Law Office of Herman I. Kalfen - Civil Litigation - Business Law - Environmental

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© Herman I. Kalfen, Kalfen Law Corporation 2013

This is an outline for the presentations given by Herman I. Kalfento the National Business Institute (NBI)on June 21 in Fresno and June 22, 2015 in Bakersfield, CA

Introduction - All Water Use Must be for Beneficial Purposes and Reasonable Use

In Summary, there are two types of water rights, Appropriative Water Rights and Riparian Water Rights, each considered below.

A. Appropriative Water Rights

In general there are two types of Appropriative water rights recognized in California, namely pre 1914 and after 1914.


The California Legislature enacted sections 1410 through 1422 of the California Civil Code in 1872. These code sections were in effect until December 19, 1914, thus referred to as pre-1914. These sections established the procedure to set the priority of water appropriation. In summary, the person intending to obtain the right was required to first post notice of appropriation at the proposed point of diversion and then record a copy of the notice with the appropriate County Recorder. If these procedures were not followed, the priority of appropriative right did not attach until the water was beneficially used. (Duckworth v. Watsonville Water Co. (1910).

Once acquired, a pre-1914 appropriative right can only be maintained by continuous beneficial use of the water. The right is not fixed by the amount claimed in the original notice of appropriation; the notice of appropriation really only fixes the date of priority. The amount of the right is fixed by the amount that can be shown to be actually beneficially used.

A pre 1914 water right acquired can be lost. This is discussed below.

In order to provide notice to others of the existence of a pre-1914 water right, then it is recommended that one file a Statement of Water Diversion and Use. with the State Water Resources Control Board.


On December 19, 1914, the California Legislature adopted Division 2, Part 2 of the California Water Code. This fundamentally changed the procedures for obtaining water right appropriations. The steps that now must be taken in order to initiate and acquire an appropriative water right. These steps include filing an Application with the State Water Resources Control Board to Appropriate Water, including an Environmental Information form, as well as submittal of a map of the area (that may have to be drawn by a registered civil engineer depending upon appropriation sought). You will also need to include an application fee ($1000) to the State Water Resources Control Board and an application fee to the Department of Fish and Game ($850). Finally, you will also enter into a Memorandum of Understanding with the State Water Resources Control Board for the preparation of environmental documents.

Special Appropriate Water Rights - Small Domestic Registration / Live Stock Ponds

Please also note there are two special subsets of appropriative water rights - small domestic registration, and small livestock stockpond registration. These registrations allow a person to obtain a permit for the appropriation of water, if water is available, for particular uses as long as the appropriation sought does not exceed 4500 gallons per day or 10 acre-feet per year. These two types of rights are streamlined and may not normally require as much documentation as needed to process the standard appropriative water right application.

Loss of Appropriative Rights

Abandonment: To constitute abandonment of an appropriative right, there must be the intent and the actual relinquishment of the right. Abandonment must be voluntary. (Black's Law Dictionary, 6th Ed.)

Nonuse:Nonuse simply means the failure to put the water to beneficial use for a period of five years. It is also called a "forfeiture." (Water Code Section 1241; Lindblom v. Round Valley Water Co. (1918), North Kern Water Storage Dist. v. Kern Delta Water Dist. (2007). Nonuse is different from abandonment.

B. Riparian Water Rights

Riparian land is generally defined as lands that are traversed or border upon a natural watercourse. In most simple terms, if your land has water, you have rights to use that water on that land. California Court cases hold that each riparian has a right that is correlative with other riparians. Thus, each must share the water from that source (Pleasant Valley Canal Co. v. Borror (1998). There are rights and obligations associated with a riparian land.

A riparian is only authorized to use that amount of water that is both reasonable and beneficial. (Sec. 3, Art. XIV, Constitution of California, California Water Code §§ 100, 101.) The riparian right is neither created by use nor lost by non-use. (Lux v. Haggin (1886)).

If there is insufficient water for the reasonable beneficial requirements of all riparian owners, they must share the available water supply. Apportionment is governed by the circumstances of each case, including each owner's reasonable requirements and particular uses. A riparian owner who uses water for domestic purposes (household use, watering of domestic animals, etc.) may take the whole supply over one who uses it for other purposes. (Deetz v. Carter 1965).

Determination of Riparian land is determined by three criteria: (1) the land in question must be contiguous to the stream. The length of frontage is an immaterial factor. (2) The riparian right extends only to the smallest tract held under one title in the chain of title leading to the present owner. (3) The land, in order to be riparian, must be within the watershed of the stream. (Rancho Santa Margarita v. Vail (1938).

