herminghaus property to Fresno Slough. The testimony showed that the water in these sloughs was not stationary but was moving in a current. The evidence also showed that these sloughs, or at least the ones the descriptions of which have heretofore been set forth, carry water as above set forth each year during the late spring and summer months when the San Joaquin River has been raised by waters from the melting snow. The testimony also showed that these sloughs for many years have been conducting water in this manner. It appears to me, therefore, that there is every element here that goes to make up a legal watercourse. These sloughs have definite beginnings, definite channels with banks and bottoms and a definite ending in Fresno Slough. Likewise, there is a permanent source from which they take water during certain seasons of the year. I am forced to the conclusion, therefore, that these sloughs, are in fact, and in law, watercourses, and that the lands bordering on them are riparian lands, and have a right to the flow of the water as it was, by nature, wont to flow, subject only to a reasonable use by riparian owners on the San Joaquin River, at points above said lands.” With the foregoing conclusions of the trial court with reference to the nature of these twenty-two channels or sloughs as watercourses conveying the waters of the said river to practically all the lands of these plaintiffs, thus rendering the same and the whole thereof riparian to the San Joaquin River, we entirely agree. The fact that some of these sloughs make their more or less definite connection with the main channel of said river at elevations which permit the waters thereof to enter said sloughs only when the increment in the quantum of such waters reaches a height and volume which makes possible their passage into the same, in no way mili *93 tates against their quality or utility to the plaintiffs as watercourses since the plaintiffs are, as we have seen, entitled to the beneficial use of said waters in some degree at least at all times and under all conditions attending the usual and ordinary flow of said stream.

This conclusion leads us to our next consideration, which involves the nature, extent, and limitations of the plaintiffs’ riparian rights in and to the use of the waters of the San Joaquin River in connection with their ownership and uses of their said tract of land. We shall first consider this subject abstractly and without reference to the bearing upon it of those rights which the defendants possess as upper proprietors upon the San Joaquin River. The plaintiffs in their complaint aver that for more than ten years prior to the commencement of this action they were and have since been the owners in fee of the 18,000 acres of land described in their said complaint located in the San Joaquin Valley and bordering on the San Joaquin River; that the climate of that portion of the San Joaquin Valley is arid and as a result thereof their said land, unless irrigated, is unfit for cultivation or the growing of profitable crops thereon; that the soil is naturally fertile and very productive if water is supplied thereto; that the natural flow of the waters of the San Joaquin River is variable in quantity, being more abundant during the period of rainfall in the winter season and also during the late spring and summer when the snows upon its watershed in the high Sierras melt and contribute their accretion to said river; that during these periods in the augmented natural flow of said river the waters thereof flowed naturally out and over the plaintiffs’ said lands and saturated the same and deposited thereon a very fertile silt which enriched said land and caused an abundant growth of grasses thereon as the same would not have grown except for said natural irrigation by the overflow of said waters and the deposit of said silt; that said waters reached said land as to the lower portions thereof, which are described as swamp and overflow land lying immediately adjacent to the lower reaches of said river, by direct overflow therefrom, but that said waters reached the upper portions of said tract of land during said periods of abundant flow by means of the numerous sloughs or channels which have been hereinbefore referred to; that as the quantity of water flowing in said *94 river diminishes, the area of said lands covered by the flow of said river in its higher stages would diminish until such waters would be confined to the said channels which traverse said lands and would then seep into and moisten the same while such waters continued to flow in said restricted channels; that any artificial change in the natural "flow of the waters of said river which would cause a further diminution in the quantum of the flow thereof would result, to the extent of such diminution, in the cessation of the accustomed overflow" of the river directly and through the aforesaid numerous channels thereof and would, if sufficiently extended, cause the waters of said river to proportionately cease to enter said sloughs or channels or to continue to flow therein and would thereby diminish the area of said lands thus irrigated and enriched and render the same, to the extent of