EDMONDS, J., Dissenting. In my judgment, the question presented for decision in this ease is much broader than that stated by my associates, and the facts upon which it rests compel a very different conclusion.
[461]Unquestionably, no restriction should be laid upon the City of San Francisco to store and use, by diversion or otherwise, all water of the Tuolumne River which it can now or hereafter put to a beneficial purpose, subject, of course, to the superior rights of others to a portion of the flow of the stream. But a city, because it is a city, has no more right to divert water from its natural course and waste it than has an individual property owner. Water in California is so necessary to the development of both cities and agricultural regions that its use must be scrupulously safeguarded. Waste is waste, regardless of the identity of the one committing it.
As I read the record, the contentions of the plaintiff and the defendant city, who are the only parties to the appeal, range the entire field of conflicting claims in and to waters of the Tuolumne River and its tributaries, and require a declaration of the rights of each of them. Both sought this adjudication in the court below. Plaintiff, by its pleading, asserted rights as a riparian and also as an appropriator, asked for a declaration of those rights, that its title thereto be quieted, and that invasion thereof be enjoined. Complaint was particularly made of threatened diversions of water by the defendant city to points outside of the watersheds of the streams in question.
By its answer the city admitted the contemplated use but denied that it would violate the plaintiff’s rights. It also set up seventeen separate defenses based upon claims by appropriation, prescription, intervention of public use (without offer to pay for any taking), bar by the statute of limitations and estoppel, concluding with a prayer for declaration of its rights and the quieting of title thereto as against the plaintiff.
Upon trial of the cause all issues between plaintiff and the city were heard and determined, and a decree was entered determining (1) that the plaintiff, a riparian owner, is entitled, as against the city and subject only to its prescriptive right, to certain water; (2) that the city may not store any of the water of the Tuolumne or its tributaries except “surplus high waters’’ to a stated amount, and to the capacity of reservoirs as existing at the time of the commencement of the action; and (3) that the city may not divert from the Tuolumne watershed to San Francisco or adjacent territory [462]at a rate in excess of 142,000,000 gallons daily, or sell or dispose of any water so conveyed for any purpose other than domestic or municipal use.
The uncontradicted evidence presented by the city in behalf of its pleaded claim to a water right shows that the maximum amount which it can put to a reasonable or any beneficial use, until at least the year 1950, is 60,000,000 gallons continuous flow per day. Notwithstanding this evidence, the decision of my associates is, in effect, that regardless of a constitutional mandate prohibiting the waste of water, the trial court may not by any decree to be entered in this action, prohibit the city from diverting and transporting from the Tuolumne watershed an unlimited quantity of water which can be put to no beneficial use. It is of no moment, my associates hold, that such action may lower the water levels in the San Joaquin Valley and deprive vast areas of land of needed moisture.
Such a conclusion, I am confident, violates all legal principles. In the first place, appropriations of water have always been limited to the amount which could be put to beneficial use. This was true long prior to enactment of the constitutional amendment of 1928. “The early cases measured the appropriator’s right by the capacity of his ditch, but that rule has long since been repudiated in this state. (Smith v. Hawkins, 120 Cal. 86 [52 Pac. 139].) As the pressure of population has led to the attempt to bring under cultivation more and more lands, and as the demands for water to irrigate these lands have become more and more pressing, this court has become increasingly emphatic in limiting the appropriator to the quantity reasonably necessary for beneficial uses. (Senior v. Anderson, 115 Cal. 496 [47 Pac. 454]; Id; 130 Cal. 290 [62 Pac. 563] ; California P. & A. Co. v. Madera Canal & Irr. Co., 167 Cal. 78 [138 Pac. 718] ; Northern California Power Co. v. Flood, 186 Cal. 301 [199 Pac. 315] ; Oliver v. Robnett, 190 Cal. 51 [210 Pac. 408]; Pabst v. Finmand, 190 Cal. 124 [211 Pac. 11] ; Eden Township Water Dist. v. Hayward, 218 Cal. 634 [24 Pac. (2d) 492].) If the appropriator uses more than the amount so required he gains no right thereto. An excessive diversion of water for any purpose cannot be regarded as a diversion for a beneficial use. In so far as the diversion exceeds the amount reasonably necessary for beneficial pur[463]poses, it is contrary to the policy of the law and is a taking without right and confers no title, no matter for how long continued. (Joerger v. Pacific Gas & Elec. Co., 207 Cal. 8 [276 Pac. 1017]; Big Rock Mutual Water Co. v. Valyermo Ranch Co., 78 Cal. App. 266 [248 Pac. 264].) In determining what is a reasonable quantity for beneficial uses, it is the policy of the state to require within reasonable limits the highest and greatest duty for the waters of the state. (California P. & A. Co. v. Madera Canal & Irr. Co., su,pra.) ” (Tulare Irr. Dist. v. Lindsay-Strathmore Irr. Dist., 3 Cal. (2d) 489, at p. 547 [45 Pac. (2d) 972].)
Prior to the constitutional amendment of 1928, a riparian was entitled to the full flow of the stream as against a subsequent appropriator (Lux v. Haggin, 69 Cal. 255 [4 Pac. 919, 10 Pac. 674]; Herminghaus v. Southern California Edison Co., 200 Cal. 81 [252 Pac. 607], and cases there cited). Since the amendment, however, the riparian has been limited to a reasonable beneficial use as against an appropriator who also takes for a reasonable beneficial use. (Gin S. Chow v. City of Santa Barbara, 217 Cal. 673 [22 Pac. (2d) 5]; Peabody v. City of Vallejo, 2 Cal. (2d) 351 [40 Pac. (2d) 486] ; Tulare Irr. Dist. v. Lindsay-Strathmore Irr. Dist., supra.) But as between a riparian and an appropriator, this is the full extent of the limitation on the riparian right; it applies only as against Avater appropriated for a reasonable beneficial use. As against a subsequent taking of water, in excess of that which can be reasonably used by the appropriator, the riparian is entitled to the full flow of the stream. In other words, the constitutional limitation upon the riparian right is not an absolute one; it is relative, in that it only applies as against a subordinate reasonable beneficial use. After satisfaction of the subordinate right, the paramount right to whatever flow is left in the stream remains in the riparian. Thus, if an excess amount of water exists over the reasonable beneficial needs of both the riparian and a subsequent appropriator, then such excess is a property right of the riparian.
This interpretation of the nature of the riparian right as restricted by the constitutional amendment adopted in 1928 (art. XIV, sec. 3) is in exact accord with the purpose and intent of that enactment, Avhich reads: “It is hereby declared that because of the conditions prevailing in this state the general welfare requires that the water resources of the state [464]be put to beneficial use to the fullest extent of which they are capable, and that the waste or unreasonable use or unreasonable method of use of water be prevented, and that the conservation of such waters is to be exercised with a view to the reasonable and beneficial use thereof in the interest of the people and for the public welfare. The right to water or to the use or flow of water in or from any natural stream or watercourse in this state is and shall be limited to such water as shall be reasonably required for the beneficial use to be served, and such right does not and shall not extend to the waste or unreasonable method of use or unreasonable method of diversion of water. Riparian rights in a stream or watercourse attach to, but to no more than so much of the flow thereof as may be required or used consistently with this section, for the purposes for which such lands are, or may be adaptable, in view of such reasonable and beneficial uses; provided, however, that nothing herein contained shall be construed as depriving any riparian owner of the reasonable use of water of the stream to which his land is riparian under reasonable methods of diversion and use, or of depriving any appropriator of water to which he is lawfully entitled ... ”.
The new enactment, which has been upheld as being within the police power, limits the right of the riparian; it takes from him a property right, the right to insist on the full flow of the stream even though he cannot use the water beneficially and others might put it to beneficial use. In other words, by the amendment a right is taken from the riparian and conferred on the subsequent taker. If there is no subsequent taker who can put the water to a reasonable beneficial use, then the riparian right remains unimpaired.
This is the only reasonable construction of the' amendment. In a contest between a riparian and a subsequent appropriator, where the appropriator cannot put the excess flow to a reasonable beneficial use, it cannot be held to be a “waste” of water by the riparian to insist that such excess remain in the watershed until (but only until) some other user can put it to a reasonable beneficial use.
Furthermore, assuming that the views of the majority are correct, a duty still rests upon the trial court to include in its decree a provision restraining the waste of water by the city through the diversion of a flow in excess of that which can be put to a beneficial use. If, by virtue of the constitu[465]tional amendment, the water remaining in the stream, after satisfaction of riparian needs and the city’s subordinate taking for beneficial use, is not a property right of the riparian, but is a vast natural resource, “excess”, or free water of anomalous ownership to be controlled by the state in the exercise of its police power, this court should not approve a decree which grants the city affirmative relief without first requiring that its claims to water be asserted in good faith and for a beneficial use.
