Palmer v. Railroad Commission

This is a proceeding under section 67 of the Public Utilities Act (Stats. 1911 (Ex. Sess.) p. 55) to review an order of the railroad commission dismissing a complaint which the petitioners filed and presented to the commission.

In their complaint to the commission the plaintiffs alleged that said water company was engaged in the business of distributing and selling water for public use for irrigation, domestic and other purposes in San Diego County, that it has in its possession and control large quantities of water appropriated to said use, that it obtained said water by virtue of notices of appropriation, posted as provided in the Civil Code, in which the Otay Valley was designated as one of the places of intended use, that the several plaintiffs own lands in the Otay Valley below the level of the pipe-lines of said company and within one mile thereof, that their lands require irrigation, that they desire to obtain water from said company for that and other beneficial purposes to be used on their said lands, that they have demanded the same from said company, offering to pay the established water rate therefor, but that the company refused to let them have any water, except on condition that they first deposit the cost of connecting the company’s pipes with their lands. They further averred that

They asked the commission to fix a just rate of charges for such water, to order the company to supply water to them and others entitled thereto at such rates, to direct it to discontinue making any charge to consumers for connecting lines or for meters, and to forbid the company from charging a different rate for domestic use where water was also furnished to the same land for irrigation.

Upon the hearing it was agreed that the commission should first ascertain and determine whether or not the plaintiffs had the right to receive from the company the water they claimed. The principal dispute and the only matter of importance was the claim of the plaintiffs to receive water from the company for irrigation. Some three or four of them were and still are receiving water from the company for domestic use, but as we understand the record, the commission found that they were still entitled to receive the water for that purpose, and so declared. The grievances relating to that use were not deemed of sufficient importance to justify an inquiry at that time by the commission, and it did not decide that no such right thereto existed. Upon the claim' that the • plaintiffs were entitled to water for irrigation, the commission, upon the evidence, determined that they did not have such right and thereupon and for that reason refused to proceed with the application and dismissed the complaint.

We need not determine here whether or not the commission has judicial power authorizing it, in the course of its duties and for the purpose of determining whether or not it will entertain a complaint presented to it, to make an adjudication of the right of the complainants to the water service of which they ask regulation, or that the decision in this case is such an adjudication. If it appears upon the showing made to the commisssion and before this court that they had no such right thereto, the action of the commission in dismissing the proceeding should be sustained, regardless of the extent of the judicial power it may have. The commission is not bound to investigate alleged abuses and make and enforce regulations for the conduct of a public utility at the instance of persons who have no interest in the service. If it wrongfully refuses to do so, the remedy of the aggrieved party would be

The sole ground upon which they claim the right to a share of the water for such irrigation is that their lands are included in the places designated in the notices of appropriation posted by the company as the “places of intended use” of the water claimed in such notices. The theory of the plaintiffs is that this designation of places of intended use constituted a dedication of the waters claimed in the notice to public use for the benefit of all the territory embraced in the designated places, and that when water was thereafter diverted in pursuance of the notices, the persons owning lands within any of the places named have the right to demand a proportional share of such water for use upon such land. In this connection, plaintiffs argue that the waters flowing in non-navigable streams in this state are by law deemed “public waters,” devoted to public use for the benefit of the lands, whether contiguous or not, to which they can conveniently be conducted by artificial means; that it was perceived by the legislature that in many places the supply of water would be far too small to serve the entire accessible area and that some method must be devised of determining the limits to which the dedication should extend; that for this purpose the provision was made in the Civil Code, requiring the person claiming the water and posting the notice to designate the place of use; and that it was intended that thereby the right to the supply should be divested from the general area of lands accessible to the supply and vested exclusively in the places designated.

