Chowchilla Farms Inc. v. Martin

Plaintiff is the owner of land riparian to the San Joaquin Biver in Madera and Merced Counties. These lands lie some fifteen to twenty miles below the junction of said river and Fresno Slough. San Joaquin Biver rises in the high Sierra Nevada Mountains and flows in a generally westerly direction into the valley of the same name. When it reaches the floor of the valley, at or near where it is joined by Fresno Slough, it makes an abrupt turn to the north and flows in a generally northerly direction until it unites with the Sacramento Biver, and from said point the combined waters of the two rivers flow through certain bays and straits, including San Francisco Bay, into the Pacific Ocean. Kings Biver is situated some thirty miles southerly of the San Joaquin Biver and, like the latter, rises in the Sierra Nevada Mountains, and flows in a westerly course substantially parallel to the San Joaquin Biver, and before any artificial means were constructed for the purpose of diverting it from its original course, its waters to a large extent flowed into Tulare Lake, situated in the upper or southerly end of San Joaquin Valley. If, however, as often happened in seasons of heavy rainfall or periods of melting snow, the rivers to the south of Kings Biver, emptying into Tulare Lake, had filled said lake to the limits of its capacity, the waters of Kings Biver, or at least a large portion thereof, would be diverted to the north into Summit Lake, and from Summit Lake they would overflow into Fresno Swamp, and from said swamp they would find their way into Fresno Slough, and thence into San Joaquin Biver.. Fresno Slough from its junction with the San Joaquin Biver extends in a southeasterly course a distance of about thirteen or fourteen miles into Fresno Swamp. Fresno Swamp lies between San Joaquin Biver to the north and Tulare Lake to the south. It was, in its original state, approximately forty to fifty miles in length and from three to eight miles in width. It was overgrown with tales and other vegetation and consisted approximately of 110,000 acres. Not only would waters from Kings Biver flow into

Beginning in the year about 1870, and continuing for a number of years, the owners of land in this locality made certain developments for the purpose of bringing their lands under cultivation which materially changed the natural conditions existing in and about Fresno Swamp. These developments took place at the upper and lower ends of the swamp and eventually extended through its entire length. Land owners in the vicinity of the upper end of the swamp and adjoining Kings River made cuts in its northerly bank and, through channels connected with the river, diverted water from the river onto their lands, for the purpose of irrigating the same. These channels leading from the river increased in size from year to year, partly through human agencies and partly by the action of the waters. One of these channels from Kings River to lands located to the north thereof was known as the Zalda Canal. This canal had its beginning at a point on the Kings River a little north of west of Summit Lake and ran in a generally westerly course in the direction of said lake. This channel came to be known as the north fork of the Kings River, and is frequently referred to as the north fork or the Zalda Canal. At the same time at the lower end of the swamp a trench was dug about three and one-half miles in length connecting Fresno Slough with one of the sloughs in the Fresno Swamp called Fish Slough. This trench was constructed by Jefferson James and was known as the James trench or channel. This trench acted as an outlet for the waters flowing into Fresno Swamp which had been materially aug

Because of the frequent failure of these smaller projects, reclamation works on a large scale were undertaken in 1910, and their construction was continued with large equipment for three or four years. The work was done with a dredge, and extended from the north fork or Zalda Canal to the neighborhood of Summit Lake, and thence in a northwesterly direction to Fresno Slough. Two heavy levees were built, forming a by-pass 800 feet in width, with a capacity of something over 5,000 cubic feet of water per second. This by-pass connected the north fork or Zalda Canal with Fresno Slough. Since the construction of this by-pass, waters which usually flowed from Kings River into said swamp, except those which were taken out and used by the owners of land lying along said canal, ran through the canal until it reached Fresno Slough—thence into the San Joaquin River. This by-pass was completed in 1914. In January, 1925, some of the defendants initiated proceedings whereby they planned to divert the waters, or a large portion thereof, from the north fork, at a point above the intake of the by-pass, and thereby prevent them from flowing therein to the San Joaquin River, and to conduct and use the same on nonriparian lands in the vicinity of Tulare Lake. Two applications were filed by said defendants for permits to appropriate said waters before the department of public works of the state of California, division of public water rights. These applications were at the time of the trial of said action still pending before said department. Since the filing of said applications, three of said defendants, Martin, Goodfellow and Heffner, have constructed a

Three major questions are raised on this appeal. They are:

(1) Was there a natural channel extending through Fresno Swamp connecting Kings River with the San Joaquin River, so that in a state of nature the waters from Kings River flowed through said channel into San Joaquin River? This question might also be stated in a different form as follows: Was Kings River, in a state of nature and before any changes were made in the natural conditions existing in Fresno Swamp, tributary to San Joaquin River?

