Modernizing the Water Law

Abstract

ed by means of pumps for irrigation. The best illustration of this situation is the Coyote Creek in Santa Clara County. Such a use of the water is of course of substantial value. Economically such areas could not well be deprived of the quantity of water naturally coming to the 25 The cases dealing more particularly with this subject are Mentone Irr. Co. v. Redlands El. Light & Power Co. (1909) 155 Cal. 323, 100 Pac. 1082; and Herminghaus v. Southern Cal. Edison Co., supra n. 1. 2 6 The use of the hydraulic force of the stream for this purpose was considered in Herminghaus v. Southern Cal. Edison Co., supra n. 1. 17 CALIFORNIA LAW REVIEW land. The water, however, which serves this hydraulic purpose, and then flows to the sea, never reaches the land, and, if the construction of artificial structures would cause the same quantity of water to naturally flow to the land, and at the same time conserve the surplus which would otherwise be lost, there would seem to be no substantial objection to such a procedure. We understand that some such solution was applied to a like situation on Alameda Creek. At all events, the situation does not seem to be one that could not be solved in most cases in some manner so as to preserve the water which under natural conditions is lost3T 4. Use of hydraulic force to protect land from encroachment of salt water. This situation presents itself on the delta of the Sacramento and San Joaquin rivers. There is some dispute as to whether or not lands thus situated have riparian rights. There is also some dispute as to .whether the use of the water for the purpose mentioned is a riparian right. Without attempting to pass on those disputed questions, there is no doubt that from an economical standpoint the lands should be assured of the reasonable quantity of water needed for irrigation. The exact method by which the saline situation might best be handled is one upon which many persons are now working who are probably better advised than I am as to the physical situation. Of course the construction of some artificial barrier against the salt water is the method that naturally first suggests itself, and that is being seriously considered by both the state and federal governments. Others have suggested that it would be feasible to supply to these lands a sufficient quantity of water to hold back the salt water. Of course this would result in some loss of water, and the question would simply present itself as an economic one whether that were cheaper than building a barrier to keep the salt water out. The problem is a large one, and whether the owners of these lands are entitled to insist that anyone taking the surplus water must protect them, or whether they must protect themselves against the salt water, presents legal problems which are difficult of solution and which will probably disappear in view of the economic problems involved. In other words, as a practical proposition, the state may not find it advisable to permit damage to such lands in order to permit the irrigation of additional areas. At all events, the quantity of water needed to protect those lands could be ascertained and determined, and become a limiting factor in determining the surplus available for diversion and use.2 8