# California Trout, Inc. v. State Water Resources Control Board

> California Court of Appeal · March 21, 1979 · 90 Cal. App. 3d 816

URL: https://www.frixlaw.com/law-library/cases/9722068

## Case

- **Full name:** CALIFORNIA TROUT, INC., Plaintiff and Appellant, v. STATE WATER RESOURCES CONTROL BOARD Et Al., Defendants and Appellants
- **Court:** California Court of Appeal
- **Decided:** March 21, 1979
- **Citations:** 90 Cal. App. 3d 816; 153 Cal. Rptr. 672; 1979 Cal. App. LEXIS 1529
- **Precedential status:** Published
- **Opinion:** Dissent by Reynoso
- **Judges:** Regan, Reynoso
- **Cited by:** 12 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9722068

## Opinion text

REYNOSO, J.
I dissent. “Appropriation of water” in California is simply a way of designating who is entitled to what portion of water. Respondent asserts and appellants agree that an appropriative right can be perfected without diversion of the water. But appellants mistakenly maintain that some physical control must be exercised over the water: the true test of an appropriative right is the successful application of the water to a beneficial use. In those cases where beneficial use required a *823 diversion of the water, such as in mining, the law also required a diversion. (Irwin v. Phillips (1855) 5 Cal. 140 .) But where the beneficial use involved a deriving power from the flow of the stream, decisional law allowed a water wheel to be placed in the stream to attain such an end. (McDonald & Blackburn v. Bear River and Auburn Water and Mining Company (1859) 13 Cal. 220 ; Tartar v. The Spring Creek Water and Mining Co. (1855) 5 Cal. 395 .) Similarly, the law sanctions a reservoir as a means of achieving an appropriator’s beneficial recreational use (Meridian, Ltd. v. San Francisco (1939) 13 Cal.2d 424 [ 90 P.2d 537 ]) and views cattle access to drinking from a stream as a way to achieve the beneficial use of stock watering. (Hunter v. (9th Cir. 1967) 388 F.2d 148 .) Clearly, the law views beneficial use as the sine qua non of an appropriative right: the water can be used by diverting it from the main channel or by allowing it to flow in the stream, whichever is appropriate. As elements of an appropriative right, diversion, possession, or physical control are then significant only insofar as they demonstrate that the water is to be put to beneficial use.
Nonetheless, the majority attempts to fashion a common law rule requiring that an appropriative right be evidenced by diversion, possession, or physical control. In doing so, it cites cases which hold only that diversion, possession, or physical control was a means of demonstrating prior rights to would be appropriators. (See Irwin v. Phillips, supra, 5 Cal. 140; Tartar v. The Spring Creek Water and Mining Co., supra, 5 Cal. 395 .) But what may have served to notify the pioneers as to who was already using the water has become obsolete in modern times. In an increasingly complex society, the State Water Resources Board (Board) has been created to allocate water use through the workings of a governmental machinery and not on the basis of priority claims as staked on the land. 1
In effectuating water law in this case, the Board looks to the Water Code. Contrary to the majority’s interpretation, I conclude that Water Code section 1260 requires that an application for a permit to appropriate set forth information regarding diversion and construction only if such diversion or construction is contemplated by the applicant. That is, if the intended beneficial use requires diversion or construction for its realiza *824 tion, the application should contain such relevant information; otherwise, that information is simply inappropriate. 2 The decisional law, as we have noted above, is consistent with the code.
In addition, the California Constitution anchors the state’s water policy on beneficial use: “It is hereby declared that . . . the general welfare requires that the water resources of the State be put to beneficial use to the fullest extent of which they are capable. . . .” (Cal. Const., art. X, § 2.) The Water Code underscores this policy: “The board shall allow the appropriation for beneficial purposes of unappropriated water under such terms and conditions as in its judgment will best develop, conserve, and utilize in the public interest the water sought to be appropriated.” (Wat. Code, § 1253), and “The use of water for recreation and preservation and enhancement of fish and wildlife resources is a beneficial use of water.” (Wat. Code, § 1243.) Moreover, there is nothing in the code that prohibits appropriation for in-stream use. Because respondent seeks to appropriate water for a beneficial in-stream use—the preservation and enhancement of fishery resources in the state—diversion, possession, or physical control are unnecessary elements of its application for a permit to appropriate.
