NORTH KERN WATER STORAGE DISTRICT v. KERN DELTA WATER DISTRICT
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
NORTH KERN WATER STORAGE
DISTRICT,
Plaintiff, Cross-complainant,
Cross-defendant
and Appellant,
v.
KERN DELTA WATER DISTRICT,
Defendant, Cross-complainant,
Cross-
defendant and Appellant;
CITY OF BAKERSFIELD,
Cross-complainant,
Cross-defendant and
Respondent.
F047706
(Super.
Ct. No. 96-172919)
APPEAL from a judgment of the
M. Reed, Judge.
Young Wooldridge, Ernest A. Conant, Scott K.
Kuney, Steven M. Torigiani; Best Best & Krieger, Arthur L. Littleworth,
Gregoro K. Wilkinson and Jill N. Willis for Plaintiff, Cross-complainant,
Cross-defendant and Appellant.
McMurtrey, Hartsock & Worth, Gene R.
McMurtrey, Daniel N. Raytis, James A. Worth; Smiland Khachigian Chester,
William M. Smiland and Theodore A. Chester for Defendant, Cross-complainant,
Cross-defendant and Appellant.
Virginia A. Gennaro, City Attorney; Duane
Morris, Colin L. Pearce and Matthew K. Kliszewski for Cross-complainant,
Cross-defendant and Respondent.
North Kern Water Storage District (North Kern) appeals
and Kern Delta Water District (Delta) cross-appeals from a judgment entered on
retrial, after we reversed a prior judgment. The present judgment declared a
forfeiture of certain previously appropriated waters of the Kern River. Plaintiff
and appellant North Kern contends that the trial
court erred in selecting the timeframes against which to measure nonuse of
the water, that the court should have measured differently the nonuse of water
by junior water rights holders, that the court erroneously precluded North Kern
from asserting that senior rights holders' use of water was unreasonable, and
that the court should have awarded the forfeited water to North Kern instead of
declaring it available for appropriation through the
and appellant Delta contends the court erred in precluding its defense of
estoppel and in measuring the forfeiture against Delta's full appropriation
even when the river had insufficient water to provide the full appropriation. Respondent
City of Bakersfield, holder of rights junior to some of Delta's rights and
senior to North Kern's rights, generally supports the judgment entered on
retrial.
As we will explain, we reverse the
judgment.
I.
Facts and Procedural History
This matter was before us in case No. F033370
and a complete statement of the facts is contained in the unpublished opinion
in that case, filed January 31, 2003. We will not repeat the facts here in
that level of detail.
A.
Summary of Legal Principles from Prior Opinion
The parties use water from the Kern River
pursuant to rights originally established in the late 19th century. As with
all water rights in California, exercise of the right is conditioned on
reasonable use of the water for a beneficial purpose. (See Cal. Const., art.
X, § 2.) In other words, the owner of the right to a quantity of water or
to the flow of water (for example, for power generation) is not entitled to
waste water or to use it unreasonably. (City of Barstow v. Mojave Water
Agency (2000) 23 Cal.4th 1224, 1241-1242.) The owner of a common law right
appropriate water from a natural watercourse, such as the Kern River, has the
right to change the purpose and place of use of the water, so long as any
change does not injure others with rights in the watercourse. (See Wat. Code,
§ 1706.) (We refer to this as the no-injury rule. (See Slater, Cal.
Water Law and Policy (1995) § 10.02, p. 10-8.)) Common law appropriative
rights are freely transferable, subject to the no-injury rule and to the
reasonable and beneficial use requirement applicable to all water rights. (Id.
at § 2.18, p. 2-77.)
Water rights are a form of property and, as
such, are subject to establishment and loss pursuant to the doctrines of
prescription, adverse possession, and abandonment. (See Smith v. Hawkins
(1895) 110 Cal. 122, 126.) In addition, however, due to the scarcity of water
generally in California, its societal importance, and the peculiar nature of
common and multiple rights to water from the same watercourse, the courts have recognized
that water rights may be forfeited through nonuse under certain circumstances. (Id.
at p. 127.)
Forfeiture of the right to appropriate water
from a natural watercourse can be established through a
action brought by one with a conflicting claim to the unused water, such as the
owner of a junior right to use water from the same watercourse. In the present
case, North Kern sued to establish that Delta had forfeited the portion of its
appropriative right that exceeded Delta's historical use of the water.
A forfeiture may be of an entire
water right, or the forfeiture may be limited to a portion of the water right
or to a portion of the year, or both. (See Smith v. Hawkins (1898) 120
Cal. 86, 88.) In order to establish a forfeiture, the plaintiff must prove
that the defendant failed to use some portion of its water entitlement over a span
of five years immediately prior to the plaintiff's assertion of its conflicting
right to the water. A portion of our remand in this case directed the trial
court to determine the beginning and ending dates of this five-year period.
(We will refer to the relevant five-year period as the forfeiture period.)
B.
The Forfeiture Methodology Established in the Prior Opinion
Once it determined the forfeiture
period, the trial court was directed to select the relevant increment of time
in which to measure use and nonuse. (We will refer to the relevant period as
the measurement period; the parties refer to this period as the â€
| Description | In action between two water users in which plaintiff sued to establish that defendant had forfeited the portion of its appropriative right that exceeded defendant's historical use of the water, trial court correctly determined that minimization of the amount of forfeiture was appropriate, and its determination that a daily measurement period would best protect defendant's entitlement to a volume of water sufficient to meet historical uses was supported by the evidence. In measuring nonuse of water by junior water rights holders, trial court should have considered all water available to each junior appropriator as its "actual entitlement" up to the amount of its paper entitlement. Trial court's conclusion that release water cannot form the basis for measurement of actual entitlement because the amount of such release cannot be known in advance of the day of use was contrary to mandate of California Constitution and Water Code that forfeiture analysis reflect the actual historical use of water. Because forfeiture is of water rights and not of water itself, it is not necessarily erroneous to determine that the amount of forfeiture exceeds the total amount of water in the relevant body of water, nor would forfeiture necessarily create unappropriated water subject to appropriation through the Water Code permitting process. |
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