Burr v. Maclay Rancho Water Co.

The plaintiff sued to enjoin the defendant company from pumping water from its wells on land adjoining that of plaintiff and transporting such water to distant lands for irrigation and use on such remote lands. The interveners own some of this remote land and claim rights to receive the water pumped by the defendant, under contracts made with defendant to furnish them with water for use on their respective tracts of land. The plaintiff has wells on his land, from which he pumps water sufficient for irrigation and other uses thereon and the injury he complains of is the lowering of the water underneath the surface, caused by the pumping of the defendant’s wells, whereby his wells are drained of water. The court, upon the facts found, concluded that the plaintiff was entitled to pump from his wells, for irrigation of one tract of his land containing forty acres, designated as bloc]?: 191, for six consecutive days of twenty-four hours each, in each month, a constant flow of twenty-five inches of water, miners’ measure, measured under four-inch pressure, that during this period the defendant had no right to pump any water, and that, during the intervening time, .the defendant has the right to pump water from its wells

The lands of the plaintiff consist of three tracts, designated respectively as blocks 153, 190 and 191 of the Maclay Rancho Ex-Mission San Fernando, according to the recorded plat thereof, and embracing ninety acres. His wells are situated on block 191, which is practically all set out in fruit trees requiring irrigation. Until shortly before this suit was begun he had not irrigated the other tracts. The main controversy concerns the rights pertaining to block 191, but the plaintiff also claims the right to pump water from his wells on that block to irrigate the lands of the other two blocks if he should find it convenient to do so. He did for a short time irrigate 15 acres of block 190. The plaintiff claims that, upon the facts found, the court erred in limiting at all his right to taire water by means of his pumps, and in adjudging to the defendant the right to take water from the adjoining lot by means of pumps, or otherwise than by the natural artesian flow of the wells, or to a greater extent than thirty inches of constant flow.

The lands of the plaintiff and a part of block 192 are all situated over the same body of underground percolating water. Concerning this body of water the finding is that underneath all the said lands, and extending to the foot of the mountains, three or four miles northerly thereof, are water-bearing strata of varying depths of sand, boulders, and coarse material, and lying over each stratum is an impervious stratum of clay or cement, extending towards, but not entirely to, said mountains; that across the said strata and running through the southerly portion of block 192, which lies immediately south of block 191, there is a dyke of material impervious to water; that the subterranean waters in the water-bearing strata are supplied by rains falling on the mountains to the-north and east which, descending the surface of the mountain slopes to the base of the mountains, there find their way into-the coarse material and from thence into said water-bearing strata, through which they percolate underneath the overlying

The plaintiff acquired block 191 in 1886 and ever since January, 1887, he and his family have resided thereon. In that year he began planting orchards thereon and gradually increased the area thereof until 1897. In 1896 he bored five wells along the southern line of the block and put a pumping-plant therein, from which, until the defendant began to pump on block 192 in June of the year 1902, he pumped water to the amount of twenty-five miners’ inches for six full days consecutively each month, using the same to irrigate said block, and the same being necessary for that purpose. This water was taken into his pumps in the wells at a depth of twenty-four feet below the surface, and it appears from the findings that his wells and pumps, as constructed, cannot take the water at a lower depth. ITe has no other water supply and the water is, of course, necessary to prevent the destruction of his orchards.

In June, 1902, the defendant began pumping from its wells on block 192, over the basin aforesaid, about 125 miner’s inches of water and, until the suit was begun, continued to do so, transporting the water to the distant lands above mentioned and there distributing the same for irrigation and other purposes. Prior to this excessive pumping the water in plaintiff’s wells had usually stood at a general level of nine feet below the surface. The consequence of the operation of the defendant’s pumps as stated was that during the remainder of the year 1902, while the pumps were so operating, the level of the water in plaintiff’s wells was reduced to twenty-seven feet, and during the year 1903 to thirty feet below the surface.

It is necessary to consider, briefly, certain contracts mentioned in the findings. All the land affected by this action is included in a tract of twenty thousand acres formerly owned by Charles Maelay, from whom all the parties and all the owners of lands to which the defendant supplies water from its wells, derive title. On September 9, 1885, Maelay conveyed this tract to five trustees who were to subdivide and sell it. They were to expend, and did expend, twenty thousand dollars in subdividing and marketing the land and in constructing dams, reservoirs, and conduits and in boring artesian wells. In the fall of 1885 they bored the seven wells aforesaid and obtained an artesian flow of thirty miners’ inches of water therefrom, which, with water from other sources, they thenceforth distributed to some of the lands in the tract. From these wells the defendant is now pumping the 125 inches in controversy. In all the deeds made by the trustees, including those to the plaintiff and the interveners, there was a clause reserving to the grantors “All artesian water that may be developed on said land, and not used thereon.” The defendant has succeeded to all the rights of the trustees in the water thus reserved.

