Full opinion text
WASTE, C. J. This action was instituted by the various plaintiffs to quiet their title as against defendant to the surface and underground waters of the Kaweah delta and to enjoin the defendant, the Lindsay-Strathmore Irrigation District, from pumping any of the water from the underground waters of the delta and transporting the same out of the Kaweah watershed to lands within the defendant district. After a protracted trial, judgment was entered in favor of all of the plaintiffs and interveners, enjoining the defendant from pumping any water from the underground waters of the delta and transporting the same to the lands of defendant district, and likewise enjoining the defendant from taking, diverting, or carrying away from the Kaweah River, or any of its branches, any quantity of water whatsoever, except that required by defendant for riparian purposes on its riparian lands located within the delta. Contemporaneously with the entering of its judgment, the trial court suspended the operation of the injunction, subject to certain conditions, pending the appeal. The litigation here involved has been of long duration. The original complaint was filed on July 15, 1916. After issue was joined, a trial was had before Judge Wallace, sitting as a trial judge in Tulare County. After Judge Wallace had signed and filed his decision in writing (in favor of plaintiffs), defendant raised the objection that the trial judge was disqualified because of interest. In Lindsay-Strathmore Irrigation District v. Superior Court, 182 Cal. 315 [187 Pac. 1056], the contentions of petitioner there (defendant here) were sustained, and a writ of prohibition was issued restraining Judge Wallace from taking any further action in the case, and ordering a new trial. The case again proceeded to trial, this time before Judge Albert Lee Stephens. During the course of this trial, consuming over two hundred court days, a reporter’s transcript of fifty-six volumes, containing 26,936 pages, was compiled, and some 678 exhibits were introduced. The findings of fact and conclusions of law, covering 236 pages of the clerk’s transcript, were filed May 16, 1925, and judgment was thereafter rendered on April 13,1926, in favor of plaintiffs and interveners. Counsel consumed over five years in the preparation of briefs, which, without their accompanying supplements, total 1957 pages. Now, some eighteen years after the action was commenced, the case comes before this court for the first time on its merits. The case was rendered very complex for the reason that respondents are many in number and own, or claim to own, a variety of water rights on approximately 200,000 acres of land. Some of the respondents are appropriators, some are riparian owners, and some are owners of overlying land, owning or claiming to own underground water rights. Sixteen of the respondents are corporations distributing appropriated water to their hundreds of stockholders; one respondent is an irrigation district, also distributing appropriated water to its landowners; thirty are individual appropriators, alleged to hold rights in the water as tenants in common; and thirteen claim both as riparian owners and overlying landowners. Different questions of law were presented to the trial court and are now presented here, in reference to each class of respondent. Moreover, since the action is one to quiet each plaintiff’s title to the water as against defendant, different questions of fact are presented as to each plaintiff. As opposed to these respondents, there is but one defendant and appellant, the Lindsay-Strathmore Irrigation District. Its main lands are located outside the delta proper, and most of the lands within the district are slightly higher than the lands of respondents. It is a public corporation, organized in 1915, under the Irrigation District Act of 1897 and amendments thereto. (Stats, of 1897, p. 254.) It owns a large ranch designated as the Rancho de Kaweah, located on the Kaweah delta and partially riparian to the Kaweah River. It desires, by means of wells and pumping plants, to pump from the waters underlying this ranch 25,000 acre feet of water yearly, and to transport and use this appropriated water for irrigation purposes on farm lands within the district some twelve miles away. At the threshold of this case two admitted facts stand out which are of paramount importance: 1. The rights of appellant, as riparian owner of the Rancho de Kaweah, are not involved on this appeal. The rights of appellant, as such riparian owner, were admittedly protected by the judgment of the lower court. 2. No question of priority between respondent appropriators and appellant is presented. Appellant has conceded at all stages in this controversy that, whatever the rights of respondent appropriators may be, such rights are prior in time and, therefore, paramount to any right of appellant to take water by means of appropriation for use on lands within the district, and not riparian to the Kaweah River. Appellant does strenuously contend, as will hereafter appear, that the amount of water heretofore used by these respondent appropriators has not been all put to beneficial uses, but it expressly admits that respondent appropriators have a claim prior in time and right to any right of appellant as an appropriátor to whatever quantity respondents prior to 1916 put to a beneficial use. The Kaweah River is a natural water course having its sources in the western slope of the Sierra Nevada Mountains in the eastern part of the county of Tulare. This river flows down the mountain slopes, through Tulare County, in a southwesterly direction, to a point in the valley known as McKay Point. At this point, the Kaweah River divides into two channels. The northerly channel from McKay point westerly, for a distance of about twenty-two miles, is known as the St. Johns River, and, thereafter, is known as Cross Creek. The southerly channel, from McKay Point westerly for a distance of about nine miles, is known as the Kaweah or Lower Kaweah River (which for the sake of clarity, will hereafter in this opinion be referred to as the Lower Kaweah River) and, thereafter is known as Mill Creek. The waters of the Kaweah River, for many years, and in accordance with the judgment of the court in an action to which appellant was not a party, have been divided by the plaintiff ditch companies and by the plaintiff Tulare Irrigation District and others, not including appellant, by means of a concrete weir located at such point, by means of which the flow of the Kaweah River is evenly divided so that one-half of the waters thereof flow down the St. Johns River and one-half down the Lower Kaweah River, except that when the water in the Kaweah River at McKay Point decreases to 80 cubic feet per second after the snow run off of each year, then all the water is turned down the channel of the Lower Kaweah River and continues entirely to flow down that channel until the first day of October, and, thereafter, until the quantity at McKay Point exceeds 80 cubic feet per second, when it is again evenly divided. The Kaweah River has all of the characteristics of streams that have their source in the high Sierra Nevada Mountains. Its principal supply is derived from the snows which fall in the high altitudes during the winter months and then, by a process of melting and freezing, are compacted in the form of ice and snow crust and so remain until melted by the warm