(2) Has the artificial channel constructed through Fresno Swamp, which channel now connects the two rivers, existed for such a length of time as the natural drainage channel through which the waters of Kings River have flowed into San Joaquin River that its origin is immaterial to this case? An affirmative answer to this question would also answer in the affirmative the related question: Has the plaintiff, as riparian owner of lands on the San Joaquin River below the junction of said artificial channel with the San Joaquin

River, acquired the right, as such riparian owner, to the use of waters flowing from Kings River through said artificial channel to the extent that it may enjoin the threatened diversion thereof by the defendants?

(3) Are there unusual, unexpected and extraordinary waters flowing in Kings River to which plaintiff’s riparian right does not attach?

We will consider these questions in the order stated.

First. Was Kings River, in a state of nature and before any artificial changes were made in the condition existing in Fresno Swamp, tributary to San Joaquin River? The answer to this question must be determined by the existence or nonexistence of a natural watercourse through said swamp connecting the two rivers. Upon this question the court found: “That in a state of nature and prior to the artificial changes that are elsewhere described in these findings, the waters of Kings river that found their way into said [Fresno] swamp did not flow through said swamp in a natural watercourse; that said swamp was not a watercourse but was a catchment area for the overflow waters of Kings river and San Joaquin river.” The artificial changes referred to in this finding are these changes which we have already noted as having taken place in Fresno Swamp and which finally resulted in the construction of the north fork or Zalda Canal and the by-pass, connecting Kings River with Fresno Slough. We have here a direct finding of the trial court that no natural watercourse existed through Fresno Swamp and that Kings River did not in a state of nature flow through any natural watercourse into San Joaquin River. While neither of the parties has discussed the question as to whether such a finding is one of fact or law, we think this question is one of substantial importance to the arriving at a correct determination of this controversy. If the question is one of fact, then we are to ascertain only whether there is any substantial evidence in the record to support it, and if there is, then we may not disturb it. Whether a natural watercourse existed through Fresno Swamp, connecting Kings River with the San Joaquin River, was one of the sharply contested questions before the trial court, and many days were spent in the introduction of evidence of the respective parties as to the existence of such natural channel or watercourse. The testimony of

In the recent case of Patterson v. Spring Valley Water Co., 207 Cal. 739 [ 279 Pac. 1001 , 1002], one of the questions before the court was whether Crandall Slough was a natural watercourse. The trial court found that it was not, as it did not have the physical characteristics of a watercourse. The court further found that another channel called “The Splits” was an artificial and not a natural channel. In considering these findings this court stated that, “The only questions presented by the appeal with reference to the first two contentions of plaintiffs is whether or not these findings with reference to Crandall slough and The Splits are sustained by the evidence.” The opinion in that case then proceeds to state the third contention of plaintiffs, and after that statement resumed consideration of the findings regarding Crandall Slough and The Splits. Upon that question it is stated: “We have examined the record for evidence upon which the findings with reference to Crandall slough and The Splits might be based and we consider the evidence sufficient to support the findings which concludes the first inquiry raised upon the appeal.” It is evident from the reading of the opinion in that case that this court treated the finding that Crandall Slough was not a natural watercourse as a finding of fact, and declined to consider the evidence upon that subject except to determine whether it was sufficient to support said finding of fact. This result is made more apparent when we examine the briefs before this court on said appeal. We there find that the question as to whether said finding was one of law or fact was

Notwithstanding the conclusiveness of the finding of the trial court upon that subject, the plaintiff contends that the court should take judicial notice that a natural watercourse extended through Fresno Swamp, connecting Kings River with Fresno Slough and the San Joaquin River. In support of this contention the plaintiff directs the attention of the court to certain early statutes enacted by the legislature of this state, and also to certain decisions of this court rendered in actions involving the waters of Fresno Slough, as well as to certain public documents on file among the records of our state and national governments, in ■which the waters of Kings River and those of the San Joaquin River were given consideration. The early statutes of this state relied upon by plaintiff declare the San Joaquin River to be navigable from its mouth to Tulare Lake. (Stats. 1851, p. 423; 1854, p. 81; 1860, p. 168; 1861, p. 274, and 1869-70, p. 721.) The decisions of this court referred to by the plaintiff, in which is to be found language to the effect that Fresno Slough is a natural tributary of Kings River, are Miller & Lux v. Enterprise Canal Co., 145 Cal. 652 , 655, 657 [ 79 Pac. 439 ], Miller & Lux v. Enterprise Canal Co., 169 Cal. 415 , 420 [ 147 Pac. 567 ],

