Meridian, Ltd. v. City & County of San Francisco

90 P.2d 537, 13 Cal. 2d 424, 1939 Cal. LEXIS 269

• Court: California Supreme Court
• Decided: May 5, 1939
• Docket: Sac. 5088
• Status: Published

Opinions

SHENK, J.

Two appeals are here for consideration. One is the appeal of the defendant, City and County of San Francisco. The other is an appeal by the plaintiff. By stipulation both are presented on a single record.

The action involves the rights of the city as an appropriator of water of the Tuolumne River in connection with its Hetch Hetchy project, and the rights of the plaintiff as a riparian owner and appropriator of water downstream from the works of the city.

The plaintiff commenced the action on May 31,1932, against the city and four other defendants: Turlock Irrigation District, Modesto Irrigation District, Waterford Irrigation District and West Stanislaus Irrigation District. The issues affecting the plaintiff and the city and West Stanislaus Irrigation District were determined. Pursuant to the authority of section 579 of the Code of Civil Procedure, the court caused several judgments to be entered. Certain issues tendered by the plaintiff and the three other defendant irrigation districts remain undetermined in the trial court. No appeal was taken from the judgment against it by the West Stanislaus Irrigation District, and the judgment, in so far as it affects that district, has become final.

The conflicting claims of the parties involve their rights in and to the waters of the Tuolumne and San Joaquin Rivers and their tributaries. The San Joaquin River is a natural water course arising in the Sierra Nevada in Fresno and Madera Counties. It flows through the counties of Fresno, Madera, Merced, Stanislaus and San Joaquin and discharges into an arm of the bay of San Francisco. The Tuolumne River is a tributary of the San Joaquin. It rises also in the Sierra Nevada, has a drainage area of about 1500 square miles, and flows westerly through the counties of Tuolumne and Stanislaus, joining the San Joaquin about two miles above the plaintiffs riparian lands. The constant flow of both rivers, if unobstructed, has always been and, according to engineering opinion, will always be variable. The flow of the Tuolumne varies greatly in amount and in rate from year to year, from season to season, and from time to time in any season. The principal high flow from heavy rains and melting snows occurs during the months of March, April, May and early June of each year.

The plaintiff is the owner of El Solyo ranch, which is located on the west bank of the San Joaquin River with its southerly line about two miles down stream from the confluence of the two rivers. The ranch consists of five contiguous parcels with an aggregate area of 4,320 acres, of which approximately 3,208 are riparian to the San Joaquin River. In 1919 and 1,920 the plaintiff’s predecessors constructed a system for the irrigation of the ranch, consisting of a pumping plant located on the bank of the San Joaquin River near the northeasterly corner of the ranch, and a system of pipe lines and works for distributing the water pumped from the river. At the time of the trial the irrigated portion of the ranch embraced about 3,700 acres. A portion of the ranch, comprising about 350 acres, has not been prepared for irrigation but is suitable for farming by that method. In the cultivated area are about 800 acres of full-bearing deciduous fruit trees and 600 acres of matured and bearing vines. Crops of almost every description suitable to the locality are grown, including truck garden vegetables, grain and alfalfa. All of the ranch is agricultural land of great fertility and is susceptible of a high degree of cultivation A dairy is also maintained thereon. From 100 to 400 persons are employed in conducting the ranching operations and the development as a whole represents an investment of about $4,000,000. The San Joaquin River is the only available source of supply for the irrigation and domestic use of the ranch, and the flow of the river past the ranch consists largely, and at times almost entirely, of waters contributed to it by the Tuolumne River.

On October 10, 1919, Roy M. Pike, a predecessor in interest of the plaintiff, filed with the state water commission an application for the appropriation of water of the San Joaquin River for the irrigation of El Solyo ranch. The application was approved by the commission, and on March 13, 1933, the division of water rights issued to the plaintiff its license No. 1280 showing the work as contemplated by the application had been completed. The license was for the appropriation of 46.74 second-feet of water from about March 1st to about November 1st of each season for the irrigation of 3,781 acres of the ranch. The system of irrigation works covered by the license is in use for the irrigation of the ranch and the area covered is the entire ranch except 540 acres—which excepted area is riparian to the San Joaquin River.

The rights of the defendant irrigation districts are not involved on these appeals, but a brief notice of their location, purposes and works will contribute to an understanding of the problems under consideration. The Turlock Irrigation District embraces about 185,000 acres and lies south of the Tuolumne River and east of the San Joaquin River in Merced and Stanislaus Counties. The Modesto Irrigation District contains about 81,203 acres and lies north of Tuolumne and east of the San Joaquin in Stanislaus County. The Waterford Irrigation District contains about 14,000 acres and lies north of the Tuolumne and east of the Modesto District in Stanislaus County. Prior to the commencement of this action there had been brought under irrigation in these three districts 140,734 acres, 67,141 acres, and 5,382 acres respectively. The lands of the West Stanislaus Irrigation District border the westerly bank of the San Joaquin River above the plaintiff’s ranch about two miles from the confluence of that river with the Tuolumne River.

In 1894 the Turlock and Modesto districts constructed the La Grange Dam across the Tuolumne River near the town of La Grange. By means of the dam the water of the river is diverted into two main canals, the Turlock main canal south of the river and Modesto main canal north of it. The capacity of the diversion works and main structures of the Turlock main canal is 3,000 second-feet and of the Modesto main canal is 2,000 second-feet, of which a capacity to the extent of 250 second-feet has been reserved for the Waterford District by contract between the two districts. In 1922 the Turlock and Modesto districts constructed the Don Pedro Dam across the Tuolumne to form the Don Pedro reservoir with a storage capacity of 261,750 acre-feet. In addition to those works the districts have constructed canals, ditches and other structures for the purpose of delivering water to the lands within their respective boundaries. The Turlock and the Modesto districts have also constructed an electric power plant below the Don Pedro Dam with an installed capacity of 41,100 horsepower. The Turlock District has constructed a second power plant, known as the La Grange power house, at the end of the Turlock main canal intake tunnel. This has a capacity of 6,000 horsepower. Many millions of dollars have been expended in these developments.

For many years prior to the commencement of the action the districts intercepted and diverted part of the flow, and for long periods within the irrigation season the entire flow, of the Tuolumne River by means of their dams and other works.

In 1901 the City and County of San Francisco started a project for the storage and diversion of the waters of the Tuolumne River for the use of the city and other localities adjacent to San Francisco Bay. It has become known as the Hetch Hetchy project and includes reservoirs, power plants and diversion works in the watershed of the Tuolumne River above the Don Pedro reservoir. The first appropriations made in behalf of the city for its project were made by Mayor James D. Phelan on July 29, 1901, for 5,000 inches of the flow of Eleanor Creek below the outlet of Lake Eleanor, and 1,0,000 inches of the flow of the Tuolumne at the outlet of Hetch Hetchy Valley. These appropriations were followed so closely by diligent survey work for a reservoir site at Lake Eleanor and at Hetch Hetchy Valley that Mr. C. E. Grunsky, then city engineer, was able to transmit to the register of the United States land office at Stockton, under date of October 16, 1901, certain maps and other documents constituting right of way applications for two reservoirs under Congressional Act of February 15, 1901. These applications were not approved until May 11, 1908 (“Garfield Permit”, 36 Land Decisions, 409.) The opinion in that matter fully reviews the history of the applications before the Department of the Interior, including the protests made by many against the use of the Yosemite National Park for reservoir purposes, and the resulting investigations by the government regarding the needs of the city. The capacity of Lake Eleanor reservoir as thus approved was 41,290 acre-feet, and the capacity of Hetch Hetchy reservoir was 107,426 feet. Eighteen notices of appropriation under the state law in force prior to the effective date of the Water Commission Act (December 19, 191,4) were posted during the period July 29, 1901, to February 27, 1911, inclusive. These appropriations were posted in the name of the city or one of its representatives, or by William Ham Hall or by Sierra Ditch Water Company. The appropriations made by the last two parties were purchased by the city.

