[ photograph of David Horneck in his CSUN office ]       

DAVID HORNBECK

A Festschrift

Reflections by
Former Students and
Current Colleagues and Associates

 		      [ diseno for Rancho Vega del Rio de Pajaro, Monterey County, Online Archive of California, California Digital Library, altered from original by C.M.Rodrigue ]

WEAVING THE WATER WEB:
Evolution of the Legal Framework for Water Resource Development in California

Christine M. Rodrigue and Eugenie Rovai

Southern California Environment and History Conference
Southern California before 1900: Landscape, Climate, and Ecology
California State University, Northridge
21 September 1996
INTRODUCTION

California at the present time has easily the most complex water resource management system in the United States. At least six different legal principles govern water allocation in the state, deriving from at least three different cultural and political-economic contexts. These frequently conflict and, so, a huge body of case law has worked out a nervous hierarchy of priority among them. This paper presents a brief overview of California water rights as they developed in the last half of the nineteenth century and then focuses on their implications for the landscape of the San Fernando Valley.

THE HIERARCHY OF DIFFERENT CLASSES OF WATER RIGHTS

The various water rights have their origins in English common law, ad hoc practices developed during the Gold Rush, and the Spanish Law of the Indies. Riparian and overlying rights are common law-derived usufructory rights to water from a stream or groundwater basin by dint of land ownership. This common law tradition had developed originally in England and the United States in moist climates. As a result, there was no inherent limitation on the amount of water any riparian or overlying rights holder could use: it was inconceivable that the water could run out.

Gold mining was not concerned with land ownership. Miners appropriated water from streams to use on land near or away from the sources to process gravel ores. Appropriative water rights were worked out informally among them as conflicts inevitably developed among multiple users of the same source. Appropriative rights, then, are built around the concept of water as a scarce and limiting resource. Custom allocated appropriative rights according to seniority -- first in time, first in right -- of those amounts in continuous (economically) beneficial use by a diverter -- use 'em or lose 'em. A shortage meant that the most junior diverter would lose all water in order to preserve more senior diverters' rights. Formal recognition of the appropriative rights system came with its incorporation in the California Civil Code of 1872. At this point, California had two legally recognized systems of water allocation: the unquantified common law tradition of riparian and overlying rights and the quantified allocation of limited quantities of water under the appropriative system. The two legal systems obviously conflict, and the common law system had no internal means of allocating water in times of scarcity. The inevitable lawsuits resulted in a case law hierarchy of rights within and between the two classes of water rights by the turn of the century.

In 1903, The California Supreme Court addressed both issues. With regard to the primacy of the two legal systems, it explicitly promoted maximum economic development in a semi-arid region. In Katz v. Walkinshaw, it stated that no-one should be allowed to "sleep on his rights." Allowing riparian and overlying users to enforce claims to water they were not using over appropriators who, by definition, were trying to use water would impose an opportunity cost in wealth production on the citizens of the State. The Court introduced the concept of "reasonable use" for some "beneficial" purpose in the matter of water allocation, trying to reduce frivolous uses of water for the purpose of retaining claims on water rights. In practice, this decision means that common law claims were to be regarded as higher than the newer appropriative system, but for the first time there was a limit to waters allocated under common law.

Common law users had the highest right in time of shortage to as much water as they could reasonably and beneficially use, but water beyond that was now, for the first time, deemed "surplus." Surplus water was now available to appropriators and, among appropriators, seniority determined priority of claim. Of course, to protect their claims to water during drought, common law users and senior appropriative users would feel pressure to use water as luxuriantly as justifiable: conservation in moist times directly injures access to water in dry times. This is a shortcoming that plagues drought management to the present day.

The Katz v. Walkinshaw decision simultaneously addressed the question of quantifying rights within a group of riparian or overlying rights holders using the same source. In times of scarcity, the water rights were to be divided proportionally, essentially to land ownership. This modification of riparian and overlying rights to quantify rights during drought is called the "correlative use" principle. Because of the difficulties in dividing waters in a complex groundwater system, this led eventually to the concept of adjudicated basins, whereby a court uses expert evidence to determine water yield in a basin and then allocates it among rights holders.

Prescriptive rights are a bit of a wrench in the works, existing outside this careful web of relationships among and between common law and appropriative users. Prescriptive rights are the open and notorious adverse use of another's water rights. By definition, adverse use is not use of a surplus left over from someone else's water right -- it is the use of non-surplus water to the direct detriment of the original rights holder. If such "squatting" is undetected and unopposed for five years, the thief is awarded prescriptive rights. The existence of this possibility makes for jealous protection of water use by regular common law and appropriative users.