The second contention made by the appellant is that although there originally was no natural watercourse through Fresno Swamp leading from the Kings River to the San Joaquin River, the artificial channel now connecting the two rivers has existed over such a length of time that its origin is immaterial and that it has now all the characteristics of a natural channel, and that the waters diverted by said channel from Kings River into San Joaquin River have acquired the state of natural waters of said last-named river, and the owners of land riparian to San Joaquin River have acquired and now enjoy the same rights in

As we have stated above, the present artificial channel connecting the two rivers was completed in 1914, some eleven years before the defendants asserted any right to divert any water therefrom for use on land within the storage district situated within the vicinity of Tulare Lake. But long before the commencement of work on said by-pass in 1910, substantial changes had been made in the territory between Kings and San Joaquin Rivers, which materially increased the amount of water naturally flowing from Kings River toward San Joaquin River. The first of these changes, as we have seen, took place in about the year 1870. In that year, or possibly before, a Mr. Cole ran a furrow connecting Kings River with Cole Slough. Cole Slough was upstream from the point where the north fork or Zalda Canal was later constructed. Through this furrow connecting with Cole Slough a considerable amount of additional water was caused to flow from Kings River into Fresno Swamp. The Zalda Canal had its beginning in about the year 1872, when Captain Esrey, with the aid of a number of Indians, cut the banks of the Kings River, and through this cut diverted waters from the river onto lands to the north and west of the river. At first this canal carried water only during periods of high water, but later water was running through it during the whole year, and as early as 1884 it had cut a channel from the river to Summit Lake. In 1909, the bed of the channel was eight feet below the bed of the river. One witness testified that even before 1909 it was carrying all the waters of the river during times of normal high water. It will thus be seen that over forty years before the defendants asserted any right to the waters flowing through said channel, a substantial part of the waters of Kings River, by means of the artificial changes above enumerated, had been diverted into the sloughs and waterways within Fresno Swamp, including the enlarged James cut into Fresno Slough, and for the last sixteen years of said period of time before the defendants set up any claim to the waters of said stream practically all, if not the whole, of the waters of Kings River had been diverted from its original course and into said artificial channel, through which it flowed to Fresno Slough and thence into the San

The doctrine enunciated in San Gabriel Country Club v. Los Angeles, supra, has been followed by the Supreme Court of Montana in a recent well-considered case, where that court, citing the California case, approved its statement of the law in the following language: “The main source of supply of all western streams is, primarily, the melting of snow and the fall of rain in our mountains and foothills, collecting each year in their accustomed channels and thence finding their way to the streams; this is a more permanent source than mere surface waters diffused over the land by rains and melting snow. (Farnham on Waters, 1559.) Such waters, thus forming a watercourse and flowing with regularity from year to year, although the channel may be dry for the major portion of each year, are a proper subject of appropriation (Borman v. Blackmon, 60 Or. 304 [ 118 Pac. 848 ]; Los Angeles Ass'n v. Los Angeles, 103 Cal. 461 [ 37 Pac. 375 ]), and where such waters did not originally collect and flow down the channel, if through the instrumentality of man they have been made to do so and, through years of so flowing have acquired a permanent character as the natural drainage of the watershed, the original manner of the creation of the stream is immaterial; it is a ‘watercourse’ with all the attributes of one wholly natural. (San Gabriel Valley Country Club v. Los Angeles County, supra; City of Reading v. Althouse, 93 Pa. 400 .) ” (Popham v. Holloron, 84 Mont. 442 [ 275 Pac. 1099 , 1102].)

The Supreme Court of Oregon has also approved the same doctrine in the case of Harrington v. Demaris, 46 Or. 111 [ 77 Pac. 603 , 82 Pac. 14 , 1 L. R. A. (N. S.) 756 ]. In that case the court said: “The water flowing in the outlet from the swamp northward into the old channel never originally reached Spring branch, but when De Haven, Demaris, and Harris, by a concert of action, took out the dam and let such water, together with that from Spring No. 1, into the branch, they thereby made these springs tributary to such streams, and subject to the rules of law applicable to riparian ownership. (Cottel v. Berry, 42 Or. 593 [ 72 Pac. 584 ].) In that case Mr. Justice Wolverton, in discussing this subject, said: ‘It seems to be a rule of law that where owners of different parcels of land conduct water across the same in