suns of the spring and early summer months. The winter supply of water in the river is derived principally from rains which fall at intervals in the foothills and upon the valley floor. Above McKay Point, the Kaweah River drains an area of about 600 square miles of the western slopes of the Sierra Nevada Mountains, which area forms a separate and distinct watershed. As might be expected from such a stream, the surface flow is extremely variable. The court found that the flow of the river “varies greatly in amount of flow and in rate of flow from year to year, from season to season, from day to day, and from hour to hour”. This finding is amply supported by the evidence and all the parties to this appeal concede it to be true. From McKay Point, extending westerly and southwesterly therefrom, and comprising a portion of the floor of the San Joaquin Valley, there exists an alluvial fan or delta built up through the years by the Kaweah River. This Kaweah delta comprises in all more than 300,000 acres, and it is on this delta that the lands irrigated by the various respondents are located. The delta is generally triangular in shape, having its apex' at McKay Point, and sloping gradually downward from McKay Point. About seven miles westerly from McKay Point there are certain small mountains known as the Venice hills, which control the course of both branches of the Kaweah River westerly from McKay Point. These hills divide the delta into two -parts. That portion of the delta lying east of the Venice hills is known as the basin, containing 7,200 acres. The alluvium therein is of a sandy and porous nature, extending to bedrock and varying from 100 to in excess of 400 feet in depth. Appellant’s ranch, the Rancho de Kaweah, upon which are located the wells from which it secures the water, the transportation of which away from the rancho caused this action to be brought, is located in the basin, about five miles westerly from McKay Point. As already stated, the rancho is in part riparian to the Lower Kaweah River, extending on both sides thereof. The St. Johns River, the northerly branch of the Kaweah River, passes westerly from McKay Point along or near the northerly boundary of the basin and leaves the basin through an opening in the Venice hills known as St. Johns Gap. The Lower Kaweah River passes in a southwesterly direction from McKay Point along or near the southerly boundary of the basin to what is known as the Kaweah Gap, between the Venice hills and the so-called red lands to the south. That portion of the Kaweah delta lying westerly from the Venice hills is called the Lower Kaweah delta. It is of a minimum width of slightly more than two miles immediately below the gaps in the Venice hills, and then widens rapidly westward beyond the west boundary of Tulare County and ultimately merges into the delta of the Kings River. Upon the Lower Kaweah delta are located the towns of Visalia and Tulare, and other towns and thousands of farms, and it is on this portion of the delta that the major portion of the lands irrigated by respondents is located. The soils of the delta are sandy and highly porous, and extend to .great depths before bedrock is encountered. The soils are highly fertile and the lands therein are intensely farmed. The lands adjoining the delta on the southeast and on the north are composed largely of adobe and clay, referred to by the witnesses as “red lands”, through which water will not percolate readily. These red lands effectually prevent any material percolation of the underground waters off the delta in the directions mentioned. The Lower Kaweah delta is not only traversed by the St. Johns and Lower Kaweah Rivers, but also almost its entire area is covered with a network of streams, canals, sloughs and ditches, by means of which the water is carried to the lands irrigated. The underground water level has always been high, the delta constituting a huge underground reservoir. The trial court found that these underground waters are diffused percolating waters which extend “downward from a few feet of the ground surface to a great depth and many miles in width, moving generally with the surface slope and at right angles to the surface contours of the delta at various depths beneath the surface of the said delta”. The court likewise found that prior to 1918 the underground water table in the major portion of the Lower Kaweah delta had been falling to an extent sufficient to increase substantially the cost and difficulty of pumping water therefrom for use on overyling lands. The prevailing crops on the delta are alfalfa, fruit trees, timber, grain, field crops, and other agricultural products. An appreciable portion of the delta is devoted to wild pasture. All of the respondents use the huge underground reservoir either for direct irrigation by means of wells and pumping plants or for the support of the rivers or for subirrigation. The appellant, as already pointed out, is an irrigation district, organized in 1915. The lands included within the district proper are almost due south from McKay Point and some twelve to fifteen miles therefrom. The district has a surface area of about 16,000 acres and its lands are entirely within Tulare County. All of the lands within the district are susceptible to irrigation, and over 14,000 acres are suitable for the growing of oranges and other citrus fruits, which is the principal crop grown thereon. In 1916, which this action was commenced, landowners within the district had approximately 6,000 acres planted in citrus fruits and, since the action was commenced and up until the present trial, in spite of the dispute over their claim to water, landowners within the district have planted an additional 3,000 acres in citrus trees of various kinds. Citrus fruits, in the district in question, cannot be grown successfully without the use of water for irrigation. Because of the tremendous increase in the use of the water within the district, its water supply began to fail as early as 1913. The trial court found that although underneath the lands of the district there is an underground body of water, the use of the same for irrigation purposes by the district has caused an excessive drain thereon, so that the water pumped from a majority of the wells in the district is now heavily impregnated with salt, and that such body of water is inadequate for the reasonable needs of the landowners within the district; that there is no supply of water available within the district which is adequate for the needs of the landowners therein; “that it is necessary in order to prevent the majority of the trees and fruits and grasses growing on the lands within said district from withering and dying, and to prevent the major portions of said lands from becoming arid and useful only for dry farming, for the said District to have a supply of water conveyed to the lands within said District from some source outside of and away from said District”. The court also found that if the lands within the district be deprived of water, the citrus trees growing thereon will die; that the lands within the district planted to citrus trees “are of the reasonable value on the average of approximately twelve hundred and fifty dollars per acre; that the said lands without water for irrigation would not exceed fifty and no/100 ($50.00) Dollars per acre in value”. Paced with the necessity of securing outside and necessary water, the landowners organized the defendant