NORTH KERN WATER STORAGE DISTRICT v. KERN DELTA WATER DISTRICT Part I
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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