The last major category of water rights, pueblo rights, enters this delicate legal brew like a wild card tossed in from the Spanish Law of the Indies' water tradition. The United States gained possession of California and the rest of northern Mexico through the Treaty of Guadalupe-Hidalgo, which concluded the Mexican-American War of 1846- 48. The eighth and tenth articles of the treaty stipulated that the United States would "inviolably respect" "property rights of every kind" enjoyed by the Mexican citizens thereby incorporated into American territory. The Congress, in honoring the letter of the treaty, addressed land titles in the California Land Law of 1851. As a result of the process established in this law, the Mexican land grant holders wound up by and large losing their land due to the length and expense of that legal process.

Water issues were not of such pressing interest to the Federal government, and, so, the new State of California addressed it. In 1850, the legislature incorporated Los Angeles and stated that it would, in accordance with the treaty, "succeed to all the rights, claims, and powers of the Pueblo de Los Angeles in regard to property," two years later specifically assigning the city legal responsibility for water allocation.

At this point, we focus more closely on Southern California, particularly the relationships between the City of Los Angeles and the San Fernando Valley.

PUEBLO RIGHTS AND THE GROWTH OF LOS ANGELES

By 1879, the City began an aggressive campaign to promote pueblo rights, as a water right paramount to any riparian or appropriative claim whatsoever. Perhaps realization of the possibility of other users developing prescriptive rights motivated some of the City's pugnacity. In this, it simply continued the stance of the Pueblo de Los Angeles, which also fiercely and litigiously defended its pueblo claim to the L.A. River and its sources. In 1879, Los Angeles destroyed irrigation ditches upstream along the Los Angeles River and was sued by their builders in Feliz v. City of Los Angeles and Elms v. City of Los Angeles. The California Supreme Court held for the City, stating in Feliz (1881):
From the very foundation of the pueblo, in 1781, the right to all the waters of the river was claimed by the pueblo, and that right was recognized by all the owners of land on the stream, from its source...we hold that, to the extent of the needs of its inhabitants, it has the paramount right to the use of the waters of the river...
The State Supreme Court made another critical decision in 1886, while dealing primarily with the balance between common law and appropriative rights. In Lux v. Haggin, the Court specifically noted that the Legislature had recognized pueblo rights in Los Angeles and that such rights might be virtually unlimited.

With this first legal support for the paramountcy of pueblo rights, Los Angeles doggedly extended them in a series of lawsuits over the next couple of decades. It commenced selling surplus water in the river to users outside the city limits, to the detriment of riparian users downstream. The idea was deliberately to provoke a legal challenge, which L.A. could use to solidify even further the pueblo precedent. The challenge came in Vernon Irrigation Co. v. Los Angeles and, in 1899, Los Angeles' strategy was partially vindicated. The Court very specifically confirmed the paramountcy of the City's pueblo rights but that the "right could be asserted only to the amount needed to supply the wants of the inhabitants." The City could no longer sell surplus water, but it could safely recall water from any riparian users should the need arise. Adjacent areas began annexation immediately.

L.A. was on a roll. In Los Angeles v. A.E. Pomeroy (1899), the California Supreme Court specifically stated that "all the waters of the San Fernando Valley, except what is lost by evaporation consumed in plant life, flow out through the narrow pass...either on or beneath the surface," thus giving the City of Los Angeles paramount rights even to the groundwater of the San Fernando Valley, much to the annoyance of the major landholders and real- estate speculators out there. In Pomeroy, too, the Court ruled that pueblo rights covered all needs in portions of the City not part of the original pueblo's land allotment but subsequently annexed to the City. An area could be covered by Los Angeles' paramount pueblo rights if it joined the City, again spurring interest in annexation.

With control of its own local water sources in the L.A. River and San Fernando Valley groundwater basin now securely in its legal grip, certain parties in the City, dreaming of building the greatest city in the West, turned their attention to bringing in as yet unneeded exotic sources of water to enable future growth and real-estate fortunes.