district in 1915. Immediately thereafter the district purchased the Rancho de Kaweah, located in that portion of the delta known as the basin. In addition to its underground supply, the rancho in part is riparian to the Lower Kaweah River and is upstream from most of the lands of respondents, and upstream from most but not all of the points of diversion used by respondents. After the purchase of the rancho, the district started the boring of wells thereon for the purpose of tapping the underground waters of the basin. Over a period of time, some 39 wells were drilled and electric pumps installed therein. These pumps and wells were then connected with a general irrigation system consisting of 9 miles of banded wood stave pipe; 6% miles of 48-inch continuous wood stave pipe; 12 miles of concrete-lined ditches; 85 miles of riveted steel pressure pipe and 2 high head pumping plants. The total irrigation system cost $1,600,000. This system was designed to pump from the waters underlying the rancho 25,000 acre feet annually and to carry a maximum head of 75 cubic feet of water per second. The district did not begin actual pumping operations on the rancho for use within the district until 1918. During the period 1918 to the time of trial in 1922, the district pumped between 13,000 and 15,000 acre feet per year from the rancho and conveyed the same to its landowners within the district for irrigation purposes. Under the terms of the stay order issued by the trial court pending this appeal, the validity of which has been upheld (Tulare Irr. Dist. v. Superior Court, 197 Cal. 649 [242 Pac. 725]), the appellant has been permitted to pump from the rancho each year the quantity of water provided for in the stay order, subject to the conditions therein imposed. The trial court found that the pumping by defendant of any portion of the waters underlying the rancho and the transportion of such waters away from the delta has injured the respondents and that each of the respondents, if such pumping continues, will be deprived of the benefit of the waters for a portion of each year for the purposes that the respondents are entitled to use the water. The trial court also found that not only will defendant’s pumping diminish the underground water supply but, by induced seepage, will also diminish the surface flow of the Lower Kaweah and the St. Johns Rivers. Some word should now be said of each class of respondent. The Tulare Irrigation District, and fifteen other of the plaintiff corporations, have rights as appropriators below McKay Point, some from the St. Johns and some from the Lower Kaweah River, and some from both. These respondents have exercised their rights of appropriation for many years prior to the commencement of this action. Their rights admittedly long antedate any right of defendant to appropriate water. In fixing the appropriative right of each respondent appropriator, the trial court divided the year into two six-month periods—period No. 1 from February 1st to July 31st, and period No. 2 from August 1st to Januuary 31st. In fixing the appropriative right of each of the respondent appropriators in each of these periods, the trial court did not award a specific quantity of water but used as its unit of measure cubic feet per second, that is, rate of flow. The total of the appropriations found to be possessed by all of the respondent appropriators for the first period is 2,000 cubic feet per second and, for the second period, 1,000 cubic feet per second. The second group of respondents consists of the riparian owners along both rivers and their branches. The trial court found that the lands of these riparian owners are agricultural in character and require a reasonable quantity of the waters of the stream to which they are riparian for irrigation purposes and the whole of the underground flow to moisten their lands from beneath. The trial court did not fix the amount in quantity or rate of flow reasonably required by the respective riparians for irrigation or other beneficial purposes. In addition to the original riparian plaintiffs, a group of riparian owners also came into the case by way of intervention, the complaint in intervention being filed in 1920. Appellant has settled its differences with some of the riparians, and particularly with the interveners, pending this appeal. The third group of respondents consists of overlying landowners. With the exception of two of this group—Morphew and Thomas Jacob—the lands of these parties are situated in the Lower Kaweah delta, west of the Venice hills. The trial court found that the water underlying the lands of these parties (other than the Jacobs) does not extend under the Rancho de Kaweah and expressly found that the water underlying the rancho and the lands of these respondents did not constitute a common supply. Pending this appeal, the appellant has entered into an agreement with one of the principal overlying owners, the Mineral King Fruit Company, the exact nature of which will be discussed later. The overlying lands of Morphew and Thomas Jacob are situate in the basin. The trial court found that the waters underlying the Jacobs’ lands and the waters underlying the Rancho de Kaweah constitute a common source of supply. Apparently, however, no relief was granted the Jacobs by reason of their ownership of overlying lands. The Jacobs, as are several other overlying respondents, are also riparian owners, and apparently the relief granted them was in their capacity as riparians. Some reference should now be made to the pleadings and the issues framed thereby. The complaint describes in detail the Kaweah River and the delta built up by the water discharged therefrom; alleges that the Kaweah River during the late spring and early summer months carries more water than it does earlier and later in the year (admitted by defendant in its answer); that there are times in the year when the Lower Kaweah River has no surface flow below the head of Mill Creek and the St. Johns River has no surface flow below the head of Lane Slough (admitted); that certain of the creeks and sloughs leading from the lower Kaweah and St. Johns Rivers were cut out during extremely wet years by the waters of these rivers and that during every year, except extremely dry years, these designated creeks and sloughs have carried surface as well as a portion of the underground flow of the rivers (denied); that by means of the surface and underground flows of these channels the waters of the rivers have been naturally deposited and distributed upon the delta (denied), resulting in the nourishment of agricultural crops on many hundreds of farms on the delta; that the farmers on the delta require all of the waters of the river, both surface and underground, for the irrigation thereof, and for the moistening of said farms from below by means of the underground flow thereof, and for watering livestock, and for domestic and other beneficial uses (denied, appellant alleging that there is a huge surplus of water) ; that at all times during the irrigation season the underground flow of the rivers is necessary to furnish a foundation for the surface waters flowing in the channels and to hold up the underground water table beneath the surface of the lands, in order to make the same productive (denied); that any lowering of the water table during such time will diminish the productive qualities of the land and will also diminish the surface flow of the two rivers (denied); that plaintiffs for many years have used and require the use of the whole of said underground flow, including flood waters, for the above purposes and to replenish the underground strata (denied). It should be here added that by the above allegations the plaintiffs collectively claim every drop of surface or underground or diffused percolating water in the delta. Following the above allegations, the plaintiffs next allege the rights claimed by each plaintiff appropriator, each claim being set forth in rate of flow, that is, in cubic feet of water per second. The riparian plaintiffs then describe their property and allege that each of them is entitled to the entire flow of the stream against any diminution by the defendant. The overlying plaintiffs allege that their lands are agricultural in character and require all of the underground waters for the purposes above described. The complaint then alleges that prior to the commencement of the action defendant had bored three wells on the Rancho de Kaweah, thus tapping the underground waters of the delta, and that it threatens to drill 37 more wells and to pump therefrom a large quantity of water, and to transport and convey the same to the lands within its borders; that such pumping will diminish not only the underground supply, but also, by induced seepage, will diminish the surface flow of the two rivers. The prayer of the complaint is that the court decree that the defendant has no right as against the plaintiffs to divert any of the water underlying the rancho to its lands, and to enjoin the defendant from so diverting the water. The defendant’s second amended and engrossed answer denies the major allegations of the complaint, as above indicated, and also sets forth certain affirmative defenses. The main purport of the denials is to place in issue the principal question as to whether there is in the Kaweah River and in the waters underlying the delta a surplus subject to appropriation. Defendant admits its ownership of the Rancho de Kaweah and the boring of 37 wells thereon, and that starting in 1918 it had pumped therefrom and conveyed to its lands each year a designated quantity of water averaging about 14,000 acre feet per annum; alleges that this has not and will not injure any of the plaintiffs; that defendant can pump each year during the irrigation season up to 25,000 acre feet and convey the same to its lands, without injury to any of the plaintiffs; denies that the pumping has diminished or will diminish the surface flow of the St. Johns River; denies that such pumping has diminished or will substantially diminish the underground waters; denies that its pumping has affected or will affect the early surface flow of the Kaweah River; denies that its pumping has diminished or will “diminish the late surface flow of the Kaweah River in an amount at any time in excess of ten cubic feet of water per second; or in an average amount in excess of six cubic feet per second”; denies that such taking will injure any of the plaintiffs. Defendant also alleges that it is the owner of the Enlow Ditch, leading out of the St. Johns River, and is entitled to divert four cubic feet of water per second therefrom for use on the rancho; alleges that this right is prior to any right of any of the plaintiffs. As a separate defense against the riparian owners, defendant sought to condemn, under section 534 of the Code of Civil Procedure, all rights of the riparians above their actual needs for beneficial purposes. In this defense, it is alleged that. the defendant is an irrigation district; that defendant has expended $1,600,000 for the installation of its irrigation system; that, during each irrigation season, defendant district needs the water and has no other available supply; that it proposes to take 25,000 acre feet annually at the maximum rate of 75 cubic feet per second, from the waters underlying the Rancho de Kaweah and transport the same for use on lands within the district; that defendant can take that amount of water without interfering with the actual and necessary beneficial uses of the riparian owners; that defendant desires that the court shall fix the damages, if any, that will result to the riparians by reason of such taking. In response to this plea, the plaintiff riparians applied to the trial court for an order bringing in additional parties, alleging that their presence was necessary for the determination of the question as to whether or not there was a surplus of water supplied by the Kaweah River in excess of that required to serve the beneficial uses or purposes of the riparian owners. In 1920 and again in 1923, the trial court, in response to this request, made its order bringing into the case as new parties a large number of persons and corporations. These persons and corporations filed their respective statements of rights denying the material allegations in defendant’s defense and particularly denying the existence of a surplus over their beneficial needs. As a second defense, defendant pleaded in its answer that in the event the court shall find that the pumping operations of defendant will diminish the surface flow of the Lower Kaweah River so as to deprive any of the plaintiffs of the water to which they are entitled, then defendant is ready, able and willing, and it is possible and practicable for it, to construct and maintain a channel with impervious bottoms and sides whereby a portion of the flow of the Lower Kaweah River may be transported across the cone of depression caused by defendant’s pumping during certain periods of the year. The prayer of the answer is that the plaintiffs take nothing by the action; that the court decree that the defendant has the right to divert four cubic feet per second from the St. Johns River by means of the Enlow Ditch; that the court fix the damages, if any, that will result to the riparian owners, as provided in section 534 of the Code of Civil Procedure, and that, upon the payment of such damages, if any, a final order of condemnation be made; and that defendant have judgment that it be entitled to take the quantity of water it claims, and for other and further relief. Later, in June, 1923, defendant, after leave of court had been obtained, filed a supplemental answer, setting up an additional defense, based on section 11 of the Water Commission Act. That act had been passed in 1913 and section 11 thereof provides that ten years nonuse of the riparian right shall constitute an abandonment thereof. This defense was aimed solely at the riparian owners. After alleging the passage and date of the passage of the Water Commission Act, and particularly section 11 thereof, it is therein alleged that the plaintiffs W. L. Fisher, Thomas Jacob, Morphew Jacob, William Epp, Henry Bente, G. W. King, Frank J. Brundage, W. W. Hicks, Walter Rouse, Visalia Orchard Company and Mineral King Fruit Company have not diverted for beneficial purposes any portion of the waters of the streams to which their respective holdings are riparian for use upon their riparian lands for ten consecutive years from and after the passage of the Water Commission Act. It is also alleged that, with the exception of Walter Rouse, all of the other named riparians have rights in plaintiff ditches sufficient for their reasonable needs; that all of the riparian plaintiffs and all of the riparians brought in by order of court pursuant to the provisions of section 534 of the Code of Civil Procedure