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Gin S. Chow v. Santa Barbara - 217 Cal. 673, 22 P.2d 5 (1933)

Rule:

Flood waters, which are of no substantial benefit to the riparian owner or to his land, and are not used by him, may be taken at will by any person who can lawfully gain access to the stream, and conducted to lands not riparian, and even beyond the watershed, without the consent of the riparian owner and without compensation to him. They are not a part of the flow of the stream which constitutes parcel of his land, within the meaning of the law of riparian rights. 

All property is held subject to the reasonable exercise of the police power and that constitutional provisions declaring that property shall not be taken without due process of law have no application in such cases. 

Facts:

The city built a dam upstream of the property owners' land, thereby affecting the flow of water. The property owners sought a decree and injunction stating that the city had no right to impound or divert any of the waters. The trial court held that the city's dam had not intruded upon any of the property owners' riparian water rights. The flood waters were of no substantial benefit to the property owners or to their land; were not used by them; and could be taken at will by any person who could lawfully gain access to the river. 

Issue:

Were the city's actions, in erecting the dam, a reasonable exercise of its police powers?

Answer:

Yes.

Conclusion:

The court affirmed the trial court's findings. The court further held that the city had acted within its authority in erecting the dam where the city's actions were a reasonable exercise of its police powers.

It is contended that the terms of the constitutional amendment are too uncertain to be effective; that the amendment uses the words "reasonable" and "unreasonable" without the statement of any facts which, if existing, would constitute reasonableness or unreasonableness. Objection was made in the Herminghaus case to the terms of section 42 of the Water Commission Act which purported to define what amount of water in acre-feet should be deemed a useful and beneficial purpose. The objection was sustained on the ground that it was beyond the power of the legislature so to provide, and that "the extent to which such riparian land owners need, and use, and are entitled to have the benefit of the flow and overflow of such waters under their vested riparian rights therein is a matter which depends upon the circumstances of each particular case". This is but another way of saying that what is a useful and beneficial purpose and what is an unreasonable use is a judicial question depending upon the facts in each case. Likewise, what is a reasonable or unreasonable use of water is a judicial question to be determined in the first instance by the trial court. There would seem to be no more difficulty in ascertaining what is a reasonable use of water than there is in determining probable cause, reasonable doubt, reasonable diligence, preponderance of evidence, a rate that is just and reasonable, public convenience and necessity, and numerous other problems which in their nature are not subject to precise definition but which tribunals exercising judicial functions must determine.

As applied to the case at bar, there can be no doubt that the use to which the plaintiffs insist they have the right to put the flood waters of the Santa Ynez River appropriated and used or to be used by the defendants is an unreasonable use as contemplated by the constitutional amendment, since it is an established fact in this case that such use is and can be of no substantial or any benefit to said riparian lands; that the waters to be taken and used by the defendants are not and never can be used or be put to any beneficial or useful purpose by the plaintiffs; that the appropriation and use of said water by the defendants will not result in any injury whatever to said riparian lands; that the waters of the river, exclusive of those taken or to be taken by the defendants, will be more than sufficient to supply all of the riparian needs of the plaintiffs; and that even after the proposed appropriation and use by the defendants an annual runoff of 121,000 acre-feet of water will be washed into the sea.

Counsel for the plaintiffs made an extended and critical analysis of the findings in an endeavor to show that they are contradictory and uncertain to such an extent that no judgment for the defendants may be founded thereon. It is argued that if particular findings be taken as supporting the theory of the Gallatin case, such findings are inconsistent with other findings to the effect that some seepage into the lands of the plaintiffs occurs whenever there is any water flowing in the stream; that some water is pumped from the bed of the stream in the summer-time; that some land near the ocean is overflowed in times of flood; and that in the presence of the latter findings the doctrine of Lux v. Haggin , and subsequent cases to the same effect is controlling. But under the facts as found by the trial court, considered in the light of any construction placed thereon by counsel for the plaintiffs, the findings support the judgment under the law that was in effect, and the court found no inconsistency in the trial court's findings.

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