By 1904, the City quietly began buying up land and water rights in the Owens Valley some 375 km to the north. In 1905 and in 1907, under the influence of the Los Angeles Times and other newspapers, whose families owned potential real-estate fortunes in the San Fernando Valley, the citizens of Los Angeles voted overwhelmingly to fund the further land acquisition in the Owens Valley and the actual construction of the aqueduct. Construction began in earnest in 1908 and, in 1913, the waters were released in a public relations extravaganza in the San Fernando Valley. There was a lot of talk about selling surplus Owens Valley water to San Fernando Valley landholders and others, but William Mulholland, with his progressivist vision of municipal agencies, would not hear of it. Also, the Congress, in voting to give L.A. the right-of-way for its aqueduct over Federal lands, specified that the water was to be used for irrigation within the city limits. William Mulholland's view, then, prevailed in light of this Congressional decision, and Owens water is handled in accordance with the City's treatment of pueblo-held water after Vernon -- that is, not sold.

At this point, we turn to the San Fernando Valley as it was affected by Los Angeles' water rights. A brief history is presented, juxtaposed with key water issues of the times.

THE SAN FERNANDO VALLEY LANDSCAPE AND LOS ANGELES' WATER RIGHTS

The first sustained Spanish presence among the Native Americans of the Valley was the establishment there in 1797 of Mission San Fernando Rey de España. Padres Lasuén and Dumetz selected the northern part of the Valley, partly for the good soils there and partly because of a greater concentration of Indians there, but also very specifically to avoid infringing on the water rights of the Pueblo, which had been established in 1781. The L.A. River flowed through the rather swampy southern part of the Valley.

This mission, like the others in the system, husbanded stock, especially cattle, sheep, and horses. It also grew grains, mostly wheat, with dry-land farming techniques. There was also some small-scale irrigation agriculture, basically, orchards and gardens, watered from a small dam on a stream nearby. In 1812, the mission authorities built a dam right on the L.A. River, in the southeast Valley, near today's North Hollywood. The Pueblo protested and, after ten years of litigation, won on the paramountcy of its pueblo claim.

In 1845, the lands of the mission were leased to Andres Pico and Juan Manos and then sold to them in 1846. Again, cattle-raising and sheep-husbandry dominated the Valley's cultural and economic landscape, though Pico and Manos and various newcomers on small holdings raised fruits and vegetables, irrigating them from various isolated springs and small streams.

The stock-rearing era persisted as the dominant land use until a drought in 1877 destroyed most Valley sheep before they could be driven to safer pasturage in Inyo County. In the middle of this essentially pastoral landscape, however, were the seeds of future landscapes. Small-scale irrigation gardening and orchards were already mentioned. The beginnings of real-estate speculation can be found toward the end of this era, too. Charles Maclay and George and Benjamin Porter bought the northern half of the Valley in 1874 and, influenced by friends' positive responses to the attractiveness of the area, decided to found and plat a town, San Fernando, near the old mission, that very spring. They sold hundreds of lots almost immediately and secured the terminus of the Southern Pacific Railroad for their new town. The basis for the next dominant landscape was laid when Isaac Lankershim commented on how well naturalized oats were doing on their own out in the Valley. In 1874 and 1876, a friend of his, I.N. Van Nuys, sowed wheat on a couple hundred acres of unirrigated land and realized quite a bumper crop in 1876. His success acted as an alternative model for those Valley landholders devastated by the deaths of their sheep herds the next year.

Dry-land wheat farming, then, took over as the dominant land cover throughout most of the Valley after 1877 through 1910. In this, the Valley was making a similar shift seen in much of California after the drought of 1864. Like the stock-raising operations, wheat farming encouraged huge land holdings, because of the need to spread the cost of wheat harvesting machinery over a lot of land. The Valley became so successful with wheat that it became the granary for Southern California and an exporter of wheat to Europe and Asia, shipping via the railroads and the port at San Pedro.

Throughout the wheat era, there were some shadows of the past landscape, in the form of continued sheepherding in the hills above the north Valley in the winter and spring wheat-growing season. The sheep were driven back onto the Valley floor during the off-season, to graze on wheat stubble.

Traces of the coming landscape were also evident. There were attempts to diversify the land use, as in experiments with dry-land wine grape cultivation in the east Valley, dry-land deciduous fruit orchards in North Hollywood in 1888, and olives in the north Valley. Small-scale irrigation was tried with citrus in the mostly frost-free alluvial fans surrounding the Valley flats. Similarly, a single farm a few miles from San Fernando produced vegetables with irrigation and delivered them twice a week to the scattered farm families who devoted all their land to wheat. Some residential subdivision had begun in the southern and eastern parts of the Valley in 1885, and these depended on groundwater.

With the advent of gas well-pumps, the people growing deciduous orchards in North Hollywood decided to irrigate them with Valley groundwater. They were delighted with a virtual doubling in yield and less delighted when Los Angeles sued them for breaching the City's pueblo rights. As ever, L.A. won.