have lost and abandoned their riparian right by virtue of ten years nonuse of such right. In 1920 the defendant filed a cross-complaint against two of the plaintiffs—the Consolidated Peoples Ditch Company and the Elk Bayou Ditch Company—alleging that the Rancho de Kaweah is riparian to the Lower Kaweah River; that these two cross-defendants were diverting water therefrom upstream from the Rancho de Kaweah 353 cubic feet per second in excess of their right, and prayed for an injunction. These cross-defendants subsequently answered, specifically denying the material allegations of the cross-complaint. In October of 1920, certain parties secured leave of court to file, and subsequently filed, a complaint in intervention. These parties are H. E. Wright, S. E. Railsback, Gilbert H. Russell, Gordon Hall, James K. Moffitt, John E. Hooper, Willys Hall, George A. Smith, Nellie M. Smith and Alice C. Hall. The complaint in intervention sets forth the riparian character of the lands of these parties and thereafter follows generally the allegations of the complaint. Defendant answered the complaint in intervention by allegations similar to those contained in the second amended and engrossed answer, above analyzed, and, in addition thereto, alleged as against these parties that they were not entitled to an injunction because of the intervention of a public use. In 1923, defendant filed a supplemental answer to the complaint in intervention, based on section 11 of the Water Commission Act, alleging therein that these interveners had lost their riparian right because of ten consecutive years of nonuse. Brief reference should be made to one other pleading. Respondent Marietta R. Gray became a party to the action by order of court made under section 534 of the Code of Civil Procedure. In place of the “Statement of Rights” provided for in that section, she filed a pleading entitled “Complaint and Reply of Marietta R. Gray”. This pleading need not be analyzed for the reason that defendant has settled its differences with this party, pending this appeal, as will hereafter appear. Sufficient it is to say that she claims as a riparian to Outside Creek, alleged to be a natural watercourse and a tributary of the Lower Kaweah River. Defendant denied the material allegations of this pleading and, in addition, alleged the intervention of a public use as against this party. Without going into further detail, the issues presented by these many pleadings may be summarized as follows: 1. Whether there is a surplus of water in the delta from which the defendant can pump 25,000 acre feet annually, or any other lesser amount, without injury to the prior rights of the plaintiff appropriators. A solution of this issue depends upon a determination of the quantity of water actually diverted' by the plaintiff appropriators prior to 1916, and whether such amount so diverted was reasonably necessary for beneficial purposes. The main contention of appellant in this regard is that respondent appropriators have never diverted the amount found by the trial court, and that, even as to the amount actually diverted, the methods of use and methods of diversion employed by respondent appropriators are and have been wasteful. It is further contended by appellant that it is not necessary for any appropriator to divert any quantity of water at all during the winter season. 2. Whether appellant’s pumping operations on the Rancho affect in any amount the surface flow of the St. Johns River, and whether such pumping affects the early seasonal flow of the Lower Kaweah River at any time when the respondents have any use for the same. 3. Assuming, however, that appellant’s pumping does diminish the flow of the Lower Kaweah River during periods of need by respondents, then the issue was presented as to the feasibility of constructing an impervious bypass across the cone of depression created by the pumping. 4. Whether the reasonable needs of all the lands owned by the riparians, whether plaintiffs, interveners or parties brought in under section 534 of the Code of Civil Procedure, are less than the flow of the two rivers and their tributaries. Assuming that there is an excess over the reasonable needs of all riparians, then the question is presented as to whether or not appellant is entitled to have any rights the riparians may have over such reasonable needs condemned under section 534 of the Code of Civil Procedure, or some other form of condemnation. There is also presented, in reference to the riparian parties, the question as to whether they, or any of them, have lost their riparian rights by reason. of ten years’ nonuse under section 11 of the Water Commission Act. 5. Whether the interveners and Marietta R. Gray are estopped to claim the relief sought by reason of the intervention of a public use. On the issues thus framed, the trial started on April 28, 1921, and was completed July 31, 1923. In April of 1924, the trial court rendered what appellant describes as a “memorandum opinion”, not contained in the record on appeal, but mentioned here simply for purposes of continuity. As summarized by appellant, the trial court stated that in its opinion the water gathering area of the Kaweah River, supplemented by the rainfall of the valley territories, affords sufficient. water in annual quantities for the uses of both plaintiffs and defendant, except in dry years, but it, the trial court, had been unable to discover any plan whereby a portion of this water might be made available to defendant and that, therefore, plaintiffs and interveners were entitled to a perpetual injunction prohibiting the defendant from pumping any water from the waters underlying the Rancho de Kaweah or from the surface waters of the Kaweah River (except the extraordinary flood waters) for transportation to and use upon the lands within defendant district. Contemporaneously with the entering of the judgment, the trial court made and entered its order suspending the operation of the injunction, subject to conditions, pending appeal. After its motion for a new trial had been denied, defendant perfected this appeal under the provisions of section 953a of the Code of Civil Procedure. On this appeal, appellant specifies some 75 findings as being unsupported by the evidence; specifies four particulars in which the judgment is alleged to be against the law; and specifies 7 other alleged errors in the judgment. Before discussing the merits of the appeal, some mention must be made of certain compromises effected pending the appeal. On February 19, 1931, there was filed in this court a stipulation entitled “Stipulation for Modification of Judgment” by and between certain of the respondent interveners and appellant. The respondent interveners named therein are H. B. Wright, S. B. Railsback, Gilbert IT. Russell, Gordon Hall, James K. Moffitt, Joseph G. Hooper, Willys Hall, George A. Smith, Nellie N. Smith and Alice C. Hall, and constitute the entire group of interveners represented by TI. Scott Jacobs, as attorney. These parties claim as owners of approximately 12,000 acres of land in Kings County, found by the trial court to be riparian to Cross Creek, the continuation of the St. Johns River. The above-named parties constitute all of the interveners in the action, unless respondent Marietta R. Gray also be considered one of that group. Without recounting all the terms of the stipulation, it is therein stated that “the controversy between said Interveners