The city asked for a declaration of its rights prior and subordinate to those of plaintiff. Under established principles, a prerequisite to procurement of such relief is the exercise of good faith, which, in the present case, means an intention to take the water for a beneficial use. That intention must be bona, fide and not for speculation, such as to store water for monopoly, or to divert it through an aqueduct and allow it to run to waste in the expectation that customers may be found who will use it at some future time. (Wiel, 3d ed., vol. 1, pp. 406, 407; Farnham, Water and Water Rights, vol. 1, p. 787; Turner v. East Side Canal etc. Co., 169 Cal. 652, 657, 658 [147 Pac. 579].)
The principles which find expression in the maxims of equity are simple and fundamental and they are applicable to the state and a city as. well as to an individual. Where the subject of litigation is a matter of great public interest, it is paramount that they be invoked. Thus, a proposed waste of water by a litigant precludes him from seeking the aid of a court of equity, which will never declare a.right or aid the accomplishment of a purpose violative of law or public policy. Indeed, if an exercise of jurisdiction will be prejudicial to public interest, the court may refuse to protect the private right unless it can also protect the public right. It is also a general principle that the right of appropriation must be exercised with regard to the rights of the public; it is not unrestricted but must be exercised with reference to the general condition of the country and the necessities of the people, and not in such manner as to deprive a whole neighborhood or community* of its use and vest absolute monopoly in a single individual. (Schodde v. Twin Falls Land & Water Co., 224 U. S. 107, 121 [32 Sup. Ct. 470, 56 L. Ed. 686] ; Wiel, Harvard Law Review, vol. 47, p. 436.)
The evidence establishes conclusively that if the city proceeds at this time to carry out its enlarged storage and pres[466]ent diversion plan, it will store and take water which it does not need and which it cannot use beneficially within any estimated future period. The amounts of water which the city will be able to put to reasonable beneficial uses and the extent of its present and possible future requirements are shown by uncontradicted evidence. It appears that when the Hetch Hetchy project was initiated, the city proposed to supply water to the entire San Francisco Bay area, including the east bay region up to Richmond. For the purpose of serving this large area an ultimate diversion of 400,000,000 gallons a day was proposed. But in 1923 or 1924, the East Bay Municipal Utility District undertook to supply the east bay territory with water from the Mokelumne River, and that project was completed about 1928. It brings water to the cities of Oakland, Berkeley, Alameda and Richmond. However, the city took no steps to reduce the size of its own project. It proceeded and is proceeding to completion of the project to the extent originally planned and one division of its aqueduct has been built, as originally designed, for a capacity of 420,000,000 gallons a day.
The water which the city proposes to divert will, so far as this record shows, be used with the local supply for the City and County of San Francisco and a portion of the county of San Mateo. The trial court found that there is no other need, or place of use, for water transported through the city’s aqueduct. The court also found that the present and future inhabitants of that territory will not require Hetch Hetchy water for domestic, municipal, or other reasonable beneficial use, to the extent of a continuous flow of 60,000,000 gallons per day until after the year 1950, or to the extent of 142,000,000 gallons per day until after the year 1980, and will not require any greater extent of continuous flow “within any time which can now be ascertained, predicted or estimated.” These findings are fully supported by the evidence.
Mr. George A. Elliott, the city’s expert witness, testified in detail as to the present and probable future needs of San Francisco and adjacent territory for water to augment the local supply. He forecast the growth of population of this area over a series of years, beginning with 1930 and thence forward at ten year intervals up to 1980. He also estimated the available supply of water from local or nearby sources then in use. Taking the estimates of population growth, [467]with estimates of per capita consumption of water, he arrived at a series of figures of water requirements of the population to be served at each of the ten-year periods. He made two estimates of future growth of population, one on a higher and one on a lower rate of growth, and determined the consumptive uses of water in the area on each of these two bases. After allowing for local supply, he estimated that at the lower rate of population growth, the amount of water from the Hetch Hetchy project which the city would require for succeeding ten-year periods, would be as follows:
Year Water in terms of million gallons daily
1940 22
1950 45
1960 65
1970 86
1980 107
At the higher rate of estimated population growth. figures are:
Year Water in terms of million gallons daily
1940 27
1950 57
1960 81
1970 110
1980 139
When he was examined upon these figures, Mr. Elliott was asked: “Now, you notice in your project the population and the total consumption, that you have stopped 50 years hence, approximately. Have you endeavored to make any figures beyond 50 years from date?” He replied: “It took almost all of the nerve I had to go that far ahead, Mr. Holm. You are hardly justified in going much beyond that, because there are so many things that may enter into it you can’t foresee at all.”
Although the highest estimated requirement of the territory to be served will not reach 27,000,000 gallons per day until the year 1940, nevertheless the city, upon the completion of its aqueduct subsequent to commencement of this action, started to divert to San Francisco water to the full present capacity of the pipeline, that is, at the rate of 60,000,000 gallons of water per day. The record contains no showing of any possible use for this surplus amount of water which the city is now diverting. In a controversy between a ripa[468]rian and an appropriator. asserting subordinate rights, the appropriator may only be allowed the quantity of water he can put to a reasonable beneficial use, and the burden of proof is upon him to show the extent of such use.
The present storage facilities of the city, according to the evidence, will provide a draft of 142,000,000 gallons of water daily. The city, in its amended answer filed in April, 1933, pleaded that it had no intention of increasing those facilities for a period of 50 years. Nevertheless, to further the public works program of the federal government, the city thereafter undertook the raising of the O ’Shaughnessy Dam at Hetch Hetchy reservoir and, in April, 1934, filed amendments to its answer to enable it to claim the right to the additional storage and diversion which such enlargement should provide. There was no need for this development, so far as this record shows. The city claims that it will be able to generate more electric power, but it does not state what use can be found for the additional amount.
The fact that the city has undertaken extensive development work and has already expended many millions of dollars, does not of itself confer a right to water in excess of that which can be put to reasonable beneficial use. The only way in which the city can have the full benefit of its project is to so proceed that construction keeps pace with but does not outrun the actual need for water, and this was the original plan. It is, of course, proper in developing a water system to anticipate the future growth of a community and to provide for its increasing need of water, and the courts have been liberal in including within a • declaration of present necessity for the talcing of water, the immediate future need of the territory to be served. But this does not mean that water which will not be needed for many years, if ever, may be taken by a municipality and then allowed to run to waste in the expectation that customers may be found who will use it at some future time. (See. 1416, Civ. Code; sec. 20, Water Commission Act; Spring Valley Water Works v. Drinkhouse, 92 Cal. 528 [28 Pac. 681]; Turner v. East Side Canal etc. Co., supra; Eden Township v. Hayward, supra; Lindblom v. Round Valley Water Co., 178 Cal. 450 [173 Pac. 994].) Such an excess taking is without right regardless of how long continued; it can confer no title and will receive no protection. (Tulare Irr. Dist. v. Lindsay-Strathmore Irr. Dist., supra.)
[469]Although storage for purposes of flood control is a beneficial use of water, the record in the present case contains no evidence whatsoever concerning floods on the San Joaquin River or any action by the state in regard thereto. The city made no claim that its project was planned for flood control purposes; its works, other than those for power purposes, have been built as a project to carry the water beyond the watershed. What may properly be done to control flood waters is, therefore, not an issue in the case.
If these conclusions be correct, then in this action the city should be limited to a decree which declares the extent of its prescriptive and appropriative rights, both of which rest upon the requirement of beneficial use. In order to define these rights, certain facts in addition to those stated in the opinion of my associates should here be noted.
The dispute is over the right to water in the future, not for use at the present time. When the action was tried there had been no diversion by the city outside of the watershed, and admittedly the plaintiff had suffered no damage. Another notable feature is that claims to water of the San Joaquin River intrude upon the issues only because the lands of plaintiff, and also those of defendant West Stanislaus district, border the westerly bank of that river not far from the point of its confluence with the Tuolumne. But the flow of the San Joaquin through this area consists largely, and during several months of the year almost entirely, of water added to it by the Tuolumne. The lands served by the Modesto, Waterford, and Turlock districts lie in the San Joaquin Valley and border both banks of the Tuolumne extending upstream from a place just above its discharge into the San Joaquin. The power plants, reservoirs, works and properties of the city are located in the high mountains. So it is that before reaching the lands of plaintiff, the waters of the Tuolumne and its tributaries pass through the reservoirs and power plants of the city, travel some 120 miles or more downstream, pass through the reservoirs and works of the Waterford, Turlock and Modesto districts, and discharge into the San Joaquin, from whence they are taken into plaintiff’s pumping plant.
