Opinion
REGAN, J.
Defendants (board) appeal from the trial court’s judgment, entered upon stipulated facts, ordering the board to consider, on its merits, plaintiff’s application to appropriate water from Redwood Creek in Marin County. The board had acted adversely on plaintiff’s application to appropriate water (from Jan. 1 to Dec. 31 of each year) flowing in Redwood Creek without taking possession of the water or diverting it, but rather by putting it to beneficial use inside the stream itself by allowing it to flow naturally and freely in the stream for “preservation and enhancement of fish and wildlife.”1 The adverse action consisted of a refusal by the board to consider the application as it showed on its face there was to be no diversion of water from the stream or any physical control of the water. The trial court, acting on plaintiff’s complaint for declaratory relief, declared in its formal judgment that “water may be appropriated within the meaning of the Water Code and California case law without the exercise of physical control of the water.” Moreover, the court declared the board must accept and determine plaintiff’s application for appropriation since plaintiff had “standing” to make such an application for the “public use of protecting fish and wildlife, . . .” The quoted language from the judgment frames the principal issues raised on appeal. Applicant described Redwood Creek as a navigable river and sought to appropriate three cubic feet per second as the “minimum flow needed to maintain suitable fisheries habitat so that juvenile anadromous fish can survive and migrate to sea.”
On appeal, the board contends that water may not be appropriated within the meaning of the Water Code without the exercise of [819]*819some form of physical control or possession of the water such as a diversion from the stream channel or regulation of the water within the channel. This was its specific reason for rejecting the application. The board also contends it need not, and actually cannot, accept an application by a “private party” such as plaintiff where such application seeks to appropriate water for the exclusive “public use” of protecting fish and wildlife.
The entire history of the origin and development of the doctrine of appropriation of water in California, existing alongside the ancient common law concept of riparian rights, demonstrates that appropriation of water in the legal sense involves possession of the water, evidenced by some form of diversion or physical control over it. The courts from the very birth of the legal concept of appropriation of water have uniformly evidenced the basic common element of possession. Sometimes it is referred to as a “taking” of water, “diversion,” or a “physical control.” (See, e.g., Tartar v. The Spring Creek Water and Mining Co. (1855) 5 Cal. 395—use of a water wheel to power a mill; Simons v. Inyo Cerro Gordo Co. (1920) 48 Cal.App. 524 [192 P. 144]—diversion of water from springs for domestic and milling purposes; Meridian, Ltd. v. San Francisco (1939) 13 Cal.2d 424 [90 P.2d 537]—impounding water in a reservoir.)
Concomitant with the possession concept in the law of appropriation is the relationship between appropriation and legal right of access to a stream with incidental right to use water. Under such circumstances, an appropriative right may arise, as distinct from riparian rights. Such cases are illustrated by situations in which, for example, an owner of livestock with legal right of access to a stream may gain an appropriative right to use water from the stream for his cattle to drink. (See Hunter v. United States (9th Cir. 1967) 388 F.2d 148.)
Although the concept or doctrine of appropriative rights to water was first recognized by the courts (e.g., Irwin v. Phillips (1855) 5 Cal. 140) it was soon formalized in California into a statutory pattern. Thus, in 1872, statutory procedures for obtaining appropriative water rights were enacted. These were first contained in Civil Code sections 1410 to 1422, parts of which remain in title 8 of part 4 of division 2 (commencing with § 1410a) of the Civil Code and parts of which are now contained in part 2 of division 2 (commencing with § 1200) of the Water Code. The statutory provisions contained in the Water Code, which was enacted as a code in [820]*8201943, now furnish the exclusive method of appropriating water (Wat. Code, §§ 2, 1201, 1225.)
The statutory pattern makes it plain that possession of some sort must be taken of the water. The most pertinent statute is section 1260 of the Water Code which is a descendant and refinement of the original section 16 of the Water Commission Act of 1913. (Stats. 1913, ch. 586, p. 1021.) Thus, Water Code section 1260 provides, in pertinent part, that every application for a permit to appropriate water shall set forth, inter alia, the location of and description of the proposed headworks, ditch, canal, and other works, the proposed place of diversion, and the time within which it is proposed to begin and to complete construction. The application filed by plaintiff in this case states none of these things. It leaves blank the portions of the board’s official application form devoted to “Description of Diversion Works.” In the portion of the form for describing points of diversion, plaintiff states “no points of diversion.” The portion headed “Completion Schedule” is left blank.