The notices of appropriation of July 29, 1901, for the appropriation of 5,000 inches of the waters of Eleanor Creek and for 10,000 inches of the waters of the Tuolumne River are sufficient for the appropriation of water for the full capacity of Lake Eleanor reservoir and Hetch Hetchy reservoir as approved by the Secretary of the Interior Garfield on May 11, 1908. Much delay in the prosecution of the work ensued. Secretary of the Interior Ballinger issued his order to the city to show cause why the Hetch Hetchy Valley should not be eliminated from the Garfield permit, and his successor, Secretary Fisher, refused to take further action without authority from Congress. No actual construction work could be done on the Hetch Hetchy project until after the approval of the Raker Act on December 19, 1913 (38 Stats. 242). The provisions of that act were formally accepted by the city on January 12, 1914, by Ordinance No. 2598.

The Raker Act provided, among other things, that nothing therein should be construed as affecting or interfering with the laws of the State of California relating to the control, appropriation, use or distribution of water for irrigation or for municipal or other uses, or with any vested right acquired thereunder. The act also required the city to recognize the prior rights of the Turlock and Modesto irrigation districts as then or thereafter constituted or enlarged within certain specified limits for reasonable use of water.

Subsequent to the passage of the Raker Act the city diligently proceeded with its project. Under the provisions of the act Secretary of the Interior Lane, on June 9, 1914, approved an amended application of the city for reservoir and dam site privileges in the Hetch Hetchy Valley to the capacity of 345,000 acre-feet. Under date of December 27, 1915, he approved an amended map for the Lake Eleanor site with capacity of 289,862.9 acre-feet. Other notices of appropriation will be hereinafter referred to. The Hetch Hetchy reservoir was completed in 1923, and as then constructed had a storage capacity of 206,000 acre-feet of water. It was formed by the O ’Shaughnessy Dam, a concrete structure 345 feet high, built at a cost of over $7,000,000. Lake Eleanor is situated on Eleanor Creek, a tributary of the Tuolumne River. The dam forming the lake and reservoir was completed in 1918, is 70 feet high, has a storage capacity of 28,000 acre-feet of water and cost over $300,000.

Since the enactment of the Raker Act and prior to the commencement of this action, the city has constructed plants for the generation of hydro-electric power on the Tuolumne River and its tributaries at points above the lands of the plaintiff and the defendant irrigation districts. The principal plant is located on Moccasin Creek, is known as the Moccasin power house, is equipped to generate 100,000 horsepower, and has been operated to that capacity since 1925. A secondary plant is situated on the right bank of the Tuolumne River at a point known as Early intake. It is below the major reservoirs, has a capacity of 4,500 horsepower and has been operated since May, 1918.

Before the commencement of the action the city constructed diversion works known as the Hetch Hetchy aqueduct, designed for the conveyance of waters of the Tuolumne River to the City and County of San Francisco and adjacent territory. The portion of this aqueduct extending from Early intake to the Moccasin power house is about 20 miles in length, was completed in June, 1925, and has a capacity in excess of 620 cubic feet per second. The portion of the aqueduct extending from the Moccasin Creek power house to the vicinity of the City and County of San Francisco was not completed until after the commencement of this action. That portion consists of: (1) The Foothill division, which extends from the Moccasin Creek power house to Oakdale portal at the easterly edge of the San Joaquin Valley, is about 16 miles in length, was completed in May, 1932, and has a capacity in excess of 620 cubic feet per second; (2) the San Joaquin division, which extends across the San Joaquin Valley, is about 47 miles in length, was completed in May, 1932, and has a capacity of 93 cubic feet per second; (3) the Coast Range division, which extends from Tesla portal at the westerly edge of the San Joaquin Valley to Irvington portal in Alameda County, is about 28 miles in length, was completed after May, 1932, and has a capacity of 250,000,000 gallons of water daily; (4) the Bay Crossing division, which extends from the Irvington portal about 24 miles to Crystal Springs reservoir in San Mateo County, from which reservoir water is distributed in San Francisco for domestic and other municipal uses. This portion of the aqueduct has a capacity of 670 cubic feet per second and was completed in May, 1936.

The average annual run-off of the watershed of the Tuolumne River during the thirty-eight-year period in which the run-off was measured,—1895 to 1933,—has been 1,842,-500 acre-feet. In dry years it has been less than 600,000 acre-feet. The foregoing recital of facts is taken from undisputed findings of fact.

The complaint is in the nature of an action to quiet title to water rights and for injunctive relief to protect those rights. Two causes of action are set forth. The first alleges the facts constituting the plaintiff’s claim of rights as a riparian owner, the status and claims generally of the defendant irrigation districts and the City and County of San Francisco. It is specially alleged that the city claims an interest in the waters of the Tuolumne River adverse to the plaintiff, but that such claim, if any, “is without any right whatever and is subsequent and subordinate to the rights of said plaintiff as owner of said riparian lands”.

In the second cause of action the plaintiff pleaded an appropriative right on the San Joaquin River separate from its riparian right, with priority as of October 10, 1919, over any claim of the city. This appropriative right was alleged to be prior and superior to any right of the city to interfere in any way with the natural flow of the Tuolumne River or the San Joaquin River or to transport away from the watershed any of the waters of those rivers. It is then alleged that the city intends to enlarge the storage capacity of its reservoirs and its diversion system so that the same would be capable of diverting and transporting away from the watershed a constant flow of 620 cubic feet per second.

The plaintiff prayed: (1) That the defendants be required to set forth any claims of right they might have as against the plaintiff in the water of said rivers; (2) that the plaintiff’s claimed rights to the water of said rivers be quieted, and that it be adjudged that the defendants have no rights which are not subject and subsequent and subordinate to the rights of the plaintiff as alleged in the complaint; (3) that the defendants be enjoined from setting up any claim to said waters except subject to and in subordination of the alleged rights of the plaintiff; (4) that the city be enjoined from transporting any of the waters of the Tuolumne River away from its watershed; (5) if the court should conclude that the city should not be so enjoined, that then the court ascertain the damages that would be caused to plaintiff’s lands because of such diversion and transportation; (6) that the court fix and determine the extent of the rights of each of the defendants other than the city to take, store, divert and use the water of the rivers; and (7) for general relief and costs.

The answer of the city admitted the contemplated diversion, but denied that such diversion would violate the plaintiff’s rights. It also set up seventeen separate defenses based upon claims by appropriation, prescription, intervention of public use, bar of the statute of limitations, and estoppel. On April 3, 1933, the case of Gin S. Chow v. City of Santa Barbara, 217 Cal. 673 [22 Pac. (2d) 5], was decided, wherein it was first held by this court that the riparian doctrine of Herminghaus v. Southern California Edison Co., 200 Cal. 81 [252 Pac. 607], and similar cases preceding it, was no longer in effect in this state and that the doctrine of reasonable use should thereafter be applied to the waters of the state. In its amended answer, filed April 20, 1933, the city disclaimed any intention of claiming under its appropriations any water theretofore used or thereafter required by any riparian owner, including the plaintiff, for useful or beneficial purposes on their riparian lands. The city prayed that its rights be determined and quieted as against the plaintiff.

