The San Francisco call., 1903-12-09
THE RIGHT TO GROUND WATERS.


He State Supreme Court, in Katz ct ais vs. Walkn-
shaw, has decided certain issues of very great in
terest to large number OF our citizens The
decision rendered on rehearng the case having
been decided before opinion of the court written
by the late Justice Jackson Temple which opinion is
reaffrmed by the full bench
The issue relates to the ownership and use of ground
waters regardless of whether they exist in an under
ground stream inverted cones gravel beds. 1t
being contended that each land owns absolutely
the percolatng under his land with the right to
use or dispose of them he pleases, part of the
mon law. on all fours with the common law right OF
riparian propretors, the holds that such parts of
the common law not adapted to Our conditions
not in force here because they fit physical conditions
widely different from The doctrnees held
be that the common law, by its principles, adapts
itself to varying conditions and is modified to
the ends OF justice under different circumstances
rule of law applicable the fresh water streams of
England may be wholly inappcabie to the same char
acter of streams in this country, because of different
capacity, because the adjoining country furnishes
commerce for them unknown in England, in which case
the common law modihes its rules, upon its prn-
cples to conform to the wants of the community
The court elaboratey the difference between
conditions here in respect to and their uses
in England In large part-o California, and especially
in the southern half of the State with some exceptions
insufficient to the basis of, community life
artificial irrigation necessary and has been customary
since Spanish occupation The court notes the
tension of irrigation south of the Tehachapi where
series of years encouraged the bringing under till
age planting vines and fruit trees Of
extensive that in the succeeding dry years there
not water enough to maintain the fertility and it
demonstrated that the surface insufficient
Then began the search for percoating ground waters
by artesian wells, horizontal tunnels pumping every
other available increase the supply from below
ground and keep the land from lapsing from age AS
the population is rapidly increasing the struggle for
water is greater, and it becomes the duty of the
to inquire whether the who, by of ground
waters, has irrigated his land and made it fruitful
be protected in that whether later
intercept his supply and destroy the property and the
value it has created
The defendants contended that property right to
ground water exists in the land except while
they in his SOIL and that he has right to have
them continue pass into his land prevent them
being drawn out of his land by interference with
natural conditions on adjoining land His right there
FORE could be protected enforced and he would
be peril of the loss OF all property that
depended his of the percolating waters in his
soil The says that if this rule is the law,
law of the land it would bring peril the property
defendants themselves, since if they may inter
cept the ground of another, draw them
Of his land the may he done to them, and it
impossible see how doctrine offering protection
at all property that depends the of water can
tend promote future Developments preserve those
already
consistent with public policy conducive to the general
welfare.
The court reafirns Judge Temples opinion there
FORE and declares only ownership the landholder
of ground waters. but the right of action protect
himself against intercepton other interference with
that property in water This is modified by the rule OF
reasonable USE which also applies to surface waters
Under this decision the land owner be deprived
of his ground waters, either irrgate the lands of
Others supply of potable for city
population. No later has the right sink wells
or make subterranean ntercepting dams to draw off,
divert or intercept his supply
The decision of great interest the planters of
the Santa Clara Valley. and other parts Central and
Northern California. we'll to those in the South
The defendants in the made the point that
Justice Temples decision would apply to oil lands but
the court especially meets this by showing that oil
not mined to apply the surface of the land nor does
The court therefore, says that in any controversy
oil it will follow the decisions rendered in the oil States
inasmuch as California shares with them the physical
features and the legal principles applicable
But in respect ground waters physical features
are peculiar and individual this State and not
share them with States countries where abundant
moisture makes drainage necessary than irrigation
General Reyes has presented his case to the Presi-
dent and far persuasion may influence him. con-
Cof1r ~,