As to any owner below the confluence of two branches of a stream, the drainage areas of both branches must be deemed to constitute a single watershed and the owner riparian to both branches. (Holmes v. Nay 1921).

A riparian owner may, for the more convenient use of the water on his riparian land, go upon the land of another farther up the stream, with the consent of such landowner, and there divert the water for use upon the land below. (Turner v. James Canal Co. 1909).

Riparian rights are not determined by past geologic formations but by the present natural topography. (Rancho Santa Margarita v. Vail 1938).

A parcel of land loses its riparian status forever when severed from land bordering the stream by conveyance, unless the conveying document specifically reserves the riparian right. (Miller& Lux, Inc. v. J.G. James Co. 1919).

A riparian right may be lost through prescription, also discussed below in greater detail. (Pabst v. Finmand 1922; Pleasant Valley Canal Co. v. Borror 1998).

A riparian right is subject to those appropriative rights that were perfected, as the result of the diversion of water, prior to the date of vesting of the riparian right, which is when the grant from the United States government was obtained. Otherwise a riparian right is generally superior in right to an appropriative right. (Haight v. Costanich 1920; Pleasant Valley Canal Co. v. Borror 1998.

The riparian right cannot be transferred for use upon a nonriparian parcel of land. (Holmes v. Nay 1921).

The riparian right does not apply to foreign water; i.e. water originating in a different water shed, or stored and released by another user. (Stevinson Water District v. Roduner 1950; Bloss v. Rahilly 1940).

A riparian right does not grant the right to store the water for seasonal use (generally greater than 30 days). (Colorado Power Co. v. Pacific Gas & Electric Co. 1933).

C. Riparian Rights verses Prior Appropriation

There are obvious conflicts that can arise between water use based on Appropriation and use based on Riparian Rights. This conflict was highlighted in California between the gold miners, who were the Appropriators, and the Landowners, the Riparians, who often possessed land dating back to Mexican Land Grants.

The California Supreme Court addressed this conflict in Lux v. Haggin (1886). In this seminal case, the Court reasoned that California's adoption of the English Common Law also included adoption of the Riparian Doctrine. The CA Supreme Court also confirmed Appropriation Rights, but stated that Appropriative Rights are Junior in Priority to Riparian Rights.

Therefore, Riparian Rights are first priority rights and appropriative rights are second priority rights. One principal area of uncertainty or dispute is regarding dormant riparian rights (please see inter-alia In re Long Valley).

D. Prescription Overcoming Prior Water Rights

The general rule of priority of an appropriative water right is first in time, first in right. As a result, an appropriative water right is subordinate and subject to all prior vested rights, whether appropriative or riparian.

Prescription is a legal doctrine that allows a water user to overcome a prior water right held by another. Thus, if a junior water right holder diverts water that is lawfully entitled to a senior water right holder, the junior may become entitled to that water if the diversion satisfies a number of requirements.

First, the junior use must be continuous and uninterrupted for a period of five years. Second, during those five years, the use must be open and notorious, exclusive, under claim of right, hostile and adverse to the title of the senior owner, and an invasion of the senior owner's right. Third, the senior owner must have had an opportunity to prevent the adverse use by legal action. Also, the junior must pay any taxes that are assessed on the water. If any of these conditions are absent, the acquisition of a prescriptive water right would not be perfected.

It is noted that water users are ordinarily not concerned with the use of water after it has passed their land or point of diversion. Thus, a prescriptive water right ordinarily cannot be acquired against an upstream user. In addition, a right cannot be acquired by prescription to use a greater quantity of water than reasonably necessary for the beneficial purpose served, regardless of amount actually used.

It is also important to note that the prescription doctrine described above is regarding fully permitted riparian or appropriative water right owner. It is currently unclear whether an unpermitted appropriative water right user can obtain a prescriptive water right against a permitted water right holder or riparian.

Since enactment of Division 2, Part 2 of the California Water Code, a right to appropriate or use water cannot be secured without first obtaining a permit from the State. However, this right may only apply as against the State, and may not be required to obtain a right against another lawful user. (People v. Shirokow (1980) 26 Cal.3d 301).