Prior to the trial of the action, there had always been sufficient water in the San Joaquin River to supply all of the plaintiff’s requirements. Upon the trial the court found and concluded that for the reasonable and proper irrigation of the presently cultivated 3,730 acres of its ranch and on the additional irrigable and cultivable 350 acres, the plaintiff was and would be entitled to divert from the San Joaquin River “20,000 acre-feet of water per year, to be diverted at a maximum of 100 cubic feet per second”; that the plaintiff as a riparian owner “at the present time is entitled to divert from the San Joaquin River 13,220 acre-feet of water per calendar year, at a maximum rate of diversion of 66.8 cubic feet per second, and that when all the riparian lands of the plaintiff, after the portion now uncultivated shall have been brought under cultivation are irrigated, the required amount will increase to 14,840 acre-feet per year to be diverted at a maximum rate of 75 cubic feet per second”; that these rights of the plaintiff are subject to the prescriptive rights of the city and also of the Turlock, Modesto, and Waterford districts, but are prior and superior to all other claims of those defendants and of the West Stanislaus district; and that the plaintiff is entitled to have its water free from pollution caused by any acts of the defendants in excess of their prescriptive rights and which would render it unfit for use on said riparian lands. These conclusions were carried into the judgment.

For years prior to the commencement of this action the Turlock and Modesto districts, by means of their dam and other works, interrupted and diverted part of the flow, and for long periods within the irrigation season the entire flow, of the Tuolumne River. In the years 1918 to 1931, inclusive, they took the entire flow of the river for a minimum of 23 days to a maximum of 275 days per irrigation season, and on an average over the fourteen years of 115 days per season.

From these facts the trial court concluded that the Turlock and Modesto districts are the owners by prescription of a right, prior and superior to the plaintiff’s riparian right, to store, regulate and divert waters of the Tuolumne River for the irrigation of lands within their respective boundaries and for the generation of electric power to such an amount as will cause a “gross abstraction” from the river of 775,710 acre-feet per calendar year; to divert into their canals at La Grange the waters so abstracted at maximum mean daily rate of 1790 cubic feet per second for the Turlock district and 1261 cubic feet per second for the Modesto district; and to store and regulate the entire flow of the Tuolumne River in the Don Pedro reservoir within the limits of the foregoing “gross abstraction”. By reason of this storage and the releases for irrigation and power purposes the flow of the San Joaquin past the El Solyo ranch is different than it would be otherwise. The result of this method of operation has been to increase and equate the amount of water reaching the ranch during the low water period. Seepage, drainage and spill of the water taken by the districts cause a return flow which the court found was proportionate to the use of water by the districts, and becomes available for use on the plaintiff’s lands substantially at the time of greatest requirements. The court found that during the ten-year period preceding the commencement of this action the return flow of the Tuolumne River between La Grange Dam and the junction of the two rivers just above the plaintiff’s properties, mingling with the waters of those rivers, constituted “a volume of water constantly many times larger than will be required for beneficial use on the entire area of the plaintiff’s riparian lands and of a quality satisfactory for such use”. A further finding is that the return flow from the use of water by the districts, in amounts to which their priority of right is acknowledged by the city, will maintain in the channel of the San Joaquin River along the plaintiff’s riparian lands, together with other waters therein, a volume of flow suitable in quality for irrigation use and constantly larger than the requirements for beneficial use on the plaintiff’s riparian lands, and that no acts of the districts short of discontinuance of irrigation can diminish the return flow to an extent that the plaintiff will not have sufficient water in the river along its lands to satisfy its riparian rights as fixed by the court.

There is abundant evidence in support of the foregoing findings. According to one of the plaintiff’s own witnesses the drainage into the Tuolumne has averaged between 2,400 and 3,800 acre-feet per annum and the spillage about 24,000 acre-feet per annum. Over a sixteen-year period preceding the commencement of this action there was an estimated continuous return flow of 212,800 acre-feet, or about 293 cubic feet per second, at Tuolumne City a short distance above the plaintiff’s property, which is about six times the highest average monthly diversion rate for water taken by the plaintiff from the river to satisfy the irrigation needs of the riparian lands in the past. If the drainage and spillage were cut off entirely there would still be a return flow from seepage alone amounting to over 190,000 acre-feet per annum, and no acts of the districts short of a discontinuance of irrigation can diminish such return flow to an appreciable extent or to the extent that the plaintiff will not have sufficient water in the river along its lands to satisfy its riparian right as fixed by the court.

Here it may be noted that upon the trial the plaintiff took the position that it was entitled to have this return flow, without reduction in amount or change in quality by a continuance of the districts’ operations under present practices. However, the court concluded that the plaintiff, as a riparian owner, is not entitled to have the districts continue to conduct their operations in such manner that the return flow “shall continue as heretofore, undiminished in quantity and unimpaired in quality; except that the districts have not the right to change their method of operation arbitrarily or wilfully in a manner not beneficial to the lands within their boundaries so as to result in the diminution in quantity or deterioration in quality of said return waters to the injury or damage of plaintiff or its riparian lands”.

The court fixed the rights of the West Stanislaus district as against the plaintiff. That district comprises 21,400 acres lying westerly from the San Joaquin River and southerly and westerly of the lands of the plaintiff. In 1928 it commenced the construction of a pumping plant and intake canal, and in 1929 first diverted and used water from the reservoir for the irrigation of lands within its boundaries. Its intake is on the westerly bank of the San Joaquin River about one-fourth of a mile upstream from the confluence of the two rivers. At times of low flow because of the condition of the two stream channels, substantially all the waters reaching this intake and diverted by the district consists of water added to the San Joaquin by the flow of the Tuolumne River.

The court found that the West Stanislaus district was the owner, subject to the riparian and appropriative rights of the plaintiff, of an appropriative right to divert water of the San Joaquin at a rate of 262.15 cubic feet per second, but that such right had not been exercised for any prescriptive period. It was also found that a public use had intervened to the extent of 60,000 acre-feet of water per calendar year (and no more), which constituted the full requirement of that district and that by its diversion the district would take for public use a portion of the plaintiff’s riparian right. The district was accorded but refused to exercise a right to condemn, and judgment was entered enjoining that district from diverting water from the San Joaquin River, at any point above the plaintiff’s riparian lands, more than 60,000 acre-feet in any calendar year, or at a higher rate than 262.15 cubic feet per second. This judgment has become final for the reason that no appeal was taken therefrom. The status of this district is set forth somewhat at length because of the contention of the city that the injunction against it should have gone no further than the injunction against the West Stanislaus district.

The taking of testimony at the trial was concluded on April 25, 1934, and the cause was continued for submission pending the filing of briefs and oral argument.

On September 28, 1935, some nine months and more before the rendition of judgment herein, the trial court entered an order directing that the City and County of San Francisco and West Stanislaus irrigation district have until October 15,1935, within which to submit a written offer to compensate the plaintiff in money for any damage which the plaintiff might sustain “as a result of any taking of water by such defendant for public use in excess of the rights of such defendant, together with a written request to this (Superior) court to ascertain the amount of such damage in said action”; that if either or both of said defendants should fail to make such offer and request within the time prescribed, such failure should be deemed a refusal to compensate the plaintiff for such damage, and of a waiver of a right to condemn in this action any property or rights of the plaintiff.

On October 15, 1935, the city filed a reply to the direction contained in the order of September 28th, in which it stated that as the city “has no desire or intention of taking any water to which the plaintiff is ultimately declared herein to be entitled as against the city, there is no necessity for the city to make any offer to compensate plaintiff”. With much elaboration the city then set forth in its reply the reasons, based on the facts in the case, why it should not be required to offer compensation to the plaintiff, the substance of which was that the city did not propose to take or damage any of the property or rights owned by the plaintiff, and that therefore there was no occasion for an offer or subsequent order of compensation.