The present water law with respect to appropriation is well summed up by one eminent authority as follows: “To constitute a valid appropriation of water, three elements must always exist: (1) An intent to apply it to some existing or contemplated beneficial use; (2) an actual diversion from the natural channel by some mode sufficient for the purpose; and (3) an application of the water within a reasonable time to some beneficial use.” (Hutchins, The Cal. Law of Water Rights (1956) p. 108.)
Our reading of the overwhelmingly supportive case law and statutes on the subject leads us to a complete accord with Hutchins. (Id., at pp. 108-112, and cases and statutes therein cited.) We hold that plaintiff’s application showed on its face that no legally recognized appropriation of water was contemplated and the application was properly summarily rejected by the board.
Since it may be thought by some that the statutory and case law appropriation of waters in this state have somehow callously overlooked the interests of fish and fisheries in the watercourses of the state, we deem it appropriate to point out that there are protections afforded to such interests by existing law, working in conjunction with the law of appropriation of water. Thus, the Legislature has provided in sections [821]*8211243 and 1243.52 of the Water Code that (a) the board must notify the Department of Fish and Game of all applications to appropriate water; (b) the department must recommend the amounts of water required for preservation of fish and wildlife resources; (c) the board must take into account such amounts. Moreover, in Water Code section 1257 the board is directed to consider the preservation and enhancement of fish and wildlife in acting upon any application to appropriate water.
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Opinion
REGAN, J.
Defendants (board) appeal from the trial court’s judgment, entered upon stipulated facts, ordering the board to consider, on its merits, plaintiff’s application to appropriate water from Redwood Creek in Marin County. The board had acted adversely on plaintiff’s application to appropriate water (from Jan. 1 to Dec. 31 of each year) flowing in Redwood Creek without taking possession of the water or diverting it, but rather by putting it to beneficial use inside the stream itself by allowing it to flow naturally and freely in the stream for “preservation and enhancement of fish and wildlife.”1 The adverse action consisted of a refusal by the board to consider the application as it showed on its face there was to be no diversion of water from the stream or any physical control of the water. The trial court, acting on plaintiff’s complaint for declaratory relief, declared in its formal judgment that “water may be appropriated within the meaning of the Water Code and California case law without the exercise of physical control of the water.” Moreover, the court declared the board must accept and determine plaintiff’s application for appropriation since plaintiff had “standing” to make such an application for the “public use of protecting fish and wildlife, . . .” The quoted language from the judgment frames the principal issues raised on appeal. Applicant described Redwood Creek as a navigable river and sought to appropriate three cubic feet per second as the “minimum flow needed to maintain suitable fisheries habitat so that juvenile anadromous fish can survive and migrate to sea.”
On appeal, the board contends that water may not be appropriated within the meaning of the Water Code without the exercise of [819]*819some form of physical control or possession of the water such as a diversion from the stream channel or regulation of the water within the channel. This was its specific reason for rejecting the application. The board also contends it need not, and actually cannot, accept an application by a “private party” such as plaintiff where such application seeks to appropriate water for the exclusive “public use” of protecting fish and wildlife.
The entire history of the origin and development of the doctrine of appropriation of water in California, existing alongside the ancient common law concept of riparian rights, demonstrates that appropriation of water in the legal sense involves possession of the water, evidenced by some form of diversion or physical control over it. The courts from the very birth of the legal concept of appropriation of water have uniformly evidenced the basic common element of possession. Sometimes it is referred to as a “taking” of water, “diversion,” or a “physical control.” (See, e.g., Tartar v. The Spring Creek Water and Mining Co. (1855) 5 Cal. 395—use of a water wheel to power a mill; Simons v. Inyo Cerro Gordo Co. (1920) 48 Cal.App. 524 [192 P. 144]—diversion of water from springs for domestic and milling purposes; Meridian, Ltd. v. San Francisco (1939) 13 Cal.2d 424 [90 P.2d 537]—impounding water in a reservoir.)
Concomitant with the possession concept in the law of appropriation is the relationship between appropriation and legal right of access to a stream with incidental right to use water. Under such circumstances, an appropriative right may arise, as distinct from riparian rights. Such cases are illustrated by situations in which, for example, an owner of livestock with legal right of access to a stream may gain an appropriative right to use water from the stream for his cattle to drink. (See Hunter v. United States (9th Cir. 1967) 388 F.2d 148.)
Although the concept or doctrine of appropriative rights to water was first recognized by the courts (e.g., Irwin v. Phillips (1855) 5 Cal. 140) it was soon formalized in California into a statutory pattern. Thus, in 1872, statutory procedures for obtaining appropriative water rights were enacted. These were first contained in Civil Code sections 1410 to 1422, parts of which remain in title 8 of part 4 of division 2 (commencing with § 1410a) of the Civil Code and parts of which are now contained in part 2 of division 2 (commencing with § 1200) of the Water Code. The statutory provisions contained in the Water Code, which was enacted as a code in [820]*8201943, now furnish the exclusive method of appropriating water (Wat. Code, §§ 2, 1201, 1225.)