Irrigators and real-estate speculators in the San Fernando Valley were, thus, in a very real bind, which could frustrate their ability to participate in the great change in California agriculture from dry-land wheat farming to the more intensive and higher-value specialty cropping. They basically had no rights to the waters of the L.A. River nor even to the groundwater below their feet. As of 1895, they no longer had the option of buying water from the City. At this point, certain of them became aware of L.A.'s stealthy purchase of land in the Owens Valley. Of especial importance were the members of the San Fernando Mission Land Company, a syndicate which included railroad and real-estate tycoon, Henry Huntington; Union Pacific's president, E.H. Harriman; the Times' owner, Harrison Gray Otis; and the Los Angeles Express newspaper's owner, Edwin Earl. This syndicate obtained an option to buy Valley land in 1904, less than two months after Mulholland told the Board of Water Commissioners of his support for taking the Owens Valley water. They exercised their option in 1905 on the day that former mayor Fred Eaton got word to the Board that he had secured an option on a key piece of real estate in the Owens Valley. With such inside information, they were able to buy 16,000 acres of San Fernando Valley land for $35 an acre, later making millions from this and other purchases once the Owens Valley water arrived in the San Fernando Valley. With their control of local media, too, they were able to bombard Angelenos with fear of drought so that they would vote for funding the aqueduct. Once the L.A. Aqueduct was completed and delivering water, it didn't take too much further effort to convince the residents of the San Fernando Valley to vote for annexation to the City. In 1915, all of the Valley was annexed, except for the already incorporated San Fernando, Burbank, and Glendale, Rancho El Escorpión in the west Valley, and North Hollywood, which was still irritated about being sued by L.A. over orchard irrigation. By 1923, North Hollywood went on and joined.

So, now, the syndicate and many another landholder in the San Fernando Valley could make killings in subdivision and speculation and realize greater returns from the land as irrigation permitted intensification. With Owens Valley water, the Valley was able to participate simultaneously in two phenomenal landscape changes: the transition to specialty agriculture then going on through much of agrarian California AND the beginnings of L.A. suburban spread and residential subdivision to the City's northwest. L.A., for its part, found annexation for access to water its ticket to explosive growth. With this odd local mix of circumstances, it was able to become the model of the corporate city, as envisioned by David Gordon -- incorporating many of its own sprawling suburbs and the property tax revenues they generate. The overwhelming influence of the Department of Water and Power over the development of space in Los Angeles over the course of the twentieth century illustrates James O'Connor's model of the accumulation functions of government, housed in certain agencies staffed by appointed experts and immune to public opinion. Such agencies, sometimes inadvertently, play a key role in the accumulation of private fortunes.

CONCLUDING NOTE

An interesting contemporary issue can serve as a footnote to this tale of nineteenth century water law and early twentieth century water imperialism. State Assembly Representative Paula Boland (R-Granada Hills) is on a one-politician campaign to have the Valley secede from the City. Her proposed enabling legislation, A.B. 2043, was narrowly defeated a few weeks ago in the State Senate. Before she or other Valley residents push this any further, they might want to consider the nasty water conundrum that would result: the Valley cannot use its own groundwater and Owens River water is to be consumed within City limits and is not sold.

FURTHER READING

  • Davis, Mike. 1991. City of Quartz: Excavating the Future in Los Angeles. London and New York: Verso (originally 1990).

  • Fogelson, Robert M. 1993. The Fragmented Metropolis: Los Angeles, 1850-1930. Berkeley, Los Angeles, and London: University of California Press.

  • Hornbeck, David. 1983. California Patterns: A Geographical and Historical Atlas, with contributions in physical geography by Phillip Kane and Virginia Hornbeck and cartography by David L. Fuller, assisted by Richard Doss and Robert Kuboshima. Palo Alto, CA: Mayfield Publishing.

  • McWilliams, Carey. 1973. Southern California: An Island on the Land. Layton, UT: Gibbs Smith (originally 1943).

  • Pisani, Donald J. 1996. Water, Land, and Law in the West: The Limits of Public Policy, 1850-1920. Lawrence, KS: The University Press of Kansas.

  • Robinson, W.W. 1979. Land in California: The Story of Mission Lands, Ranchos, Squatters, Mining Claims, Railroad Grants, Land Scrip, Homesteads. Berkeley and Los Angeles: University of California Press (originally 1948).

This document is maintained by C.M. Rodrigue
First placed on the web: 05/02/09
Last Updated: 05/02/09