As to the water rights of the City and County of San Francisco the court found, among other things not necessary to be stated, that the city has at all times conceded that the Turlock, Modesto and Waterford irrigation districts have rights, prior and superior to any claimed by the city, to the waters of the Tuolumne River to the full extent of their needs, and that the city has not at any time claimed the right to divert for use any of the waters of the river other than waters previously stored by the city; that the water subject to storage by the city without invading the rights of the Turlock, Modesto and Waterford districts are “surplus high waters”, defined for the purpose of the findings as “waters flowing at any time in the Tuolumne River and its tributaries above the La Grange dam over and above a daily flow of 4066 cubic feet of water per second of the natural flow of the Tuolumne River, measured at the La Grange dam, during the period of sixty (60) days immediately following and including April 15th of each year and in excess of a like flow of 2416 cubic feet of water per second, measured at the La Grange dam, at all other times”; that prior to the commencement of this action the city (1) has acquired the prescriptive right to store in Hetch Hetchy reservoir and Lake Eleanor, out of the surplus high waters, as defined, flowing in the Tuolumne River and its tributaries, 235,465 acre-feet of water per seasonable year (October 1st to September 30th), and no more; (2) had released the waters so stored for a reasonable beneficial use, namely, the generation of hydro-electric power, but for no other beneficial use; and (3) had returned all the waters so stored and used to the Tuolumne River at a point above all the works of the defendant irrigation districts and above the lands of the plaintiff. By reason of the facts so found the court concluded that the city is the owner by prescription of the right, as against the plaintiff’s riparian right, to store in “its reservoirs now in existence with their present capacities and no greater capacities”, the “surplus high waters” and no other waters flowing in the Tuolumne River and its tributaries up to the amount of 235,465 acre-feet of water, and no more, for one seasonal year, and to retain said water for power purposes and for no other use, returning all of the water so stored and used to the Tuolumne River above the works of the districts and above the lands of the plaintiff and not otherwise.

The court further found that prior to the commencement of the action the city had stored in Hetch Hetchy reservoir in a single seasonal year of maximum storage (but not continuously for five consecutive years) waters of the river up to the amount of 211,300 acre-feet and had similarly stored, used and released water in Lake Eleanor up to 36,700 acre-feet; that the maximum flow which the city would be able to obtain from the Tuolumne River “by the use of its present storage capacity of its two reservoirs ’ ’, and without disregarding the prior rights of the defendant districts, and for conveyance to the city and adjacent territory, is 142,000,000 gallons per day. In other words, the court found and concluded that the city had the right to store in its reservoirs and use for municipal purposes the waters of the Tuolumne River at the maximum rate of 142,000,000 gallons per day and that this would be in excess of the reasonable needs of the city probably until 1980; that the storage and diversion of that amount of water would not deprive the plaintiff of water reasonably required by it for the irrigation of its lands, but that the storage of more than that amount would cause the plaintiff irreparable damage.

The court further found that as a part of its ultimate plan the city intended to enlarge the capacity of its reservoirs then in existence so as to provide storage for the diversion to the city and adjacent territory of a constant flow of 400,-000,000 gallons per day, which the court concluded was more than the city could put to a reasonably beneficial use, now or at any time in the future. It was further found that there are at times flowing in the Tuolumne River surplus high waters not required for useful or beneficial purposes upon the lands of the plaintiff and that portions of the flow of the river run unused to and through the San Joaquin River to San Francisco Bay.

The court ordered an injunction restraining the city from storing any of the waters of the Tuolumne River or its tributaries except “surplus high waters” as defined in the findings, or from “storing any of such waters except in its reservoirs now in existence” on the river, ‘‘within jjhéir~capacities as existing at the commencement of this action and no greater capacity”; or from storing in the Heteh Hetchy reservoir “as said reservoir may be enlarged”, any greater quantity of water than could be stored with the capacity which it had at the commencement of this action.

In its amended answer filed in April, 1933, the city alleged that it had not intended to enlarge its then storage capacity in the Tuolumne watershed within fifty years. Later it acceded to the request of the federal government in connection with its public works program to raise the O’Shaughnessy Dam to a height of 430 feet. This improvement would provide additional storage of 151,000 acre-feet. The work was well under way at the time of the trial, was completed, and additional water stored to the extent of the capacity of the raised dam.

Briefly, then, the judgment of the court fixed the amount of water to which the plaintiff was and is entitled, both as a riparian owner and as an appropriator; fixed the amount of water which the city was and is entitled to divert from the watershed of the Tuolumne River, measured by the extent of its prescriptive right to store, at 142,000,000 gallons per day; enjoined the city from storing additional water in its reservoirs to the extent of its increased storage facilities.

The city has appealed from that part of the judgment which enjoined it from storing water in excess of its prescriptive right to store; from diverting in excess of 142,000,000 gallons per day, and which subordinated certain of its appropriative claims to that of the plaintiff. The plaintiff has appealed from that part of the judgment which failed and refused to enjoin the city from conveying any water away from the watershed of the Tuolumne River.

The city, in its opening brief as appellant, states the following as the question involved on the appeal:

“Is a lower riparian owner now entitled, as against an upper appropriator, to any water of a stream in excess of the amount thereof reasonably required for beneficial uses on his riparian lands when diverted by reasonable methods of diversion?”

The plaintiff counters with its statement of the questions involved, the first two of which are as follows:

“1. As against a lower riparian owner, is an upper diverter free to take and waste what water he wants, when he will not and cannot apply it to a beneficial use?

“2. Does the constitutional amendment of 1928 restrict waste by a riparian owner only, or does it also restrict waste by a subordinate taker under an inferior right or no right 1 ’:

Counsel for the city state in their opening brief:

“Although other points of less importance are presented in this brief, this appeal would not have been taken if the form of injunction against the City were the same as that against West Stanislaus District.”

It is conclusively shown that the amount of water allotted to the city, namely, 142,000,000 gallons per day, is more than the city is or will be able to put to a reasonable beneficial use when delivered at its boundaries or in its vicinity, even until 1980; that the city, if permitted, will store in excess of that amount, to permit a flow up to 400,000,000 gallons per day, in its enlarged storage facilities on the Tuolumne River, and use the excess for the generation of power or other permissible purposes; and that in order to carry out its plans it is and will be necessary at time to transport large quantities of water temporarily detained in storage through the Hetch Hetchy aqueduct, and permit the same to spill into channels leading into the bay of San Francisco.

It is also conclusively shown that the amount of water allotted to the plaintiff is, and will be for all future time, more than sufficient to supply the reasonable needs of the plaintiff’s lands for irrigation and other useful and beneficial purposes.

The question is presented for‘the first time since the adoption of the constitutional amendment of 1928 as to who has the power of control over the waters in the rivers and streams of the state which are in excess of the present and future needs of riparian owners and prior appropriators.

Counsel for the plaintiff make the following pertinent observation with reference to the recent changes in the water law of this state:

‘ ‘ Generally speaking, the decision of these appeals calls for the application, to the rights of the plaintiff and of the city, of the changes in the water law of this state which have resulted from the adoption, in 1928, of the amendment which added section 3 to article XIV of the Constitution of California. The effect of that amendment has been the subject of consideration by this court in several eases, notably: Gin S. Chow v. City of Santa Barbara, 217 Cal. 673 [22 Pac. (2d) 5] ; Peabody v. City of Vallejo, 2 Cal. (2d) 351 [40 Pac. (2d) 486] ; Tulare Irr. Dist. v. Lindsay-Strathmore Irr. Dist., 3 Cal. (2d) 489 [45 Pac. (2d) 972]; and more recently, City of Lodi v. East Bay Municipal Water Dist., 7 Cal. (2d) 316 [60 Pac. (2d) 439]. Obviously, it is impossible for this court or any court to cover, in three or four decisions, the entire range of the effect of the amendment upon all water controversies that may arise in this state. The full scope of the new constitutional provision can be determined only after a large number of cases presenting different conditions shall have been decided.”

