Herminghaus v. Southern California Edison Co.
252 P. 607, 200 Cal. 81, 1926 Cal. LEXIS 220 (1926)
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Rule of Law:
Under California's common law, a riparian landowner has a vested property right to the entire natural and ordinary flow of a stream, including seasonal high flows, as against an appropriator seeking to divert water to non-riparian lands. This right exists even if the riparian's method of using the water, such as natural overflow irrigation, is inefficient.
Facts:
- Plaintiffs (Herminghaus et al.) own an 18,000-acre tract of land along the lower San Joaquin River in an arid region of California.
- For many years, plaintiffs have relied on the natural, annually recurring high flows of the river, caused by rainfall and snowmelt, to overflow and irrigate their lands.
- This natural overflow deposits fertile silt and promotes the growth of abundant grasses, which plaintiffs use for their pastoral and cattle-grazing operations.
- The river contains numerous natural sloughs and channels that effectively distribute the high-flow waters across almost the entirety of the plaintiffs' property, rendering it all riparian.
- Defendant, Southern California Edison Co., is an upper riparian owner and appropriator on the San Joaquin River and its tributaries.
- Defendant planned to construct a large system of dams and reservoirs to impound and store the river's water for long and indefinite periods.
- The purpose of this storage was to generate hydroelectric power, with the water being released according to the defendant's operational needs rather than the river's natural flow, which would prevent the seasonal overflows from reaching plaintiffs' lands.
Procedural Posture:
- Plaintiffs, Herminghaus et al., filed an action in a California trial court seeking an injunction against the defendants, Southern California Edison Co.
- The trial court entered a judgment in favor of the plaintiffs, granting an injunction to prevent the defendants' proposed diversion of the waters of the San Joaquin River.
- The trial court's judgment exempted two of the defendant's existing reservoirs from the injunction on the grounds that plaintiffs were estopped by laches from challenging them.
- The defendants appealed the trial court's judgment to the Supreme Court of California.
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Issue:
Does an upper riparian proprietor have the right to impound and store the seasonal high flows of a river for power generation, when such impoundment interferes with a lower riparian proprietor's beneficial use of the river's entire natural flow for irrigation?
Opinions:
Majority - Richards, J.
No. An upper riparian proprietor cannot impound and store the seasonal high flows of a river for power generation if it deprives a lower riparian proprietor of their established beneficial use of the river's entire natural flow. The court's reasoning is that the annually recurring high flows of the San Joaquin River constitute its ordinary and natural flow, not 'storm' or 'flood' waters that can be freely appropriated. A riparian right is a vested property right, described as 'parcel of the land itself,' to have the stream flow past the land in its usual course. As against an appropriator, a riparian owner is not limited by a 'measure of reasonableness' regarding their method of use; they are entitled to the full customary flow so long as it is beneficial to their land. The court rejected the argument that plaintiffs must install expensive artificial irrigation systems to conserve water for the defendant's benefit, as this would improperly limit their vested right. Furthermore, the court found that legislative attempts, such as the Water Commission Act of 1913, to arbitrarily limit the amount of water a riparian can use on uncultivated lands constitute an unconstitutional taking of vested property rights under the guise of the police power.
Dissenting - Shenk, J.
Yes, the impoundment should be permitted under the rule of reasonable use. The majority's decision perpetuates an unreasonable and wasteful use of water by allowing plaintiffs to use over 99% of the river's maximum flow merely as a means of conveyance to irrigate their lands with the remaining 1%. The common law doctrine of riparian rights should adapt to the conditions of an arid state like California, where water conservation is essential for progress and prosperity. The Water Commission Act, which seeks to limit water use to what is 'reasonably needed for useful and beneficial purposes,' is a valid exercise of the state's police power to prevent waste. Rather than granting an absolute injunction, the court should have balanced the equities by allowing the defendant's project to proceed while conditioning it on the payment of compensation to the plaintiffs for any damages sustained, such as the cost of installing a more efficient irrigation system.
Analysis:
This case represents the apex of the traditional common law riparian rights doctrine in California, establishing that a riparian's right to the full, natural flow of a stream was a paramount vested property right. The decision created a significant barrier to large-scale water storage projects that aimed to capture seasonal high flows for appropriation and use elsewhere. The public and political backlash against this ruling, which was seen as sanctioning the wasteful use of a scarce resource, directly led to the 1928 adoption of Article X, Section 2 of the California Constitution. This amendment effectively overturned Herminghaus by mandating that all water rights, including riparian rights, are limited to the amount of water reasonably required for a beneficial use and that water used in excess of such needs is available for appropriation.
