County of Amador v. State Board of Equalization

FRIEDMAN, J. This consolidated appeal is a companion case to County of Amador v. State Board of Equalization, ante, p. 205 [49 Cal.Rptr. 448]. The present proceeding involves assessments by Amador and Calaveras Counties of East Bay Municipal Utility District’s water rights at Pardee Dam for the tax year 1962-63 rather than 1961-62. Following the 1962 assessments by the two counties, the utility district applied to the State Board of Equalization for review and adjustment. A hearing was held at which the entire record of the 1961 hearing was admitted in evidence. The utility district and the counties introduced additional appraisal reports. The State Board of Equalization rendered decisions, reiterating its position on exemption of the state-[230]granted appropriative water rights and fixing the assessments on the taxable downstream rights at $337,600 for Amador County and $372,800 for Calaveras County. The counties appeal from judgments in mandate proceedings upholding the state board’s action. Except in one respect the issues are precisely the same as in 3 Civil 10985.

In this case the counties contend that the value of the taxable water rights acquired by condemnation from the City of Lodi and Colorado Power Company amounts to 62.3 percent of the total market value of the water rights at Pardee Dam, rather than the 41 percent urged for the preceding tax year. They base this contention on testimony of their valuation witness, Mr. C. O. Henning. Mr. Henning ascribed to the Colorado Power Company—City of Lodi rights an additional value factor based not upon the natural flow of the Mokelumne River but upon a flow regulated by upstream operations of the Pacific Gas and Electric Company.

During the years in which it was defending the condemnation action filed by the utility district (see East Bay Mun. Util. Dist. v. City of Lodi, 120 Cal.App. 740 [8 P.2d 532]), Colorado Power was prosecuting an injunction against Pacific Gas and Electric Company, claiming that upstream hydroelectric operations of that firm were interfering with its plans to make use of the riparian rights attached to its 207 acres. As a result of the injunction action, Colorado Power had judgment awarding it $1,000 in cash, directing P. G. & E. to release and return to the river channel a minimum of 475 cubic feet per second (as permitted by rain and storage conditions) and declaring that Colorado Power “as owner of its said riparian lands, will have the right to use on its said lands, for all lawful riparian uses” the water so released. This judgment was affirmed by the Supreme Court in 1933. (Colorado Power Co. v. Pacific Gas & Elec. Co., 218 Cal. 559 [19 P.2d 598, 24 P.2d 495].)