The distance between the works of the city and plaintiff’s land, and the intervening operations to which the water is subjected, are factors which added to the problem of formulating a proper and workable decree. However, the evidence [470]adduced upon the trial was substantially without conflict. It consisted, in the main, of a great volume of statistical data, water records, engineering records, soil records, and maps, prepared under agreement between the parties, checked by both sides prior to the time of trial, and admitted practically without objection or contradiction.
This evidence shows that by reason of the districts’ taking of water, and particularly as a result of the method by which they use it, the flow of the San Joaquin past plaintiff’s land is different than it would otherwise be. Among other causes for this is the practice of the districts to fill the Don Pedro reservoir early in each year for the purpose of assuring a supply of water for irrigation. If, later in the year, it is found that some of the water stored will not be required for irrigation, the excess is released and used for the generation of electric power. The result of this method of operation has been to increase and equate the amount of water reaching plaintiff’s ranch during the low water period. Another important factor resulting from the districts’ intervening use is the large volume of return flow described in the majority opinion.
The claims of the city go back to the year 1901, when its project was initiated. Owing to difficulties in securing the right from the United States to use Hetch ITetehy Valley for a reservoir site and to occupy other public lands, the commencement of actual construction work was long delayed. The Congressional Act of December 19, 1913 (38 Stat. 242), known as the Raker Act, by which the city was finally enabled to proceed, requires the city to recognize:
(1) The prior rights of the Modesto and Turlock districts, as constituted or as said districts may be enlarged to contain in the aggregate not to exceed 300,000 acres of land, to receive 2,350 second-feet of the natural flow of the Tuolumne River, measured at the La Grange Dam, whenever the same can be beneficially used by said districts, and that the city shall never interfere with said rights; and
(2) The rights of those districts to the extent of 4,000 second-feet of water out of the natural daily flow of the Tuolumne River for combined direct use and collection in such storage reservoirs as may be provided by them during the sixty-day period immediately following and including April 15th of each year. A further provision is that the city shall not divert heyond the limits of the San Joaquin Valley any [471]more of the waters of the Tuolumne watershed than, together with the waters which it has or may acquire, shall he necessary for its beneficial use for domestic and other municipal purposes.
Subsequent to passage of the Raker Act the city diligently proceeded with its project. At the date of trial of this case it had expended approximately $76,000,000 for the construction of vast works, and about $12,600,000 for interest during time of construction. Prior to and at the commencement of this action, all water used by the city in operating its power plants, was discharged into the bed of the Tuolumne; none of it was conveyed away from the plaintiff’s riparian lands. Also, all water released from the reservoirs of the city again flowed in the bed of the Tuolumne, or one of its tributaries, and was available for use by plaintiff and the districts.
However, before the plaintiff filed its suit the city had constructed dams and other works for the diversion of water at Early Intake on the Tuolumne below its two storage reservoirs. The city had also constructed portions of the Hetch Hetchy aqueduct, which was designed for the conveyance of water diverted at Early Intake to San Francisco and adjacent territory. The portion of this aqueduct extending from Early Intake to the Moccasin power house, approximately 20 miles in length and having a capacity in excess of 620 cubic feet of water per second (400,000,000 gallons daily), was completed in June, 1925, and was in use before the suit was started. The portion extending from Moccasin power house to its terminus near San Francisco, was not completed or in use prior to commencement of this action, or for more than two years thereafter. By means of its aqueduct the city is able to convey water a distance of over 100 miles for use outside the watersheds of the Tuolumne and San Joaquin Rivers and their tributaries.
The trial court found that the city’s intention to store and divert water was a matter of common and general notoriety, known by plaintiff and its predecessors at least as early as 1924, in which year the city purchased two strips of plaintiff’s riparian land to be used for construction and operation of its power transmission lines and Hetch Hetchy aqueduct; that neither plaintiff nor its predecessors made any objection to the city’s proposed operations prior to June 24, 1931, but [472]permitted the city to expend large sums for construction work. However, on June 24, 1931, and again on October 2, 1931, plaintiff notified the city in writing that it would seek injunctive relief against any attempted diversion of water which would in any manner decrease the flow of the Tuolumne past plaintiff’s lands. Notwithstanding these notices and the pendency of this action, the city proceeded to complete construction of the Hetch Hetchy aqueduct and, in October, 1934, commenced the diversion of water to San Francisco at the rate of 60,000,000 gallons daily. The court further found that although the city intended as part of its ultimate plan to increase the capacity of its aqueduct to permit a total ultimate diversion of 400,000,000 gallons daily and to enlarge its storage facilities accordingly, at the time this action was commenced and at the time of filing its amended answer in April, 1933, no change in the .then existing facilities was contemplated for at least 25 years; that notwithstanding this fact the city now intends to enlarge O ’Shaughnessy Dam so as to increase the storage capacity of Hetch Hetchy reservoir from 206,000 acre-feet of water to 357,000 acre-feet, and intends to store additional quantities of water therein, and to use that water for both power purposes, and diversion to San Francisco.
Other findings of the court are that the city had at no time claimed the right to store waters other than waters in excess of the prior rights of the Turlock and Modesto districts (as mentioned in the Raker Act), and in addition thereto, in excess of a continuous flow of 66 cubic feet per second, to which the city has always conceded that these districts and the Waterford district have a prior and superior right. In its findings the court referred to the waters out of which the city could store without invading these prior rights as “surplus high waters”, and, defined that term as follows: “The waters flowing at any time in the Tuolumne river and its tributaries above the La Grange dam over and above a flow of 4066 eu. ft. of water per second of the natural daily flow of the Tuolumne river, measured at the La Grange dam, during the period of sixty (60) days immediately following and including April 15th of each year, and in excess of a like flow of 2416 cu. ft. of water per second, measured at the La Grange dam, at all other times.” It found that while there are at times “surplus high waters” of the Tuolumne, not reasonably [473]required for use or beneficial purposes upon plaintiff’s riparian lands, which run unused into San Francisco Bay, that, except for return flow, the entire natural flow of the Tuolumne and San Joaquin Rivers during times other than times of high water, is taken and reasonably and beneficially used for irrigation purposes.
On the question of storage the court found that prior to commencement of this action the city had openly, notoriously, and adversely to plaintiff and its predecessors, and under a claim of right (1) stored in Hetch Hetchy and Lake Eleanor reservoirs, out of “surplus high waters”, 235,465 acre-feet of water per seasonal year, extending from October 1st of each year to and including September 30th of the next year; (2) stored in Hetch Hetchy in a single seasonal year of maximum storage, but not for five consecutive years, up to 211,300 acre-feet, and in Lake Eleanor up to 36,700 acre-feet; (3) applied such waters to the reasonable beneficial use of generation of hydro-electric power; and (4) returned all waters so stored and used to the Tuolumne at a point above all the works of the districts and the lands of plaintiff.
Concerning diversion, the court found that many years before this action was commenced the city had announced to the public its intention to convey waters previously stored by it to San Francisco and adjacent territory for domestic and municipal uses; that the maximum continuous flow which the city would be able to obtain for such diversion by use of existing storage facilities and without disregarding the prior recognized rights of defendant districts, was 1.42,000,000 gallons per day; that “such continuous flow of 142,000,000 gallons per day could not be obtained except by the storage of waters other than surplus high waters . . . and by obtaining 32% of such flow through the diversion of waters other than those previously stored. ...”
The court also found that all waters diverted by the city will be required for use, and used, only within the City and County of San Francisco and a portion of the county of San Mateo; that the present and future inhabitants of this combined territory will not require that water, for domestic and municipal and other reasonable beneficial uses, to the extent of a continuous flow of 60,000,000 gallons per day until after the year 1950, or to the extent of 142,000,000 gallons per day until after the year 1980, and will not require any greater [474]extent than 142,000,000 gallons per day, or any waters which could be provided by the enlargement of the city’s existing reservoirs or by the construction of additional reservoirs, “within any time which can now be ascertained, predicted or estimated”.