In the state of Washington the same rule is followed by the courts of that state. In Matheson v. Ward, 24 Wash. 407 [ 64 Pac. 520 , 521, 85 Am. St. Rep. 955 ], the Supreme Court of that state held as follows: 1 ‘ Even if the west channel was a natural channel prior to 1865, and was then dammed up, and the water diverted to the East and Hurd’s creek channels, where it was confined for thirty years, and this flow was acquiesced in by the riparian owners and others along the channels of said river, this would make the East and Hurd’s creek the natural channels; and defendants and others purchasing and improving lands along the old channel, and relying upon the flow continuing in the channels thereby formed, could not have their lands damaged by reason of the water being turned back by artificial means after that lapse of time. After the lapse of thirty years

To the same effect is the decision of the Supreme Court of Iowa, where that court said: “A watercourse is defined as a natural stream of water usually flowing in a definite channel having a bed and sides, or banks, and discharging itself into some other stream or body of water. It is not necessary that its origin be exclusively the work of nature. It may be aided by the hand of man; but if thereafter it becomes a living, flowing stream of water, with all the essential elements of a watercourse, and has remained in such condition for the prescriptive period, then, as to parties through whose lands it runs, and as to their rights, it becomes a watercourse, and their right to divert it or control it, to the prejudice of riparian owners, becomes fixed and settled. It seems in this case a great many years ago the water that flowed in this stream subsequently followed this natural course; that the grantors of the plaintiff and defendant made some slight excavation in the ground tending to facilitate the flow of the water over their lands in this natural course. By the action of nature and the laws of gravitation this water gradually cut a deep and wide channel through the ground, through which the waters had flowed for a great many years, discharging itself into what is known as Indian creek. The original source of the water is not shown in this record; but that they coursed through this channel for more than twenty years prior to the time complained of is shown by the evidence, and therefore, as to these parties, at that time, it was a natural watercourse. ’ ’ (Falcon v. Boyer, 157 Iowa, 745 [ 142 N. W. 427 , 429].)

We find that text-writers whose works have been accepted as authority upon the subject of water rights are in accord

In Wiel on Water Rights, volume 1, section 60, that author states the law as follows: “There is further an established principle that by lapse of time an artificial watercourse may come to be regarded as equivalent to a natural one. These cases do not depend exactly upon prescription, for, as above shown, prescription, properly speaking, cannot run in favor of lower parties upon a flow as against parties higher up. They rest rather upon what some of the cases call ordinary dedication to a class of public which, in the course of time, has established itself upon the basis of the artificial condition. Where the creator of the artificial condition intended it to be permanent, and a community of landowners or water users has been allowed to adjust itself to the presence and existence of the artificial watercourse or other artificial condition, acting upon the supposition of its continuance, and this has proceeded for a long time beyond the prescriptive period, the new condition will be regarded as though it were a natural one, its artificial origin being then disregarded by the law as it has been by the community. The creator of the artificial watercourse will be held to have dedicated it to the use of the community that has by long time become adjusted to it. ’ ’

Kinney on Irrigation and Water Rights, section 473, pages 803, 804, in a much more extended but no less apt statement, declares the law upon this subject to be as follows: “As to whether or not any riparian rights can attach to artificial watercourses depends entirely upon their origin and character. If they are clearly artificial channels, such as canals, ditches, conduits or aqueducts, used to convey the water from the stream or other body of water, riparian rights cannot attach. In order to acquire the right to the use of water flowing in artificial channels, they must be

From the foregoing authorities we feel warranted in holding that a watercourse, although originally constructed artificially, may from the circumstances under which it originated and by long-continued use and acquiescence by persons interested therein become and be held to be a natural watercourse, and that riparian owners thereon and those affected thereby may have all the rights to the waters therein that they would have in a natural stream or watercourse.

Respondents have cited a number of authorities to the effect that the general rule is that riparian rights exist only in natural watercourses and in waters naturally flowing therein. With this rule we are in accord. We have seen, however, that a channel for the diversion of water may have existed for such a. length of time, and may have been used under such circumstances, that the manner of its creation is not material, and it then has all the attributes of a water channel wholly natural in its origin. When such a channel has attained that state it becomes, in legal contem