The question remains as to what type of in-stream use the appropriation may serve. Respondent seeks to appropriate water which it will not use exclusively. In fact, it stipulates that its use will be coexistensive with the public use. I believe that respondent, as a private party, may appropriate water for the public use. That is, respondent may assert the public trust contained within the fish and wildlife resources of the states. (See Marks v. Whitney (1971) 6 Cal.3d 251 [ 98 Cal.Rptr. 790 , 491 P.2d 374 ]; City of Long Beach v. Mansell (1970) 3 Cal.3d 462 [ 91 Cal.Rptr. 23 , 476 P.2d 423 ]; Bohn v. Albertson (1951) 107 Cal.App.2d 738 [ 238 P.2d 128 ].) There is nothing in the Water Code to suggest that a private appropriator must benefit to the exclusion of the general public. Indeed, that an appropriation benefit only the appropriator is inimical to the very concept of beneficial use. Both the California Constitution and the Water Code demand that a proposed use benefit the society as well as the private appropriator. Thus, the Constitution states: “[T]he general welfare requires that . . . the conservation of such waters is to be *825 exercised with a view to the reasonable and beneficial use thereof in the interest of the people and for the public welfare. ...” (Cal. Const., art. X, § 2; italics added.) The Water Code contains virtually the same language: “It is hereby declared that because of the conditions prevailing in this State the general welfare requires that the water resources of the State be put to beneficial use to the fullest extent of which they are capable, and that . . . conservation of such water is to be exercised with a view to the reasonable and beneficial use thereof in the interest of the people and for the public welfare. ” (Wat. Code, § 100.) Section 1253 directs that the board makes its appropriation decisions in pursuit of the beneficial public use. Respondent, then, may legitimately appropriate water for public use.
Accordingly, I would affirm the trial court’s judgment that neither diversion, possession, or physical control is an essential element of a valid appropriation right, and that the board should accept respondent’s application for a permit to appropriate water for public, in-stream use. As pointed out by the Department of Water Resources in its amicus brief, the public cannot be left in a position of nay saying eveiy private application for appropriation. Since it is up to appellant to make tough decisons as to the appropriate use of the water the appellant Board should not deny itself the authority to make a decision as to whether or not the water is best used for purposes sought by the respondent. The appellant Board may not agree with the respondent’s application; it may agree and later change its mind; or it may agree. What it should not be permitted to do is to decide the issue without deciding.
My conclusion would necessarily lead to the consideration of attorney’s fees. (See Code Civ. Proc., § 1021.5.) I would remand to the trial court for a determination as to the appropriateness of attorney’s fees.
A petition for a rehearing was denied April 17, 1979, and the opinion was modified to read as printed above. The petition of the plaintiff and appellant for a hearing by the Supreme Court was denied July 12, 1979. Tobriner, J., and Mosk, J., were of the opinion that the petition should be granted.
The majority confuses the concept of possession as it applies to an appropriative right. As appellants concede, an appropriative right is a usufructuary right and therefore an incorporeal hereditament. (Weil, Water Rights in the Western States (3d ed. 1911); Kinney. Kinney on Irrigation and Water Rights (2d ed. 1912). An appropriation, as an intangible, cannot be physically possessed, as the majority believes it must, before it can become an appropriation right.
Water Code section 1260 provides in pertinent part: “Every application for a permit to appropriate water shall set forth all of the following: ...(d) The location and description of the proposed headworks. ditch, canal, and other works, (e) The proposed place of diversion, (f) The place where it is intended to use the water.” (Italics added.) The application is not required to propose a diversion. Manifestly, the application need not contain such a proposal if it is inappropriate for the intended use.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9722068. Public record. Not legal advice.