In the cases referred to it was established that by the changes in the law the right to use the waters of rivers and streams of the state has been limited to a reasonable beneficial use; that the riparian owner has a prior and paramount right to this use and if necessary is entitled to the full natural flow of the stream or its equivalent undiminished in quantity and unimpaired in quality. The riparian owner is safeguarded in this right by the constitutional amendment. But the amendment also provides that “riparian rights in a stream or water course attach to, but to no more than so much of the flow thereof as may be required or used consistently with this section ... ”. This provision clearly means that when the law has guaranteed to the riparian owner the use of the waters of the stream to the full extent to which he may put the same for all present and prospective useful and beneficial purposes, and has made available to him the means of protecting the rights so guaranteed, he has received the full measure of benefit and protection to which he is entitled, and can claim no more.

There are waters in the rivers and streams of the state to which the riparian right first attaches. The rights of other lawful users on the stream also rightfully attach. In addition there are in many of the rivers and streams of the state great volumes of water which pass on unused to the sea or to an inland drainage basin. In a real sense this excess water is a great natural resource available for the benefit of this and future generations, as the occasion for its use may arise. These excess waters constitute the public waters of the state to be used, regulated and controlled by the state or under its direction.

Section 11 of the Water Commission Act, as originally adopted, contained the following provision:

“And all waters flowing in any river, stream, canyon, ravine or other natural channel, excepting so far as such waters have been or are being applied to useful and beneficial purpose upon, or in so far as such waters are or may be reasonably needed for useful and beneficial purposes upon lands riparian thereto, or otherwise appropriated, is and are hereby declared to be public waters of the state of California and subject to appropriation in accordance with the provisions of this act.” (Stats. 1913, p. 1018.) The same declaration was carried into the amendments to said section 11 in 1919 (Stats. 1919, p. 513), and in 1923 (Stats. 1923, p. 127). If it be said that the foregoing statutory declarations were contrary to the doctrine of the Herminghaus case and were impliedly rendered invalid by the decision in that case, the conclusive answer is that the same declarations are implicit in the new state policy promulgated by the constitutional amendment of 1928. That amendment has been controlling since its adoption and is binding in the present litigation. The significance of the constitutional amendment was apparently not appreciated prior to the decision in the ease of Gin S. Chow v. City of Santa Barbara, supra (April 3, 1933). The present action was commenced on May 31, 1932, and the cause of action was grounded on the theory of the Herminghaus ease. As hereinbefore stated the city amended its answer on April 30, 1933, so as to allege its defenses within the law as interpreted in the Gin S, Chow case. The trial of the present case took place between February 5, and April 25, 1934. Subsequently but prior to the entry of judgment herein the opinions in the eases of Peabody v. City of Vallejo, supra and Tulare Irr. Dist. v. Lindsay-Strathmore Irr. Dist., supra, were filed. In ordering findings and judgment herein the trial judge wrote an opinion in which the new doctrine expounded in the Peabody and related cases was recognized, and concerning which the learned judge properly said:

“Injunctive relief will no longer be granted upon mere proof that a diversion above will diminish the stream flow as it passes the riparian lands. If after such diversion there is sufficient water remaining to satisfy the reasonable demands of the riparian owner, he has no legal recourse in respect to such diversion.”

However, the findings and judgment later entered proceed on the theory that although his needs and requirements are met and safeguarded in every respect, the riparian owner still has the right to an injunction to limit and control the action of an upper appropriator in storing and diverting the surplus waters of the stream. In other words, the judgment herein is to the effect that after the needs and requirements of all users on the stream, both riparian and appropriative, are fully met and safeguarded to the extent contemplated by the constitutional amendment, the right still remains in the riparian owner to require that the water in excess of all such needs and requirements flow past his lands unused to the sea, and that an injunction may issue to enforce that right. This is not in harmony with, but is directly contrary to the new doctrine.

Under the amendment of 1928 the rights of the riparian attach to, but to no more than so much of the flow as may be required or used consistently with the amendment. That is, the riparian is entitled to all of the water of the stream, both in the quantity and quality of its natural state, which he is able to put to a reasonable beneficial use, and to be protected in that right by the injunctive processes of the court. But the riparian owner is not entitled to an injunction to control the use of water by an appropriator in the exercise of a right admittedly subordinate but in no way injurious to the riparian right. It is well settled that an injunction is an equitable remedy available generally in the protection or to prevent the invasion of a legal right. In a case such as the one before us the right and its actual or threatened invasion must be shown. But the right must first be shown. Here the right to an injunction to protect and safeguard the plaintiff to the full extent of its beneficial requirements has been shown. But the right to an injunction to control the waters of the stream in excess of the plaintiff’s needs is not shown, and the judgment herein is erroneous to that extent.

Inasmuch as the prevention of waste of water is imposed on the riparian under the new doctrine, counsel for the plaintiff, in their “Questions Involved”, inquire if this same restriction against waste is not imposed on a subordinate taker under an inferior right or no right. Obviously, the answer is in the affirmative. The duty not to commit waste is enjoined on all users of water. An accepted definition of the term “waste”, as applied to the use of water, may be said to be: “To use needlessly or without valuable result; to employ prodigally or without any considerable return or effect, and to use without serving a purpose.” (Webster’s New International Diet., 2d ed.) The term is necessarily relative. As denounced by the amendment of 1928, it was the use of water by a riparian owner under an asserted, and theretofore protected right to compel the waters of the stream, without any benefit to himself, to flow to a lower level and on to the sea when otherwise a beneficial use could be made of the same.

There are rivers and streams particularly in the most northerly part of the state whose waters flow freely to the sea in the course of nature and there is relatively little need otherwise for their utilization. Great quantities of water in those rivers and streams pass on to the sea because no other recognized beneficial use for the same has as yet been developed. There is no waste in a constitutional sense in permitting such water thus to seek and attain its natural level. There are also great quantities of water in other rivers of the state, such as the Sacramento and its numerous tributaries, the Stanislaus, the Tuolumne, the San Joaquin, the Merced, the Kings and the Kern, not now needed by any users, which find their way to the sea or other natural outlet. To permit water thus to pursue its natural course is not the wasting of water in a legal sense. No one is injured or damaged thereby except in times of great flood when nature takes a tremendous toll from all in the path of the torrent, with resulting property damage and human suffering. Much benefit has been brought about and will yet ensue by the restraint of those excess waters. They are not necessarily “vagrant or enemy” waters. They may be the usual recurrent floods and as such are a part of the natural flow of the stream. To guard against them extensive protective measures, such as levees and other flood control works, have been taken and constructed and are maintained at great cost by and with the aid of the state. In June, Í935, floods on the San Joaquin broke through the levee protecting the El Solyo ranch, causing, great damage to the plaintiff. In the spring of 1,938 the state, at the request of the plaintiff, expended its funds in the protection of said ranch from the floods of that period. The many appropriations by the legislature for flood control generally throughout the state have been large and burdensome. The paramount importance of the conservation of the water resources of the state, including excess waters, has been recognized and emphasized for decades culminating in the original Water Commission Act in 1913. The necessity for gathering and distributing flood or other waters not presently under beneficial use in the streams of the state was accentuated. The cooperation and aid of the federal government in working out some approved and comprehensive plan for the control and development of our water resources have been enlisted by the governor and the legislature. (For example: Stats. 1927, p. 2400; Stats. 1935, p. 68.) Aid to that end has been given and is being furnished in connection with the water development in the great central valleys. In truth, the program of the state in developing and conserving its water resources has progressed to the stage where it should be said that the restraint and storage of water in the upper reaches of our rivers and streams as a means of protection against damage by flood and of equalizing and stabilizing the flow are beneficial uses. If this be not so the efforts of the state and the federal government in providing primarily for storage, flood protection and stabilization of the water supply of the Sacramento and San Joaquin Rivers by means of the Central Valleys Project (Stats. 1933, p. 2643), are beyond the pale of lawful enterprise and, according to the theory of the judgment of injunction herein, subject to the right of those farther down the stream to prohibit, even though such storage cause the lower owner no damage and be in fact of great benefit to him.

