# City of Los Angeles v. City of San Fernando

> California Supreme Court · May 12, 1975 · 14 Cal. 3d 199

URL: https://www.frixlaw.com/law-library/cases/1170215

## Case

- **Full name:** CITY OF LOS ANGELES, Plaintiff and Appellant, v. CITY OF SAN FERNANDO Et Al., Defendants and Respondents
- **Court:** California Supreme Court
- **Decided:** May 12, 1975
- **Citations:** 14 Cal. 3d 199; 123 Cal. Rptr. 1; 537 P.2d 1251; 1975 Cal. LEXIS 286
- **Precedential status:** Published
- **Opinion:** Opinion by Wright
- **Judges:** Wright
- **Cited by:** 103 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Disapproved on other grounds by City of Barstow v. Mojave Water Agency, 99 Cal. Rptr. 2d 294 (2000).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/1170215

## How later opinions describe it (automated extraction)

- holding that statute prohibiting possession of city property "by any person, firm or corporation" could preclude possession by a government agency
- stating that Lux and Vernon “are the key decisions on the issue”

## Opinion text

Opinion
WRIGHT, C. J.
The City of Los Angeles filed this action on September 30, 1955, (1) to quiet its title and obtain a declaration of its prior rights to the water underlying the Upper Los Angeles River Area (hereafter referred to as “ULARA”), and (2) to enjoin the defendants from extracting such water other than in subordination to the plaintiff’s prior rights. Numerous defendants were eliminated from the case before trial by dismissal, disclaimer, default, or stipulated judgment, and are not
*208
parties to this appeal. The remaining defendants now before us are the Cities of San Fernando, Glendale, and Burbank, the Crescenta Valley County Water District, and several private parties whose water claims are all smaller than those of the defendant cities and water district.
1
After a nonjury trial between plaintiff and these defendants, judgment was entered on March 15, 1968, denying plaintiff’s claims, awarding prescriptive rights to plaintiff and defendants, and imposing continuous restrictions on the parties’ extractions of water commensurate with the available supply. Plaintiff appeals from this judgment and from a judgment entered the same date in favor of the State Water Resources Control Board for its expenses as referee.
The ULARA is the entire watershed of the Los Angeles River and its tributaries above Gauging Station No. F57, which is located just above the junction of the river and the Arroyo Seco, near the intersection of North Figueroa Street and San Fernando Road and the intersection of the Pasadena and Golden State Freeways. The ULARA is bounded by the crests of mountain ranges: the Santa Susana Mountains and San Gabriel Mountains on the north; the San Gabriel Mountains, San Rafael Hills, and Repetto Hills on the east; the Elysian Hills and Santa Monica Mountains on the south; and the Simi Hills on the west. The “valley fill” portion of the ULARA is divided into four subareas, and one of the issues in the case is whether these subareas should be treated as distinct ground water basins or as parts of a single source of the Los Angeles River.
By far the largest of these subareas, comprising 112,047 out of the 123,428 acres in the total valley fill, is the San Fernando subarea, which includes most of the San Fernando Valley plus the Los Angeles River Narrows, located at the southeast comer of the ULARA. The natural course of the Los Angeles River is from west to east along the southern
*209
edge of the San Fernando Valley until it reaches what is now the northeast corner of Griffith Park and turns abruptly south, paralleling the Golden State Freeway through the Narrows down to Gauging Station No. F57.
The other three subareas of the valley fill are designated as Sylmar, Verdugo, and Eagle Rock. Sylmar is the area north of the City of San Fernando. Most of Sylmar is within the City of Los Angeles, but it also includes a small slice of San Fernando. The Verdugo subarea is the southerly half of the narrow valley east of the Verdugo Mountains, extending along Foothill Boulevard from the middle of the Tujunga district southeast through La Crescenta and Montrose. The Eagle Rock subarea is in the Eagle Rock district of Los Angeles. No issue specifically pertaining to the Eagle Rock subarea remains in the case.
The sources of the respective water supplies of the parties within the ULARA are as follows:
Plaintiff delivers water imported through its aqueduct from Owens Valley and Mono Basin to all parts of its territory within the ULARA, and for most of this territory, such imported water is the exclusive supply. The rest of this territory contains three service areas which receive some of their water from additional sources as follows: (1) The Mission Wells service area, located south and west of the City of San Fernando, receives ground water
2
from the Mission Wells in the Sylmar subarea. (2) The Sunland-Tujunga service area, overlapping the San Fernando and Verdugo subareas northeast of the Verdugo Mountains, receives ground water from nearby wells in the San Fernando subarea. (3) The Narrows service area, including the Los Angeles River Narrows and parts of the Eagle Rock and Highland Park districts, receives ground water from the San Fernando subarea and in addition receives imported water which emanates not only from the Owens aqueduct but also from the Metropolitan Water District (MWD). Until recently, all MWD water came from the Colorado River. Since entry of the judgment below, MWD has commenced to distribute water received from Northern California through the State Water Project.
The ground water which plaintiff extracts from the ULARA and does not deliver to the foregoing three service areas is exported from the ULARA. The exported water is taken from wells in the southeastern San
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Fernando Valley and in the Narrows and flows by gravity to other parts of the city having a lower elevation.
San Fernando, at the time of the judgment below, obtained its entire water supply from city wells in the Sylmar subarea. Following extensive damage to its water supply system from the earthquake of February 1971, San Fernando joined the Metropolitan Water District and now supplements its ground water supply with MWD water.
Glendale extracts water from its wells in both the Verdugo and the San Fernando subareas and also purchases water from MWD. Burbank extracts ground water from the San Fernando subarea and purchases MWD water. Crescenta Valley County Water District extracts ground water from the Verdugo subarea and purchases MWD water. All the private defendants extract ground water from various points in the San Fernando subarea except the Wellesley Company and Moordigian, which extract from the Sylmar subarea.
Plaintiff’s Claims To ULARA Ground Water
Plaintiff makes separate claims to (1)
native
ground water, and (2) ground water derived from
imported
water. Native water is derived from rain and snow within the watershed. Imported water reaches the ground supply by two principal means: it may be deliberately “spread” for the purpose of “recharging” the ground supply, or it may return to the ground after use by customers. As of 1955, about 27 percent of the water delivered to customers in the ULARA returned to the ground supply. Of the annual additions to the ground supply, about 42.5 percent was derived from imported water, and the rest was native water.
Claim to Native Water: Pueblo Right
Plaintiff asserts a pueblo right to all the native waters of the Los Angeles River and the native waters supplying it, paramount to all other claims insofar as such waters are needed by plaintiff for ordinary municipal purposes and the use of its inhabitants within the city. This pueblo right, ascribed to Spanish and Mexican law, has been recognized by a long line of cases, commencing as early as
Feliz
v.
City of Los Angeles
(1881) 58 Cal. 73 , and continuing most recently with
City of L. A.
v.
City of Glendale
(1943) 23 Cal.2d 68 [ 142 P.2d 289 ], The pueblo right has been held to attach to the water needs of inhabitants of areas annexed to the city rather than being confined to the needs of inhabitants
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of the original pueblo.
(City of Los Angeles
v.
Pomeroy
(1899) 124 Cal. 597, 649 [ 57 P. 585 ].)
3
The right has been held to attach not only to the waters of the Los Angeles River itself but also to ground waters of the San Fernando Valley supplying the river.
(City of Los Angeles
v.
Hunter
(1909) 156 Cal. 603, 607-608 [ 105 P. 755 ].) Plaintiff now claims that the pueblo right gives it a prior claim to all the native ground waters of the ULARA, including those underlying the Sylmar and Verdugo subareas.
Claim to Return Flow From Imported Water
The first Los Angeles Aqueduct water from the Owens River Valley reached the San Fernando Valley on November 5, 1913. At first this water was piped directly into distribution mains south of the Santa Monica Mountains. In May 1915, plaintiff annexed most of the San Fernando Valley and in the same month began to distribute Owens water for irrigation within the valley. Plaintiff contends that in delivering this imported water in the San Fernando Valley, it intended that the water would return to the ground after use and thereby become available for recapture in its wells in the southeastern part of the valley where it had been extracting water since the turn of the century. Plaintiff further asserts that this intent has continued with respect to water delivered to, and returned from,
urban
customers in the San Fernando Valley. Consistent with this theory, plaintiff contends that the defendants who purchase and distribute imported MWD water in the ULARA have prior rights in such water when it is returned to the ground after use. The amount of such imported water delivered in the ULARA by defendants is very small in comparison to the amount of imported water delivered by plaintiff. Plaintiff also claims the right to recapture imported water which it deliberately spreads to recharge the underground supply. The amount of spread imported water has been greatly reduced in recent years.
Res Judicata
Plaintiff brought a prior action against the Cities of Glendale and Burbank in which it obtained a judgment declaring its prior right to native and imported ground waters in the San Fernando Valley. The
*212
judgment was affirmed with a modification in favor of plaintiff in
City of L.A.
v.
City of Glendale, supra,
23 Cal.2d 68 .
4
We unanimously reaffirmed plaintiff’s pueblo right to “all of the waters of the Los Angeles River and the waters supplying it,” ( 23 Cal.2d at p. 74 ), and we declared that the right is “measured, and therefore circumscribed, by the needs of the city.” ( 23 Cal.2d at p. 75 .) We also upheld plaintiff’s prior right to imported water returned underground after being sold to and used by farmers in the San Fernando Valley, citing “evidence that plaintiff sold water in the San Fernando Valley because the water would have seeped underground in other valleys without reaching a destination where it could be recovered.” ( 23 Cal.2d at p. 76 .) Because there was a conceded surplus of water under the San Fernando Valley, plaintiff at that time had no grounds for an injunction and defendants' could claim no prescriptive rights. (23 Cal.2d at pp. 78-80.) Plaintiff therefore claims that the
Glendale
decision collaterally estops defendants Glendale and Burbank from questioning the plaintiff’s pueblo right to native waters and its right to recapture returned imported waters.
Injunctive Relief
All parties concede that at least as of 1955, when this action was commenced, there was an annual overdraft, and therefore no longer a surplus, in the San Fernando subarea and in the ULARA as a whole. Plaintiff now asserts a need for, and capacity to distribute to its inhabitants, the entire safe yield of the ULARA. Plaintiff claims that defendants’ taking of its ground water causes it irreparable injuiy because imported water is more costly than ground water. Plaintiff further asserts this is not a case about water but about money, i.e., who should pay for the more expensive imported water. If granted an injunction, plaintiff is willing to consider a “physical solution.”
Defendants’ Claims
Plaintiff Has No Pueblo Right
Defendants deny that the prior decisions of this court require recognition of plaintiff’s pueblo water right in the present case.
*213
Defendants Glendale and Burbank deny that recognition of the pueblo right is res judicata as to them under
City of L. A.
v.
City of Glendale, supra, 23
Cal.2d 68, and all defendants deny that recognition of the pueblo right is required on principles of stare decisis. Numerous reasons are given for this position. The principal ones may be grouped under two general contentions: (1) that recognition of a pueblo right is grossly unfair under modern conditions and (2) that the judges and courts who previously declared the existence of a pueblo water right were misled and mistaken as to the true state of Spanish and Mexican law in that regard.
Defendants also contend that even if the pueblo right is recognized under principles of res judicata or stare decisis, the right does not extend to all the native ground waters of the ULARA as claimed by plaintiff. At most, they insist, the pueblo right extends only to waters having a significant effect on the supply to the Los Angeles River and does not allow plaintiff to claim water whose flow to the river is substantially blocked by underground formations or barriers. Thus, San Fernando contends that the pueblo right in no event extends to the waters under the Sylmar subarea; Glendale and Crescenta Valley County Water District contend that the pueblo right in no event extends to waters under the Verdugo subarea; and various private defendants assert that the ground waters claimed by them are sufficiently isolated, geologically and hydrologically, from the Los Angeles River to be immune from the pueblo right.
The Right to Return Flow From Imported Water
Defendants deny that plaintiff has a prior right to ground water derived from water imported by plaintiff and sold by it to customers who returned it after use to the ground.
City of L. A.
v.
City of Glendale, supra, 23
Cal.2d 68, which upheld such a right as against defendants Glendale and Burbank, is distinguished as dealing only with returns from imported water
sold to farmers for irrigation
and not with the present urban conditions of the San Fernando Valley.
Defendants further contend that there is no affirmative showing that the sale of imported water by plaintiff was accompanied by any affirmative intent to reserve the right of subsequent recapture. Defendants contend that in any event it is not practical to determine what part of the total recharge added to the ground supply is derived from water delivered to customers by a particular party.