and Respondents and said Defendant and Appellant has been fully settled, compromised and adjusted by agreement between said parties”. The stipulation then recites the entering of the present judgment and the fact that an appeal is pending, and then recites that it is agreed that the judgment may be modified by adding certain provisions to paragraphs X and XIV of the judgment and' by eliminating paragraph XX therefrom. The modifications thus provided for are to the effect that as against the named respondents appellant is entitled to divert and transport away from the Kaweah or St. Johns Rivers, or any of their branches, or from the waters underlying the Rancho de Kaweah or the Kaweah delta, at such times and at such a rate as it may desire, a quantity of water in each year equal to the amount that would be produced by a continuous flow of 35 cubic feet of water per second during the year (approximately 25,500 acre feet). The exact terms of the modification will appear in the final order of this court on this appeal. On April 7, 1931, there was filed in this court a “Notice of Motion to Reverse Judgment in favor of Respondent, Mineral King Fruit Company”. The fruit company is one of the riparian and overlying owners. The motion is based on an agreement entered into on September 2, 1930, between the fruit company and appellant. Counsel for this company have made no written objection to the granting of the motion, but during the oral argument objected solely on the grounds that they had not been consulted by their client before the agreement was made, the agreement having been entered into by the officers of their client; that their last instructions from their client were to prosecute the appeal; that they had been unable to get in touch with their client in the two days intervening between service of the motion and' the oral argument; that they did not know their client’s desires in the matter. The motion was then taken under submission, to be determined with the appeal on the merits, counsel being informed that they could make any objection they saw fit to the granting of the motion. Since the oral argument, counsel for respondents have filed two briefs in this case and in neither of them is any objection made to the granting of the motion. It appears, therefore, that all objections thereto have been removed. The agreement first recites that the fruit company has sold to one Huebert certain described shares of stock, and that Huebert, in purchasing the stock, was acting as agent of appellant; that as part of the consideration for the purchase of the stock the fruit company agreed to execute the present agreement; that the fruit company is a plaintiff in this action, claiming as a riparian and overlying owner, and is also plaintiff in another described action. In consideration of the purchase from it of the stock, the fruit company agrees “that it will and it hereby does waive, surrender and release any claim that it may now or hereafter have as owner of said lands against said Lindsay-Strathmore Irrigation District for injunction or other relief, by reason of the pumping of water by said irrigation district from the lands owned or occupied by said district or the transportation of said water to the lands embraced within said district or the use of such water thereon, or by reason of any diversion by said irrigation district of any of the waters of said Kaweah River, said St. Johns River, or said Mill Creek, for use upon the lands embraced within the said irrigation district, and particularly any claim to which the said party of the first part (the fruit company) may now or hereafter have, by reason of any judgment or order made or hereafter made in either of said actions above referred to, and said party of the first part further agrees that upon the written request of the party of the second part (appellant) it will take such steps as may be necessary to cause judgment of dismissal in favor of said district in each of said actions to be entered of record in the said proceedings so far as the rights of said party of the first part are concerned ...” From these provisions it is obvious that the controversy between the fruit company and appellant has been finally settled and that, as to these parties, all questions on this appeal have now become moot. The motion should, therefore, be granted and the judgment reversed as to the Mineral King Fruit Company, with instructions to the trial court to dismiss the action with prejudice to this party. On July 1, 1932, there was filed in this court another document entitled “Stipulation for Modification of Judgment”, this time affecting the rights of respondent Marietta R. Gray, another riparian and overlying party. The terms of this stipulation are almost identical with the one above discussed affecting the rights of the interveners. The terms of this stipulation will be set forth in the order of this court at the end of this opinion. As a result of these compromises and stipulations, there is removed from the necessity of consideration the claims of a considerable number of riparian and overlying owners. However, the rights of all riparian and overlying owners have not been settled, so that' the claims of those remaining must be disposed of. For purposes of convenience, the rights of the riparian and overlying respondents will be considered in this opinion before the rights of the respondent appropriators are considered. In reference to the riparian lands, the trial court found that upon such lands, for many years, the owners thereof have grown crops of natural grasses and other feed products, also alfalfa, grain, and fruit trees, and other agricultural products for commercial purposes; “that the said lands are agricultural in character and require and have required a reasonable quantity of the waters of the stream to which said lands are riparian, respectively, for the irrigation thereof, and the whole of the underground flow of said stream and of the Kaweah river to moisten the said land from beneath and to render it productive and to enable the owner thereof to raise such crops as he raises and is and has been accustomed to raise thereon, and for livestock to drink and for domestic and other useful and beneficial purposes to which said land is now and at all times herein mentioned and for many years last past has been devoted; that each of said riparian owners has a prior, superior and paramount right as against said defendant, to the entire natural flow of such stream, to which the lands of such owner are riparian as aforesaid, as against any diminution thereof by the said defendant, except as the said Kaweah River below said McKay Point may be diminished by the riparian uses of said defendant upon its riparian lands on the said Rancho de Kaweah”; that the riparian plaintiffs do not obtain water for irrigation purposes from the canals or ditches of the plaintiff ditch companies; that it is true “that the natural flow of the stream or streams to which the lands of the plaintiffs who are riparian owners ... as herein found, has, in each and every year since prior to the commencement of this action naturally irrigated said riparian lands and moistened the ground therein to a great and unknown extent, and thus stimulated vegetation thereon, and added to the fertility thereof, and does now naturally irrigate the same and so moisten the ground therein, and stimulate the vegetation thereon and add to the fertility thereof; and