The federal government has constructed a huge dam on the Colorado River, the primary purpose of which was to restrain and store the flood waters of that river and by equalizing the flow not only protect the Imperial Valley from a continuing threat of inundation, but also make water available for irrigation at times when most needed. The' completion of that protective and conservation enterprise has made possible the works at Parker Dam for the diversion of stored water to the distributing system of the Metropolitan Water District at an estimated cost of $120,000,000. (Metropolitan Water Dist. v. Whitsett, 215 Cal. 400 [10 Pac. (2d) 751].) These great projects are further confirmation of the fact that the storage of fresh water is deemed essential to the growth and progress of the state. It was undoubtedly the purpose of the proponents of the amendment of 1928 to make it possible to marshal the water resources of the state and make them available for the constantly increasing needs of all of its people. In according to that great purpose its proper significance it is necessary and appropriate to declare, as inherent in the plan, that the storage of water for the purposes of flood control, equalization and stabilization of the flow and future use, is included within the beneficial uses to which the waters of the rivers and streams of the state may be put within the intent of the constitutional amendment. But such right of storage must necessarily be subordinate to all beneficial uses on the stream made in the exercise of riparian and prior appropriative rights. And the right of storage may be exercised only pursuant to appropriations lawfully made. “The problem in every case is to ascertain what portion of the product of the stream is subject to appropriation after all reasonable beneficial uses on the part of those having paramount rights have been enjoyed or safeguarded. ’ ’ (Peabody v. Vallejo, supra, at p. 375.)

The State Water Commission (now Department of Public Works, Pol. Code, sec. 363e), has the power under section 10 of the act to investigate all streams of the state for the purpose of ascertaining whether the use of water therein is in conformity with the water appropriation laws of the state. And the power extends to the use of water made under appropriations or attempted appropriations acquired or asserted prior to the passage of the act. By section 1,5 of the act the commission is given power to allow the appropriation for beneficial purposes of unappropriated water under such terms and conditions as in the judgment of the commission will best develop, conserve and utilize in the public interest the water sought to be appropriated. It should be the first concern of the court in any case pending before it and of the department in the exercise of its powers under the act to recognize and protect the interests of those who have prior and paramount rights to the use of the waters of the stream. The highest use in accordance with the law is for domestic purposes, and the next highest use is for irrigation. When demands on the stream for those and other recognized lawful purposes by riparians and appropriators are fully met and an excess of water exists, it is for the state to say whether, in the conservation of this natural resource in the interest of the public, the diversion is excessive.

In section 38 of the Water Commission Act any unauthorized diversion of water subject to the provisions of the act is declared to be a trespass and the Department of Public Works is authorized to proceed in the superior court to have such trespass enjoined. There need be no apprehension therefore lest rights become vested, by prescription or otherwise, in an excessive use of water or in a use for unauthorized purposes.

We conclude that the waters of the Tuolumne River and its tributaries in excess of the needs of lower riparian owners and prior appropriators for all reasonably useful and beneficial purposes have been released by the constitutional amendment of 1928 for storage and other beneficial uses incident thereto as above indicated, and that the injunctive or other processes of the court are not available to the lower riparian owners or appropriators to prevent the storage of such excess waters.

The record in the present case shows that the water allotted to the plaintiff by the trial court is abundantly sufficient in amount to supply all of its needs and that no substantial damage to its lands has in that respect resulted by reason of the city’s storage. It is true that there is evidence to the effect that by reason of the operations of the irrigation districts upstream from the plaintiff’s lands the mineral content of the water as it reaches those lands is somewhat increased by the use thereof for irrigation on lands within those districts and its return to the stream by percolation and drainage. We cannot conclude, however, that the court based its judgment of injunction on the alleged impairment of the quality of the water of the river by the city’s increased storage. It appears that the irrigation districts upstream from the plaintiff exercised their rights of priority during the ten-year period preceding the commencement of this action; that during that period there had been no impairment of the quality of the water at the plaintiff’s place of diversion by reason of the exercise of such rights, and that if the districts continue th.eir operations as heretofore the riparian right of the plaintiff to water of a suitable quality will be fully protected and will suffer no substantial impairment. There is no evidence that the irrigation districts will or intend to discontinue their operations as heretofore. If the trial court intended by its judgment to enjoin the city’s use of its enlarged storage facilities on the showing of impairment thereby of the quality of the water of the stream it must be said that the evidence on this issue is not of sufficient substantiality to warrant the injunction ordered. In fact, the court found on sufficient evidence that “the ‘return flow’ in the Tuolumne river has not in the past contained, and does not now contain a sufficient concentration of such salts, alkalis, and other chemical substances to render such water unfit for irrigation use on the plaintiff’s riparian lands.” The alleged “serious and threatening” damage of pollution, in the absence of actual pollution, would not justify the injunction ordered herein, especially when protective measures short of absolute prohibition may, if necessary, be applied by the court. Obviously, if the city’s diversions should result in making the water of the river unfit for use at the plaintiff’s location, and the release of fresh water by the city and its return down the river channel would freshen the water to the required extent, the city could by proper order of the court be required to make such releases without rendering useless the city’s increased storage facilities. The distance between the storage works of the city and the plaintiff’s land is not too great to render this solution unavailing, and the amount of water under the control of the city, pursuant to the judgment, is abundantly sufficient to enable it by such release to protect the flow at the plaintiff’s location against any substantial pollution. Furthermore, the measurement of the flow as prescribed by the court, as next discussed in this opinion, would tend greatly toward an assurance of 'a lack of pollution at the plaintiff’s location.

In its points of “less importance”, the city urges that the measurement of the plaintiff’s water right as fixed by the court is not justified by the evidence. The court first determined the area of the plaintiff’s riparian and nonriparian lands, and then fixed the amount of the plaintiff’s reasonable requirements for water for both present uses and future needs. The decree declared the plaintiff, as a riparian, to be the owner of the right (subject to the city’s prescriptive rights, but superior to all other claims of the city) to divert for reasonable use upon its cultivated riparian lands, 13,220 acre-feet of water per calendar year, at a maximum rate of 66.8 cubic feet per second, and to divert from time to time such additional quantities of water as may be required for reasonable future use. The court did not carry into the decree its further findings with reference to the future needs of the plaintiff, but by an appropriate provision of the decree, retained jurisdiction of the cause so that if the plaintiff should require more water in the future, a determination of the question may then be made. The objection of the city is not directed to the extent of the plaintiff’s award, but to the prescribed method of measuring the allowed quantities of water on a continuous flow basis annually by using the high maximum flow for July as the measure of the plaintiff’s right. The point is that the court should have fixed as the measure of the plaintiff’s right the monthly requirements as set forth in the plaintiff’s undisputed evidence on that subject and as particular^ shown by the schedule in the plaintiff’s exhibit 115. The city’s contention seems to be well taken, but it does not follow that the city is so prejudiced by the measurement on this annual basis as to require a reversal or modification of the judgment. During the month of July, according to the evidence, the requirements of the plaintiff for irrigation are at the peak, and it is on that peak requirement that the plaintiff’s right is measured on a continuous annual flow basis. If it should develop in operating under the award as embodied in the decree, that the method prescribed by the trial court would impose an undue burden on the required releases to the prejudice of the city, or of any other user of water from the river, the court under its reserved power may readjust the measurements on such basis as may be deemed necessary.