*214
Mutual Prescription
Defendants claim they have acquired rights by mutual prescription under the principles of
City of Pasadena
v.
City of Alhambra
(1949) 33 Cal.2d 908 [ 207 P.2d 17 ]. They assert that these prescriptive rights supersede all other water rights including those claimed by plaintiff based on a pueblo right and on a right to recapture returns from imported water. Defendants also contend that the present case falls squarely within the precedent of the
Pasadena
case under the following theory: (1) More than five years before the complaint was filed, the total annual extractions of ground water exceeded the “safe yield,” which is, in essence, the maximum amount of water that could be extracted annually, year after year, without eventually depleting the underground basin. (2) When annual extractions exceeded safe yield, there was an “overdraft” signalling the beginning of a prescriptive period. (3) Each party has a prescriptive right to its “highest continuous production of water for beneficial use in any five (5) year period” after the beginning of overdraft and before commencement of the present action “as to which there has been no cessation of use by it during any subsequent continuous five (5) year period.” ( 33 Cal.2d at p. 922 .) (4) The trial court properly awarded each party a pumping right calculated by adjusting the prescriptive rights proportionately so that the total extractions from the basin were limited to its safe yield.
Defendants further contend that in applying the
Pasadena
formula it was proper to calculate separate safe yields for the San Fernando, Sylmar, and Verdugo subareas, and to base the prescriptive rights to water in each subarea on each party’s extractions in that subarea.
Plaintiff’s Reply To Mutual Prescription Claim
Plaintiff contends that its water rights are not subject to prescription, mutual or otherwise, because of the express provisions of Civil Code section 1007. Between 1935 and 1968, this section stated that “no possession by any person, firm, or corporation no matter how long continued of any land,
water, water right,
easement, or other property whatsoever dedicated to or owned by any . . . city . . . shall ever ripen into any title, interest or right against such ... city ....” (Italics added.)
Plaintiff asserts that
Pasadena
did
not
hold that the water rights of cities were subject to mutual prescription or that Civil Code section 1007
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is not an obstacle to such prescription. The sole appellant in
Pasadena
was a public utility to which section 1007 did not then apply.
5
All the other parties in the case, including a number of cities, had
stipulated
to a judgment limiting their rights to extract ground water from the basin in accordance with the formula of mutual prescription as described above. The sole question on appeal was whether the judgment could be imposed on appellant without its consent. Since the cities did not object to being subjected to the judgment imposing mutual prescription, there was no occasion to decide whether they would have been entitled to resist such a judgment under Civil Code section 1007. This view of the
Pasadena
case is reinforced by the fact that section 1007 is not cited in the opinion.
Apart from section 1007, plaintiff contends that the prior judgment in
Glendale (supra,
23 Cal.2d 68 ), declaring plaintiff’s pueblo and imported water rights against defendants Glendale and Burbank, collaterally estopped those defendants from claiming to have taken water adversely to plaintiff at least until such time as they should give express notice of a claim that their extractions of water were not in subordination to those rights. Defendants do not contend that such express notice was ever given before commencement of the present action.
And finally, plaintiff contends that the necessary five-year prescriptive period could not have run prior to the filing of the complaint because the surplus of water did not end and overdraft did not commence until within five years before the complaint was filed. Plaintiff concedes that the
safe yield
was exceeded for more than five years before the complaint was filed in that the annual volume of extractions of ground water, if continued indefinitely into the future, would eventually have depleted the basin. However, plaintiff contends that when the sáfe yield was first exceeded by extractions, there was a
temporary
surplus, and that overdraft did not commence (or any prescriptive period become operative) until that temporary surplus ended. The temporary surplus, it is asserted, was the amount of water whose extraction from the basin would prevent waste in subsequent wet years by providing underground storage space in which rainfall in excess of the annual average could be stored for future use. It is not until this storage space has been provided and temporary surplus ended. that plaintiff considers it proper to measure overdraft by safe yield.
*216
Proceedings In Trial Court
On September 30, 1955, the same day it initiated the present action, plaintiff filed a motion for modification of the judgment and for an injunction in its consolidated actions against the Cities of Glendale and Burbank in which a declaratory judgment in favor of plaintiff had been affirmed by this court in
Glendale, supra,
23 Cal.2d 68 , and in which jurisdiction had been retained to grant such additional relief as might be necessary ( 23 Cal.2d at p. 81 ). Judge Philip H. Richards denied the motion on two grounds: (1) that by seeking to enjoin defendants from taking water on the ground that the available quantity of water no longer exceeded plaintiff’s needs the application for injunction raised issues of the
quantities
of the water supply and of the parties’ respective needs and accordingly was beyond the scope of the jurisdiction retained under the declaratory judgment which dealt only with priorities in a ground basin containing more than enough water to satisfy the parties’ needs, and (2) that since the same issues were being concurrently raised by commencement of the present case, the court in its discretion should in any event deny permission to raise them by reopening the prior actions involving only two of the present defendants (Glendale and Burbank). A subsequent similar application to reopen the prior cases and consolidate them with the present case was denied on similar grounds in May 1964.
In the present action, after the pleadings were filed and the case was at issue, in 1958, Judge Virgil M. Airola referred the case to the State Water Rights Board (succeeded in 1967 by the State Water Resources Control Board, Wat. Code, § 1003.5) for investigation of and report on the physical facts. (Wat. Code, § 2001.) The referee was ordered to report on the geography and geology of the area, the available water resources, and the parties’ respective supplies of and needs for water. The referee’s report, consisting of two volumes plus two supplements, was completed in October 1964. Plaintiff objected to the reference order and has appealed from the judgment in favor of the referee, entered pursuant to Water Code section 2048, apportioning the reference expenses of $493,264 among the parties. By statute, the referee’s report is “prima facie evidence of the physical facts therein found.” (Wat. Code, § 2019.) The accuracy of the referee’s report remains substantially unchallenged but both plaintiff and defendants introduced vast amounts of other evidence on matters within the general scope of the referee’s report.
In September 1964, the case was assigned to Judge Edmund M. Moor. Extensive pretrial proceedings consuming 86 court days before Judge
*217
Airola and 18 days before Judge Moor culminated in a pretrial conference order of August 26, 1965. Trial began March 1, 1966 and continued for 181 court days until June 15, 1967. The trial judge’s memorandum of decision (134 pages plus 174 pages of addenda) relating to the principal issues was filed October 30, 1967. After. further proceedings, comprehensive findings of fact and conclusions of law were filed on March 14, 1968, and the judgment was entered the following day.
Trial Court’s Findings And Judgment
In essence the judgment of the trial court awarded the parties mutually prescriptive rights patterned after the
Pasadena
decision,
supra,
33 Cal.2d 908 , and rejected plaintiff’s claims of a pueblo right in native waters and of a right to reclaim ground water returned from imported Owens water sold to customers.
Pueblo Right
The findings of the trial court stated that “[m]any cases have held" that plaintiff succeeded to the “pueblo water right,” defined as “a prior and paramount right to all the waters of the Los Angeles River so [jzc] far as is reasonably necessary for the needs of the pueblo and its inhabitants.” It was found, however, that the judgment rolls, appeal transcripts, and briefs from these cases which were introduced into evidence at the trial support the defendants’ claim “that the so-called ‘pueblo water right’ had no support in Spanish or Mexican law and that its statement in some of the cases was based solely upon erroneous translations, incomplete and inaccurate citations, and unsupportable conclusions drawn therefrom.” The findings listed 11 civil actions, all reviewed by this court, involving plaintiff’s rights to take waters of the Los Angeles River.
It was found that in the three earliest of these cases we did not rule on the pueblo water right. A lengthy finding on the fourth case
(Vernon Irrigation Co.
v.
City of Los Angeles
(1895) 106 Cal. 237 [ 39 P. 762 ]) described numerous errors and omissions in the record and in plaintiff’s brief in that case. The subsequent seven cases were distinguished as not involving the kind of injunction requested here and four of them (including the actions against Glendale and Burbank, affirmed in
Glendale, supra,
23 Cal.2d 68 ) were found to have enunciated the pueblo water right principle by reason of stare decisis. Another finding referred to all seven of these cases as having “followed Vernon.”
*218
The court also found that the 1943 decision against Glendale and Burbank in
Glendale
is not res judicata in this case because (1) there have been subsequent changes in -factual circumstances and in the law applicable to relative rights in underground water supplies,
6
(2) great public interests are involved and application of res judicata would defeat the ends of justice, and (3) the res judicata objective of preventing vexatious litigation cannot be accomplished by reason of the time and expense already spent in litigating the issues.
The court further found that the doctrine of stare decisis does not require it to recognize plaintiff’s pueblo right against
any
defendant for the following reasons: (1) There is no precedent case on the pueblo right on which the court can completely rely to fix the parties’ rights here; (2) to follow the prior cases would be unsound and unjust and would drastically affect thousands of people; (3) . to follow the prior cases “would be contrary to the principles announced” in
Pasadena;
7
(4) the prior cases were wrongly decided in that: (a) none of them refers to any Spanish or Mexican law that used the words “pueblo water right” or their equivalent; (b) the pueblo water right doctrine was never substantially' tested by an adversary trial court proceeding with expert testimony on Spanish and Mexican, law; (c) the reasons for a pueblo water right stated in
Lux
8
and
Vernon
were “clearly and unequivocally wrong”; (d) the remaining cases followed
Vernon,
and to apply them here “would be unsound and unjust.”
The trial court then found that it was required to examine Spanish and Mexican law pertaining to the pueblo water right because of uncertainties in the prior cases, vast changes in circumstances since they were decided, the inclusion in the present case of parties and areas not
*219
previously involved in similar litigation and the allegation in plaintiff’s complaint that its rights are based on Spanish and Mexican law.
The trial court made extensive findings on the Spanish settlement of California and particularly the Pueblo of Los Angeles, Mission San Fernando, and the ranchos in the ULARA. It was found that the dominant institutions were not the pueblos but the presidios and missions which were planned as the nuclei of future cities, that the purpose of the pueblo was to help supply the agricultural needs of the presidios, and that the Pueblo of Los Angeles was under direct control of the Spanish royal government and never became an independent, self-governing entity during the Spanish period. Findings further described the Spanish-Mexican governmental and legal systems. Numerous additional findings were made to the effect that under Spanish-Mexican law river waters were to be shared and úsed by all persons subject to the king’s authority to apportion water equitably in times of shortage. It was found that the sovereign could grant specific quantities of river waters for irrigation subject to common usage for domestic needs and subject to governmental authority to apportion in time of shortage. It was also found that a pueblo’s rights to take river water for municipal purposes were equivalent to the rights of individuals, that a pueblo could not go outside its boundaries to take water for its inhabitants in the absence of an express grant and that the Pueblo of Los Angeles had no such grant. In addition there were numerous findings negating the existence of various forms of pueblo water rights under Spanish-Mexican law.
It was also found that the Spanish-Mexican law governing well and spring water was different from such law governing river water, that all landowners had a right to take and use water from wells and springs on their lands as long as they did not harm their neighbors with malice or intent to cause harm, that the parties to the present action are extracting only well and spring water (as distinct from river water) from the ULARA, that each of the defendants owns land with wells located thereon as successor in interest to owners who enjoyed these well water rights under Spanish and Mexican law, and that well water rights constitute a limitation on the Pueblo of Los Angeles’ rights to take and use waters of the Los Angeles River.
The court further made findings on the sources of water supply available to plaintiff in addition to ground water extracted from the ULARA. These sources are the water imported from Inyo and Mono
*220
Counties (also called “Owens” water), ground water
from
the West Basin and Central Basin of the Los Angeles Coastal Plain and imported MWD water. The court found that water from these sources is sufficient to satisfy plaintiff’s needs through the year 2020 even if plaintiff were to take no further water from the Los Angeles River or the ULARA.
9
Rights to Return Flow From Imported Water
The court found that each party which imported water and delivered it within the ULARA did so to meet existing water needs and did not do so for the purpose of (1) storing the water underground, (2) conveying it underground to diversion facilities or (3) recapturing any portion of it. It was also found that the return flow from the water imported and delivered by any particular party was commingled with the return flow from other delivered waters and became part of the conglomerate underground water supply of which no part can be traced to any particular source. An additional finding dealt with Owens water spread by plaintiff into spreading grounds in the San Fernando Basin continuously from 1931 to 1944 and sporadically thereafter until 1964-1965. It was found that such waters became part of the conglomerate water supply, that plaintiff had no means of separately extracting it and that there was no proof of an intent by plaintiff to recapture the water which it spread.