Respondents cite the following statement from California Jurisprudence: ‘ ‘ Riparian rights exist only in natural watercourses and natural bodies of water.” (25 Cal. Jur., p. 1097.) In support of this twofold statement the author cites Green v. Carotta, 72 Cal. 267 , 269 [ 13 Pac. 685 ], and Turner v. James Canal Co., 155 Cal. 82 , 87, 88 [ 99 Pac. 520 , 132 Am. St. Rep. 59 , 17 Ann. Cas. 823, 22 L. R. A. (N. S.) 401 ], The first of these two cases concerns the rights of users of waste waters of a certain ditch, in which it was held that said users acquired no right to said waters by long and continued user. The second of those two cases involved the right of the James Canal Company to waters in Fresno Slough to which the lands of said company were riparian. It was held that the right to use water upon adjoining land applies as well to the waters of a lake, pond, slough or any natural body of water by whatever name it may be called, as to a running stream. It is manifest that neither of these cases has any direct bearing upon the question in which we are now interested.

Wiel on Water Rights, volume 1, section 52, is cited by respondents. In the preceding section of said work the author begins a chapter devoted to a general discussion of the subject of “Natural Watercourses”. In section 52 is shown the distinction between natural and artificial watercourses, and that the law applicable to these two separate types of property is entirely different. The author in the succeeding sections of the chapter discusses different phases of the general subject until he comes to section 60, a portion of which we have quoted above. Immediately following our quotation are found these significant words: “Where the owner of the land has artificially changed the course of the stream so as to affect other riparian proprietors favorably, and acquiesced therein for a sufficient length of time, he cannot claim the right to change the flow of the water to the detriment of such other riparian owners; for such acquiescence on his part is binding like a public dedication. After high-water channels are artificially opened, and after they, together with the cuts dug connecting them with the main

E. Clemens Horst Co. v. Tarr Min. Co., 174 Cal. 430 [ 163 Pac. 492 ], is also relied upon by respondents in support of their contention that riparian rights exist only in natural watercourses. In that case the court distinguishes between the natural waters flowing in a stream and waters which had been conducted by the defendants into the stream and carried therein to a point downstream, where they were retaken by said defendants. As to those waters the court held that the defendants could retake them at their pleasure. These waters never became a part of the natural flow of the stream for the reason that the defendants never lost their rights therein, and simply used the channel of the stream to transport them from an upper to a lower point in the stream. The other authorities cited by respondents . on this phase of the case have but little direct bearing upon the point now under discussion and may be passed by without further comment.

The case of E. Clemens Horst Co. v. New Blue Point Min. Co., 177 Cal. 631 [ 171 Pac. 417 ], appears to shed some light upon the question now under consideration. That case, like the' case of E. Clemens Horst Co. v. Tarr Min. Co., supra, involved the waters of Bear Biver and its tributary Wolf Creek. The facts of that case show that the sewage from the city of Grass Valley, and the water discharged from mines and mills in said city had for some fifty years prior to said action been discharged into Wolf Creek. The water used by the city and by the companies operating said mines and mills was received from a canal which led from

The element of permanency as an important feature in the formation of a watercourse of the character of that now under discussion was stressed in the case of Blackburne v. Somers, 5 Law Reports, Ireland, 1. Although this case was decided by a court of distant jurisdiction, the language there used aptly sets forth the doctrine which we hold to be applicable in the instant case. In that case the court said (page 7) : “I do not think that in this case it makes any substantial difference whether this stream is natural or artificial. It appears to be settled that riparian rights identical with those attaching to natural streams may be acquired by prescription in artificial watercourses of a permanent character. These rights must depend upon the character of the watercourse, and the purposes for which it was constructed. If the watercourse was of a permanent nature, and constructed for lasting purposes, and especially for the general benefit of the parties in its vicinity, and not merely with the temporary and private object of benefiting the property of those by whom it was constructed, such as draining a mine, or a mining district, or the like, riparian rights may be acquired in its water, just as in a natural stream. In the case of Arkwright v. Gell [5 M. & W. 203] (1), where it was held that no right to the continuance of the flow of water in an artificial watercourse could be acquired, as against the persons who constructed it, by mere user for any length of time, the decision was based on the nature of the watercourse, which showed it was of a temporary character, and constructed merely for the convenience of the owners of certain mines for the purpose of drainage. In Mager v. Chadwick [11 A. & E. 571] (2), where it was sought to set aside a verdict for the plaintiff, on the ground of misdirection in telling the jury that the law of watercourses is the same whether natural or artificial, the Court of Queen’s Bench refused the application. Lord Denman, in delivering the judgment of the court, said: ‘We think this was no misdirection, but clearly right.