The only rights of the city superior to those of the plaintiff are such as it acquired by prescription. Coneededly, as against plaintiff, the city’s prescriptive right to store extends to the quantities of water which for five consecutive years prior to commencement of this action it stored openly, notoriously, continuously, adversely to plaintiff and under a claim of right for power purposes. However, the city has contended throughout that the evidence not only establishes its prescriptive right to store water for the generation of electric power, but also a prescriptive right to divert the stored water for consumptive use without the watershed. It argues that the rights of a lower riparian attach only to the natural flow of the stream; that they do not attach to waters released from upper storage as against the appropriator who has stored such waters; that stored waters are the personal property of the storer as long as he retains possession of them; that they are thereafter subject to his executive control, and he may release them from the reservoir, and conduct them through the natural stream channel to points of diversion and conveyance to place of use.
This argument overlooks the precise question at issue, which is not whether any rights of the lower riparian attached to waters released from upper storage into the stream channel during the prescriptive period, but the extent of the prescriptive right of the city as against the plaintiff. It is elementary that a prescriptive right to the use of water is created by a continuous invasion of the right of the servient owner and must be measured by the extent of the invasion. Thus, in the case of an unauthorized interference with the flow of a stream, the riparian owner, by permitting the interference to go unchallenged for five years, loses the right to complain of it, but he does not lose the right to object to any greater, other, or more injurious interference than that to which he has been subjected. Prescriptive rights are strioti juris and may not be extended beyond the actual user (Scott v. Fruit Growers Supply Co., 202 Cal. 47 [258 Pac. 1095]; Eden Township v. City of Hayward, supra).
[475]Thus the measure of the city’s prescriptive right as against plaintiff is the extent to which its taking has interfered with the flow of water coming down to plaintiff’s riparian land. As the city, over the prescriptive period, has not abstracted or made consumptive use of any water, the total amount which has passed plaintiff’s property in any one year has not been decreased, but the seasonal flow has been changed. In my judgment, the extent of this alteration of flow measures the extent of the city’s prescriptive right as against plaintiff; that is, the city, by,storing the waters, making beneficial use of them for production of power, and then releasing them, altering the flow of the stream but not depleting it in total annual amount, has acquired a prescriptive right to so store, use, and release those waters, but has acquired no other right. Incidentally, this adverse use by the city has conferred no right upon plaintiff to insist upon a continuance of the alteration of the stream flow past its property, or to claim any permanent benefit therefrom, such as, for example, no right to require the city to discharge water into the stream during periods in which there would, without storage, be no natural flow (Lindblom v. Round Valley Water Co., supra).
The city’s reliance upon the principle that “stored waters are the property of the storer ’ ’ should not avail it here. The general application of that principle is with respect to waters severed from the stream and held in artificial structures. A number of the authorities cited by the city refer to ownership of specific amounts of water so held at particular times, with ownership limited to the period the water is held in possession; they refer to ownership of the water itself after impounding, which is personal property, as distinguished from a water right. As already stated, the question here is not who has in the past owned the waters actually impounded and released by the city, but is what right the city has with reference to such waters in future and for diversion from the watershed.
That the act of impounding water and using it to generate electric power does not confer rights to the extent claimed by the city is plain. Suppose the city undertook merely to store water continuously without using it beneficially. As storage of water in a reservoir is not in itself a beneficial use (Lindblom v. Round Valley Water Co., supra) but is a mere means of applying the water to such use, storage alone will not ripen [476]into a prescriptive right of any character, but constitutes an “unreasonable use” of water forbidden by the constitutional amendment of 1928. It follows that storage of water and its use to a particular extent for a certain purpose will create a right to the extent of the use, but not to any greater use. In other words, there must be a beneficial use of water in order to create a right by prescription, and the extent of such use and the manner of its exercise, is the measure of the prescriptive right. Thus, a temporary use of water and its return into the stream channel can never ripen into a prescriptive right of permanent diversion.
In this case the extent of the beneficial use made by the city of the stored water during the prescriptive period was for the generation of electric power, with return of the water thereafter to the stream channel, and that extent of use is the measure, and the limit of the measure, of the city’s prescriptive right. It includes the right to store water, use it for the generation of electric power, and then return it to the stream above plaintiff’s land. It does not include diversion of water, which would constitute an additional and distinct invasion of plaintiff’s right, not exercised over the prescriptive period. It is immaterial that the city claimed the right to divert over that period, for it did not in fact actually divert any water. Where there is no exercise of a beneficial use, no prescriptive right is acquired.
The only right of the city prior to plaintiff’s riparian right to sufficient water to satisfy its present and future reasonable demands is the prescriptive right which has been discussed. The city, an appropriator, claims the further right, subordinate to plaintiff’s right, to store and take any or all of the water remaining in the Tuolumne River and its tributaries. So long as it does not injure plaintiff, says the city, plaintiff has no right to enjoin or limit it in the full exercise of this subordinate right. This statement is correct only in so far as it pertains to that portion of the remaining water which the city actually requires for reasonable beneficial use.
In addition to the reasons which have already been given for limiting the city’s taking to water which it can use, the particular facts of this case, especially those bearing on the subject of pollution, show a further right in the plaintiff, as against the city’s proposed waste, to have the waters of the stream flow past its land. The evidence shows that the city’s [477]diversion will affect the quality of the flow available to plaintiff. The water which passes plaintiff’s land includes return flow which has become polluted with alkalis and other chemical substances. Water containing such substances in sufficient concentration is unfit for irrigation use and is harmful to lands, trees, and crops.
Plaintiff’s riparian lands are composed of a heavy soil which affords no drainage through percolation to the underlying water table. The effect of irrigating such lands with impregnated water is to produce a cumulative concentration of harmful substances in the soil of the area irrigated. Plaintiff’s representative testified that for a number of years it has contended with a tightness or impenetrability of the soil caused by irrigation. Among other things, this witness stated: ‘ That was a very puzzling and dismaying thing, and during ’25 and ’26 and ’27, we carried on careful investigation to find how to correct this increasingly bad situation. We then began our method of making moisture tests . . . and we found that gypsum, if applied to these soils, made them friable. That really was the major solution to our problem and we made a general application of gypsum over the whole ranch, thousands and thousands of tons, in ’28. We also found that that was helped by the growing of cover crops and today, in every one of our areas, we put in cover crops which called for added quantities of water, by the way, because they need an irrigation in the fall to bring them up, and we plow them under the following March. ’ ’
Expert testimony was adduced by both sides concerning the present and possible future effect of pollution upon plaintiff’s lands. -Although this evidence was not without conflict, it affords strong support for the contentions of plaintiff and the findings of the trial court. Soil expert Twining, being asked, “What is the effect of a concentration of those substances in the water?,” replied: “In sufficient concentrates, they will prevent the growth of practically any cultivated crop; in sufficient amounts they will prevent the growth of any vegetation and of course, lesser amounts will affect according to the concentration. Q. Have they any effect in greater concentration upon the ability of water to permeate the soil? A. Yes . . . the chlorides, particularly chloride of sodium, going into the soil by means of water, will produce deflocculation or make the soil sticky and eventually will be [478]impervious to water. ’ ’ Mr. Twining stated that he had made successive analyses of the waters of the San Joaquin and its tributaries and had found that “as the years pass by, and as the water goes . . . farther down the river . . . there has been a progressive increase in the salinity or alkalinity, as we term it, in the water of the San Joaquin, as demonstrated by analyses I have taken over a period from 1910 to 1933 inclusive. Q. And has that gone side by side with an increase in the area upon which water is applied? A. Yes ... in the first place, there has been a lessening of the flow and there is a certain amount of drainage water carrying more salt that goes back into the river. . . . The fresher the water, the better it is, and using saline waters, it is necessary to use more water in order to prevent surface accumulation. Of course, there is a limit to the amount of salinity in a water that can be used. . . . Soils . . . that are readily drained, can use much more saline water, that is, water with higher alkaline or salinity. ... If the land drains, the water goes through and carries the salts with it. . . . Water applied on the soils, heavy type soils on the El Solyo ranch, the water doesn’t drain off or drain through the soil, and therefore any amount of salinity is cumulative. . . . Q. What is the effect upon the water in a river of reducing the proportion of fresh water in it as compared with drainage water that has passed through land in the course of irrigation? A. The fresh water, of course, dilutes your river water and decreases the salinity, the total salinity, and of course would he better water and the more you reduce the addition of fresh water, the more dangerous the water becomes for irrigation purposes.”
The trial court found that the return flow in the Tuolumne has not in the past contained a sufficient concentration of salts, alkalis, and other chemical substances to render it unfit for irrigation use on plaintiff’s riparian lands; that except at times of very low flow the impregnated or polluted water resulting from seepage return after irrigation and forming a part of the flow available for use upon plaintiff’s riparian lands has been commingled with and diluted by fresh or unpolluted water flowing in the Tuolumne or released into the stream by defendants. But the -court also found that if the city should carry away from the Tuolumne a part of the flow of fresh water which has hitherto come down the river, or if the districts should so change their methods of diversion, stor[479]age, and use of waters of the Tuolumne as to reduce the proportion of fresh or relatively unpolluted water forming a part of the flow available to plaintiff, then the impregnation with harmful substances and the pollution of such flow, and the frequency and duration of periods of pollution would be increased.