The city also urges the point that the findings and conclusions of the court wherein certain notices of appropriation filed and recorded by the city are found to be ineffective for irregularity or nonconformity with the statute are unwarranted. The questioned findings were in response to issues tendered by the second cause of action of the complaint in which the plaintiff pleaded its appropriative right with priority as of October 10, 1919, over any claims of the city, and prayed that its title be quieted. In answer the city alleged that it owned forty-seven appropriations in connection with the Heteh Hetchy project and that the plaintiff’s appropriative right was acquired subsequent to the city’s rights; hence that title to those rights should be quieted against the plaintiff. As a further defense the city alleged its plan for the ultimate development of the Hetch Hetchy project and that it owned the right by appropriation as against the plaintiff to detain and store for future use for the development of power for domestic and municipal purposes in the City and County of San Francisco and adjacent territory, sufficient water of the Tuolumne River to allow diversion by it of a constant flow of 400,000,000 gallons per day.

The city did not plead a prescriptive right as against the plaintiff’s claim of appropriation as it did against the plaintiff’s asserted riparian right. The plaintiff’s right as an appropriator was fixed by the court at 46.74 cubic feet per second. On the issue of priorities the court found that by virtue of five specified appropriations the city is the owner of appropriative rights, prior and superior to the plaintiff’s appropriative right, to store in Lake Eleanor not to exceed 5,000 miner’s inches, or 100 cubic feet per second; in Hetch Hetchy reservoir not to exceed 35,000 miner’s inches, or 700 cubic feet per second; in the proposed Cherry Valley reservoir not to exceed 25,000 miner’s inches, or 500 cubic feet per second; and to divert into the Hetch Hetchy aqueduct at Early intake not to exceed 25,000 miner’s inches or 500 cubic feet per second. (The term “Miner’s inches” used in the findings as a unit of flow refers to miner’s inches measured under a four-inch pressure, fifty of which are equal to one cubic foot per second. A cubic foot per second is equivalent to 646,272 gallons per day.)

The prior notices of appropriation found by the court to be valid were designated 1 (a) and 3' (a), posted by Mayor Phelan on July 29, 1901, for 5,000 inches of the waters of Eleanor Creek below the outlet of Lake Eleanor and 10,000 inches of the waters of the Tuolumne at the outlet of Hetch Hetchy Valley. These notices were superseded by similar notices 1 (c) and 3 (b) posted by the city engineer on October 1 and September 29,1908. Notice 3 (e) posted by the city on February 18, 1911, for 25,000 inches of waters of the Tuolumne at the outlet of Hetch Hetchy Valley was also found to be valid. It was upon these notices of appropriation that the court based its conclusion that the city was the owner of the appropriative rights prior to and valid against the plaintiff’s appropriative rights, to store in Lake Eleanor not to exceed 5,000 inches and in Hetch Pletchy reservoirs not to exceed 35,000 inches. The city claims that its notices were sufficient to entitle it to store to the full capacity of Lake Eleanor reservoir site as enlarged and as approved under the provisions of the Raker Act (289,-862.9 acre-feet), and to store to the full capacity, as enlarged, of the Hetch Hetchy reservoir (345,000 acre-feet).

The city argues that under the code method of appropriation no provision was made for giving notice of diversion for storage; that if an appropriator of water to be stored had specified in his notice the amount to be impounded, he would have had to name an amount of water greatly disproportionate to the size of the contemplated diversion ditch; that the logical course, and the course followed by the city, was to specify in the notice the amount, corresponding to the capacity of the described ditch, of regulated flow which would be obtained from storage. In other words the city contends that under the code method an appropriation of a specified amount of water conferred the right to impound such additional water as might be necessary to enable the appropriator to obtain from storage a regulated flow up to the amount stated in the notice of appropriation. The city urges the application of this theory. The plaintiff contends that the argument advanced by the city is inconsistent with the entire theory of the law of appropriation. Whatever may be the correct solution of this point, we think it is clear that the city’s notices of appropriation found to be valid and those which were erroneously found to have been irregular, were more than sufficient to permit the operation of the city’s increased storage facilities.

Included in the notices which the court found to be irregular and therefore subordinate to the plaintiff’s appropriative rights, is notice 1 (e) dated February 27, 1911, for “all the water, natural or stored, here flowing in Eleanor Creek at the point which this notice is posted”. This notice, if valid, is sufficient for the appropriation of enough water for the full capacity of Lake Eleanor reservoir as enlarged. The court found this notice to be invalid because it did “not state the amount of water claimed”, as required by section 1415 of the Civil Code, in effect at the time the notice was posted, and it is argued that because the amount was not stated in the notice the city cannot claim priority under the doctrine of relation.

The purpose of the notice was to notify “all concerned” of the intentions of the city to appropriate, store and use the waters of the river for domestic and municipal uses. It was said by this court in 1880 that notices of intention to appropriate water were to be liberally construed. (Osgood v. El Dorado Water & Min. Co., 56 Cal. 571, 579.) We are inclined to apply such a rule to this notice under the special circumstances here shown wherein it appears that the notice plainly indicated the maximum of water claimed and that the capacity of the enlarged Lake Eleanor reservoir as approved by the Secretary of the Interior Lane, on December 27, 1915, nearly four years before the plaintiff’s notice, and as actually constructed, made certain that maximum at 289,862.9 acre-feet.

The trial court also found notice of appropriation 2 (c), filed October 24, 1909, for 50,000 miner’s inches to be stored in the proposed Cherry Valley reservoir, to be invalid on the ground that it failed to state the size of the flume, ditch, pipe or aqueduct by which it was intended to divert the water and that the notice was recorded on the eleventh day after posting instead of within ten days as provided by former section 1415 of the Civil Code. This notice stated that it was the intention to divert the water “by a conduit, pipe, ditch, flume or tunnel in size as may be hereafter determined”. It is the contention of the city that this notice was a sufficient declaration of the city’s intentions and that the alleged defect and the recordation of the notice on the eleventh day should not be held to subordinate the city’s notice to the notice of the plaintiff filed ten years later, during all of which time the plaintiff and its predecessors in interest had notice of the city’s plans. We are inclined to agree with the city’s contention as applied to the facts here shown, but a contrary conclusion would not affect the city’s right to store water in its reservoirs to their enlarged capacities under its other notices of appropriation.