The theory that the water of a non-navigable stream in this state is in some sense “public water” has been advanced before. It has been claimed that a diversion of water under the provisions of the Civil Code (secs. 1410 to 1422) constitutes a grant of the water by the state to the appropriator. The idea may have arisen from the statement sometimes made in the decisions that the riparian owner has no right in the

The true reason for the rule that there can be no property in the corpus of the water running in a stream is not that it is dedicated to the public, but because of the fact that so long as it continues to run there cannot be that possession of it which is essential to ownership. It is in this respect similar to the air, which cannot be said to be possessed or owned by any person unless it is confined within impervious walls. One may have the right to take water from the stream, even the exclusive right to do so, but in that case he does not have the right to a specific particle of water until he has taken it from the stream and reduced it to possession. It then ceases to be a part of the stream. Such right to the water of running streams as there is under the law is vested entirely in the several riparian owners along its course. It is subject to the common use of all riparian owners, but neither has a specific property in any part of the water while it remains running in the stream. The United States, with respect to the lands which it owns in this state, is a riparian proprietor as to the streams running through such lands. It is only by virtue of that fact that it has any right or power of disposition over the waters thereof. And its right and power in that respect is no greater and no less than that of any other riparian proprietor. By the act of July 26, 1866 (14 U. S. Stats. 251), the United States consented that private persons might acquire rights to water flowing in streams through its lands by taking possession thereof, that is, by diverting the same, in such manner as should be provided by the laws of the particular state. Where such diversion had not been made, a grant of its lands by the United States to a private person without reservation, would carry with it the riparian rights pertain

These questions received elaborate treatment in the leading case of Lux v. Haggin, 69 Cal. 255 , [ 4 Pac. 919 , 10 Pac. 674 ]. On page 390 [of 69 Cal.] the fundamental principle is thus stated: “The right of the riparian proprietor to the flow of the stream is inseparably annexed to the soil, and passes with it, not as an easement or appurtenance, but as part and parcel of it.” If this be true, then the right to the water is no more public than, the right to the land. As to the title of the United States, it is said on page 336 [of 69 Cal.] : “The lands of the United States (not reserved or purchased for fortifications, etc.) are held, since the admission of the state into the Union, as are held the lands of private persons, with the exception that they are not taxable.” It is further shown that even if it be conceded that prior to the cession from Mexico the government of that country possessed a title to the waters, or a power over them, which was in some respects public in its nature, a point not decided, nevertheless this title passed to the United States by the cession from Mexico, and afterward, by the admission of California to the Union, passed from the United States to the state of California, and that the act of April 18, 1850, adopting the common law as the law of this state, “should now be held to have operated (at least from the admission into the Union) a transfer or surrender to all riparian proprietors, of the property of the state—if any she had—in innavigable streams and the soils below them.”

At the time of the admission of California to the Union and for many years afterward the lands embraced within its limits, excepting the Mexican grants, which were located mainly in the valleys, were, for the most part, the property of either the United States or of the state. There was urgent need for the use of the waters of the streams, especially in the mining operations which then constituted the main resource of the state. There were no laws provided whereby the right to divert and use these waters could be acquired from the state or from the United States. Both sovereignties, however, permitted such diversion by any one who could put the water to beneficial use. Diversions were accordingly made and immediately there began to arise disputes relating to interfering diversions from the same stream, which speedily found their way into the courts and it became necessary to ascertain the rules of law by which claims of that kind were governed. An analogy was found in the rules of the common law relating to controversies over the possession of land between persons who had no title thereto and in which the real owner did not interfere or intervene. (See Katz v. Walkinshaw, 141 Cal.

The appropriator under the code obtains no title at all by his appropriation, as against any one except the state and the United States. Such right as he obtains from these he receives because of the fact that by the law of 1866 and by the provisions of the code, the United States, and the state, respectively, have consented that he shall thereby obtain the rights pertaining to any public land over which the stream may run, and not because of any existing dedication of such waters to public use, or because of the fact that they are held by the United States or by the state for general public use. As against all other persons then interested in the riparian lands or in the water of the stream, he must acquire the right he claims in some other way than by the mere appropriation in compliance with the code. He may do so by purchase and