such deprivation, arid and unsuitable for the growth of grasses or other products thereon and thus destroy the value and profitable use of the same. The answer of said defendants put in issue the aforesaid averments of the plaintiffs’ complaint in those portions of its several defenses wherein they controvert the plaintiffs’ claim that those parts of the plaintiffs’ said lands which are traversed by the aforesaid channels and sloughs other than the main channel of said river, or are affected by the overflow from the former, are areas of said lands which áre riparian to said river; or that the waters of said river which enter the same during periods of its most abundant flow constitute the usual and ordinary flow of said river; or that plaintiffs are entitled thereto as riparian proprietors along the course of said river; or, if so, to the extent and nature of the uses and benefits to which the said plaintiffs claim the right as such riparian proprietors to put and continue to utilize said waters. The trial court upon the particular issues thus joined found the aforesaid averments of the plaintiffs’ complaint to be true. We are satisfied from a careful review of the evidence in this case that it sufficiently sustains the findings of the trial court in the foregoing regard; and this being so it becomes necessary for us at this point to review the history and development of the law of riparian rights.in this state. We are saved the necessity of an extended elaboration of the earlier stages of that development by the decision of this court in the leading case of Lux v. Haggin, 69 Cal. 255 [4 Pac. 919, *95 10 Pac. 674], wherein, in the longest opinion in the judicial history of this court, the growth and development of the doctrine of riparian rights under the common law, in other jurisdictions, and finally in California since its adoption of the common law in the year 1850, through a course of judicial decision down to the date of the determination of that cause upon appeal, is exhaustively reviewed. While it is true that the decision in the ease of Lux v. Haggin was that of a divided court, we think it is also true, as stated by Mr. Chief Justice Shaw in his most able review of the “Development of the Law of Waters in the West,’"’ to be found in the appendix to 189 Cal., at page 779 et seq., that “It 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.” When we turn to that notable decision to determine just what was thus settled in the way of a definition of the riparian right we find that it is embraced in the following conclusions by Chief Justice Shaw of Massachusetts in the case of Johnson v. Jordan, 2 Met. 239 [37 Am. Dec. 85], which this court therein adopted and approved in the following language (page 391) : “The right to the flow of water is inseparably annexed to the soil, and passes with it, not as an easement or appurtenant, but as a parcel. Dse does not create, and disuse cannot destroy or suspend it. Each person through whose land a watercourse flows has (in common with those in like situation) an equal right to the benefit of it as it passes through his land, for all useful purposes to which it may be applied; and no proprietor of land on the same watercourse has a right unreasonably to divert it from flowing into his premises, or to obstruct it in passing from them, or to corrupt or destroy it.” In a later portion of the opinion this court said (page 394) : “By our law the riparian proprietors are entitled to a reasonable use of the waters of the stream for the purpose of irrigation. What is such reasonable use is a question of fact, and depends upon the circumstances appearing in each particular case.” The doctrine of riparian rights thus abstractly stated has *96 been clarified, though not materially changed, by this court in its application to the particular eases which have come before it since the decision of the case of Lux v. Haggin, supra. The case of Heilbron v. Last Chance Water Ditch Co., 75 Cal. 117 [17 Pac. 65], was one wherein the tenant in possession of a large tract of land riparian to Kings River brought suit to restrain a diversion of the waters of said river by an upper appropriator who had diverted a large body of the waters of such river and conveyed the same by a ditch to land not riparian to said river. In setting forth the original right of the plaintiff to have said stream continue to flow as by nature it was wont to flow over, through, or along his land, this court said: “It seems clear, upon principle and authority, that the diversion of natural water from land is ‘an injury done to the inheritance.’ The flow of natural water over land is a continuous source of fertility and benefit; and its withdrawal is followed by consequences wdiich are perpetually injurious to the freehold. This is strikingly illustrated by the averments in the complaint in this case, ‘that the ‘waters of said Kings River have hitherto been accustomed to overflow, seep 'through, and moisten the lands of said rancho, whereby the fertility of said lands was greatly increased, and a large and valuable quantity of natural grass was produced upon said lands’; and that, by reason of the diversion of the water by defendant, ‘said lands have failed to produce their accustomed crops of natural grass. ’ The flow of the water of a stream, whether it overflows the banks or not, naturally irrigates and moistens the ground to a great and unknown extent, and thus stimulates vegetation; and the growth and decay of vegetation add, not only to the fertility, but to the very substance and quantity of the soil. It is not true, therefore, as claimed by appellants, that the water of a natural stream may be taken away from land for a great number of years, and then turned back, wdthout any permanent injury to the land.” In the case of Southern California Investment Co. v. Wilshire, 144 Cal. 68 [77 Pac. 767], wherein the controversy was between the plaintiff as a lower and the defendant as an upper riparian proprietor along a certain stream, this court said: “The plaintiff has riparian rights in the stream, and this right extends to all the water flowing *97 in the stream through its lands, . „ „ As such riparian owner, it has the right to have the stream continue to flow through its lands in the accustomed manner, and to use the same to irrigate an additional area thereof, undiminished by any additional or more injurious use or diversion of the water upon the stream above. This right is a part of the estate of the plaintiff—parcel of its land,—and whether it is or is not as valuable in a monetary point of view, or as beneficial to the community in general, as would be the use of a like quantity of water in some other place, it cannot be taken by the defendants without right, or, in case of a public use elsewhere, without compensation. It is not necessary in such cases for the plaintiff to show damages, in order that it may be entitled to a judgment. It is enough if it appears that the continuance of the acts of the defendants will deprive it of a right of property, a valuable part of its estate.” (Citing cases.) In the case of Anaheim Water Co. v. Fuller, 150 Cal. 327 [11 L. E. A. (N. S.) 1062, 88 Pac. 978], wherein the plaintiffs, who were lower riparian owners along the Santa Ana Eiver, sought to enjoin the defendants, who were upper riparian owners upon said river, from diverting water from the stream by means of a ditch through which said defendants proposed to convey such water to other lands not riparian to the stream, the defendants, among other contentions, urged that the plaintiffs were actually using but 400 inches of water for their land, and that there would remain in the stream after the defendants’ proposed diversion more than 2,000 inches flowing down to and beyond the plaintiffs’ lands and which was more than the latter could possibly use thereon, and that, therefore, no damage could ever ensue, even conceding the defendants’ diversion to be unlawful, and hence that their said diversion ought not to be enjoined. Mr. Justice Shaw, in dealing with this contention, said (page 335): “The theory of the law of riparian rights in this state is that the water of a stream belongs by a sort of common right to the several riparian owners along the stream, each being entitled to sever his share for use on his riparian land. The fact that a large quantity of water flows down the stream by and beyond the plaintiffs’ land does not prove that it goes to waste, nor that the plaintiffs are entitled to take a part of it, as against other riparian owners or users below. Nor can it be said that plaintiffs, *98 on account of the present abundance, could safely permit defendants to acquire, as against them, a right to a part of the water. The riparian right is not lost by disuse, and other riparian owners above may take, or others below may be entitled to take, and may insist upon being allowed to take all of the stream, excepting only sufficient for the plaintiffs’ land. In either alternative, the talcing of a part of the water by the defendants would not leave enough for the plaintiffs’ use. There is nothing in this case to show how much water is required above and below by those having rights in the stream. In view of the well-known aridity of the climate and the high state of cultivation in the vicinity, the court could almost take judicial notice that in years of ordinary rainfall there is no surplus of water in the stream over that used by the various owners' under claim of right. But, however this may be, it is settled by the decisions above cited that a party, situated as the plaintiffs are, can enjoin an unlawful diversion, in order to protect and preserve his riparian right.” In the ease of Modoc L. & L. S. Co. v. Booth, 102 Cal. 151 [36 Pac. 431], the plaintiffs, who were the owners of swamp and overflowed land riparian to the Pitt River, sought an injunction to prevent the defendants, who were upper but nonriparian owners of land, from appropriating 200 inches of water from said river for irrigation, stock, and domestic uses upon their nonriparian lands. The evidence in the case showed that the plaintiffs were engaged in reclaiming their said swamp and overflowed lands by ditching and diverting the waters of the Pitt River away from the same at times of the high flow of said river during the months of June, July, August, and September when the defendants used