10
Award of Mutually Prescriptive Rights
The court found that its determination of mutually prescriptive rights and limitation of extractions of water will result in an equal sharing of burdens and promote the public interest and that a
pro tanto
limitation of water devoted to its present uses would be less disruptive than total elimination of some of the uses. The court expressly found and concluded that its award of mutually prescriptive rights is not barred by
*221
Civil Code section 1007 (relied on by plaintiff as immunizing cities from prescription).
Additionally the court found that the ULARA valley fill is divided into four separate ground basins (corresponding to the subareas previously described) and made separate awards of prescriptive rights in the San Fernando, Sylmar, and Verdugo basins, respectively. The tiny Eagle Rock basin (0.6 percent of the valley fill) was excluded from the judgment, none of its water being claimed by any of the defendants before the court. As factual support for the separateness of the basins, the court found: “The extractions of water in the respective basins affect the other water users within that basin but do not significantly or materially affect the ground water levels in any of the other basins.” Rejecting plaintiff’s contention that the ULARA contains a single basin, the court found: “The mere existence of hydraulic continuity between ground water reservoirs does not cause them to become one basin or one ground water body.”
In the San Fernando basin, the court found that in each of the water years (Oct. 1 - Sept. 30) 1941-1942 through 1964-1965 there was a condition of overdraft in that the annual draft on the ground water of the basin exceeded the safe yield. Implicitly rejecting plaintiff’s theory of a temporary surplus created by the desirability of lowering the ground water level to prevent waste from rising water outflow and other causes in wet years, the court found that plaintiff was capable of preventing rising water outflow waste from San Fernando basin by reasonable methods without the necessity of permanently removing ground water from storage in the basin.
Having found the overdraft in the San Fernando basin beginning in 1941-1942, the court awarded mutually prescriptive rights consisting of the “highest continuous annual production of water for beneficial use in any five (5) year period subsequent to the commencement of overdraft and prior to the filing of the complaint by each of the parties from the San Fernando Basin as to which there has been no cessation of use by it during any subsequent continuous five (5) year period.” The court then reduced these mutually prescriptive rights proportionately insofar as necessary to limit the total extractions from the basin to its safe yield for 1964-1965, and enjoined future extractions in excess of these limited amounts, designated “restricted pumping.” The mutually prescriptive
*222
rights and restricted pumping rights thus adjudicated in the San Fernando basin in acre feet of water were as follows:
In the Sylmar basin, the court found that there was overdraft from 1936-1937 through 1941-1942, 1944-1945 through 1953-1954, and 1959-1960 through 1964-1965, and that in the intervening years there was surplus, i.e., the draft was less than the safe yield. Based on the commencement of this overdraft, the court fixed mutually prescriptive rights in the Sylmar basin, applying the same formula as was used to fix such rights in the San Fernando basin. However, the court found that the Sylmar basin’s safe yield for 1964-1965 exceeded the total of the mutually prescriptive rights, and provided for the “restricted pumping,” to which each party is limited in the judgment, by
increasing
the mutually prescriptive rights proportionately so as to aggregate the 1964-1965 safe yield. The respective rights fixed by the court in Sylmar basin, in acre feet, were as follows:
*223
In the Verdugo basin, the court found that there was overdraft (annual extractions exceeded safe yield) from 1940-1941 through 1949-1950, and surplus (safe yield exceeded extractions) from 1950-1951 through 1964-1965. The court fixed mutually prescriptive rights under the formula applied to the San Fernando and Sylmar basins and, as with Sylmar, allotted restricted pumping rights by increasing the mutually prescriptive rights proportionately to the extent necessaiy to make their total equal to the 1964-1965 safe yield. The rights in the Verdugo basin, in acre feet, were fixed as follows:
A “flexibility” provision of the judgment provided that any party may exceed its restricted pumping right in any basin by up to 10 percent in any year with the excess to be. offset by a reduction the following year. Conversely, any decrease below the restricted pumping right, not exceeding 10 percent, may be made up the following year.
Restriction on Artificial Recharge of Underground Basins
The judgment enjoined the parties from spreading imported water over the ground for the purpose of artificially recharging the underground basins except pursuant to order of court made after notice and hearing. Certain minor spreading incidental to plaintiff’s water system operations was exempted. The injunction was based on a finding that such artificial recharge “affects ground water storage capacity, ground
*224
water in storage, ground water movement (rate and direction), and ground water levels,” and that-its control is necessary to protect the public interest and will equitably apportion the parties’ use of underground reservoirs for regulatory storage and preserve the water therein for emergency conditions.
14
Administration of Judgment
To enforce the judgment the court appointed the California Department of Water Resources, Southern District, as watermaster, and provided for a six-member advisory board appointed by the major parties to advise the watermaster. In addition to collecting information and submitting periodic reports and recommendations to the court, the watermaster was empowered, subject to court review, to adjust the restricted pumping rights of any party “because of emergency requirements or in order that such party may secure its proportionate share of its rights as determined herein.”
The court reserved continuing jurisdiction to redetermine the total amount of available water in the ULARA and to make changes in various details of the judgment but generally precluded changes in the proportionate pumping rights of the parties in the absence of abandonment or forfeiture.
Separate Judgment for Reference Expenses
The State Water Resources Control Board was entitled to reimbursement of expenses (but not to a fee) as referee. (Wat. Code, § 2040.) On August 31, 1967, pursuant to Water Code section 2043, the board (then the State Water Rights Board) filed with the trial court a statement that its total reference expenses were $493,264 and that it had made a formal finding that these expenses should be apportioned 50 percent against plaintiff and the balance against those defendants who appeared in the action without disclaimer in proportion to the average amount of water pumped annually by each such defendant during the five years preced
*225
ing commencement of the action. On this basis, the apportionment was as follows:
Plaintiff and defendants filed objections to the board’s report which were orally argued. (Wat. Code, § 2045.) At the time that the court rendered its judgment on the merits, it rendered a separate judgment in favor of the board determining the total reference expenses to be as stated by the board but ordering a different apportionment. (Wat. Code, § 2048.) Under this judgment Glendale and Burbank were required to contribute to the reference expenses “in the proportion that their respective mutually prescriptive rights bear to the total mutual prescriptive rights” awarded by the judgment on the merits. No other defendants now before this court were required to contribute, but the interim partial payments previously made under Water Code section 2042 by former defendants who had been eliminated from the case were to be retained by the referee and were not to be refunded. The balance of the expense was to be paid by plaintiff. The amounts apportioned under this judgment were as follows:
Plaintiff appeals from this judgment, objecting to the apportionment itself and to the court’s refusal to receive evidence at the hearing on apportionment of the assistance rendered by plaintiff to the referee. The total amount of the referee’s expense is not in issue. The judgment recites that $488,786 out of the total $493,264 has been paid and orders that out of the $97,480 for which judgment is entered against plaintiff, $93,002 shall be refunded to defendants in stated proportions. According
*226
to defendants’ brief, the water board has received the entire amount due it under the judgment.
Provision for Costs in the Principal Judgment
The judgment as originally entered provided that each defendant before the court should recover its costs of suit from plaintiff leaving the amounts blank. (Code Civ. Proc., § 1033.) Two months after the judgment was filed the court entered an “Order re Motion to Plaintiff to Tax Costs,” setting out the costs awarded to each defendant which were thereafter inserted in the original judgment, as follows:
The bulk of the costs awarded to Glendale and Burbank were reference costs (their apportioned shares of the separate judgment in favor of the referee) and reporters’ fees, as will appear from the following breakdown:
The combined effect of the separate judgment in favor of the referee and the award of costs in the judgment on the merits was to impose upon plaintiff $480,836 of the total reference costs of $493,264.
Pueblo Right
Existence of Pueblo Right: Res Judicata Issue
Plaintiff claims that the declaration of its pueblo right in its prior judgment against defendants Glendale and Burbank
(City of L. A.
v.
*227
City of Glendale, supra,
23 Cal.2d 68 ) makes the existence of that right res judicata against those defendants in the present proceeding. The present action is for injunctive relief, not adjudicated in
Glendale ,
and so is based on a different cause of action from that underlying
Glendale. (Langley
v.
Schumacher
(1956) 46 Cal.2d 601 [ 297 P.2d 977 ];
Cason
v.
Glass Bottle Blowers Assn.
(1951) 37 Cal.2d 134, 141 [ 231 P.2d 6 , 21 A.L.R.2d 1387 ].) Under the collateral estoppel aspect of the doctrine of res judicata, any issue necessarily decided in the prior final determination of a cause of action by a court of competent jurisdiction is conclusively established between the parties or their privies in a subsequent lawsuit on a different cause of action.
(Teitelbaum Furs, Inc.
v.
Dominion Ins. Co., Ltd.
(1962) 58 Cal.2d 601, 604 [ 25 Cal.Rptr. 559 , 375 P.2d 439 ];
Bernhard
v.
Bank of America
(1942) 19 Cal.2d 807, 810 [ 122 P.2d 892 ].) We hereafter examine the possible exception to this rule when the prior determination was of an issue of
law
rather than
offact.
Defendants Glendale and Burbank contend that plaintiff waived its claim of res judicata by (1) failing to plead the prior judgment (see Code Civ. Proc., former § 1962, subd. 6), (2) pleading that the pueblo right was based on Spanish and Mexican law and (3) requesting that the trial court take judicial notice of Spanish and Mexican law. Plaintiff replies that its res judicata claim was raised in its demurrer to these defendants’ answer and cross-complaint, which was overruled. In any event, the water rights of the respective parties based upon “the doctrines of res judicata, law of the case and/or stare decisis” were expressly put in issue by the pretrial conference order, which superseded any inconsistent pleading. (Cal Rules of Court, rule 216.)
Defendants Glendale and Burbank contend that the declaration of the pueblo right in the
Glendale
judgment is not res judicata because of changes in the factual circumstances. The two changes relied upon are (1) the urbanization of the valley fill areas and some of the hill areas of the ULARA and (2) the disappearance of surplus in the underground water supply.
In 1940, at the time the trial court’s judgment was rendered in
Glendale ,
the Sylmar subarea and the plaintiff’s portion of the San Fernando subarea were predominantly rural and agricultural. Before the trial of the present action, most of the valley fill areas had become urban and highly developed land. Defendants Glendale and Burbank fail to point out, however, any specific relevance of such changes to the legal effect to be given to the prior judicial declaration of plaintiff’s pueblo
*228
water right. Urbanization was anticipated long before the
Glendale
action. The clearest indication of this is the fact that most of the San Fernando Valley was annexed to Los Angeles in May 1915. The annexation included the Sylmar subarea and most of the San Fernando subarea outside the territories of the three defendant cities. The change from agricultural to urban uses has been more marked in the Los Angeles portion of the ULARA than in the Cities of Glendale and Burbank. No reason appears why this anticipated shift in the use of delivered water from agricultural irrigation to domestic purposes should detract from the weight to be given the prior adjudication of the pueblo right. Since domestic use is declared by law to be a higher use than irrigation (Wat. Code, § 106) the proportionate increase in domestic uses within Los Angeles territory, if relevant at all, may serve to enhance and not to diminish the public importance of the water rights protecting plaintiff’s municipal supply.
Another factual change relied upon by defendants—disappearance of surplus in the underground water supply—affects our determination of such issues as the existence of prescriptive rights and the nature of the relief which should be granted but does not alter the effect to be given
Glendale’s
declaration of the
existence
of plaintiff’s pueblo water right.
Defendants contend that application of res judicata with respect to
Glendale’s
determination of the pueblo right is precluded by an intervening change of law. This contention might have merit if the change of law were relevant to the issue on which res judicata is to operate. (See
Pacific Tel & Tel Co.
v.
City & County of San Francisco
(1961) 197 Cal.App.2d 133, 158 [ 17 Cal.Rptr. 687 ].) However, the only change of law which defendants point to is the decision in
Pasadena (City of Pasadena
v.
City of Alhambra, supra,
33 Cal.2d 908 ). That decision does not determine or even discuss the pueblo right but deals with
prescriptive rights
in the waters of an underground basin. Regardless of any effect that decision might have had on the creation of prescriptive rights to water claimed under a pueblo right, it is clear that it does not affect the issue on which res judicata is asserted here, to wit, the existence of the pueblo right in the first place.