The proposition that the waters of a non-navigable stream are in their nature private property and not property primarily devoted to public use is not only established by authority; it is demonstrable from well-established principles of the law of real property. The right to the waters of a stream is real property, a part of the realty of the riparian lands originally, and a part of the realty as an appurtenance to any other lands to which it may be rightfully taken when the riparian rights have been divested in favor of the user on nonriparian land. This was decided as early as Hill v. Newman, 5 Cal. 446 , [ 63 Am. Dec. 140 ], where the court said: “The right to wafer must be treated in this state as it has always been treated, as a right running with the land, and as a corporeal privilege bestowed upon the occupier or appropriator of the soil; and as such, has none of the characteristics of mere personalty.” (See, also, Lux v. Haggin, 69 Cal. 392 , [ 4 Pac. 919 , 10 Pac. 674 ]; Santa Paula v. Peralta, 113 Cal. 43 , [ 45 Pac. 168 ]; Stanislaus W. Co. v. Bachman, 152 Cal. 725 , [ 15 L. R. A. (N. S.) 359 , 93 Pac 858 ]; Shurtleff v. Kehrer, 163 Cal. 26 , [ 124 Pac. 724 ] ; Merritt v. Los Angeles, 162 Cal. 50 , [ 120 Pac. 1064 ]; Copeland v. Fairview etc. Co., 165 Cal. 148 , [ 131 Pac. 121 ].) Until some change is made in natural conditions, there is no existent right to the water of a stream, except that vested in the riparian owners. They alone can lawfully have access to the stream, and therefore they only, in a state of nature, may lawfully use it or divert it from the stream. Hence, the right to the water of flowing streams in this state, prior to any sale or disposition of lands by the state or by the United States, was vested in the state or in the United States, not in their respective governmental capacities as sovereign and for the common use of the people, but as riparian owners in their respective capacities as landed

Finally, on this point, the decisions in tins state are to the same effect. Lux v. Haggin, we have already mentioned. The recent case of Thayer v. California Development Co., 164 Cal. 125 , [ 128 Pac. 21 ], states the rule to be that the right obtained by an appropriation under the code, is a private right, that the waters appropriated are not thereby appropriated to public use, and that they remain private property until the appropriator dedicates them to public use, which he may do or not at his own pleasure. The other eases holding this doctrine directly or in effect are cited in that case.

The result of these conclusions is that the Southern California Mountain Water Company did not dedicate the appropriated waters to public use by posting these notices, that whatever dedication it may have made of the waters to public use was made in some other manner and that the territory to which that water is dedicated is not necessarily the same as the places of intended use named in the notices. That territory being far in excess of that which the water could supply, the dedication would be manifested by the act of carrying the water to some place and there selling it to those who apply, or by agreeing to supply some specified district with

The order of dismissal is affirmed.

Henshaw, J., Lorigan, J., Melvin, J., and Angellotti, J., concurred.

Rehearing denied.

In denying a rehearing the court rendered the following opinion on February 19, 1914:

In a petition for rehearing the plaintiffs quote the opening clause of the amendment of April 8, 1911, [Stats. 1911, p. 821], to section 1410 of the Civil Code. The section formerly read as follows: “The right to the use of running water flowing in a river or stream or down a canon or ravine may be acquired by appropriation.” By the amendment this was prefaced by the following declaration: “All water or the use of water within the state of California is the property of the people of the state of California.” This, it is claimed, is contrary to the doctrine declared and followed in the opinion of this court herein. This section was not cited in the briefs upon which the case was submitted. We refer to it now solely in order to show that it has no application to the case. All the water-rights which were in dispute in the case arose and were acquired by and under appropriations made long befere the passage of the amendment aforesaid. It ought not to be necessary to remind any one that a law of this character is not retroactive, or that it cannot operate to divest rights already vested at the time it was enacted. The amendment may possibly be effective as a dedication to general public use of any riparian rights which the state, at the time it was enacted, may still have retained by virtue of its ownership of lands bordering on a stream, rights

The petition for a rehearing is denied.