It is manifest from the evidence and from the findings that any taking of fresh water from the stream will affect the quality of the remaining flow. It is true that the trial court afforded plaintiff protection against pollution by decreeing that plaintiff’s riparian right for reasonable beneficial uses was a right to water not only sufficient in quantity but also of a quality fit for irrigation, and the court also retained jurisdiction so that if in the future the water available to plaintiff becomes polluted to an extent which makes it unfit for use, then the court, in the exercise of its retained jurisdiction, may make such further findings and decree as the facts warrant.
But even this relief, under the rules herein declared, does not afford plaintiff the full protection of its riparian right. As against a subsequent appropriator’s taking of water for a reasonable beneficial use, the riparian’s right is satisfied if it receives its full entitlement of water of a quality fit for its proposed use, but as against a subsequent appropriator’s proposed taking of water in excess of the amount which is needed and can be beneficially used, the riparian is entitled to have such excess left in the stream bed for enrichment and purification of the flow. In other words, even under the limitation imposed by the constitutional amendment, the riparian is entitled to water of the highest quality which the stream will normally afford if that entitlement can be obtained without invasion of subordinate rights to the taking of water for reasonable uses.
The appropriative rights of plaintiff and the city and their respective priorities rest upon the same basis, that is to say, neither may acquire or perfect a right to more water than can be put to a reasonable beneficial use. Plaintiff pleaded an appropriative right separate from and independent of its riparian right, with priority as of October 10, 1919, over any claim of the city, and prayed that its title thereto be quieted. In answer to that count the city alleged that it owned forty-seven separate and distinct appropriations of water in eonnec[480]tion with the Hetch Hetchy project and that any appropriative right claimed by plaintiff was acquired subsequent to its appropriative rights; hence that title to those rights should be quieted against plaintiff. As a separate defense directed to the second cause of action, the city alleged its plan for the ultimate development of the Hetch Hetchy project, and alleged that it owned the right, as against any appropriative right of plaintiff, to appropriate, detain, and store for future use for the development of power for domestic and municipal purposes in the City and County of San Francisco and adjacent territory, sufficient water of the Tuolumne and its tributaries to allow diversion by it of a constant flow of 400,000,000 gallons of water daily.
By these pleadings, the sole issue presented is the priorities of the respective appropriative rights alleged by plaintiff and the city. Plaintiff asked no affirmative relief against the city. The city claimed no prescriptive right against plaintiff’s appropriation. Admittedly, the city’s operations had never interfered with plaintiff’s diversion of water to the full extent of its appropriation. Admittedly also there was no issue of intervention of the public use. Thus upon trial of the cause, plaintiff and the city each sought to prove priority of appropriative rights.
Plaintiff showed that it was the owner, independently of its riparian right, and subject only to prior rights of the city, of an appropriative right, with priority as of October 1,0, 1919, to take and divert for beneficial use, waters of the San Joaquin River, at the rate of 46.74 cubic feet per second from March 1st to November 1st of each year, the place of use being limited to 3,781 acres of the ranch, and excluding 540 acres of parcel one thereof lying immediately adjacent to the San Joaquin River and riparian thereto and to the Tuolumne. The court so found and this finding was carried into the decree.
The city introduced in evidence certified copies of notices of forty-seven alleged prior appropriations initiated by it. Eighteen of these notices had been pleaded in abbreviated form in the city’s amended answer, and counsel stated that although it was necessary to offer all forty-seven notices in evidence in order to follow their historical sequence, the city would rely only upon the eighteen, which were posted and filed in the years 1901 to 1911.
[481]During that period, which was prior to enactment of the Water Commission Act (Stats. 1913, p. 1012, Deering’s Gen. Laws, Act 9091), the appropriation of water was governed by sections 1410 to 1422 of the Civil Code. Section 1414 declared that “as between appropriators, the one first in time is the first in right.” Section 1415 provided that a person desiring to appropriate water must post a written notice at the point of intended diversion, stating therein: “1. That he claims the water there flowing to the extent of (giving the number) inches, measured under a four-inch pressure; (2) The purposes for which he claims it, and the place of intended use; (3) The means by which he intends to divert it, and the size of the flume, ditch, pipe, or aqueduct in which he intends to divert it,” and the section further provided that a copy of the notice must be recorded within ten days after posting.
Section 1416 (prior to amendment in 1911) provided that within sixty days after posting of the notice, the claimant must commence the excavation or construction of the works in which he intended to divert the water, or survey, road or trail building, necessarily incident thereto, “and must prosecute the work diligently and uninterruptedly to completion,” provided that if erection of a dam had been recommended by state authorities, the claimant should have sixty days after completion of the dam in which to commence excavation or construction. Section 1417 defined “completion” to mean “conducting the waters to the place of intended use”. Section 1418 applied the “doctrine of relation”. It provided: “By a compliance with the above rules the claimant’s right to the use of the water relates back to the time the notice was posted.” Section 1419 stated that “a failure to comply with such rules deprives the claimants of the right to the use of the water as against a subsequent claimant who complies therewith”.
Under this method of appropriation, by application of the “doctrine of relation”, priority of appropriative right dates from the posting of a notice in the form prescribed by section 1415, provided that subsequent to posting the notice, the claimant diligently prosecutes toward completion the work necessary to diversion and use of the water. However, if there is a lack of due diligence on the claimant’s part, a later appropriator who proves that he first completed his [482]works and actually took and beneficially used the water, has a prior right. (DeNecochea v. Curtis, 80 Cal. 397, 401 [20 Pac. 563, 22 Pac. 198]; 26 Cal. Jur., pp. 79, 80, secs. 270, 271.)
In this case the evidence shows that the city’s appropriations were the first to be initiated but plaintiff’s appropriation was the first to be completed. The city’s claimed appropriations were all initiated between 1901 and 1911. Plaintiff’s appropriation was initiated on October 10, 1919, and construction of works for diversion of the water was prosecuted with due diligence to completion. On the latter date the city’s project was still in the course of construction. It was using only a small amount of water stored in Lake Eleanor to generate power at the Lower Cherry River power house. Its Hetch Hetchy reservoir and Moccasin power house were not finished, and there was no actual diversion of water to San Francisco until 1934, subsequent to the filing of the present action. Applying the “doctrine of relation” to this situation the trial court properly concluded that, as plaintiff’s valid appropriation antedated any actual use of water by the city, the latter is entitled to priority only for those appropriations which were initiated by the posting of valid notices and followed by the prosecution of construction work with due diligence.
Some of the eighteen notices relied upon by the city were posted by it or its representatives, while others of them were posted by Wm. Ham Hall or by Sierra Ditch and Water Company, who later transferred their rights to the city. The trial court refused to accord the latter appropriations priority, either because there was no proof of transfer to the city or other evidence that the city was the owner thereof, or because the work necessary to diversion and use of the water was not shown to have been prosecuted with due diligence by the city or its predecessors. In its briefs on this appeal the city does not seriously question the sufficiency of the evidence to support these findings, but it states that without considering any of the notices posted by Wm. Ham Hall or Sierra Ditch and Water Company, the remaining notices which were posted by it or its representatives were valid and sufficient to cover allowance of appropriations to the extent claimed by it. Some of the latter notices, the court found, were superseded by [483]amended ones filed later, and were not separate or additional claims of right.
The city does not question, this conclusion. But it contends that the evidence does not support the further findings to the effect that each of the notices relied upon, with the" exception of five, fails in some respect to meet the requirements of section 1415, supra, or else was not followed by prosecution of development work with due diligence.
To state the city’s contention more particularly, the trial court found that the city’s notices of appropriation designated 1 (c), 2 (d), 3 (b), 3 (e), and 4 (c) were filed in the form provided by law at a time prior to the initiation of plaintiff ’s appropriation, and that by virtue of those five appropriations the city is the owner of valid rights, superior in right to plaintiff’s appropriative right, to store and divert waters of the Tuolumne and its tributaries at the following places and in the following amounts: (1) To store in Lake Eleanor flows not to exceed 5,000 miner’s inches, or 100 cubic feet per second; (2) To store in the Hetch Hetchy reservoir flows not to exceed 35,000 miner’s inches, or 700 cubic feet per second; (3) To store in the proposed Cherry Valley reservoir flows not to exceed 25,000 miner’s inches, or 500 cubic feet per second, provided said proposed reservoir be completed and put into use with due diligence; (4) To divert into the Hetch Hetchy aqueduct at Early intake flows not to exceed 25,000 miner’s inches, or 500 cubic feet per second.