Respondents concede that the land owners along the channel between Kings River and Fresno Slough are estopped from claiming that the artificial channel connecting the two rivers is not a natural channel. In their brief they make this significant admission: “In this case [Paige v. Rocky Ford Canal etc. Co., 83 Cal. 84 , 21 Pac. 1102 , 23 Pac. 875 ] the court expressly said that the doctrine that an artificial watercourse may under some circumstances and as to some persons, be treated as of natural origin was not applicable to the facts in that ease. What was there said of the doctrine was, therefore, dictum. However, we readily acquiesce in the doctrine as stated by the court in that case. That is to say, we cheerfully con-" cede that the person who changes the course of a stream on his own land may be estopped to claim that the artificial character so brought about by him is not a natural one.” In this connection we think the language used in Paige v. Rocky Ford Canal etc. Co., 83 Cal. 84 , 93 [ 21 Pac. 1102 , 1104, 23 Pac. 875 ], well expresses the legal relations of the parties in such a situation, where the court said: “In the case of riparian owners the rule has been held to be that ‘when a stream flowing through a person’s land is diverted into a new channel, either artificially or by

We conclude, therefore, upon this phase of the case that the channel now connecting Kings River with Fresno Slough has all the attributes of a natural channel, and for the purpose of determining the respective rights of the parties hereto to the waters flowing therein, said channel must be regarded and treated as a natural channel. As so regarded, there thus exists a natural channel through which the waters of Kings River flow from their source into San Joaquin River, where they are mingled with the waters of the last-named river, and from that point on the united waters of the two rivers flow on and through the lands of the appellant. Accordingly, the appellant as the owner of lands riparian to the San Joaquin river has all the rights in and to the waters thereof, after being thus augmented, that any' riparian owner has in and to the waters of a stream to which his land is by nature riparian.

As we have already indicated, a third question is presented by the record on appeal in this action, and that is the question of the existence of unusual, unexpected and extraordinary waters in Kings River to which the riparian rights of the plaintiff do not attach. The trial court found: “That in the course of the flow of Kings river, season by season, and according to the historical discharge of the stream, there are occasional times when there are flows of water in the stream that are unusual, unexpected and extraordinary; that such flows are those flows that occur either in considerable quantities at unusual, unexpected and extraordinary times, or at unusual, unexpected and extraordinary rates of flow, or for an unusual, unexpected and extraordinary duration of time; that by the historical performance of the stream the flows of water therein have

Appellant questions the sufficiency of the evidence to sustain this finding. The evidence on this phase of the ease shows that there are periods of excessive high water in Kings River, during which time large volumes of water flow down the channel of the river, filling the same to its exterior banks, and in the early days, as noted above, during these periods of high water, the water from the river would flow down to Tulare Lake and into Summit Lake and Fresno Swamp. Since the construction of the north fork of the Zalda Canal, and the construction of the by-pass, these waters have flowed through said. new channel to Fresno Slough and thence into the San Joaquin River. These large accretions' in the stream, as we have seen, were either caused by heavy rains or from the melting of the snow at the source of said river. In this respect Kings River differs in no respect from the San Joaquin River and other streams in the same vicinity, including those tributary to the San Joaquin River. That this is true is shown by a comparison of the evidence in this case with that in other cases before this court in which the question of unusual, extraordinary and unexpected waters in such streams was in issue. In fact, as far as the similarity of Kings River and San Joaquin River in this respect is concerned, the respondents have expressly admitted that fact. In thqir brief, referring to Kings River and San Joaquin River, they state: “Peak flows in the two rivers are substantially synchronous. They are occasioned by the same phenomena. "When Kings river waters are overflowing the by-pass, the San Joaquin river waters which are native to the stream and naturally flow therein from its source to its junction with the Sacramento river are flooding and inundating plaintiff’s lands.”

“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 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 [ 99 Pac. 502 , 22 L. R. A. (N. S.) 391 ], 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 constitute any part of the ordinary or usual flow of those 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 ease, as in this ease, 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 failed 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, ordinary, 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 case of Lindblom v. Round Valley Water Co., 178 Cal. 450 [ 173 Pac. 994 ], this court said with relation to the facts of said case: ‘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.)