Additional objections by defendants Glendale and Burbank to the application of res judicata may conveniently be considered together. These objections are: (1) that the res judicata objective of preventing vexatious and expensive litigation (see
O’Connor
v.
O’Leary
(1967) 247 Cal.App.2d 646, 650 [ 56 Cal.Rptr. 1 ]) cannot be accomplished here
*229
because the presence of numerous other defendants to whom res judicata does not apply necessitated the relitigation of the pueblo right at the trial; (2) that the res judicata rule should be relaxed where great public interests are involved; (3) that the evidence at the trial supported the findings of the trial court that the pueblo right is without foundation, and therefore to establish its existence by res judicata would defeat the ends of justice; and (4) that to establish the pueblo right as to defendants Glendale and Burbank by means of res judicata and then to hold that there is no pueblo right as against the other defendants would result in inconsistent judgments.
All four of these additional objections must be considered in light of this court’s historic treatment of the existence of plaintiff’s pueblo right as a proposition of law rather than of fact. This treatment is most strikingly illustrated by
City of San Diego
v.
Cuyamaca Water Co.
(1930) 209 Cal. 105 [ 287 P. 475 ], in which this court relied on its earlier decisions upholding the pueblo right of Los Angeles in the waters of the Los Angeles River to hold as a matter of law that the City of San Diego has a similar pueblo right in the waters of the San Diego River.
15
Refusing to consider arguments to the contrary based on Spanish-Mexican history and law, we declared that by virtue of the prior line of cases the existence of a prior right of pueblos and their successors to use the waters of rivers passing through the pueblo territory as far as necessary for ordinary municipal purposes and for the use of their inhabitants was no longer an open question and had “long since become a rule of property in this state, which at this late date in the history and development of those municipalities which became the successors of such pueblos we are not permitted, under the rule of
stare decisis,
to disturb.” (209 Cal. at p, 122.) Similarly, in
Glendale
we did not examine the factual historical basis for the existence of a pueblo right but commenced our discussion of the issue by declaring: “It has long been established that as successor to the-pueblo of Los Angeles, the city of Los Angeles has a right, superior to that of a riparian or an appropriator, to satisfy its needs from the waters of the Los Angeles River. (Citations.)” ( 23 Cal.2d at p. 73 .) (See also
City of Los Angeles
v.
Hunter
(1909) 156 Cal. 603, 608 [ 105 P. 755 ];
City of Los Angeles
v.
Los Angeles Farming & Milling Co.
(1908) 152 Cal. 645, 652 [ 93 P. 869, 1135 ], writ of error dism., 217 U.S. 217 [ 54 L.Ed. 736 , 30 S.Ct. 452 ];
City of Los Angeles
v.
Pomeroy, supra
(1899) 124 Cal. 597, 641 , writ of error dism.
sub nom. Hooker
v.
Los Angeles,
188 U.S. 314 [ 47 L.Ed. 487 , 23 S.Ct. 395 ].)
*230
The res judicata effect of the prior determination between the parties of a question of
law
may differ from the effect of such prior determination of a question of
fact.
This court observed in
Louis
Stores,
Inc.
v.
Department of Alcoholic Beverage Control
(1962) 57 Cal.2d 749, 757 [ 22 Cal.Rptr. 14 , 371 P.2d 758 ], as follows: “An important qualification of the doctrine of collateral estoppel is set forth in section 70 of the Restatement of Judgments, which reads as follows: ‘Where a
question of law
essential to the judgment is actually litigated and determined by a valid and final personal judgment, the determination is not conclusive between the parties in a subsequent action on a different cause of action, except where both causes of action arose out of the same subject matter or transaction;
and in any event it is not conclusive if injustice would result.’
(Italics added.) Comment f to this section explains: ‘The determination of a question of law by a judgment in an action is not conclusive between the parties in a subsequent action on a different cause of action, even though both causes of action arose out of the same subject matter or transaction,
if it would be unjust to one of the parties or to third persons to apply one rule of law in subsequent actions between the same parties and to apply a different rule of law between other persons’
(Italics added.) The conclusion and reasoning of the Restatement find support in
United States
v.
Stone & Downer Co.,
274 U.S. 225, 235-237 [ 47 S.Ct. 616 , 71 L.Ed. 1013 ].” (See also
Cochran
v.
Union Lumber Co.
(1972) 26 Cal.App.3d 423, 427-428 [ 102 Cal.Rptr. 632 ].) The
Louis Stores
opinion also states that the public interest attached to the resolution of a question of law may require that it be determined without restriction from the collateral estoppel effect of prior litigation. ( 57 Cal.2d at p. 758 .)
These principles apply to our consideration in this case of the legal issue of the existence of plaintiff’s claimed pueblo right. If we were to decide that the prior decisions declaring the existence of such a right should no longer be followed with respect to the defendants who were not parties to
Glendale ,
it would be unjust to hold defendants Glendale and Burbank bound to the pueblo right solely because of the doctrine of collateral estoppel. Another reason for disregarding collateral estoppel under such circumstances would be the public interest attaching to the proper determination of the conflicting claims of major public entities to water resources capable of furnishing substantial portions of their respective water needs. Accordingly we must determine whether the pueblo right exists for reasons other than collateral estoppel and res judicata.
*231
Existence of Pueblo Right: Historical Data on Spanish-Mexican Law
•
Irrespective of res judicata, plaintiff urgés us to follow prior decisions of this court upholding the existence of its pueblo water right under the doctrine of stare decisis. Defendants, on the other hand, ask us to overrule these prior decisions by adopting the trial court’s conclusion that the Pueblo of Los Angeles did not have any prior or paramount right to any of the waters of the Los Angeles River under Spanish or Mexican law and that plaintiff therefore acquired no such right as the pueblo’s successor. The trial court based its conclusion upon its extensive findings on (1) the history of the Spanish and Mexican settlement and development of the Pueblo of Los Angeles, the Mission San Fernando, the ranchos of the ULARA, and surrounding areas of Southern California and on (2) the laws, orders and regulations of Spain and Mexico relevant to the pueblo water right question. These findings were based in turn on the trial court’s inferences and conclusions from lengthy expert testimony and voluminous historical documents and other exhibits.
Even if the existence of the pueblo right were a question of first impression in our appellate courts, we would not apply to these findings the standard of appellate review by which findings must be upheld if supported by substantial evidence. Spanish and Mexican laws governing property rights in California before the annexation remained in effect after the change of sovereignty unless duly repealed or altered, and we are required to take judicial notice of such laws as part of the law of this state.
(Ohm
v.
San Francisco
(1891) 92 Cal. 437, 450 [ 28 P. 580 ].) Historical facts concerning the Spanish and Mexican settlement of California are also proper subjects of our judicial notice.
(City of San Diego
v.
Cuyamaca Water Co., supra,
209 Cal. at p. 124 ;
Ocean Industries, Inc.
v.
Superior Court
(1927) 200 Cal. 235, 241 [ 252 P. 722 ].) Thus, in adjudicating California property rights dependent on a question of Spanish or Mexican law never before considered by us, we are called upon to make our own determination independently from the conclusions of the trial court even though we may be greatly aided by expert testimony and historical documents presented to and considered by the trial court and made part of the record on appeal.
(Estate of Chichernea
(1967) 66 Cal.2d 83, 85-87 [ 57 Cal.Rptr. 135 , 424 P.2d 687 ].)
16
*232
A different approach must be taken, however, to an issue such as the existence of plaintiff’s claimed pueblo water right under Spanish and Mexican law which has already been decided by this court in several prior cases. Even assuming that the exhibits and expert testimony in the present record would have persuaded us to decide against the pueblo right as an original question, we should not now so rule if to do so would unjustly impair legitimate interests built up over the years in reliance on our former decisions. (See
United States
v.
Maine
(1975) 420 U.S. 515 [ 43 L.Ed.2d 363 , 95 S.Ct. 1155 ];
Hart
v.
Burnett
(1860) 15 Cal. 530, 597-612 .) Accordingly, we should not undertake the formidable task of reviewing in detail the vast mass of material in the record on the issue of pueblo water rights under Spanish-Mexican law
17
unless we are first assured of a reasonable possibility of finding grounds for denying the pueblo right which would outweigh the countervailing policies of stare decisis. To consider this possibility, we now summarize the major points covered by this material.
The case for the existence of the pueblo right is essentially based on inferences from historical circumstances rather than on any express provision of Spanish or Mexican law. These circumstances relate to the founding of the pueblo and to subsequent events involving conflicts or potential conflicts between the pueblo’s claims and the claims of others to the water of the Los Angeles River. The pueblo was established by order of the royal Spanish government as a permanent settlement to be inhabited principally by farmers who would grow crops on irrigated tracts of farm land as well as raise livestock and would furnish an essential source of agricultural supplies for the presidios. The pueblo was deliberately located to take maximum advantage of the Los Angeles River as a source of water for irrigation and the orders for the pueblo’s founding included detailed provisions for an irrigation dam and canals. These circumstances strongly suggest a governmental policy of assuring the pueblo a supply of water sufficient for its maintenance and growth, at least in the absence of any other town or settlement of comparable importance competing for the same water supply.
Events subsequent to the pueblo’s founding in 1781 indicated continued recognition and protection of the pueblo’s priority to the river water.
*233
Rancho San Rafael, directly north of the pueblo, was granted in 1784 and 1798 but only after the grantee had given express assurances that the pueblo would not be injured. In 1797 the Mission San Fernando was founded, not along the Los Angeles River, but in the northern San Fernando Valley where it could use the water available from the artesian springs of the Sylmar subarea. The mission carried on agricultural operations throughout most of the San Fernando Valley in the course of which it used water from the Los Angeles River for irrigation. Yet the recorded incidents of concern over the possible infringement of these operations upon the pueblo’s water supply show consistent recognition of the pueblo’s priority. In 1810, when the pueblo complained to higher authority about possible injury from the mission’s using the river for irrigation, the mission agreed to desist whenever injury to the pueblo was shown. In 1817 the governor granted permission to the mission to irrigate land along the river
only
after first summoning pueblo officials and ascertaining from them that the proposal would not injure the pueblo. In 1836, after the mission lands were secularized, pueblo officials examined and investigated a dam on the river in the same area and obtained assurances that the administrator of the dam would break it if the pueblo ran short of water. Although most of the secularized mission land was granted to private parties by the Mexican government between 1840 and 1846, the trial court in
Feliz
v.
City of Los Angeles
(1881) 58 Cal. 73, 76 , found that throughout the period of Mexican rule all of the owners of land along the river from its source to the pueblo recognized and acknowledged the pueblo’s prior right.
The historical evidence relied upon by defendants as supporting the trial court’s findings against the pueblo right falls well short of demonstrating that our prior holdings upholding the right were palpably erroneous or unreasonable. Principal reliance is placed upon Laws 5 and 7 of Title 17, Book IV, of the Laws of the Indies.
18
Law 5 states in pertinent part: “We command that the use of all pastures, woods and waters of the provinces of the Indies be common to all the citizens of them, that are now, and afterwards may be so that they can use them freely.” Law 7 states in pertinent part: “The woods, pastures and waters of the settlements . . . must be common to Spaniards and Indians.” Although defendants claim that these provisions for “common” use are inconsistent with a prior pueblo right, they necessarily concede that prior rights to water did exist. Irrigation rights could be granted, and
*234
defendants’ expert, Lie. Oñate, testified that a grant of “irrigable” land adjoining a river conveyed a right to irrigate. Thus, these provisions of the Laws of the Indies were not necessarily inconsistent with an
implied grant
to the Pueblo of Los Angeles of a prior right to use water from the river to the extent necessary to carry out the governmental orders and policies for which the pueblo was founded. Similarly, the provisions of the Laws of the Indies were not necessarily inconsistent with the establishment of a pueblo water right based on
usage,
as exemplified by the repeated instances of acknowledgment of the right by the mission fathers, higher governmental officials and upstream landowners.
Nor is the existence of the pueblo right necessarily precluded by the qualifications which defendants cite as being placed upon grants to use water for irrigation. The subjection of these grants to common use of the water for
domestic purposes
permitted the filling of portable containers directly from the river with water for domestic use but did not necessarily cover the delivery of water through pipes or other conduits. Another qualification to which irrigation grants were subject was the governmental authority to apportion water in the event of drought or shortage, but such authority was a form of police power exercisable to alleviate physical deprivation caused by drought or other emergency and did not necessarily impair the pueblo’s priority for its needs under normal conditions.