These findings were carried into the decree, which also adjudged that plaintiff’s appropriative right is prior to- all other claims of the city. The city asserts that valid notices posted by it or its representatives were sufficient to entitle it, as against plaintiff’s appropriative right, to priority of appropriation to the following extent: (1) 289,862.9 acre-feet annually to be stored in Lake Eleanor; (2) 345,000 acre-feet annually to be stored in Hetch Hetchy reservoir; (3) 62,408 acre-feet annually to be stored in Cherry Valley reservoir; (4) 620 second-feet to be diverted into the city’s aqueduct at Early intake; and (5) 25,000 inches under four-inch pressure to be stored in Poopenaut Valley reservoir.
The earliest notices of appropriation on behalf of the city covering storage in Lake Eleanor and Hetch Hetchy reservoirs were notices 1 (a) and 3 (a), posted by Mayor [484]Phelan on July 29, 1901, for 5,000 inches of Eleanor Creek below the outlet of Lake Eleanor and 10,000 inches of the Tuolumne River at the outlet of Hetch Hetchy Valley. These notices, the trial court found, were superseded by similar notices 1 (c) and 3 (b) respectively, posted by the city through City Engineer Hanson on October 1, 1908, and September 29, 1908.
The latter notices were found to be valid. Also found valid was a further notice, 3 (c), posted by the city on February 18, 1911, for 25,000 inches of the Tuolumne at the outlet of Hetch Hetchy Valley. Upon these three valid notices, the trial court predicated its conclusion that the city was the owner of an appropriative right, prior to and valid against plaintiff’s appropriative right, to store in Lake Eleanor not to exceed 5,000 inches (100 cubic feet per second), and to store in Hetch Hetchy reservoir not to exceed 35,000 inches (700 cubic feet per second).
The city claims that the three notices were sufficient to entitle it to a larger diversion, i. e., to the right to divert and store to the full capacity, as enlarged, of Lake Eleanor reservoir site shown on the amended map approved under the Raker Act, 289,862.9 acre-feet, and to the full capacity, as enlarged, of Hetch Hetchy reservoir, 345,000 acre-feet. The city argues that under the code method of appropriation no provision was made for giving notice of diversion for storage; that if an appropriator of water to be stored had specified in his notice the number of inches in the peak flood to be impounded, he would have had to name an amount of water grossly disproportionate to the size of the described diversion ditch; that hence the logical course, and the course followed by the city, was to specify in the notice the amount, corresponding to the capacity of the described ditch, of regulated flow which would be obtained from capacity storage, and then to state as follows: “ It is proposed to divert such waters by means of a dam, to allow the same to flow in natural channels, and in canals, tunnels, flumes, wooden and iron or steel pipes to the points of intended use, using such dams and other structures for its recovery from natural channels and its proper control as may be required.” In other words, the city contends that under the code method, an appropriation of a specified quantity of water conferred the right to impound and detain not only that quantity but also such addi[485]tional water as might be necessary to enable the appropriator to obtain from storage a regulated flow up to the amount stated in Ms notice of appropriation; that, for example, a notice of appropriation of 5,000 inches conferred the right to divert, impound, and detain several times that amount of water, in order to secure a continuous regulated flow of 5,000 inches out of the reservoir.
This contention should not be sustained. By the express terms of section 1415, supra, the first essential of a notice of appropriation was that the appropriator state therein that he claimed “the water there flowing to the extent of (giving the number) inches, measured under a four-inch pressure.” The statute contained no intimation that compliance with this clear and definite demand was not just as vital to a valid appropriation for storage as to a valid appropriation for direct diversion, and we are cited to no case which holds that a specified appropriation for storage could not be made. To adopt the view urged by the city would be, in effect, to nullify the express demand of the statute and to overlook one of the primary objects of a notice of appropriation under the code method, which was “to set a limit upon the extent of the water-right claimed, and to preserve evidence thereof by having it recorded.” (1 Wiel on Water Rights, 3d ed., sec. 373.) Although the measure of the appropriator’s right was neither the amount of water claimed in his notice of appropriation, nor the amount actually diverted, but was the amount necessarily and reasonably used for beneficial purposes, nevertheless the amount claimed in the notice limited the extent of the appropriator’s right and fixed the maximum amount of water which could be taken where the benefit of the doctrine of relation was sought. (26 Cal. Jur., secs. 287, 288, p. 94 et seq.)
A notice of appropriation under the code method is to be liberally construed (Osgood v. El Dorado Water & Deep Gravel Min. Co., 56 Cal. 571), but nevertheless it must contain the essential data specified in the statute and must conform substantially to its terms. Particularly is this true where the appropriator seeks the benefit of the “doctrine of relation”. As it is only by a compliance with the rules laid down in the code that the “claimant’s right to the use of the water relates back to the time the notice was posted” (section 1418), where there is involved the priority of an [486]uncompleted appropriation as against subsequent parties, the question of procedure becomes important (26 Cal. Jur., p. 66, sec. 251; p. 80, sec. 271). The purpose of the provisions prescribing the code method was to define with precision the conditions upon which an appropriator could have the advantage of the “doctrine of relation”, as against other persons also complying with code requirements. The notice of appropriation, in addition to fixing the date to which the water right related, fixed a limit on the amount of water claimed, and acted as a warning to other persons that there were prior rights in case they wished to use the water pending the accrual of those rights. (Wells v. Mantes, 99 Cal. 583 [34 Pac. 324]; DeNecochea v. Curtis, supra; 26 Cal. Jur. sec. 260, p. 72.)
The opinions in the cases last cited imply that one cannot claim the benefit of the “doctrine of relation” unless the code provisions have been strictly complied with, and this, I believe, is the correct view. (1 Wiel on Water Rights, 3d ed., sec. 375; Taylor v. Abbott, 103 Cal. 421 [37 Pac. 408] ; Duckworth v. Watsonville Water & Light Co., 158 Cal. 206, 211 [110 Pac. 927].) Suppose that several claimants filed notice for given amounts of water to be diverted by means of a dam and each then claimed the right to impound and detain water to an extent sufficient to give a continuous regulated flow from storage up to the amount claimed. If respective claims to that extent were sustained, how could the constitutional requirement to secure the greatest use of the water for all takers be satisfied ‘l It is plain that an appropriator cannot assert an appropriative right through application of the “doctrine of relation” to any water in excess of the amount claimed in his notice, nor can a notice, in the form of those here under consideration, be construed to embrace any greater appropriation than the actual amount of water specified therein; that is, a notice claiming 5,000 inches, to be diverted by means of a dam and other structures, conferred no greater maximum right than to divert or store behind a dam such water as needed for beneficial use, up to the amount of 5,000 inches.
The city refers to three alleged notices of appropriation at Eleanor Creek, 1 (b), 1 (d), and 1(e), in addition to those designated 1 (a) and 1 (c) and already discussed. Notice of appropriation 1 (b) was filed on July 20, 1902, by Wm. [487]Ham Hall for 50,000 miner’s inches. The court found that this notice failed to state the place of intended use of the water to be appropriated. Notice of appropriation 1 (d) was filed on November 17, 1909, by Sierra Ditch and Water Company for 5,000 miner’s inches. The city, so the court found, failed to prove transfer or ownership of this appropriation. With respect to both appropriations 1 (b) and 1 (d), the court further found that there was a lack of due diligence on the part of the owners in prosecuting development work toward completion. The city does not contest these findings. The remaining appropriation, 1 (e), was filed on February 27, 1911, by the city through City Engineer Manson, and it claimed “all the water, natural or stored, here flowing in Eleanor Creek. ...”
The city contends that even without appropriations 1 (b) and 1 (d), appropriation 1 (e), claiming “all the water” of Eleanor Creek, was sufficient to allow the taking of water to the full capacity of the Lake Eleanor reservoir as enlarged, 289,862.9 acre-feet. The trial court, however, found the notice covering appropriation 1 (e) to be invalid as against plaintiff’s appropriation for the reason that it did “not state the amount of water claimed”. The city argues that the words “all the water” sufficiently stated the amount of water claimed to satisfy the requirements of section 1415, supra; ■that it served as a declaration of the intention of the appropriator, and as a warning to subsequent appropriators, and that the maximum amount of water which could be claimed under such a notice was limited only by the maximum capacity of the appropriator’s works—in this instance, the capacity of enlarged Lake Eleanor reservoir, 289,862.9 acre-feet.