said natural flow has been and is beneficial to all of said riparian lands and to the owners thereof”; that the pumping by defendant diminishes the surface flow of both the St. Johns and Lower Kaweah Rivers. As to the overlying owners, the court found that the lands of the plaintiffs “upon which water has been and is now being pumped from underground sources of supply” (overlying lands) are agricultural in character, upon which the owners have for many years grown agricultural crops; that underneath the surface of the delta west of the gaps in the Venice hills there is “an underground body of diffused percolating water which, does not form a part of the surface or underflow of said Kaweah River or the branches thereof, and extends downward from a few feet of the ground surface to a great depth and many miles in width, moving generally with the surface slope and at right angles to the surface contours of said Delta, at various depths beneath the surface of the said Delta; that said underground body of water does not constitute a portion of the underflow of any river or stream. . . . Through the lower [Kaweah] Delta it extends downward to great depth and is drawn upon extensively by pumps for use on overlying lands. It is prevented from percolating off the Delta by impervious and tight soils of great depth, extending along the outward limits of the Delta; that from a period prior to the year 1918, and ever since said year, the underground water table within the major portion of the low Kaweah Delta has been and is falling; that the amount of lowering of said water table has been sufficient to increase substantially the cost and difficulty of pumping water therefrom for use on overlying lands; . . . that said underground body of water ... is constantly supplied by waters sinking from the Kaweah River and its branches, and below said gaps from the underflow moving out of said basin through said gaps, and by seepage from the canals and ditches, and by the water escaping downward from the irrigation waters applied to the surface of the lands within said Delta, and to a very limited extent from small creeks draining into the Delta and from rainfall upon the Delta”; that the body of underground percolating water underlies the entire surface of the Lower Kaweah Delta; “that any lowering of said water table to a depth below the reach of normal root growth of crops, except annual shallow rooted crops, or any substantial lessening of the underground flow during any time, will greatly diminish the productive qualities of said lands and diminish the quantity and quality of the crops grown thereon”; that the underground body of water when high serves to keep the surface and underflow of the river from percolating into the surrounding area, and that the higher the percolating underground water table the longer will the streams flow and the greater the quantity of water in them; that the plaintiffs do not require all of the underground body of percolating water for beneficial uses; that the overlying owners do draw upon the underground body of water for beneficial uses; that it is not true “that said plaintiffs and interveners have used or require the use of all or any substantial portion of the extraordinary flood waters of said river to replenish the said underground flow or to supply the underground strata of said Delta below said gaps”; that “it is not true that each of said [overlying] lands, or any of said owners, except the said plaintiffs Thomas Jacob and Morphew Jacob, requires the whole of the underflow of said Kaweah River underneath the said lands upon which such owner has obtained water by means of pumps, for said purposes to supply water to such owner through or by means of such wells and pumping plants for his livestock to drink and for the irrigation of his said lands” and for domestic and other beneficial purposes; that Thomas Jacob and Morphew Jacob have upon their lands a well and pumping plant, by means of which, prior to and since the commencement of this action, they have pumped a quantity of water from the underground body of water underlying their lands for beneficial purposes; that said “underground supply is a portion of the underground flow of said Kaweah River . . . and constitutes a common supply for said lands . . . and the said Rancho de Kaweah”; that the lands of other overlying plaintiffs in the Lower Kaweah delta do not overlie the same source of supply as that underlying the rancho; that defendant’s pumping operations have substantially diminished the quantity of water underlying the basin and have substantially diminished the surface flow of the rivers and their branches, thus diminishing the quantity available to the riparians; that the pumping operations of defendant induce seepage from both rivers, causing a loss in the surface flow of both streams; that the pumping of water from the rancho and the conveying of the same away from the basin in the amounts pumped during the pendency of the action “has diminished, and will, if continued in the future, diminish the late surface flow of the Lower Kaweah River in amounts at all times in excess of ten cubic feet of water per second, and in an average amount in excess of six cubic feet per second, and that the amount of said diminution has varied during said pumping operations from day to day and season to season, and that said operations of defendant on various occasions and for many days diminished the late surface flow of the Lower Kaweah River to an extent in excess of forty (40) cubic feet of water per second”. The above summary of the findings applicable to the riparian and overlying owners is not intended to be inclusive, but is here given to indicate the general trend of the findings. It is to be noticed that the trial court made no attempt to fix either in acre feet or in second feet the quantity of surface water to which the riparian owners are entitled, being content to find that such owners were entitled to “a reasonable quantity of the waters of the stream”. As to the underground flow of the streams, as distinguished from the underground diffused percolating waters, the trial court found that such riparians were entitled to the “whole of the underground flow of said stream”. The trial court concluded that each of the riparian owners “has a prior superior and paramount right as against said defendant to the entire natural flow of such stream ... as against any diminution thereof by the said defendant”, except for riparian uses. It is quite apparent from a reading of the findings and the judgment predicated thereon that the trial court applied the rule that a riparian as against an appropriator, whose right has not ripened into a right by prescription, is entitled to the full flow of the stream as it is wont to flow in a state of nature, without diminution by the appropriator, and that any interference with that right is an infringement of a vested property right. Stated another way, the trial court held that as between such parties the riparian and overlying owners are not limited to a reasonable beneficial use. This was the law at the time the judgment herein was entered. (Miller & Lux v. Madera etc. Co., 155 Cal. 59 [99 Pac. 502, 22 L. R. A. (N. S.) 391; Miller v. Bay Cities Water Co., 157 Cal. 256 [107 Pac. 115, 27 L. R. A. (N. S.) 772].) See, also, Herminghaus v. Southern California Edison Co., 200 Cal. 81 [252 Pac. 607] ; Fall River Irr. Dist. v. Mt. Shasta Power Corp., 202 