The statutory pattern makes it plain that possession of some sort must be taken of the water. The most pertinent statute is section 1260 of the Water Code which is a descendant and refinement of the original section 16 of the Water Commission Act of 1913. (Stats. 1913, ch. 586, p. 1021.) Thus, Water Code section 1260 provides, in pertinent part, that every application for a permit to appropriate water shall set forth, inter alia, the location of and description of the proposed headworks, ditch, canal, and other works, the proposed place of diversion, and the time within which it is proposed to begin and to complete construction. The application filed by plaintiff in this case states none of these things. It leaves blank the portions of the board’s official application form devoted to “Description of Diversion Works.” In the portion of the form for describing points of diversion, plaintiff states “no points of diversion.” The portion headed “Completion Schedule” is left blank.
The present water law with respect to appropriation is well summed up by one eminent authority as follows: “To constitute a valid appropriation of water, three elements must always exist: (1) An intent to apply it to some existing or contemplated beneficial use; (2) an actual diversion from the natural channel by some mode sufficient for the purpose; and (3) an application of the water within a reasonable time to some beneficial use.” (Hutchins, The Cal. Law of Water Rights (1956) p. 108.)
Our reading of the overwhelmingly supportive case law and statutes on the subject leads us to a complete accord with Hutchins. (Id., at pp. 108-112, and cases and statutes therein cited.) We hold that plaintiff’s application showed on its face that no legally recognized appropriation of water was contemplated and the application was properly summarily rejected by the board.
Since it may be thought by some that the statutory and case law appropriation of waters in this state have somehow callously overlooked the interests of fish and fisheries in the watercourses of the state, we deem it appropriate to point out that there are protections afforded to such interests by existing law, working in conjunction with the law of appropriation of water. Thus, the Legislature has provided in sections [821]*8211243 and 1243.52 of the Water Code that (a) the board must notify the Department of Fish and Game of all applications to appropriate water; (b) the department must recommend the amounts of water required for preservation of fish and wildlife resources; (c) the board must take into account such amounts. Moreover, in Water Code section 1257 the board is directed to consider the preservation and enhancement of fish and wildlife in acting upon any application to appropriate water.
The Legislature has enacted other specific statutes which establish the method to be followed to protect and enhance fish and wildlife species. Chapter 4 of division 2 of the California Fish and Game Code (§ 1300 et seq.) establishes a Wildlife Conservation Board with broad powers to investigate which streams and lakes are suitable for or can be made suitable for fishing (§ 1345) and authorizes it to purchase and acquire lands and water rights when necessary to carry out its purposes, including maximum revival of wildlife. (§§ 1347, 1348.) Fish and Game Code section 1501 authorizes the Department of Fish and Game to expend funds as may be necessary for the improvement of lakes and streams for fish. There are procedures which are to be followed by governmental agencies and the Department of Fish and Game when diversions of water are proposed in projects which could impact existing fish or wildlife resources, and Fish and Game Code section 1601 sets forth detailed guidelines to assist in assuring that fishery resources are considered during the planning of such projects.3 In conjunction with all this, the [822]*822provisions of the Water Code to which we have previously adverted establish the manner by which the board and the Department of Fish and Game, with the assistance of private organizations which may desire to be heard, ascertain, on a case-by-case basis, what levels of instream flows should remain in a watercourse when competing appropriation rights are sought.
The board also contends an application by a private party, such as plaintiff, to appropriate water cannot be accepted where the appropriation would be for the exclusive public use of protecting fish and wildlife. In view of our holding as set forth above, we need not consider the issue of plaintiff’s standing as an applicant.
Having determined we must reverse the trial court’s judgment that the board “must accept and determine on its merits” plaintiff’s application to appropriate water, we turn to plaintiff’s cross-appeal contending that under the provisions of Code of Civil Procedure section 1021.5,4 the “substantial benefits” doctrine and the “private attorney general rule,” plaintiff is entitled to attorney’s fees both for the trial and for the appeal.
The trial court having erred in rendering judgment for plaintiff, plaintiff is ipso facto foreclosed from any right to attorneys fees at the trial level, and since on appeal we shall reverse the judgment below in plaintiff’s favor, plaintiff is likewise foreclosed from attorneys fees on appeal.
The judgment is reversed.
Puglia, P. J., concurred.