In my judgment this contention cannot be upheld. A sufficient notice of appropriation under the code method must conform substantially to the requirements of section 1415, and must contain a definite statement of the amount of water to be appropriated. A notice claiming “all the water” is nothing more or less than a blanket form of declaration for the taking of as much water as the appropriator can put to beneficial use, and it is equivalent to failing to specify any amount at all. If a claim to “all the water” had satisfied section 1415, what appropriator would not have hastened to [488]adopt that general form of notice in order to insure the obtaining of the fullest possible quota of water for his proposed use? The trial court properly found, I believe, that the notice covering appropriation 1 (e) was defective in failing to specify the amount of water claimed, and that therefore that appropriation was invalid as against plaintiff’s appropriation.
Other appropriative claims are those for storage in Cherry Valley reservoir, five in number, 2 (b), 2 (e), 2 (d), 2 (f), and 2 (g). The city contends that without considering three of these appropriations, 2 (b), 2 (f), and 2 (g), which were made by Wm. Ham Ha.ll and Sierra Ditch and Water Company, either of the remaining two, 2 (c), or 2 (d), was sufficient to cover the appropriation of water to the full capacity of Cherry Valley reservoir as approved, 62,408 acre-feet.
The trial court found appropriation 2 (d), based on a notice filed by the city on February 27, 1911, for 25,000 miner’s inches of water, to be valid, and concluded that said notice entitled the city to store in the proposed Cherry Valley reservoir flows not to exceed 25,000 miner’s inches (500 cubic feet per second), provided that the proposed reservoir be completed and put into use with due diligence. Apparently the city’s contention that either appropriation 2 (d), or appropriation 2 (c), should entitle it to take water to the full capacity of the Cherry Valley reservoir, 62,408 acre-feet, is based upon its theory that notice of taking of a specified amount of water for diversion and storage permits the impounding of a sufficient additional flow to provide a regulated flow out of storage of the amount specified. This theory, in my opinion, is untenable.
Appropriation 2 (c) for 50,000 miner’s inches of water was based upon a notice filed for the city by City Engineer Manson on October 24,1909, recorded November 4,1909. The trial court found that the notice was defective in that it failed to state the size of the flume, ditch, pipe, or aqueduct by which the claimant intended to divert the water, and that no copy of it was recorded within ten days after posting, as required by section 1415, supra. The evidence shows that a copy of this notice was recorded eleven days after posting.
[489]The city urges that under a “liberal construction” of the statute, this was a sufficient compliance. But if this is proper, then who can say where such liberality should cease? For example, would “liberal construction” warrant an extension of five or ten days? It is my view that the stated period of “within ten days” must be held to mean within that time and no other time. To hold otherwise would in effect nullify the clear and unambiguous demand of the statute.
However, the city further urges that the recordation should be held good at least as to those who acquired an interest subsequent thereto and were not injured by the delay. This contention is answered by what has been said with respect to the importance of procedure where there is involved the priority of an uncompleted appropriation as against subsequent parties, and with respect to the duty of an appropriator, who seeks the benefit of the “doctrine of relation”, to comply with the rules laid down in the code.
The city also made appropriations on the Tuolumne River at Early intake and it pleaded two, 4 (a) and 4 (c), which it alleged provided for direct diversion at this location. The first, made on October 12, 1909, by Sierra Ditch and Water Company for 12,000 inches, was not shown to have been transferred to the city or to have been prosecuted with due diligence toward completion. The city does not contest the finding to that effect. Appropriation 4 (e), made by the city on February 21, 1911, for 25,000 miner’s inches, was found to be based on a valid notice and was held to entitle the city, as against plaintiff’s appropriative right, to priority of appropriation to divert into the Hetch Hetchy aqueduct at Early intake flows not to exceed 25,000 miner’s inches, or 500 cubic feet per second.
The city plans ultimately to divert to the full capacity of its aqueduct, 31,000 miner’s inches or 620 second-feet, and it contends that even without Sierra Ditch and Water Company appropriation 4 (a) it owns appropriations, prior to plaintiff’s appropriation, more than sufficient to supply the full contemplated diversion. In this connection the city claims priority for two appropriations on the Tuolumne near the mouth of Jawbone Creek, which two appropriations it inadvertently omitted to describe specifically in its amended answer.
[490]The city’s amended answer and amendments thereto alleged: “Defendant now owns forty-seven separate and distinct appropriations on the Tuolumne river and its tributaries in connection with its Hetch Hetchy project. The appropriations of defendant on Eleanor Creek, Cherry River, Tuolumne River at Hetch Hetchy, Tuolumne River at and near Early Intake and Tuolumne River at Poopenaut Reservoir site are as follows (describing briefly eighteen appropriations) . . . ” Upon trial of the cause counsel stated that the city would rely only upon the eighteen appropriations expressly pleaded, but that it wished to introduce in evidence exhibit No. 572, containing a copy of notices of all appropriations, in order to show historical sequence. On this statement exhibit No. 572 was admitted without objection by plaintiff. Notices covering the two omitted appropriations appear at pages 68 et seq., and 103 et seq., of the exhibit. The first notice, dated October 4, 1908, was made by City Engineer Manson for 15,000 miner’s inches of water; the second, dated February 28, 1911, was made by the city for 25,000 inches.
During the course of the trial the city devoted its entire effort to establishing priority of the eighteen appropriations expressly pleaded and relied upon. It made no attempt to put in issue the validity of appropriations based on notices other than the eighteen which have been mentioned. However, when the cause came on for argument before the trial court, the city tried to rectify its inadvertence and urged its rights under the omitted notices. Plaintiff claims that this effort came too late, and I also take that view.
If, under the city’s general allegation of ownership of forty-seven appropriations, the cause had been tried upon the theory that all were relied upon, then it may be that a casual declaration of counsel that he wished to offer exhibit No. 572 for a limited purpose would not have precluded the court, in the absence of any showing of prejudice to plaintiff, from drawing any reasonable deduction from that evidence. (Isenberg v. Sherman, 214 Cal. 722, 732 [7 Pac. (2d) 1006]; 21 Cal. Jur., sec. 181, p. 260; 10 Cal. Jur., sec. 106, p. 817.) But here the trial was had upon the theory that only the priority against plaintiff of the eighteen appropriations specifically pleaded and expressly relied upon was at issue, and all of the evidence was directed solely to that issue. The [491]further issue involving other appropriations, first raised by the city in its argument before the trial court, I believe, came too late for consideration. Plaintiff at that time would have had no opportunity to refute, if it could, the validity of the additional appropriations. The city, apparently, did not ask to amend its pleadings to describe those appropriations, nor did it request a finding upon them. Clearly then, upon appeal it is in no position to urge that this court declare their asserted priority.
Lastly, the court is asked to consider the city’s appropriation (No. 5) on the Tuolumne at Poopenaut reservoir site, notice of which was filed by the city on February 20, 1911, for 25,000 miner’s inches of water. Admittedly the city undertook no construction work subsequent to filing this notice, and it has not yet applied to the Department of Interior for a right of way for reservoir purposes in Poopenaut Valley. The trial court found that the notice was invalid as against plaintiff’s appropriation for the reason that the work necessary to diversion and the use of the water sought to be appropriated had not been prosecuted diligently toward completion by the city.
The city recognizes the necessity for diligence, which is of the essence of priority (Sierra Land & Water Co. v. Cain Irr. Co., 219 Cal. 82 [25 Pac. (2d) 223]; Wiel on Water Eights, 3d ed., sec. 382 et seq.; 26 Cal. Jur., p. 81, sec. 272 et seq.), but it claims that the trial court failed to give it the benefit of the provision added to section 1416 of the Civil Code by the amendment of 1911 (Stats. 1911, p. 1419) making that section read as follows:
“Within sixty days after the notice is posted, the claimant must commence the . . . works . . . and must prosecute the work diligently and uninterruptedly to completion . . . provided, that whenever any city and county . . . has made . . . any appropriation of any of the waters of this state in accordance with the provisions of section 1415 of this code, it shall not be necessary for such city and county . . . to commence the work for development of more of the water so claimed than is actually necessary for the immediate needs of such city and county . . . and it shall be held to be a sufficient compliance with the requirements of this chapter, to the full amount of water stated in the notice posted and recorded, for gq.ch city and county ... to within sixty [492]days make the necessary surveys, or within six months to authorize the issuance of municipal bonds, for the construction of the necessary works designed to supply such city and county . . . with the water required for immediate use. Any appropriation heretofore made by any such city and county ... in connection with which surveys were at any time made, or an issue of bonds authorized for the construction of any portion of the works necessary for a diversion of any part of the water appropriated, is hereby confirmed to the full amount of water stated in the original notice or notices.” The city claims that under this provision it is not necessary for any city and county which had made an appropriation to commence work for the development of more of the water claimed than is actually necessary for its immediate needs; that in developing the Hetch Hetehy project there is no present need for the construction of the Poopenaut Valley reservoir; that therefore the city’s lack of diligence is excusable and will not deny the Poopenaut appropriation priority as of the date of filing notice therefor.
