The herald., 1895-06-30
THE DIVISION OF WATER
Property Owners Below the
City Kick
GREAT HARDSHIP WORKED
The Surplus Should Be Returned, Not
Sold
The Principle Involved Has Been Before the
Courts Already Extracts from the
Decision of Justice Temple

number of property owners just be-
low the city have lately been considera-
bly, wrought up over the failure of the
city authorities to return the waters of
the Los Angeles river to the stream after
their aversion for city use. 1t is alleged.
and Jas far as is known not denied, that
instead of returning the surplus, as
should be done the city sells the same
outside or allows it to go to waste through
the outfall sewer. The cultivators of
land for a certain distance below the city
have depended upon the river water for
irrigation, holding that they have RI
parian. right to the same, and that the
action of the city in taking more water
than it needs for Its own purposes and in
failing TO return the surplus to the liver
to be enjoyed by the land owners below.
is distinctly illegal and has worked great
hardship and damage to those deprived OF
the irrigation they would have otherwise
obtained. The principle involved IN this
case has been before the supreme court
already. and the decision then rendered
is most decidedly against the position
that of the Vernon Irrigation company
VS.. the city of Los Angeles, and the opin-
ion was delivered by Judge Temple, on
March 10, 1895. The following extracts
furnish the substance OF the courts
views:
The question occurs" said Justice
Temple, whether this city has right
to take from the river more water thai
it requires for those purposes that it
may sell water to those outside of the
city limits? 1 think this question must
be answered IN the negative. 1t was so
determined in Felix VS.. City of Los An
geles (5S Cal. 73), although it was also
said in that case that the city had right
to all the waters of the river if required
for municipal purposes or for the use of
its inhabitants"
As further appears. it was expressly
held in the case cited that the city has not
right to dispose of the waters for use
upon lands situated outside the city
limits.
Indeed" said Justice Temple, $50 far
as this particular question is concerned
it would be difficult to reach any other
conclusion. The water OF rivers belonged
TO the nation and was held by it for the
use of the inhabitants. 1t obtained power
to distribute and to redistribute 1T as the
interests of the community required.
While, therefore. pueblos had a perfect
right to the water. it must be understood
that such right could only be asserted
to the amount needed to supply the in
habitants. The opinion adds:
'The city, however. and its predecessor,
the pueblo, has from time antedating
the change of flags continuously taken
from the river more water than was re-
quired for municipal uses and the m
habitants, and has supplied the same
extra municipal territory with water.
Relying upon it, orchards, vines and
other plants have been set out iand the
country has become valuable and thickly
populated. Has the city by such use ac-
quired right to do so?
This question must also be answered
in the negative. Whatever may have
been the case once the city for many
years has certainly had no right under
| its charter to sell water to outside parties
| for use ON extra municipal lands. When
| the municipal officers do this they ex-
ceed their authority and their act is not
| that OF the city. Under our systemsthe
exercise OF such powers for great length
| of time will raise no presumption of the
| grant to the city of such powers. Its
| powers are derived from the charter and
| from public laws OF which courts take
| judicial notice.
"Nor can the city in this!action assert
any right, in the inhabitants OF the extra
III unicipal district to the water Waving
other difficulties which would arise if We
could suppose that such right existed, it
does not appear that the same lands or
the same individuals have been contin-
uously supplied, if such right existed in
the community or in individuals, it
could be asserted against the city. But
they have taken the water by the purchase
of the water from the city, thereby show
claim of right on their part. Indeed, the
city now not only claims the right to de-
prive them of the water, but asserts that
it will soon do So