the comparatively small amount of the water of the river appropriated by them. The trial court denied the injunction sought and this court affirmed its order to that effect, saying*: “The only point made for a reversal is that the court erred in not granting an injunction against the respondent, because appellants were riparian owners and as such ‘entitled to have the stream flow in its natural channel,, undiminished and unobstructed. ’ In a state like this, where irrigation is greatly needed, and where large areas of land are comparatively worthless unless artificially irrigated, it is difficult to lay down a rule as to riparian rights which will be applicable to and cover all cases. It *99 seems clear, however, that in no case should a riparian owner be permitted to demand, as of right, the intervention of a court of equity to restrain all persons who are not riparian owners from diverting any water from the stream at points above him, simply because he wishes to see the stream flow by or through his land undiminished and unobstructed. In other words, a riparian owner ought not to be permitted to invoke the power of a court of equity to restrain the diversion of water above him by a nonriparian owner, when the amount diverted would not be used by him, and would cause no loss or injury to him or his land, present or prospective, but would greatly benefit the party diverting it. If this be not so, it would follow, for example that an owner of land bordering on the Sacramento River in Yolo county could demand an injunction restraining the diversion of any water from that river for use in irrigating nonriparian lands in Glenn or Colusa county. And yet no one, probably, would expect such an injunction, if asked for, to be granted, or, if granted, to be sustained.” In the ease of Fifield v. Spring Valley Water Works, 130 Cal. 552 [62 Pac. 1054], this court applied the rule above quoted from the last cited case to a situation wherein the defendant, a nonriparian appropriator, was seeking to divert the storm or flood waters of a stream but none of the ordinary flow. In the case of Miller & Lux v. Madera Canal etc. Co., 155 Cal. 59 [22 L. R. A. (N. S.) 391, 99 Pac. 502], which has already been adverted to as to its facts, it was urged upon this court upon petition for rehearing that it had not given due consideration to its rulings in the cases of Modoc Land Co. v. Booth, and Fifield v. Spring Valley Water Works, last above referred to, but this court differentiated between the two eases last above referred to and the case of Anaheim Water Co. v. Fuller, supra, and also between those former cases and the instant case before it, by showing that the instant controversy was not one relating merely to storm or flood waters, but that the pending cause involved the usual and customary flow of the Fresno River and the right of a lower riparian owner thereto as against an upper appropriator of the waters of said stream. In the course, of this differentiation, Mr. Jus-tiee Sloss, after approving the language of the main opinion to the effect that the owners of land bordering upon such a *100 flow of water are riparian proprietors entitled to all the rights pertaining to riparian ownership, went on to say: “It is suggested that a different rule should apply in a semi-arid climate like that of California, where the fall of rain and snow occurs during only a limited period of the year, and, consequently, streams carry in some months a flow of water greatly exceeding that flowing during the dry season, with the result that such increased flow is not, at all points, confined within the banks which mark the limits of the stream at low water/ But no authority has been cited, and we see no sufficient ground in principle, for holding that the rights of riparian proprietors should be limited to the body of water which flows in the stream at the period of greatest scarcity. What the riparian proprietor is entitled to as against nonriparian takers is the ordinary and usual flow of the stream. There is no good reason for saying that the greatly increased flow following the annually recurring fall of rain and melting of snow in the region about the head of the stream is any less usual or ordinary than the much diminished flow which comes after the rains and the melted snows have run off. Perhaps other considerations should apply where a river, in times of heavy flow, runs over its banks in such manner that large volumes of water leave the stream and spread over adjoining lands to an indefinite extent, there to stagnate until they evaporate or are absorbed by the soil. But the evidence of respondent, and this was the evidence on which the court below acted, fails to show that the water which defendant seeks to divert was such ‘vagrant water.’ The evidence of respondent was to the effect that at all seasons the water of the Fresno River, even though overflowing the banks of the channel in which it flowed during the dry season, formed a single and, continuously flowing stream. The argument that the method of irrigation adopted by plaintiff, i. e., that of having the annual increased flow of the river spread over its lands, was not a reasonable use of the water can have no weight in this case. The doctrine that a riparian owner is limited to a reasonable use of the water applies only as between different riparian proprietors. As against an appropriator who seeks to divert water to nonriparian lands, the riparian owner is entitled to restrain any diversion which will deprive him of the customary flow of water which is or may be beneficial to Ms *101 land. He is not limited by any measure of reasonableness. If any doubt ever existed on this point, none can remain since the recent decision of this court in Anahcim Union Water Co. v. Fuller, 150 Cal. 327 [11 L. R. A. (N. S.) 1026, 88 Pac. 978]. The cases relied on to show that the riparian owner is entitled to only a reasonable use of the water were all cases of controversies between owners of different parcels of land riparian to the same stream. Virtually the same point is presented by the argument that plaintiff is not limiting itself to the most economical manner of using the water. This is not an objection which may be raised by an appropriator who seeks to divert water of the stream to non-riparian lands. It is argued that unless appropriators are permitted to divert and store for future use water which would otherwise run into the sea and be wasted, there will be a failure to make the most beneficial use of the natural resources of the state and that riparian owners should not be permitted to obstruct the development of these resources. It may be that, if nonriparian owners are permitted to intercept the winter flow of streams, in order to irrigate non-riparian lands, or to develop power, the water so taken will permit the cultivation of more land and benefit a greater number of people than will be served if the flow continues in its accustomed course. But the riparian owners have a right to have the stream flow past their land in its usual course, and this right, so far as it is of regular occurrence and beneficial to their land, is,. as we have frequently said, a right of property, ‘a parcel of the land itself.’ Neither a court nor the legislature has the right to say that because such water may be more beneficially used by others it may be freely taken by them. Public policy is at best a vague and uncertain guide, and no consideration of policy can justify the taking of private property without compensation. If the higher interests of the public, should be thought to require that the water usually flowing in streams of this state should be subject to appropriation in ways that will deprive the riparian proprietor of its benefit, the change sought must be accomplished by the use of the power of eminent domain. The argument that these waters are of great value for the purposes of storage by appropriators and of small value to the lower riparian owners defeats itself. If *102 the right sought to he taken he of small worth, the burden of paying for it will not be great. If, on the other hand, great benefits are conferred upon the riparian lands by the flow, there is all the more reason why these advantages should not, without compensation, be taken from the owners of these lands and transferred to others.” The case of Arroyo Ditch & Water Co. v. Baldwin, 155 Cal. 280 [100 Pac. 874], cannot be said to be at variance with the foregoing principles or cases since the questions discussed therein arose in an action wherein a lower riparian proprietor was claiming the right gained by prescription as against the upper riparian owner to have a certain quantum of the waters of the common stream flow down to him for purposes of diversion. The court in such a ease was not called upon to discuss the principles enunciated in the case of Miller & Lux v. Madera Canal etc. Co., supra, but doubtless had that case in mind since it is reported upon earlier pages of the same volume of our reports; and whatever the court may have said in developing the later case cannot be held to be in anywise hostile to its utterances in the earlier one. Neither do we find anything in the case of Gray v. Reclamation Dist., 174 Cal. 622 [163 Pac. 1024], or in the earlier case of Lamb v. Reclamation Dist., 73 Cal. 125 [2 Am. St. Rep. 775, 14 Pac. 625], each dealing with the particular situation therein considered, which is in conflict with the case of Miller & Lux v. Madera Canal etc. Go., supra, and its companion line of cases which seem to deal with the identical situation as to the state and flow of the streams in question presented by the case at bar. We are unable to draw the differentiations which the appellant' and certain of the amici curiae herein would have us see between the case of Miller & Lux v. Madera Canal etc. Co., and this one in the foregoing regard; nor are we referred either by appellant or the amici curiae to any later decision of this court which has materially modified the decision in the last above cited ease in its application abstractly to the rights of riparian owners to the usufruct of streams identical in their origin and outflow to that of the San Joaquin River.

As a result of the foregoing review of the cases which have succeeded and have generally followed the doctrine declared in the early case of Lux v. Haggin, supra, we arrive at the *103