Some importance seems to have been attached to this reservation in the court below, but we do not think it affects the rights in controversy in the case. It does not extend to the artesian water that may be necessary for use on the land from which it may be obtained, nor to any water except artesian water. It reserved no' right to enter on the land to develop artesian water. Conceding that the word “artesian” has the meaning sometimes given to it and refers to underground water which, by reason of pressure, will rise above its natural level, though not to the surface of the ground, when the stratum in which it lies is pierced by a well, the reservation does not restrict the right of the plaintiff to take such water from the underground strata and use it on

So far as the use of the water upon block 191 is concerned, the case seems to be within the rule established in Katz v. Walkinshaw, 141 Cal. 116 , 135, [ 99 Am. St. Rep. 35 , 70 Pac. 663 , 74 Pac. 766 ]. In that case it was decided that two owners of separate tracts of land, situated over common strata of percolating water, may, each upon his own land, take by means of wells and pumps from the common strata, such quantity of water as may be reasonably necessary for beneficial use upon his land, or his reasonable proportion of such

With respect to plaintiff’s blocks 153 and that part of 190 upon which he has not used the water, but upon which he claims the right hereafter to use it, a question is presented which was expressly left undetermined in Katz v. Walkinshaw and which was not therein involved. The plaintiff, with regard to this land, stands in the position of the second class mentioned in the above quotation. The plaintiff, when the defendant began pumping the 125 inches in Jupe, 1902, gave it notice that the pumping was lowering the water level and impairing his rights. The suit was begun in July, 1903, and the facts found by the court show that no estoppel in pais exists in favor of the defendants to prevent the plaintiff from asserting, protecting, and enforcing such rights as he may have to the water for use on blocks 153 and 190. The question is therefore fairly presented whether or not, after an appropriator of water from a common water-bearing strata has

In the case of either class of owners of overlying lands, the appropriator for use on distant land has the right to any surplus that may exist. If the adjoining overlying owner does not use the water, the appropriator may take all the regular supply to distant land until such landowner is prepared to use it and begins to do so. It is not the policy of the law to permit any of the available waters of the country to remain unused, or to allow one having the natural advantage of a situation which gives him a legal right to water to prevent another from using it, while he, himself, does not desire to do so. The established and settled law of riparian rights in running

The judgment of the court below, with respect to block 191, was apparently based upon the rule established in Katz v. Walkinshaw, 141 Cal. 116 , 135, [ 99 Am. St. Rep. 35 , 70 Pac. 663 , 74 Pac. 766 ], and was made with the design to allow the defendant to take as much of the water, and no more, as should be compatible with the paramount right of the plaintiff. In view of the findings, however, we think the judgment, in its present form, might eventually prove insufficient for the protection of plaintiff’s right. The watershed supplying the underground strata is of limited area, and in some years but little water is contributed to the subterranean basin, because of the light rainfall. The effect of the defendant’s pumping for a period of a little over eighteen months was to lower the permanent water level, as it stood when the pumps were idle, as much as seven feet. By reason thereof the plaintiff is compelled to lift the water seven feet higher than before the defendant began its present appropriation. Perhaps, in view of the extreme necessity for water and the great benefit derived therefrom, this additional burden upon the plaintiff may not be unreasonable. But if the judgment permitting this pumping by the defendant is affirmed without modification, it will be final between the parties and the defendant will have a perpetual right to continue the drain upon the limited supply. This climate is subject to occasional periods of several successive years of comparative drouth. We have recently had a ten-year period of that kind, which was just closing at the time this pumping by defendant began. It is probable that, if another such period, or even a shorter one,

These observations apply with equal force to the right of the plaintiff to have the supply protected for future use upon the portion of his lands not hitherto supplied with water. The judgment makes no provision whatever for the protection of the right of these lands to share in the water.

It is therefore ordered that the judgment of the superior court be modified by adding thereto, immediately preceding the date line thereof, the following clauses: — ■

X.

Provided, however, that in no event shall the defendant be allowed to take of the waters in the strata pierced by its wells, a quantity greater than is supplied thereto from the average fl.nnna.1 rainfall upon the watershed contributing thereto and from other sources; nor shall it be allowed to take therefrom ■a quantity that will reduce the water level in plaintiff’s wells, during the periods when the plaintiff is herein given the right to pump therefrom, to such an extent that the plaintiff, with pumps operating at the depth of his present pumps and with equal capacity, will be unable to obtain therefrom enough

It is further adjudged and declared that the plaintiff, as the owner of said blocks 153 and 190, has the right to take and use of the said waters underlying said block, respectively, a sufficient quantity for irrigation and other uses thereon, or his due share, in ease there is not enough for all equally entitled therefrom, at such reasonable times as it may be necessary and convenient to do so, and that such right is parcel of said lands; that he may take such water through and by means of wells situated thereon, and that he must, when he desires to use the same, give the defendant ten days’ notice of the time or times when he will begin such use, and the defendant must thereupon at such times cease pumping its wells for a sufficient time to allow plaintiff to obtain enough water for one irrigation of so much of the particular block as may then require irrigation; that the continued pumping of said water in future by said defendant, as herein permitted, shall not be deemed adverse to the rights of plaintiff herein declared, whether such rights are, or are not, used by plaintiff, and that defendant be forever enjoined from asserting or claiming rights in such water paramount to those of plaintiff herein declared.

Nothing in this judgment shall be construed to prevent the defendant from pumping from its said wells on block 192, at the times when by this judgment it is allowed to pump therefrom, a quantity of water which, when added to the natural flow, if any, of said wells, will equal a flow of thirty inches of water measured under a four-inch pressure, and using the same on distant lands.

As thus modified the judgment shall stand affirmed.

Angellotti, J., Sloss, J., Henshaw, J., Lorigan, J., and Beatty, C. J., concurred.

Rehearing denied.