As I read this provision it merely declares that it is not necessary, in the exercise of due diligence, for a city and county to commence development for the full amount of water stated in a notice of appropriation, in order to secure priority as of the date of the notice but that it is sufficient to develop such amount of water as is necessary for the immediate needs of the municipality. Here, however, apparently the city has not undertaken to develop any water at all at the Poopenaut reservoir site, and has not even apr plied for a right of way for the reservoir, although over twenty-five years have elapsed since the posting of its notice of appropriation in 1911. Furthermore, the evidence in this ease shows that the city does not require any of the proposed Poopenaut supply to meet its immediate needs. Moreover, we are not referred to any evidence showing that surveys have been made or bonds authorized for development at this site. Under these circumstances the trial court’s finding of lack of due diligence with respect to prosecution of the Poopenaut appropriation was clearly warranted and to hold otherwise would be to do violence to the plain provisions of amended section 1416. The trial court properly concluded, in my judgment, that this appropriation was not entitled to priority as against plaintiff’s appropriation.
[493]The decree, as modified by the decision of this court, while purporting to protect plaintiff’s riparian right, does not insure the furnishing of water at El Solyo ranch when the stream flow there is insufficient in quantity and quality. It merely enjoins the city, at such times, from diverting at a point some 120 miles upstream. This, in my judgment, does not afford plaintiff the protection to which it is entitled.
The city’s works and point of diversion are situated in the high mountains. The Hetch Hetchy reservoir is over 120 miles by stream channel from plaintiff’s land. Even if there were no natural or artificial influences between the two locations, it would take more than a day before water released by the city could reach plaintiff’s point of diversion. Moreover, there are intervening takers and users who have prior rights.
A provision to prohibit the city from exercising any subordinate right until plaintiff’s water entitlement for reasonable requirements has been satisfied, should be appropriately worded to restrain and enjoin the city from storing and using water in excess of its prescriptive rights, or from diverting any water whatsoever to points without the Tuolumne watershed, until it has first ascertained that there is present in the stream flow at plaintiff’s point of diversion a sufficient supply of water of suitable quality to permit the taking by plaintiff of its full water entitlement at all times. Under such an adjudication the burden would be upon the city to see that the water is in the stream channel at plaintiff’s point of diversion. If this required special releases by the city, it would have to make allowance for the time necessary for the water to reach plaintiff’s land, and also to so time its releases with the operations of the districts and intervening users as to insure the water reaching plaintiff’s point of diversion under a sufficient head for pumping. In other words, the duty rests upon the city to see that plaintiff’s prior rights are satisfied before it proceeds to exercise any of its claimed subordinate rights.
This form of relief would meet the city’s argument that account must be taken of the waters of the San Joaquin, and of the return flow past plaintiff’s property, for if plaintiff were securing a sufficient suitable supply from these sources, then the city’s duty would be met. Indeed, if the evidence in this case and the city’s contentions correctly depict the volume of flow in the San Joaquin and the volume [494]of return flow, the injunctive provision would rest lightly upon the city, because those sources would always make available at plaintiff’s plant a supply of suitable water far in excess of its entitlement. The injunction would also afford plaintiff ample protection in the exercise of its riparian right, and in form would satisfy plaintiff’s claim that it must be protected against the contingency of an increased future use of water for irrigation by upper riparians along the river, which would lessen both the quantity and quality of the flow past its property.
If, however, for any reason the solution here suggested did not prove sound in present or future actual operation, then the parties, and the trial court under its retained jurisdiction, would have the privilege of working out a more acceptable plan. The city’s Hetch ITetchy aqueduct passes over plaintiff’s land. Rather than be subjected, now or in future, to the form of injunction above directed, the city might prefer to supply plaintiff with water from its aqueduct. If this plan were adopted, such a delivery should be entirely at the city’s expense, even to the installation and operation of the necessary works to make the water available for taking by plaintiff at a point from which it is feasible to use it. Recent decisions in cases of this character have adopted and approved the granting of appropriate relief along these lines. Where the parties themselves have not worked out a plan, or are unwilling to agree upon one, the court has power to make and enforce its own suggestion in the premises. (Tulare Irr. Dist. v. Lindsay-Strathmore Irr. Dist., supra; City of Lodi v. East Bay, etc., 7 Cal. (2d) 316 [60 Pac. (2d) 439].) It might also take advantage of the aid afforded by the Water Commission Act. (Wood v. Pendola, 1 Cal. (2d) 435 [35 Pac. (2d) 526]; Peabody v. City of Vallejo, supra; Tulare Irr. Dist. v. Lindsay-Strathmore Irr. Dist., supra, at p. 575.)
Under all of the circumstances shown in this case, in my opinion, the decree should: (1) Declare the extent of the city’s prescriptive rights; (2) Declare the extent of plaintiff’s riparian right; (3) Enjoin any exercise by the city of subordinate rights until plaintiff has first received its full water entitlement; (4) Declare the extent of the city’s rights which are subordinate to plaintiff’s riparian right to water for reasonable needs; (5) Enjoin any storage by the [495]city in excess of its prescriptive rights until a need for such increased storage is shown; enjoin any diversion by the city from the Tuolumne watershed to San Francisco and adjacent territory of water in excess of the amount which the city can put to a reasonable beneficial use; (6) Provide for retention of jurisdiction by the trial court.
A petition for a rehearing was denied on June 3, 1939, at which time the judgment was modified, and the following opinion then rendered thereon:
THE COURT. On petition for rehearing the plaintiff calls attention to an obvious omission in the modification of paragraph IV of the judgment. In that paragraph the trial court, among other things, definitely fixed the extent of the city’s prescriptive right. The city also suggests a correction to the same effect. The purpose of the suggested or any modification of paragraph IV was and is to retain in the judgment the determination of the trial court with reference to the city’s prescriptive right and to eliminate therefrom the restriction against the increased storage by the city within that right. The opinion and judgment of this court is therefore modified by striking therefrom the quoted paragraph following the words “Paragraph IV is modified to read as follows:” (appearing on page 616 of vol. 97, California Decisions) , and substituting in lieu thereof the following:
“That the defendant, the City and County of San Francisco, is the owner by prescription of a right, prior and superior to the plaintiff’s riparian right, to store in its Lake Eleanor Reservoir and Hetch Hetchy Reservoir the waters,, including the excess waters, of the Tuolumne River and its tributaries, up to 234,000 acre feet of water, and no more, at any one time, and up to a total of 235,465 acre feet of water, and no more, in any seasonal year, extending from and including October 1st of any year to and including September 30th of the next succeeding yeár, and to release the water so stored and use it for the generation of hydroelectric power; provided that when there is not flowing at the plaintiff’s land the quantity of water to which it has been found to be entitled, and of a quality substantially unimpaired by any act of the city beyond the exercise of its prescriptive right, the waters so stored and then being used for [496]power purposes shall he returned after such use to the Tuolumne River at a point above the works of the defendant, Turlock Irrigation District, Modesto Irrigation District and Waterford Irrigation District, and above the lands of the plaintiff.”
It is further urged by the plaintiff that the judgment as modified does not accord to the plaintiff adequate protection of its rights, nor direct a physical solution, and that a rehearing should be granted so that the parties might, after further opportunity for consultation and study, arrive at a permanent agreement to be embodied in a possible stipulated judgment. There is nothing in the judgment as modified herein which would prevent the trial court from providing a physical solution in carrying out the purpose and intent of the judgment, or from making further orders in protecting the rights of the parties. The trial court has safeguarded its jurisdiction in that respect by the reservation contained in paragraph IX of the judgment as follows: “That the court hereby reserves jurisdiction and authority, at any time, and upon application of any party affected by this judgment and decree, to make such modifications of, or such additions to, the provisions of this judgment, or to make • such further orders, as may be necessary for the adequate enforcement, protection or preservation of the rights of the respective parties as declared in this judgment. ’ ’ This paragraph of the judgment has been in nowise affected by the decision of this court and is left undisturbed.
A second petition for a rehearing or further modification was denied on June 30, 1939. Edmonds, J., voted for a rehearing.