A further qualification relied upon by defendants, is the right of landowners to use water from springs or wells on their land. This private right was.concededly subject to the pueblo’s right to take water needed for its inhabitants but defendants assert that the owner was then entitled to compensation from the pueblo. No compensation was required, however, if the pueblo had acquired the use of the water by means of title or prescription. If the ground water supplying the well or spring was part of an underground flow to a river subject to the pueblo right, it can reasonably be concluded that the pueblo could use the water to satisfy its needs free from any obligation of compensation.
Defendants dispute the historical predominance of pueblos over other forms of Spanish settlements such as presidios, missions and ranchos, but it can reasonably be concluded from the evidence that the pueblo was selected as the primary instrument for the permanent settlement and development of Spanish America. A different question is raised by the contention of the three defendant cities that they are entitled to share in the water which plaintiff claims under the pueblo right because multiple
*235
pueblos located along the same river were required by Spanish law to share the river water with each other. Whether, to what extent, and under what circumstances Spanish law (1) gave multiple pueblos equal rights in the river or (2) gave priority to the earliest established pueblo is not clear. Since no pueblo other than Los Angeles was located along the Los Angeles River during the Spanish-Mexican period, any Spanish or Mexican law or usage on the subject could have no practical effect on the rights of the Pueblo of Los Angeles. The defendant cities were never pueblos and did not come into existence until well over half a century after California became part of the United States. Their cfaim to share in the native waters of the Los Angeles River cannot be judged by speculation on what would have been the rights of additional pueblos had they been established along the river, but only by the circumstances which actually preceded and accompanied the defendants’ establishment as California cities, including the development of water law in this state and conduct in reliance thereon.
We conclude from this historical data considered by the trial court that at the very least there is a colorable basis for the existence of the pueblo water right claimed by plaintiff. Regardless of how we might determine the issue if the slate were clean of precedent, we are not convinced by this historical showing that our prior decisions upholding the pueblo right were palpably erroneous or unreasonable and should be ignored or overruled.
Basis of Prior Decisions Upholding Existence of Pueblo Right Under Spanish and Mexican Law
The adequacy of the data and the reasoning on which a prior decision purports to be based are relevant factors in determining whether the decision should be followed under the doctrine of stare decisis. (See, e.g.,
DeBurgh
v.
DeBurgh
(1952) 39 Cal.2d 858, 863-867 [ 250 P.2d 598 ]; 6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, § 698, p. 4615.) In accordance with this principle, defendants contend that we should overrule our prior decisions upholding the existence of the pueblo water right because those rulings were allegedly based directly or indirectly on incomplete and distorted presentations of historical data about the water rights of pueblos under Spanish and Mexican law.
In only two decisions,
Lux
v.
Haggin
(1886)
supra,
69 Cal. 255 . 313-334, and
Vernon Irrigation Co.
v.
City of Los Angeles
(1895)
supra,
106 Cal. 237, 244-251 , has this court examined Spanish-Mexican history
*236
and law pertaining to the existence of the pueblo water right claimed by plaintiff; Prior cases in which the issue was raised were disposed of on other grounds. Two such cases resulted in reported opinions. In
City of Los Angeles
v.
Baldwin
(1879) 53 Cal. 469 , the city’s action to quiet title to Los Angeles River waters against the owners of certain land in Los Feliz Rancho bordering the west bank of the river in the Narrows was held barred by a prior judgment denying the city an injunction against the same defendants’ use of the river. The city had not appealed the prior judgment; hence it was only res judicata, not stare decisis, before this court. In
Feliz
v.
City of Los Angeles
(1881)
supra,
58 Cal. 73 , owners of other tracts also located in Los Feliz Rancho were denied the right to have the city enjoined from cutting off the flow from the river into the owners’ irrigation ditches insofar as the city was taking such action to maintain the volume of river water necessary to supply the city’s needs. As previously stated, the decision was based on the long-standing recognition and acknowledgment of the city’s pueblo water right by the owners, their predecessors, and other upstream riparian owners, in view of which the court found it unnecessary to examine the Spanish and Mexican laws applicable to pueblos.
In cases raising the pueblo water right issue
after
the
Lux
and
Vernon
decisions, this court has treated the existence of the pueblo water right as a rule of law based on the precedent of those two decisions and of decisions relying on them. (See
City of L. A.
v.
City of Glendale, supra,
23 Cal.2d 68, 73 ;
City of San Diego
v.
Cuyamaca Water Co., supra,
209 Cal. 105, 122 ;
City of Los Angeles
v.
Hunter, supra,
156 Cal. 603, 608 ;
City of Los Angeles
v.
Los Angeles Farming & Milling Co., supra,
152 Cal. 645, 652 ;
City of Los Angeles
v.
Pomeroy, supra,
124 Cal. 597, 641 .) Therefore,
Lux
and
Vernon
are the key decisions on the issue.
Lux
v.
Haggin, supra, 69
Cal. 255, is a landmark case establishing for California the doctrine that riparian water rights generally have priority over appropriative rights based on appropriations made after the riparian land became private property. The part of the court’s exhaustive opinion relevant here is that dealing with and rejecting a contention that riparian rights were precluded by Mexican law which dedicated running waters to the common use of all inhabitants. (69 Cal. at pp. 313-334.) Although the opinion does not mention Law 5 or Law 7 of Title 17, Book IV, of the Laws of the Indies, on which defendants rely here as establishing the principle of commonality of water use under Spanish and Mexican law in California, the court does recognize the principle and analyzes its relationship to riparian rights and to the pueblo water
*237
right. Generally, the court views Mexican law as (1) permitting common use of the waters of unnavigable streams while flowing in their natural channels but (2) treating such water as “capable of appropriation as private property, independent of any common use, where the quantity of water is so small as to be incapable of being fully enjoyed without exclusive possession.” ( 69 Cal. at p. 320 .) The court states that Mexican law gave pueblos a property right in the waters of an unnavigable river on which the pueblo was situated
in trust
for the purpose of equitably distributing the water for the benefit of its inhabitants. “The trust is within the supervision and control of
the state.
Thus the legislature has provided for the mode and manner in which shall be exercised the trust of distributing the waters by the
city,
the successor of the pueblo of
Los Angeles.”
19
( 69 Cal. at p. 329 .) Turning to the relationship between pueblo rights and the riparian rights of private landowners, the court quotes a passage from the Spanish legal writer, Escriche, including the following key sentence about rivers: “ ‘If not navigable, the owners of the lands through which they pass may use the waters thereof for the utility of their farms or industry,
without prejudice to the common use or destiny which the pueblos on their course shall have given them
....’” ( 69 Cal. at p. 330 .) The court then states that “it appears” that a pueblo had a prior right to use the waters of a stream passing through it for the benefit of its inhabitants “even as against an upper riparian proprietor.” The court adds, however, that “[i]t is not necessary here to decide that the pueblos had the preference above suggested,” or “to speak of the relative rights of two or more municipalities on the same stream” because no pueblo existed on the watercourse under litigation. (69 Cal. at pp. 331-332.)
Defendants’ principal response to the merits of the
Lux
court’s views favoring the pueblo water right is to attack the credibility of the quotation from Escriche. In this regard, defendants adopt the view of the trial judge’s memorandum of decision which in turn is based on statements of the Texas Court of Civil Appeals in
State
v.
Valmont Plantations
(1961) 346 S.W.2d 853, 867-869 , affd. 163 Tex. 381 [ 355 S.W.2d 502 ]. In
Valmont
the court ruled that owners holding land along the lower Rio Grande River under Spanish and Mexican grants did not have riparian rights to use the river water for irrigation. In so holding, the court rejected the riparian owners’ contention that Escriche’s
*238
statement, quoted above, showed the existence of riparian rights under Spanish or Mexican law.
20
This rejection was based on (1) an asserted absence of Spanish legal authority to support the existence of riparian rights and (2) a theory that Escriche borrowed his ideas from the Code Napoleon of France (a country in which he lived from 1823 to 1833 which was prior to the publication of his treatise in 1847) and that his work imitated the organization of a treatise, published in 1834, of a French legal writer named Duranton. The Texas court’s criticism, however, was directed solely to Escriche’s views on
riparian
rights ( 346 S.W.2d at p. 868, fn. 31 ) and not to the part of his statement indicating that a private landowner’s use of river water must be “without prejudice to the common use or destiny” given to such water by pueblos along the river’s course. It is clear from French legal material submitted by plaintiff and not disputed by defendants that neither Duranton nor the French laws of his time recognized any municipal water right equivalent to or resembling the pueblo right referred to by Escriche. Thus the
Valmont
discussion sheds little light on the soundness of Escriche’s indicated view of the existence of pueblo water rights.
The other case in which this court examined the question of the existence of the pueblo water right under Spanish and Mexican law is
Vernon Irrigation Co.
v.
City of Los Angeles, supra,
106 Cal. 237 . In
Vernon,
an owner of land downstream from the city claimed riparian and appropriative rights in water of the Los Angeles River and sought an injunction and decree quieting title against the city. The city asserted the pueblo water right and was sustained by the trial court. The Supreme Court upheld the pueblo right not only by relying on the above described discussion in
Lux
v.
Haggin, supra, 69
Cal. at pages 326-332, but also by making an independent review of Spanish and Mexican law and of the pueblo’s early history. The court did not point to any specific governmental act or rule of law expressly creating the pueblo right but concluded that the existence of the right was implied by the role which the Spanish and Mexican governments assigned to the pueblo as an instrumentality for settling vacant territory. The needs of the pueblo settlers for wood, pastures, and water were supplied by the pueblo from public or common lands administered for the benefit of the inhabitants. Spanish laws directed that pueblos be located with a view to ample water supply and this was done in the case of Los Angeles. “Since the water
*239
belonged to the nation, and could not be acquired from it by condemnation, it would seem to follow, as a matter of necessity, that, when the pueblo was organized under the [Spanish] laws, a sufficiency of this water for the pueblo was appropriated to it.” ( 106 Cal. at p. 248 .) The court concluded (1) “that pueblos had a right to the water which had been appropriated to the use of the inhabitants, similar to that which it had in the pueblo lands,” (2) “that the right of its successor, the city, to the water, for its inhabitants and for municipal purposes, is superior to the rights of plaintiff as a riparian owner,” and (3) “that such right could be asserted only to the amount needed to supply the wants of the inhabitants.” (106 Cal. at pp. 250, 251.) The opinion states these conclusions were supported (1) by the history of the Pueblo of Los Angeles, including the instructions for its founding in 1781 and the pueblo’s complaint in 1810 of the San Fernando Mission’s diversion of river water at Cahuenga, upstream from the pueblo, followed by the mission’s acknowledgment of the pueblo’s superior right, (2) by the “translations of numerous ordinances, laws, rules, and regulations of Spain and Mexico relating to this subject” ( 106 Cal. at p. 250 ), (3) by
Lux
v.
Haggin, supra,
69 Cal. 255 , and (4) by
Feliz
v.
City of Los Angeles, supra,
58 Cal. 73 .
21
Defendants make a broad attack on the
Vernon
case, based primarily on the present trial court’s lengthy finding 55, which states the following as its basic proposition: “A review of the
Vernon
case reveals many instances of erroneous translations of Spanish documents, incomplete references to source materials and omissions of important sentences. The effect thereof was to create confusion and to present incorrect and distorted statements about the water rights of pueblos under Spanish and Mexican law.” Both this finding and defendants’ brief offer numerous examples to support this proposition, but after comparing them with the present record we conclude that some are inaccurately stated and after correction for such errors, in total, they are not of sufficient seriousness to have misled the
Vernon
court.
22
After reviewing the showing in the present record of the briefs and record before the court in
Vernon,
we are satisfied that the court had before it. the same major contentions and considerations which are now being advanced for and against the historical existence of the pueblo
*240
water right claimed by plaintiff. That court based its conclusion in favor of the existence of such a right on the very same historical circumstances on which plaintiffs rely here, including (1) the primary role played by the river’s availability for irrigation in the Spanish government’s selection of the pueblo’s location and instructions for its establishment and development and (2) the subsequent recognition of the pueblo right manifested by such incidents as the resolution in the pueblo’s favor of the 1810 dispute with the mission over the dam at Cahuenga. The portions of the
Vernon
appeal transcript which defendants introduced into evidence in the present case include summaries of the testimony of four witnesses whose personal familiarity with the use of the Los Angeles River for irrigation dated back to periods beginning between 1837 and 1854. All of them testified that during these periods it was common knowledge that the pueblo or the City of Los Angeles controlled the use of the river for irrigation and that such use by private owners was only with the city’s permission.