E. New Permits Cannot Impair Vested Appropriative & Riparian Rights

Pursuant to Water Code § 1702, vested appropriative and riparian rights cannot be impaired by the issuance of a new water right. A new permit, if issued, will limit the water that can be taken so that the new permit will not injure existing rights. The priority of the right acquired will be the filing date of the application.

E. New Permits Cannot Impair Vested Appropriative & Riparian Rights

Pursuant to Water Code § 1702, vested appropriative and riparian rights cannot be impaired by the issuance of a new water right. A new permit, if issued, will limit the water that can be taken so that the new permit will not injure existing rights. The priority of the right acquired will be the filing date of the application.

F. Authority Over Water Usage Disputes

The right to use water is a usufructory property right (with right to use and profit from the property). This property right is protected in a number of ways.


Anyone claiming water right infringement may file a complaint with the State Water Resources Control Boar, orthey may need to institute timely court action. Importantly, the Board's authority to determine the validity of a water right extends only to appropriative water rights initiated post-1914. As one result, the Board will not become involved in a dispute concerning the validity or exercise of a pre-1914 or riparian right.

Generally, landowners have the right to withdraw water from an underground aquifer for reasonable beneficial use from their land above. This right to withdraw water is correlative (similar to a riparian right holder's) with all the other landowners overlying the same aquifer. In California, an overlying landowners rights to groundwater are analogous to the landowner's riparian rights to surface water.

The jurisdiction of the State Water Resources Control Board extends only to surface water and subterranean streams flowing through known and definite channels. (Water Code § 1200).

1 As with most areas of Water Law, exceptions exist, including regarding certain statutory stream adjudications, wherein the Board is empowered to determine all rights to water of a stream system whether based upon appropriation, riparian right, or other basis of right. (California Water Code § 2501).

Percolating Groundwater is defined as vagrant, wandering drops moving by gravity in any and every direction along the path of least resistance. City of Los Angeles v. Hunter (1909).

Subterranean Stream is defined as groundwater flowing in a known and definite subsurface channel, the channel has relatively impermeable beds and banks, the course of the channel is capable of being known with reasonable interference, and groundwater is flowing in the channel. City of Los Angeles v. Hunter (1909). Please also see the beds and banks test stated in Los Angeles v. Pomeroy (1899).

Spring Water

With respect to a spring which has no natural outlet, the owner of the land owns the water as completely as he does the soil. (State of California v. Hanson (1961). Such water may be used without obtaining a permit from the State Water Resources Control Board; however, a Statement of Water Diversion and Use should be filed with the SWRCB.

If a spring contributes to a flowing stream, a permit from the State Water Resources Control Board must be obtained, unless the water can be used per a riparian water right.

Water Regulated and Protected as Public Trust

The concept of a public trust is an English common law concept imported from Roman law. From this Roman law origin, the concept of the public trust evolved, under which the federal government owns all of its navigable waterways and the lands lying beneath them as trustee of a public trust for the benefit of the people. The states acquired title as trustees to such lands and waterways upon their admission to the union.

Historically, the trust applied only to navigation and similar uses in navigable waterways. However, in National Audubon Society v. Superior Court of Alpine County 1983, the California Supreme Court expanded the trust to include public interests in non-navigable waterways. Thus, the scope of the public trust in California is very broad.

Any use of surface water in California is theoretically subject to the public trust as a navigatable waterway. In addition, any member of the general public has standing to raise a claim of harm to the public trust. The harm alleged can be based upon a number of factors such as aesthetics, environmental harm and fishery damage.The successful application of the public trust can amend or modify a water right. This provides the State and citizens with additional tools to protect the water of the State of California.

G. Conclusion - Complex Area of Law / Other Applicable Laws and Issues / Disclaimers

Water law and related issues are complex and evolving. Further, emergency drought conditions have given rise to various forms of water rationing and drought related water re-allocations.

Further, there are many other lawsand issues that may be applicable to water use issues. These include, but are far from limited to the Endangered Species Act (ESA), National Historic Preservation Act (NHPA), California Environmental Quality Act (CEQA).

This was a brief overview of certain issues. This overview should not be a substitute for obtaining legal counsel for your water law issues.No legal advice has been given in this article or website. Please also note there are important statutes of limitation that may apply and you may need to file your claim within a set time period. Every case is different and every day may matter. If you need legal assistance, please immediately consult any attorney of your choosing.

Law Office of Herman I. Kalfen - Civil Litigation - Business Law - Environmental

Kalfen Law Corporation
Herman I. Kalfen, JD, REA, NAEP

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