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Antioch v. Williams Irrigation Dist. - 188 Cal. 451, 205 P. 688 (1922)

Rule:

An appropriator of fresh water from a stream at a point near its outlet to the sea does not, by such appropriation, acquire the right to insist that subsequent appropriators above shall leave enough water flowing in the stream to hold the salt water of the incoming tides below his point of diversion.

Facts:

Defendant irrigation district appealed an order of the Superior Court of Alameda County (California), which granted a temporary injunction in an action by plaintiff, the city of Antioch, to prevent the district from diverting water from the Sacramento River and its tributaries upriver from the city of Sacramento. Antioch claimed that the district's diversions from the Sacramento River above Sacramento were causing Antioch's water supply from the San Joaquin River to be so polluted with salt water coming upstream with the tide from the San Francisco Bay as to make it unfit for consumption. As the volume of the waters of the two rivers decreased because of the district's diversions, the point in the San Joaquin River where the salt water mingled with the fresh water ascended the stream. The diversions upriver were for a purpose important to the state: the irrigation of crops. Moreover, for less than the cost of the instant litigation, Antioch could have just moved its point of diversion upstream. 

Issue:

Would allowing an appropriator of fresh water near the outlet of two rivers to stop diversions above so as to maintain sufficient volume in the stream to hold the tide water below the place of diversion and secure fresh water from the stream at that point, be unreasonable?

Answer:

Yes.

Conclusion:

The court held that it was evident that to allow Antioch, as an appropriator of fresh water near the outlet of the two rivers, to stop diversions above to maintain sufficient volume in the stream to hold the tide water below its place of diversion, securing it fresh water at that point, under the circumstances existing, would have been extremely unreasonable and unjust to the inhabitants of the valleys above and highly detrimental to the public interests besides. The order was therefore reversed.

In addition to the facts and conditions already mentioned there are others to be considered which make the practical application of the rule contended for by the plaintiff still more difficult and uncertain. The year 1920 was one of the driest that has occurred in the history of the state. In an average season, the City would have suffered no injury from the diversions complained of. The Sacramento and San Joaquin Rivers are by far the largest in the state. They each traverse wide valleys in which are many hundreds of thousands of acres of land suitable for irrigation and comparatively barren without it. They are each fed by large tributaries heading high up in the mountains. In these tributaries and in the main streams, many appropriations of water for irrigation have already been made and in the tributaries of the Sacramento River there are possibilities of many more, particularly if storage reservoirs are resorted to. It is certain that such appropriations and uses of the waters of those streams will be made or attempted in the future. If this rule should be adopted, it is obvious that no one could safely attempt such enterprises, or invest money therein, without previously ascertaining whether there are any appropriators of freshwater from the river near to its outlet into the bay, a hundred or more miles below, who might be affected injuriously thereby, and thereupon coming to terms with all such appropriators concerning the resulting damage to be claimed and paid. There would be great difficulty in ascertaining the facts, and still greater in coming to an agreement. A private appropriator could not condemn the right and must agree or act at his peril. A public enterprise must needs agree or enter into a costly litigation to condemn the right. The damage from any particular diversion or storage out of so many could not be ascertained with any degree of even approximate accuracy. The result, in actual practice, would be either that the appropriators near the outlet would have to abandon all claims of damage, or the proposed diversion or storage enterprises must be abandoned. Antioch carries its water from its pump to its reservoir by a six-inch pipe. By moving its pump a few miles up the river, Antioch could obtain water free from saline solution. It is not altogether improbable that if it had devoted the same amount of energy and expenditure to a change of its place of diversion as it has to the present litigation, it would have had the water uncontaminated by salt with less delay than had already occurred and at no more expense. And from the large number of attorneys who have appeared for the numerous defendants and the time they have expended in the case up to date, it is also possible that if they had acted in concert to make the change of place for the plaintiff some expense might have been saved and the litigation avoided entirely. It is evident from all these considerations that to allow an appropriator of fresh water near the outlet of these two rivers to stop diversions above so as to maintain sufficient volume in the stream to hold the tide water below the place of diversion and secure fresh water from the stream at that point, under the circumstances existing in California, it would be extremely unreasonable and unjust to the inhabitants of the valleys above and highly detrimental to the public interests besides.

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