Despite defendants’ strenuous contentions to the contrary, the
Vernon
court did have before it the essentials of their objections to the existence of the pueblo right. The court was told of the provisions of Law 5 and Law 7 of Title 17, Book IV of the Laws of the Indies to the effect that the use of water should be in common, of the rights of landowners in water from springs and wells, and of other principles on which defendants rely. It is true that the present record includes extensive testimony by experts on early California history and on Spanish and Mexican law and apparently includes far more voluminous documentation on the pueblo water right issue than was considered by the
Vernon
court. On the other hand, the
Vernon
court was in a position to consider documents that have since disappeared and testimony of witnesses with personal recollection of the Mexican era. We are not convinced that the justices who heard and decided either
Lux
or
Vernon
were misled in any material aspect of their consideration of the existence of the pueblo right or that their conclusions on the issue would have been substantially different if they had had the benefit of the contents of the present record prepared three quarters of a centuiy after those decisions.
Plaintiff’s Reliance on Pueblo Right
The doctrine of stare decisis applies with special force to rules of property on which those engaged in business transactions have relied in
*241
gauging the probable returns on their acquisitions and investments. (See
Abbott
v.
City of Los Angeles
(1958) 50 Cal.2d 438, 456-457 [ 326 P.2d 484 ].) The pueblo water right has been declared to be such a rule of property.
(City of San Diego
v.
Cuyamaca Water Co., supra,
209 Cal. at p. 122 .) In considering defendants’ ardent contention that the pueblo right should be repudiated, we now examine the nature and extent of plaintiff’s reliance on the pueblo right in the development of its water supply and the practical consequences that would attend its abandonment.
The Los Angeles River provided the sole water supply for the Pueblo of Los Angeles and its successor city, plaintiff, from the founding of the pueblo in 1781 through the 19th century and the first decade of the 20th. During the latter part of this period plaintiff entered an era of rapid growth. Its population was 11,183 in 1880, 50,395 in 1890, 102,479 in 1900, and 318,198 in 1910. This growth was accompanied by concern over plaintiff’s future water supply. One response by plaintiff to this concern was to obtain judgments declaring and enforcing its claim to a paramount pueblo right to use the water of the river to the extent of its needs. On the basis of serious water deficits during heat waves in the summers of 1904 and 1905, plaintiff obtained an injunction in
City of Los Angeles
v.
Buffington,
decided with the companion case of
City of Los Angeles
v.
Hunter
(1909)
supra,
156 Cal. 603 , prohibiting numerous landowners in the southeastern San Fernando Valley from extracting or diverting water at any time that plaintiff was consuming the entire flow for its municipal supply. In addition to his injunction, plaintiff obtained judgments declaring the paramountcy of the pueblo water right against owners of land along or near the river bed in the southern San Fernando Valley
23
not only in the reported cases of
City of Los Angeles
v.
Hunter, supra,
156 Cal. 603 ;
City of Los Angeles
v.
Los Angeles Farming & Milling Co.
(1907) 150 Cal. 647 [ 89 P. 615 ];
id.
(1908) 152 Cal. 645 [ 93 P. 869, 1135 ], writ of error dism. 217 U.S. 217 [ 54 L.Ed. 736 , 30 S.Ct
*242
452],
24
but also in three superior court cases set forth in exhibits in the present record.
25
The other response to the increasing water shortage was to obtain new sources of water. Minor additions to plaintiff’s Los Angeles River supply were made after 1910 by the drilling of wells in the southern part of the city and the acquisition of private water systems.
26
In 1907 plaintiff commenced work on its Los Angeles Aqueduct to import large quantities of water from the Owens River in Inyo County over 200 miles away. The first Owens water'reached the San Fernando Valley on November 5, 1913, and was all delivered into plaintiff’s distribution mains south of the Santa Monica Mountains. In May 1915 plaintiff annexed almost all of the San Fernando Valley thus increasing the area of plaintiff’s territory from 115 to 285 square miles. In the same month plaintiff commenced delivery of Owens water to the annexed territory primarily for irrigation purposes. These events had two effects on the quantity of water available from the Los Angeles River and its underground supply in the ULARA: (1) The introduction of Owens water into plaintiff’s distribution system reduced the quantity of ground
*243
water plaintiff was required to draw from the ULARA and (2) much of the Owens water used for irrigation in the San Fernando Valley was returned underground and was mingled with and substantially increased the ULARA’s ground supply.
In the water year 1913-1914, despite the beginning inflow of Owens water, plaintiff drew what was then a record 62,800 acre feet of ground water from the ULARA. This amounted to almost the entire safe yield of the ULARA
27
and probably equalled or exceeded the safe yield of the San Fernando subarea.
28
The following year, 1914-1915, plaintiff’s ULARA extractions dipped to 49,630 acre feet and did not again reach an annual rate above the 1913-1914 figure until 1923-1924. But even this decrease in extractions does not reflect the full reduction effected by the new aqueduct in plaintiff’s dependence on the native underground supply. In 1913-1914, the year of maximum extractions, plaintiff was already using Owens water in substantial amounts,
29
and the volume of imported water increased drastically during the ensuing five years.
30
Although some of the imported water was used for irrigation, it is clear that much of it was needed, and used, for the domestic needs of plaintiff’s growing population,
31
thus offsetting that population’s dependence on the native supply.
The imported Owens water not only replaced water that plaintiff would otherwise have drawn from the ULARA’s native underground supply but it also augmented that supply through returns from imported water used for irrigation, thus proportionately decreasing the part of plaintiff’s extractions constituting a drain on the native supply.
The extent of this augmentation was substantial. About 27 percent of the Owens water delivered to customers in the San Fernando Valley was returned to the underground reservoir.
32
The proportion of the underground supply attributable to imported (as distinct from native) water is a more variable figure depending on such factors as the quantity of imported water used in the ULARA and changes on the land surface affecting the extent to which the native rain and surface runoff can penetrate beneath the ground. Although in 1955, when this action was
*244
commenced, imported water provided over 40 percent of the safe yield of the ULARA, the average contribution of imported water to safe yield from 1928 to 1940 was probably somewhat less than 30 percent.
33
These two responses by plaintiff to its acute water shortage of the 1900’s—obtaining judicial protection of its pueblo water right and importing water from the Owens River—were interrelated. Plaintiff could not properly spend its municipal funds to import water from a great distance simply to replace a cheaper local supply and make the replaced water available for-appropriation by strangers. Yet without the pueblo right that would be the effect of plaintiff’s actions with respect to the Owens water. If plaintiff had refrained from adding Owens water to the ULARA’s underground supply and had continued to draw on that supply for substantially all of its domestic needs, it is probable that very little water would have been available for defendants at least in the San Fernando subarea.
34
Plaintiff could have- put the subarea’s safe yield to beneficial use and could thus have justified its appropriation long before any significant quantities were appropriated by defendants.
35
If prior riparian or overlying rights were asserted, plaintiff might have purchased or condemned such rights for relatively small sums
36
or could have acquired them by prescription
(City of Pasadena
v.
City of
Alhambra,
supra,
33 Cal.2d 908, 926-927 ;
Moore
v.
Cal. Oregon Power Co.
(1943) 22 Cal.2d 725, 735 [ 140 P.2d 798 ];
Hudson
v.
Dailey
(1909) 156 Cal. 617, 629-630 [ 105 P. 748 ]). The importation of Owens water, however, created a surplus of water enabling others to make competing appropriations, , from the underground supply. In importing the water, plaintiff relied on the pueblo right to retain priority in its original native supply once this surplus was exhausted. (See
City of L. A.
v.
City of
Glendale,
supra,
23 Cal.2d 68, 75, 79-80 .)
Another course that plaintiff might have followed in the absence of a pueblo water right would have been to proceed as it did with the
*245
annexation of the San Fernando Valley and the importation of Owens water into the annexed territoiy as well as other parts of the city and concurrently to sponsor legislation to assure preservation of its prior rights in the cheaper local supply when its needs should outgrow the Owens-created surplus. Such legislation would have been in accord with the policies of subsequent California enactments providing such protection to foresighted municipalities which develop water resources for their future needs.
37
(See Hutchins,
Pueblo Water Rights in the West
(1960) 38 Texas L.Rev. 748 , 756.)
Conclusions Concerning Existence of Pueblo Right
In past decisions this court has held (1) that plaintiff and its predecessor pueblo had a paramount right, based on Spanish and Mexican law, to use the waters of the Los Angeles River to the extent of its municipal needs and those of its inhabitants
(Vernon Irrigation Co.
v.
City of Los Angeles, supra,
106 Cal. at pp. 244-251;
Lux
v.
Haggin, supra,
69 Cal. at pp. 313-334) and (2) that the existence of this pueblo water right is a rule of law
(City of L. A.
v.
City of Glendale, supra,
23 Cal.2d at p. 73 ;
City of Los Angeles
v.
Hunter, supra,
156 Cal. at p. 608;
City of Los Angeles
y.
Los Angeles Farming & Milling Co., supra,
152 Cal. at p. 652;
City of Los Angeles
v.
Pomeroy, supra,
124 Cal. at p. 641 ) and a rule of property
(City of San Diego
v.
Cuyamaca Water Co., supra,
209 Cal. at p. 122 ) under the doctrine of stare decisis. Ordinarily these circumstances in relation to a prior holding would lead us to treat it as a closed question, not one open to reconsideration. We reconsider our past rulings in this case only because of the extraordinary quantity and complexity of historical and legal data presented to the trial court on the question, the
*246
trial court’s detailed findings and conclusions to the effect that plaintiff’s adjudicated pueblo water right should now be abandoned, and the fact that the injunctive relief requested by plaintiff on the basis of the pueblo right would have a much more immediate and far reaching effect on the water rights of major public entities than the relief granted in prior pueblo-water right cases. The issue before us is not the existence of the pueblo right as an original question but whether the data relied upon by defendants and the trial court is sufficient to overcome the great weight that must be attached to our prior holdings under the doctrine of stare decisis.
We conclude that our prior holdings should not be disturbed and therefore the existence of plaintiff’s pueblo water right must be upheld and reaffirmed, for the following reasons:
1. The data on Spanish-Mexican law and history described and referred to in the briefs, while not conclusively demonstrating the existence of the pueblo right, does not conclusively demonstrate its nonexistence but on the contrary provides a reasonable basis for a judicial determination that the right did and still does exist.
2. There are no serious discrepancies between the legal and historical data now before us on the issue and the data which the parties have drawn to our attention as having been included in the briefs and records in the prior cases in which this court affirmed the existence of the pueblo right. Nor has there been demonstrated any substantial likelihood that the court’s consideration in those prior cases of all the data now before us in this case would have changed their results.
3. In building the Los Angeles Aqueduct and importing water from the Owens River, plaintiff relied upon the pueblo right for assurance that all of the imported water would constitute an addition to its water resources rather than replacing any of its less expensive pre-existing supply from the native waters of the Los Angeles River. The imported Owens water not only reduced the quantities which plaintiff was required to draw from the underground waters supplying the river but also added to those waters, thus creating a surplus which was drawn upon by other parties including defendants. Plaintiff looked tó the pueblo right to preserve its priority in the underground waters and to entitle it to draw on them for its needs once the surplus was gone.
*247
4. All defendants have been on notice of the existence of plaintiff’s pueblo water right since they, first commenced extracting water from the ULARA.
38
Hence, in contrast to plaintiff’s heavy reliance on the existence of the pueblo right there has been no reliance on any supposition of its nonexistence.
Waters Reached by Pueblo Right
Plaintiff claims that its pueblo water right attaches to all the native surface and subsurface waters of the ULARA which by definition is the watershed of the Los Angeles River above the junction of the river’s surface channel with the Arroyo Seco. Relying on the statement in
City of L. A.
v.
City of Glendale, supra,
“that the pueblo right includes the right to all of the waters of the Los Angeles River and the waters supplying it” ( 23 Cal.2d at p. 74 ), plaintiff contends that by simple physical principle, all of the water in the watershed necessarily flows downward to the river channel and supplies the river.
Certain defendants challenge plaintiff’s claim as an oversimplification. Defendant San Fernando, which extracts all of its ULARA water from the Sylmar subarea, and defendant Crescent Valley County Water District, which extracts all of its ULARA water from the Verdugo subarea, rely on the trial court’s finding that the Sylmar, Verdugo and San Fernando subareas each contain separate underground reservoirs or basins with no significant amount of underground flow between them, and that the waters of the Verdugo and Sylmar basins are not tributary to the subsurface water supply of the Los Angeles River. Although the trial court made this finding as a basis for determining mutually prescriptive ground water rights separately within each basin and not because of its bearing on the issue of the extent of the pueblo right, the finding is relevant to the latter issue.