Cal. 56 [259 Pac. 444, 56 A. L. R. 264], rendered subsequent to the entering of judgment herein, but expounding the principles of law then existing. Since the trial of this ease the people of this state in the exercise of the police power and by constitutional amendment, have changed the rule enunciated in these cases. Section 3 of article XIV of the Constitution became effective in November of 1928. The effect of this amendment has beeto modify the long-standing riparian doctrine announced in the above cases, and the cases cited therein, and to apply, by constitutional mandate the doctrine of reasonable use between riparian owners and appropriators, and between overlying owners and appropriators. The effect of that amendment has been so recently before this court, and has been so fully discussed in the case of Peabody v. City of Vallejo, 2 Cal. (2d) 351 [40 Pac. (2d) 486], that no useful purpose would be served by repeating in this opinion what was there said. (See, also, Gin S. Chow v. City of Santa Barbara, 217 Cal. 673 [22 Pac. (2d) 5].) Under this new doctrine, it is clear that when a riparian or overlying owner brings an action against an appropriator, it is no longer sufficient to find that the plaintiffs in such action are riparian or overlying owners, and, on the basis of such finding, issue the injunction. It is now necessary for the trial court to determine whether such owners, considering all the needs of those in the particular water field, are putting the waters to any reasonable beneficial uses, giving consideration to all factors involved, including reasonable methods of use and reasonable methods of diversion. From a consideration of such uses, the trial court must then determine whether there is a surplus in the water field subject to appropriation. If the riparian is putting the water to any reasonable beneficial uses, it is now necessary for the trial court to find expressly the quantity so required and so used. A finding, such as that in the present case to the effect that the riparian requires a “reasonable” amount for such uses, under. the new doctrine, is clearly insufficient and a judgment based thereon must be reversed. The trial court, under the new doctrine, must fix the quantity required by each riparian for his actual reasonable beneficial uses, the same as it would do in the case of an appropriator. The new doctrine not only protects the actual reasonable beneficial uses of the riparian but also the prospective reasonable beneficial uses of the riparian. As to such future or prospective reasonable beneficial uses, it is quite obvious that the quantity of water so required for such uses cannot be fixed in amount until the need for such use arises. Therefore, as to such uses, the trial court, in its findings and judgment, should declare such prospective uses paramount to any right of the appropriator. By such declaratory judgment, the rights of the riparian will be fully protected against the appropriative use ripening into a right by prescription, but, until the riparian needs the water, the appropriator may use it, thus, at all times, putting all of the available water to beneficial uses. The trial court might well, by appropriate provisions in its judgment, retain jurisdiction over the cause, so that when a riparian claims the need for water, the right to which was awarded him under such a declaratory decree, the trial court may determine whether the proposed new use, under all the circumstances, is a reasonable beneficial use and, if so, the quantity required for such use. It is to be noted that the new doctrine embodied in the constitutional amendment, as interpreted in the Peabody case, not only applies the doctrine of reasonable use as between riparian and appropriator, but also as between an overlying owner and an appropriator. The overlying owner in this state has been held to have analogous rights to those of a riparian. (Katz v. Walkinshaw, 141 Cal. 116, 70 Pac. 663 [74 Pac. 766, 99 Am. St. Rep. 35, 64 L. R. A. 236] ; Burr v. Maclay Rancho Co., 154 Cal. 428 [98 Pac. 260].) Such overlying owner is now subject to the same restrictions as those applicable to riparian owners. The doctrine of Miller v. Bay Cities Water Co., supra, in so far as it held, or has been interpreted to hold, to the contrary was specifically repudiated in the Peabody case, supra. From the above analysis, it follows that if the 1928 constitutional amendment is applicable to this appeal, although passed after the appeal herein was perfected, the judgment in favor of the remaining riparian and overlying owners must be reversed, with instructions to the trial court to fix such respondents’ rights in accordance with the law as it now has been fixed by constitutional mandate. As already "pointed out, the finding that the riparians require a “reasonable” amount of the surface flow of the stream is clearly insufficient under the new doctrine. Equally insufficient under the new doctrine, and for the same reasons, is that finding that “each of said riparian owners has a prior, superior and paramount right as against said defendant to the entire natural flow of such stream . . . as against any diminution thereof by the said defendant”. This finding in the absence of a finding as to what the needs of each riparian are cannot be supported. The further finding that each riparian requires the “whole of the underground flow of said stream ... to moisten said land from beneath”, etc., is not sufficient under the new doctrine. The use of the entire flow of a stream, surface or underground, for subirrigation cannot be held to be a reasonable use of water in an area of such need as the Kaweah delta. (Peabody v. City of Vallejo, supra.) We now pass to a determination of the question as to whether the constitutional amendment of 1928 is applicable to the present appeal. The problem here presented differs radically from that presented in the Peabody case, supra. That case, as is stated in the opinion, was not decided by the trial court until June of 1929, the constitutional amendment having become effective in November of 1928. The holding in that case that the trial court must decide the cause in accordance with the law existing when the judgment was entered is not decisive here. In the present case, the action had been tried, judgment entered, and the appeal perfected before the constitutional amendment was passed. We are, therefore, directly presented with the question as to whether, in this case, the law in existence at the time of the judgment or the law in existence at the time the appellate court decides the case should prevail. The effect, on an appealed case, of a change in the law pending the appeal, has given rise to many diverse and some conflicting decisions. Aside from questions presented when rights are vested in reliance on the lower court's decision, and aside from questions presented where the new statute expressly states whether it is or is not to apply retrospectively, questions which are not here presented, on the main question as to whether the cause should be disposed of according to the law in effect at the time judgment was rendered, or to the law in effect at the time the cause is disposed of on appeal, there is a sharp diversion of authority. (4 Cor. Jur., p. 1119, sec. 3109; see, also, Cooley, Constitutional Limitations, 8th ed., vol. 2, p. 790.) California, apparently, has cases both ways. In Hancock v. Thom, 46 Cal. 43, and in D. I. Nofziger L