“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. ’ ’

Similar holdings have been made by this court regarding other streams situated in the same vicinity. The Herminghaus case referred to and quoted from the case of Miller & Lux v. Madera Canal etc. Co., supra, in which this court had under consideration the character of the waters of Fresno River situated only a short distance to the north of San Joaquin River. This river has its source in the Sierra Nevada Mountains, like Kings River, and flows in a westerly direction parallel to the San Joaquin River before the last-named river makes an abrupt turn to the north, as herein-before stated. It empties into the San Joaquin River a few miles north of the junction of Fresno Slough with San Joaquin River. It is not necessary for us to repeat all that this court stated regarding the waters of this river, as such statement appears in detail in the above quotation from the Herminghaus case. We will, however, repeat the

Kern River, situated some miles southerly of Kings River and having its source in the same mountain range, is similar in character to Kings River. It receives its waters from rains during the winter season and from melting snow during the spring and summer. The question arose in the case of Lux v. Haggin, 69 Cal. 255 [ 4 Pac. 919 , 10 Pac. 674 ], whether during seasons of high water there was any unusual, extraordinary and unexpected waters in said river. The effect of said decision was that all such waters which were the result of heavy rain or melting snow were a part of the ordinary flow of said stream.

" Merced River to the north of Fresno River, which rises in the Sierra Nevada Mountains and flows westerly and empties into the San Joaquin River, is also similar in character to the Fresno, San Joaquin and Kings Rivers. In the recent case of Collier v. Merced Irr. Dist., 213 Cal. 554 , 558 [ 2 Pac. (2d) 790 , 791], we held, referring to the Merced River: “Like many other California streams, the run-off of said river varies widely during the different periods of the year and likewise varies widely from year to year. In some seasons it has been known to carry a flow of as much as 3700 cubic feet per second; at other times it has been known to be as low as 25 cubic feet per second. The average run-off is 1,069,000 acre feet per annum. There are, however, periods of high flow in every year, occurring between the months of April and October, inclusive. They are due in part to rainfall, but more properly to the melting snows in the upper reaches of the stream in the said mountains. These periods of flood are usual and ordinary and constitute a part of the normal flow of the stream. There are in the stream no extraordinary flood, storm or unusual freshet waters, but all of the water therein is properly classified as part of the usual and normal flow thereof.”

“Mr. Hadsell. Q. Now, will you briefly describe the usual flow of Kings river the year around, just in a general way. A. Well, starting in the beginning of the year— January, unless there is a heavy storm, the river runs only a few hundred feet per second. A good part of the time under 500, and sometimes getting as low as 200 or 175—in January; a somewhat higher discharge in February; a little higher in March; reaching the highest flow in May and June. The peak may come some years in one month, and

some in the other, and as a rule we expect twelve or fourteen thousand feet. Then it begins to decline, going down as low as 150 to 200 feet before the end of August, and that is about the flow until the first of the year with the exception of the occasional fluctuation of flow due to rainstorms.”

This witness continued his testimony as follows:

“Q. Now, you spoke of peak flows in one month or another; what months did you mean by. that? A. It will occur in either May or June. That has been the experience during the past thirty years. In a year of more than normal flow the peak as a rule will occur in June, whereas, if it is somewhat subnormal it will occur earlier, coming in May. Q. Where did you determine these quantities? A. At Piedra. Q. At Piedra above the diversions of the river? A. Yes, it is. It is in the low foothills about 26 miles east of Fresno.”

The witness was then asked regarding the historical performance of Kings River, and in answer to the inquiry gave a tabulation of the record of the United States Geological Survey made at Piedra and covering a period of thirty years, beginning with the year 1896 and ending with the year 1925. The witness took the average annual flow of the river during these years and then gave the percentage of this average flow for each of these years. The tabulation showed that in ten of these thirty years the flow of the river was above the annual average flow, and during the balance of said years the flow was below said average annual flow. The most that can be said of this evidence regarding the historical performance of said river is that it shows an excess flow of water therein over the average flow during ten years occurring irregularly over a period of thirty years. During the balance of said years the flow was below the average. But is the existence of water in those several years in excess of the average flow of said river any evidence that such excess water is unusual, extraordinary and unexpected ? We confess that we can see but little connection between the two. It is a common occurrence, of which we think this court may take judicial notice, that a dry year, or a series of dry years, is usually followed by one or more wet years. In fact the tabulation prepared by Mr. Kaupke shows just this condition regarding the waters of Kings River. In one instance only, and that was

It will thus be seen that the court found that the plaintiff and its predecessors have been, and that plaintiff is now, putting the waters of Kings River, which flow in the San Joaquin River, to a beneficial use. This fact differentiates this case from the case of Gallatin v. Corning Irr. Co., 163 Cal. 405 [ 126 Pac. 864 , 866, Ann. Cas. 1914A, 74], and kindred cases cited by respondents in support of their contention that they have the right to divert said waters as appropriators because they are flood or storm waters of the stream. In the Gallatin case the plaintiffs were riparian owners on the stream. The defendant, Corning Irrigation Company, threatened to divert flood waters flowing in the stream above the lands of the plaintiff and to convey said waters out of and beyond the watershed of said stream. The trial court in that case found that the diversion of the quantity of such unusual flood waters during certain months of the year when the defendant proposed to make such