This court has never held that plaintiff’s pueblo water right extends to the ground (i.e., subsurface) waters of the Sylmar or Verdugo subareas
*248
nor has plaintiff ever claimed those waters under its pueblo right prior to the present action. Our prior inclusions of ground water in plaintiff’s pueblo right have always been of water
beneath
the San Fernando subarea. The opinion in
City of Los Angeles
v.
Hunter, supra,
characterizes “the San Fernando Valley” as “the great natural reservoir and supply of the Los Angeles River” and “as a great lake filled with loose detritus, into which the drainage from the neighboring mountains flows, and the outlet of which is the Los Angeles River.” (156 Cal. at p. 607.) The court had no occasion to determine the outer limits of the “San Fernando Valley” to which it referred because all of the ground water affected by the judgments in the case before it was beneath land in the southeastern part of the San Fernando subarea within three and a half miles of the Los Angeles River. In
City of L. A.
v.
City of Glendale, supra,
the court stated, citing
Hunter :
“Because the flow of the river is dependent on the supply of water in the San Fernando Valley, it has also been held that the pueblo right includes a prior right to all of the waters in the basin.” ( 23 Cal.2d at p. 73 .) However, one of the defendants to which the
Glendale
opinion applied, the City of Burbank, was extracting water only from the San Fernando subarea, and although the other such defendant, the City of Glendale, was producing water from wells in both' the San Fernando subarea and the Verdugo subarea, the judgment expressly provided that nothing in it should bind or conclude that defendant with respect to the operation of its Verdugo wells. This exclusionary provision of the judgment was apparently based on a stipulation between the present plaintiff and those defendants that the operation of Glendale’s Verdugo wells was not in controversy in that case.
39
Proper determination of plaintiff’s pueblo right claims to the ground waters of the Sylmar and Verdugo subareas requires brief consideration of the nature of these waters and the history of their use.
The Sylmar subarea, located to the north of the San Fernando subarea and including 9 percent of the territory of defendant City of San
*249
Femando, originally contained substantial areas of ciénegas, or marshes, watered by artesian springs. These cienega areas supplied the water for the buildings and original settlement lands of the Mission San Fernando which in 1808 completed a dam to capture the Sylmar cienega waters and which in 1811 completed an aqueduct a mile and a half long to carry the water to its buildings and irrigation system. No record has been brought to our attention of any objection on the part of the Pueblo of Los Angeles to the mission’s use of these Sylmar waters. The only reported disputes between the pueblo and mission over water concerned the mission’s use of the surface waters of the Los Angeles River at Cahuenga in the southeastern part of the San Fernando subarea.
All water from wells in the Sylmar subarea is drawn from confined aquifers, that is, bodies of ground water cut off from free hydraulic connection with overlying ground water except at the intake. These aquifers reach 12,000 feet in depth, compared to the maximum of 1,000 feet of depth reached by the water-bearing materials beneath the San Fernando subarea. Between 1928-1929 and 1957-1958 there was an average underflow of 560 acre feet of water per year through the Pacoima and Sylmar notches from the Sylmar subarea to the San Fernando subarea and it is estimated that in the absence of the Pacoima submerged dam constructed at Pacoima notch in 1888, this average underflow would have been 750 acre feet. However, the flow did not emanate from the confined aquifers which supply the wells but from the ground waters which supply those aquifers.
The Verdugo subarea, located east of the Verdugo Hills and not contiguous to any subarea of the ULARA other than the San Fernando subarea, contains a large aquifer capable of furnishing a substantial water supply. From 1928-1929 to 1957-1958 there was no significant underflow of ground water between the Verdugo and San Fernando subareas. This lack of underflow was apparently due to the extraction of water from wells in Verdugo and the confining effect of a submerged dam constructed part way across the moutlf of Verdugo Canyon in 1895 and reconstructed by defendant City of Glendale in 1935.
There is evidence to support the trial court’s finding that the Sylmar, Verdugo, and San Fernando subareas are each separate basins
40
and that the extractions of water in each basin affect the other water users in the same basin but do not significantly or materially affect the ground water
*250
levels in other basins. However, it also appears from the evidence that the lack of underflow between the basins is due in large part to the ongoing extraction of water through wells and that in a state of nature with no extractions, the Verdugo and Sylmar basins would in effect be filled to overflowing, causing water that they would otherwise receive to enter- the San Fernando basin which supplies the Los Angeles River. Plaintiff" contends that because extractions in Sylmar and Verdugo thus diminish the river’s supply, its pueblo right entitles it to have such extractions enjoined, assuming it can demonstrate a need for all the water that would thus become available to it.
We are of the opinion that the pueblo right does not extend that far even if it be assumed that the maintenance of full basins to support the river’s supply would constitute a reasonable beneficial use (see
Rancho Santa Margarita
v.
Vail
(1938) 11 Cal.2d 501, 556-558 [ 81 P.2d 533 ]). Nothing in the history or laws of California’s Spanish-Mexican period has been drawn to our attention which would indicate or intimate that the paramount right of plaintiff’s predecessor to use the waters of the Los Angeles River for its pueblo needs would have entitled it to interfere in any way with the drawing of water from wells in the then remote Sylmar and Verdugo basins. The Spanish authorities authorized and approved the founding of the Mission San Fernando in 1797 at a location 10 miles north of the nearest point on the Los Angeles River and 22 miles north of the pre-existing pueblo, and they further authorized the mission to develop the cienega waters of Sylmar for domestic and agricultural purposes without any expression of concern from any quarter over any consequent interference with the pueblo’s water supply. Later when plaintiff, as the pueblo’s successor, saw that its municipal needs, were rapidly overtaking the available supply from the river, it sought and obtained judicial protection of its paramount pueblo right to the ground water in large tracts of land in the southern and southeastern portions of the San Fernando basin but not to the ground water then being extracted in substantial amounts from the Sylmar basin (see
Burr
v.
Maclav Rancho Water Co.
(1908) 154 Cal. 428 [ 98 P. 260 ]) and the Verdugo basin (see
Verdugo Cañon Water Co.
v.
Verdugo
(1908) 152 Cal. 655 [ 93 P. 1021 ]). Still later, in
City of L. A.
v.
City of Glendale, supra,
23 Cal.2d 68 , plaintiff expressly agreed to exclude the Verdugo basin from the judgment declaring its paramount right to the waters in “the San Fernando Valley,” thus confining the scope of the judgment to the waters of the San Fernando basin.
The historical conditions which led to the creation of the pueblo water right have long since disappeared. This court has upheld, and now-
*251
upholds, the existence of that right principally because of the pueblo successor’s reliance on the right in planning and developing a municipal water supply. Now for the first time we are asked to extend the pueblo right to encompass ground water in basins which are hydrologically independent from the area of the bed of the river to which the pueblo right attaches. This, we decline to do. There is no showing in this case or in our judicial knowledge that plaintiff ever relied on any supposed paramount right to the ground waters of the Sylmar or Verdugo basins or upon any inflow to the Los Angeles River dependent on absence or cessation of the extraction of such ground water, or that any other claimant of a pueblo right in California ever so relied in a similar situation.
41
Plaintiff’s pueblo right in the waters of the Los Angeles River therefore attaches to native ground water within the San Fernando basin and to surface water tributary to such ground water (see fn. 39, supra) but not to ground water in the Sylmar or Verdugo basins.
Defendants Bartholomaus, Forest Lawn and Van De Kamp claim that their respective wells, although located in the San Fernando basin, draw upon ground water that is separated from the Los Angeles River by natural fault barriers and so should be excluded from the pueblo right. But these contentions are contrary to the trial court’s finding that each basin, including San Fernando, “contain[s] a common source of water supply to parties pumping or otherwise taking water [there]from” and that “[t]he extractions of water in the respective basins affect the other water users within that basin.” In any event, as hereinafter discussed, these parties will have an opportunity in connection with the framing of an injunctive decree on remand to be heard on the question of whether and to what extent their extractions affect the water supply to be protected by the decree.
Defendants claim further limitations on the extent of the waters reached by the pueblo right. They assert that the pueblo right does not entitle plaintiff to any restrictions against their using water for domestic, as distinct from agricultural, purposes. This question has already been decided adversely to defendants Glendale and Burbank (see
Citv of L. A.
v.
City of Glendale, supra, 23
Cal.2d at p. 81), and we adhere to that ruling as to all defendants. The contention of defendants Forest Lawn and Valhalla that water used to maintain cemeteries is exempt from the operation of the pueblo right is likewise without merit.
*252
Defendant Lockheed claims that the extraction of water from its well in the San Fernando basin is not subject to the pueblo right because Lockheed purchased the property on which the well is located from the United States government which had acquired it directly from the Mexican government in 1848 under the Treaty of Guadalupe Hidalgo. It is clear, however, that during the Spanish-Mexican period the pueblo right gave the pueblo priority in those waters of the Los Angeles River flowing in land owned by the central government as well as those flowing in private lands. For example, the lands used by the Mission San Fernando were owned first by the Spanish crown and then by the Mexican government and remained in government ownership after the secularization of 1834 until transferred to private ownership by Mexican grants in the 1840’s. The previously discussed disputes between the mission and the pueblo, which provide some of the clearest historical evidence of the existence and recognition of the pueblo right, pertained to the mission’s use of water on land owned by the Mexican government. Since water was not exempt from the operation of the pueblo right merely by virtue of being located on land owned by the Mexican government, there was no such exemption after the ownership passed to the United States government. It is well settled that property rights existing under Mexican rule survived the change of sovereignty.
(United States
v.
Chaves
(1895) 159 U.S. 452 [ 40 L.Ed. 215 , 16 S.Ct. 57 ];
Teschemacher
v.
Thompson
(1861) 18 Cal. 11 .)
42
Consequently, the antecedent ownership of Lockheed’s land by the United States government does not affect the subjection of water underlying that land to the pueblo right.
Determination of Needs Satisfiable by Pueblo Right
The pueblo right gives the city holding it a paramount claim to particular waters only to the extent that they are required for satisfying its municipal needs and those of its inhabitants. “It thus insures a water supply for an expanding city (see
City of Los Angeles
v.
Pomeroy,
supra, [124 Cal.] at 649) with a minimum of waste by leaving the water accessible to others
until such time as the city needs
it.”
(City of L. A.
v.
City of Glendale, supra,
23 Cal.2d at p. 75 .)
43
(Italics added.)
*253
Defendants contend, and the trial court found, that none of the waters of the Los Angeles River and none of the ground waters of the ULARA are required to meet plaintiff’s needs because “plaintiff’s total water supply exceeds its water needs, and it is estimated that until at least the year 2020, the total water supply of the plaintiff will continue to exceed its water needs.” This finding is supported by a graph in evidence depicting plaintiff’s past and projected population, water consumption, and water supply available from local wells, the Owens aqueduct, and the two sources from which water is distributed to plaintiff by the Metropolitan Water District, (1) the Colorado River, and (2) the State Water Project bringing water from Northern California. The graph shows that the water available to plaintiff from all these sources will exceed its consumption in the year 2020 based on a projected population of four million. However, the graph also shows that plaintiff’s consumption has exceeded its local well supply since before 1920 and that such consumption has exceeded the sum of the local well supply and the Owens aqueduct supply since about 1950.
Defendants’ theory is that so long as plaintiff has sufficient water from any source to meet its requirements, it has no “needs” to be satisfied under the pueblo right. They rely on comments which this court made in
*254
City of L. A.
v.
City of Glendale, supra,
23 Cal.2d at pages 78-79, in rejecting an offer of proof that the supply of Owens water from the aqueduct was sufficient to meet plaintiff’s current and future needs. The court stated that the evidence was irrelevant to the quiet title action then before the court which dealt only with “ ‘priority of right, and not the quantity of water to be taken . . . .’ [Citation.]” ( 23 Cal.2d at p. 79 ) but commented that “the offered evidence would have been pertinent to the question whether an injunction should issue against the defendants” and “if received for the purpose intended by the defendants, would have required the court to determine the amount of water necessary, and the amount available, .for the plaintiff’s present and future needs.” ( 23 Cal.2d at p. 78 .) Defendants also rely on the statement in
Cuyamaca Water Co.
v.