The city claims priority for two other appropriations, one for 15,000 miner’s inches, posted October 4, 1908, on the northerly bank of the Tuolumne River near the mouth of Jawbone Creek; and the other for 25,000 miner’s inches, posted February 28, 1911, also on the northerly bank of the Tuolumne River near the mouth of Jawbone Creek. A description of those two notices was inadvertently omitted by the city in its amended answer. On the trial the city introduced in evidence exhibit No. 572 which purported to contain a description of all of the city’s notices of appropriation. Counsel for the city relied particularly on eighteen of these notices, but failed to mention the two inadvertently omitted in the answer, and on which later it was sought to rely. During the argument the counsel for the city requested that it be permitted to consider these two notices in evidence. On objection by counsel for the plaintiff on the ground that the offer came too late, the court denied the request. If these two notices are, as claimed, important in support of the city’s rights in the premises, we think the court may well have permitted them in evidence, inasmuch as they were then a part of exhibit No. 572 and no objection to their sufficiency appears to have been made. If the time ever comes when the city may feel the necessity of relying on the additional notices, the questions relating to their status may be passed upon. According to the showing here made, the notices of appropriation found by the trial court to be regular, and those declared herein to be sufficient, cover all the water that the city will need, and it is protected by the judgment for all its requirements. Its real objection is to the limitations on its storage program prescribed by the injunctive order, and as to which the plaintiff is not legally concerned so long as it is safeguarded in its right to all the water it needs, both in quantity and quality, at its point of diversion.

The city must therefore be upheld in its contention that no substantial damage to the plaintiff’s riparian or appropriative rights has been shown and that the relief granted to the plaintiff should have been limited to an injunction restraining the city from storing water in excess of its prescriptive right at times when there is not flowing at the plaintiff’s land the quantity of water which the plaintiff can beneficially use and of a quality unimpaired by any act of the city beyond the exercise of its prescriptive right. However, it will not be necessary to reverse the judgment in order that the proper result be effected.

It seems appropriate here to state that we are dealing in this action with a controversy between the city and but one user of water on the Tuolumne River, and the judgment is necessarily confined to the issues presented by the parties to this action. This method of resolving controversies involving the rights of the users of water on the river is necessarily piecemeal, unduly expensive and obviously unsatisfactory. This court pointed out first in Wood v. Pendola, 1 Cal. (2d) 435 [35 Pac. (2d) 526], and then in the eases of Peabody v. City of Vallejo, supra, and Tulare Irr. Dist. v. Lindsay-Strathmore Irr. Dist., supra, a method by which under section 24 of the Water Commission Act, the rights of all users of water on the river may be appraised and determined in one proceeding. This method would seem to be especially desirable where the state’s interest in the excess waters of the stream may be made to appear and the claim of public agencies as users on the stream render it burdensome for private users severally to assert their rights.

On the plaintiff’s appeal it is contended that it is entitled to an injunction restraining the city from storing any water in addition to its prescriptive right to store and from diverting any water of the Tuolumne Biver whatsoever. From what has been said it follows that the plaintiff’s established and conceded right does not include the power of control over the disposition of water in excess of what it can beneficially use. To the extent of such beneficial use, however, it is entitled to full protection; and the judgment so provides.

The definition of “surplus high waters” as incorporated in the findings would seem to be too restrictive as a guide or general rule. When the expression is used in the sense of waters in excess of the beneficial needs of all lawful users on the stream it is all-inclusive for the purposes of this case and for general purposes. Such excess waters are defined to be the waters of the stream subject to appropriation for beneficial use over and above what may reasonably be subjected to a beneficial use on the lands bordering the stream (Rindge v. Crags Land Co., 56 Cal. App. 247, 252 [205 Pac. 36]), under rights fixed by the riparian status of the lands and by prior appropriation. The findings, conclusions of law and judgment in the use of the term “surplus high water”, must therefore be deemed to conform in their application to what is here determined to be the true character of the waters which the city, in addition to its prescriptive right, claims the right to store, namely, the excess waters of the stream as above defined.

We therefore conclude:

1. That the plaintiff as a riparian owner has the right, subject to the city’s prescriptive right, to all the water of the Tuolumne Biver which it can use on its riparian lands for useful and beneficial purposes as contemplated by the constitutional amendment of 1928; that the plaintiff’s rights as such riparian and also as an appropriator are fully recognized and protected by the judgment of the trial court; that when the plaintiff’s rights as a lower riparian owner and appropriator are thus protected, the plaintiff may not lawfully complain of, and has no right to prevent or control, the storage of waters in the upper reaches of the stream for flood control, stabilization and equalization of the flow, and other beneficial uses; that the plaintiff has not been damaged by the operation of the city’s storage facilities and in fact may be greatly benefited thereby.

2. That the City and County of San Francisco, as against the plaintiff, has the right to store the excess waters of the stream as herein defined, for the purposes of flood control, stabilization and equalization of the flow and other beneficial uses, and as “holdover storage” to provide further assurance of the continuance of its municipal supply in periods of drought.

3. That the excess waters of the river constitute a natural resource subject to regulation by the state; that the people of the state have by the constitutional amendment of 1928 released such excess waters from the former restrictions and limitations on the use thereof and have made them available for further beneficial uses as indicated herein; that the state by statute has also provided safeguards against the unreasonable, or excessive, or unauthorized use of such excess waters; that until it is made to appear that the use of such excess waters is required for beneficial purposes by riparian owners or appropriators having a prior right, the city has the preferential right to store and utilize such waters to the extent of its enlarged storage facilities.

From what has been said the “judgment and decree” should be and it is modified in the following respects:

Paragraph IV is modified to read as follows:

“That the defendant, the City and County of San Francisco, is the owner by prescription of a right, prior and superior to the plaintiff’s riparian right, to store in its Lake Eleanor Reservoir and Hetch Hetchy Reservoir the waters, including the excess waters, of the Tuolumne River and its tributaries, up to 234,000 acre feet of water, and no more, at any one time, and up to a total of 235,465 acre feet of water, and no more, in any seasonal year, extending from and including October 1st of any year to and including September 30th of the next succeeding year, and to release the water so stored and use it for the generation of hydro-electric power; provided that when there is not flowing at the plaintiff’s land the quantity of water to which it has been found to be entitled, and of a quality substantially unimpaired by any act of the city beyond the exercise of its prescriptive right, the waters so stored and then being used for power purposes shall be returned after such use to the Tuolumne River at a point above the works of the defendant, Turlock Irrigation District, Modesto Irrigation District and Waterford Irrigation District, and above the lands of the plaintiff.”

Paragraph V is modified to read as follows:

‘ ‘ That the defendant the City and County of San Francisco, its officers, superintendents, employees, attorneys and servants, or any of them, be and they are and each of them is, enjoined and restrained from storing any of the waters of the Tuolumne River or its tributaries in excess of its prescriptive right, when there is not flowing at the plaintiff’s land the quantity of water to which it has been found to be entitled and of a quality substantially unimpaired by any act of the city beyond the exercise of its prescriptive right.”

Paragraph VIII is modified to read as follows:

“That the defendant the City and County of San Francisco is the owner of appropriative rights, prior and superior to the plaintiff’s appropriative right, to store in Lake Eleanor reservoir flows of the tributaries of the Tuolumne River to the capacity of said reservoir as enlarged; to store in the Hetch Hetchy Reservoir flows of the Tuolumne River to the capacity of said reservoir as enlarged; and to store in the proposed Cherry Valley reservoir flows of the tributaries of the Tuolumne River not to exceed 500 cubic feet per second, provided that said proposed reservoir shall hereafter be completed and put into use with due diligence; and to divert into the Hetch Hetchy aqueduct at Early intake flows of the Tuolumne river and its tributaries not to exceed 500 cubic feet per second. That the plaintiff’s appropriative right is prior to all other additional appropriative rights or claims of said defendant.”

As so modified the judgment is affirmed, neither party to recover costs on appeal.

Waste, C. J., Curtis, J., Sturtevant, J., pro tem., Nourse, J., pro tem., and Seawell, J., concurred.