Where, however, the waters of a stream, although they may be classed as storm or flood waters, are put to a beneficial use by a riparian owner, they cannot be diverted by an upper appropriator to the detriment of said riparian owner. (Miller & Lux v. Enterprise Co., 145 Cal. 652 [ 79 Pac. 439 ]; Miller & Lux v. Madera Canal etc. Co. et al., supra; Miller v. Bay Cities Water Co., 157 Cal. 256 [ 107 Pac. 115 , 27 L. R. A. (N. S.) 772 ].)

These three cases just cited are distinguished from the Gallatin case, in the opinion of the court in that case, where it is stated (page 411) that “The question is not entirely new in this state. In Miller v. Bay Cities Water Co., 157 Cal. 256 [ 107 Pac. 115 , 27 L. R. A. (N. S.) 772 ], Miller & Lux v. Madera Canal etc. Co., 155 Cal. 59 [ 99 Pac. 502 , 22 L. R. A. (N. S.) 391 ], and Miller & Lux v. Enterprise Co., 145 Cal. 652 [ 79 Pac. 439 ], the question' of the right to

The doctrine enunciated in the cases of Miller v. Bay Cities Water Co., supra, Miller & Lux v. Madera Canal etc. Co., supra, and Miller & Lux v. Enterprise Co., supra, has never been abrogated or even modified by any later decision or ruling of this court, and they must be accepted as enunciating the controlling principle of law applicable to the appropriation of storm waters by an upper appropriator when such waters are being put to a beneficial use by a lower riparian proprietor. A consideration of the authorities upon this subject leads to the conclusion that flood waters in a stream which can be put to a reasonably beneficial use by riparian owners on the stream are not subject to appropriation by an upstream claimant. On the other hand, if these flood waters are not being used by riparian owners and cannot be put to any beneficial use by them, then, under the doctrine of the Gallatin and Gin Chow cases, they are, to the extent that the riparian owners cannot put them to any beneficial use, subject to appropriation. Under this doctrine it must be held in the instant case that the respondents are illegally invading the rights of the appellant when they threaten to appropriate and divert the storm waters flowing in the north fork of Kings River, a tributary of the San Joaquin River, which said storm waters are being beneficially used by the appellant on lands riparian to the San Joaquin River. The conclusion of the trial court, and its judgment to the contrary, are therefore erroneous and prejudicial to the rights of appellant.

Respondents, however, contend that the trial court in finding XIII, quoted above, wherein it found “that the waters of Kings river that have found their way . . . into the San Joaquin river . . . had been beneficially used by the appellant,” was dealing with and referring to the usual and ordinary flood waters in the Kings River, and not to the unusual, extraordinary and unexpected flood waters

Respondents further contend that they are entitled to appropriate and divert from Kings River at least so much of the flood waters thereof as are not carried by the by-pass between the north fork and Fresno Slough. The capacity of this by-pass is from 5,000 to' 5,500 cubic feet per second. Respondents call attention to the finding of the court (finding X) to the effect that the flow of Kings River at Piedra during certain periods of .the year greatly exceeds the capacity of said by-pass, and that at least, to the extent of said excess, they are entitled to appropriate the same for the reason that this excess never reaches the lands of the appellant and therefore is not, and cannot be, put to any beneficial use by appellant. By finding X the trial court found that the flow of the water in Kings River has been and will be unusual, extraordinary and unexpected when at Piedra there has been and will be discharges exceeding, and to the extent that they exceed, “(a) 4000 cubic feet per second in the months of August to March, inclusive, for any period of flow; (b) 14,000 cubic feet per second in the months of April to July, inclusive, for any period of flow; (e) 12,000 cubic feet per second for any period of time beyond ten (10) consecutive days at any time.” From the foregoing facts the respondents argue that “The by-pass above the head of Fresno slough was constructed to take care of 5000 cubic feet of water per second. All flows above that amount will overflow and inundate the countryside. The capacity of the by-pass, therefore, affords a good index whereby to determine what are the usual, expected and normal floods, and what are the unusual, extraordinary

For the reasons heretofore given the judgment is reversed.

Preston, J., Waste, C. J., Tyler, J., pro tem., Shenk, J., Langdon, J., and Seawell, J., concurred.

Rehearing denied.