Superior Court
(1924) 193 Cal. 584, 588 [ 226 P. 604 , 33 A.L.R. 1316 ], that the amount of water “needed” for the purpose of priority under the pueblo right “is necessarily uncertain and conjectural and dependent upon conditions such as rainfall and other established sources of supply.”
To confine the operation of the pueblo right to situations of physical shortage, as urged by defendants, would deprive the pueblo right of all realistic meaning and would penalize the holder of such a right for developing more remote sources of supply. Water imported from greater distances costs more; thus, MWD water is more expensive for plaintiff than is Owens water, which in turn is more expensive than plaintiff’s native local supply.
44
Defendants’ theory of need would give a city having a pueblo right an incentive to restrain and minimize its importation of water in order to entitle it to take advantage of its priority to less- expensive local water. Such a theory would be contrary to “the policy inherent in the water law of this state to utilize all water available.”
(Allen
v.
California Water & Tel. Co.
(1946) 29 Cal.2d 466, 488 [ 176 P.2d 8 ].)
In
City of Los Angeles
v.
Hunter, supra,
156 Cal. at page 609, this court approved a judgment declaring plaintiff’s pueblo right and enjoining “the defendants from diverting water from the river at any time when the [plaintiff] city was taking the entire surface flow for the purposes for
*255
which the city and its inhabitants required the water.” In other words, water which was in fact
used
for pueblo right purposes was deemed to be
needed
for those purposes. The added fact, not present in Hunter, that plaintiff has a legal right to purchase more expensive water
from
the MWD does not cancel its “need” for the water that it actually uses for municipal purposes and the needs of its inhabitants. (See
City of Pasadena
v.
City of Alhambra, supra,
33 Cal.2d at p. 934 .)
The previously quoted statements from
Glendale
and
Cuyamaca
relied upon by defendants are not inconsistent with these conclusions. A prediction of whether or when a city will “need” the water to which the pueblo right attaches does, as those statements indicate, depend on the existence of alternative sources of supply, but it also must take into account the relative costs of those alternative sources. If the city demonstrates an ability and intention to apply the water to reasonable beneficial uses in satisfaction of its municipal needs and the needs of its inhabitants, it thereby demonstrates the need requisite for priority to the water under the pueblo right.
45
Ground Supplies Attributable to Imported Water
Return Flow Derived From Delivered Imported Water: San Fernando Basin
According to the referee’s unchallenged findings,
46
over 40 percent of the safe yield of ground water from the San Fernando basin
*256
during the water years 1949-1950, 1954-1955, and 1957-1958 was derived from water imported from outside the Los Angeles River watershed.
47
Apart from the relatively small quantities of imported water spread by plaintiff for direct recharge of the basin,
48
this ground water consisted of a return flow attributable to
delivered
imported water reaching the ground as waste, seepage, or spillage, or by similar means in the course of usp.
49
Most of this delivered water had been imported by plaintiff from Owens Valley and Mono basin; the remainder was Colorado River, water purchased by plaintiff and by defendants Glendale and Burbank from the Metropolitan Water District.
50
Ground water is extracted from San Fernando basin by plaintiff, defendants Glendale and Burbank, and seven private defendants.
*257
Plaintiff claims a prior right to the ground water attributable to the return flow from its Owens imports and from the delivered water it purchases from MWD. Plaintiff asserts that defendants Glendale and Burbank are entitled to such return water in the basin derived from their MWD purchases. Those defendants, on the other hand, deny any special rights in return water as such and are joined by the seven private defendant claimants of San Fernando basin ground water in opposing plaintiff’s claim to priority in return waters.
In
City of L. A.
v.
City of Glendale, supra, 23
Cal.2d 68, this court affirmed a judgment which declared that plaintiff had prior rights, as against defendants Glendale and Burbank, to “return waters” beneath the San Fernando Valley. These return waters were described as those which were imported by plaintiff and “sold to the farmers of the San Fernando Valley, and which settle after use beneath the surface and join the mass of water below, as anticipated when sold.” ( 23 Cal.2d at p. 72 .) It was held that plaintiff had a prior right to the water when it was imported ( 23 Cal.2d at p. 76 ) and that “[t]he use by others of this water as it flowed to the subterranean basin does not cut off plaintiff’s rights.” ( 23 Cal.2d at p. 77 .)
This holding had a dual basis. One basis for the holding was the trial court’s finding that before commencing the importation of Owens water, plaintiff had formed an intention to recapture the return waters used for irrigation in the San Fernando Valley whenever such return waters were needed for its municipal purposes and the use of its inhabitants, and that the Los Angeles Aqueduct had been planned and located to facilitate the availability and recapture of such return waters. Under these circumstances, plaintiff retained its prior right to the return waters wherever they might appear.
(Id., 23
Cal.2d at p. 78 ;
Ide
v.
United States
(1924) 263 U.S. 497, 506-507 [ 68 L.Ed. 407, 412-413 , 44 S.Ct. 182 ];
United States
v.
Haga
(D.Idaho 1921) 276 F. 41 .)
The other basis for the
Glendale
holding, found in the reasoning of
Stevens
v.
Oakdale Irr. Dist.
(1939) 13 Cal.2d 343 [ 90 P.2d 58 ], did not depend on the existence of an intent to recapture return waters
before
importation began. In
Stevens ,
water brought from the Stanislaus River into the defendant district’s irrigation system reached Lone Tree Creek as seepage, waste and spill from irrigation uses. Lone Tree Creek was in a different watershed from the Stanislaus. After an owner of land traversed by Lone Tree Creek downstream from the district’s territory had commenced irrigating with the water, the district for the first time
*258
manifested an intention to recapture the water from the creek within its own boundaries for irrigation uses, thereby cutting off the lower user’s supply. The district’s right to do so was upheld. Even though the district had abandoned the particular quantities of water it had allowed to flow downstream, it retained the right to recapture a subsequent flow as long as it did so within its own irrigation works or on its own land. Applying
Stevens ,
the
Glendale
court pointed out that the return waters claimed by plaintiff had “reappeared in the basin of the San Fernando Valley, used by plaintiff for the storage of other imported waters [through spreading] and containing natural waters to which plaintiff had a prior [pueblo] right. Once Within the basin, en route to plaintiff’s diversion works, it was in effect within plaintiff’s reservoir.” (23 Cal.2d at pp. 77-78.)
The adjudication in
Glendale
of plaintiff’s prior right to return waters derived from delivered Owens water is binding in the present case on defendants Glendale and Burbank.
(Teitelbaum Furs, Inc.
v.
Dominion Ins. Co., Ltd., supra,
58 Cal.2d 601, 604 ; Rest., Judgments, § 77.) However, the
Glendale
judgment specifies only the return flow from water delivered to farmers for irrigation. The trial court found in the present case that since the entiy of the former judgment “the culture of the area within the San Fernando Basin . . . has been transformed from essentially rural and agricultural to a highly developed urban society____” Much of the land formerly devoted to irrigated crops has been covered by residential and commercial development. Defendants contend that these changed conditions preclude the giving of any res judicata effect to
Glendale
in determining plaintiff’s present claim to return waters.
There is no showing that the fact of urbanization has effected any material change since the
Glendale
judgment in the distribution and flow of those return waters which continue to be derived from Owens water sold by plaintiff in the San Fernando basin for
irrigation.
As to these waters, defendants Glendale and Burbank remain barred by collateral estoppel from denying plaintiff’s prior right as adjudged in
Glendale .
Plaintiff’s claim, however, encompasses returns derived from imported water sold for purposes other than irrigation. The referee’s report shows that
some
portion of the water delivered in the basin for practically
any
type of purpose reaches the ground supply. Even commercial and industrial users may contribute' to this supply by applying water to landscaped areas or disposing of waste water in unlined sumps or channels or in cesspools. The computations in the referee’s report and in various exhibits of the basin’s safe yield “derived from average import” comprehends ground water returned from a variety of urban as well as
*259
agricultural uses. Just as a change in an appropriator’s place or character of use of the appropriated water does not affect his right to take it
(City of San Bernardino
v.
City of Riverside
(1921) 186 Cal. 7, 28 [ 198 P. 784 ]; Hutchins, Cal. Law of Water Rights (1956) pp. 175, 178), an alteration in the type of use from which imported water is returned to the ground does not impair the importer’s claim to it as return water.
The trial court made findings that no party delivered imported waters to others with the intent or purpose of later recapturing it or of storing it underground or transporting it underground to diversion facilities. There was no direct evidence that such intent did not exist. Plaintiff introduced evidence that the planners of the Los Angeles Aqueduct took into account the predictions of engineers that water delivered for irrigation in the San Fernando Valley would augment the available underground supply.
51
Plaintiff contends that this evidence establishes as a matter of law that prior to construction of the aqueduct to import water from the Owens Valley plaintiff intended that some of the imported water would be delivered to users in the San Fernando Valley and that the return waters from such use would flow underground and be available for recapture by plaintiff. Plaintiff also contends that this intent was established by other evidence which was offered but excluded by the trial court, and that such exclusion itself was prejudicial error.
52
It is unnecessary for us to rule on any of these contentions because the parties’ respective rights to the return flow derived from delivered imported water in this case do not depend on plaintiff’s intent prior to importation. From the beginning of plaintiff’s delivery of imported water to users in the San Fernando basin up to the present time, a return flow from such deliveries has augmented the basin’s ground supply. From an even earlier time up to the present, plaintiff has relied and regularly drawn upon that same basin supply for its municipal water distribution system and has claimed the native waters of the basin under its pueblo right.
53
All these deliveries of imported water have been inside plaintiff’s city limits and all plaintiff’s extractions and diversions from the basin have occurred either within the city or in areas long since annexed to the city. Since the deliveries and withdrawals were thus “within plaintiff’s reservoir”
(City of L. A.
v.
City of Glendale, supra,
23 Cal.2d at p. 78 ), the allegation of an intent to recapture the return waters
*260
in the present complaint, filed in 1955, was sufficient for purposes of the present case to establish whatever rights would have arisen from plaintiff’s manifestation of such an intent before commencing importation in 1915.
(Stevens
v.
Oakdale Irr. Dist., supra,
13 Cal.2d 343 .)
Defendants argue that any intent to recapture return waters is irrelevant because, as found by the trial court, delivered water leaves the deliveror’s possession, an'd it is then impossible to ascertain whether it is consumed, leaves the basin or percolates into the basin’s underground supply. Nevertheless, the referee found that a return flow from water deliveries was sufficiently predictable to base its determinations of safe yield on assumptions that certain amounts of return flow would be produced by water deliveries to residential, commercial and industrial, as well as agricultural, users, in service areas having particular natural and cultural characteristics. The fact that the water drawn from a tap into a portable receptacle becomes the customer’s disposable personal property
(Stanislaus Water Co.
v.
Bachman
(1908) 152 Cal. 716, 725 [ 93 P. 858 ]) does not impair plaintiff’s right to recapture the return flow which is in fact produced by deliveries of its imported water.
(City of L.A.
v.
City of Glendale, supra,
23 Cal.2d at p. 78 .)
Defendants further contend that the right of recapture is precluded by the impossibility of tracing particular quantities of ground water to deliveries by a particular party. The trial court found: “The waters which percolate underground from . . . rainfall and delivered water become commingled and are physically unidentifiable as to source of origin.” The recapture right, however, does not necessarily attach to the corpus of water physically traceable to particular deliveries but is a right to take from the commingled supply an amount equivalent to the augmentation contributed by the return flow from those deliveries. The right to withdraw amounts of appropriated water contributed to the channel of a stream is provided by Water Code section 7075 (formerly Civ. Code, § 1413) which states: “Water which has been appropriated may be turned into the channel of another stream, mingled with its water, and then reclaimed; but in reclaiming it the water already appropriated by another shall not be diminished.” (See
Crane
v.
Stevinson
(1936) 5 Cal.2d 387, 395-396 [ 54 P.2d 1100 ].) The rule codified by this statute applies as well to the addition and withdrawal of water in an underground basin.
(City of L. A.
v.
City of Glendale, supra,
23 Cal.2d at pp. 76-77.)
Defendants Glendale and Burbank each delivers imported MWD water to users within its territoiy in the San Fernando basin and each has
*261
been extracting ground water in the same territory before and during the importation. Accordingly, each has rights to recapture water attributable to the return flow from such deliveries for the same reasons that plaintiff" has such a right.
54
These multiple rights necessitate apportionment of the ground water derived from return flow into the amounts attributable to the import deliveries of each defendant and plaintiff". The record in this case, including the referee’s report, demonstra

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1170215. Public record. Not legal advice.