Full opinion text
Opinion WRIGHT, C. J. The City of Los Angeles filed this action on September 30, 1955, (1) to quiet its title and obtain a declaration of its prior rights to the water underlying the Upper Los Angeles River Area (hereafter referred to as “ULARA”), and (2) to enjoin the defendants from extracting such water other than in subordination to the plaintiff’s prior rights. Numerous defendants were eliminated from the case before trial by dismissal, disclaimer, default, or stipulated judgment, and are not parties to this appeal. The remaining defendants now before us are the Cities of San Fernando, Glendale, and Burbank, the Crescenta Valley County Water District, and several private parties whose water claims are all smaller than those of the defendant cities and water district. After a nonjury trial between plaintiff and these defendants, judgment was entered on March 15, 1968, denying plaintiff’s claims, awarding prescriptive rights to plaintiff and defendants, and imposing continuous restrictions on the parties’ extractions of water commensurate with the available supply. Plaintiff appeals from this judgment and from a judgment entered the same date in favor of the State Water Resources Control Board for its expenses as referee. The ULARA is the entire watershed of the Los Angeles River and its tributaries above Gauging Station No. F57, which is located just above the junction of the river and the Arroyo Seco, near the intersection of North Figueroa Street and San Fernando Road and the intersection of the Pasadena and Golden State Freeways. The ULARA is bounded by the crests of mountain ranges: the Santa Susana Mountains and San Gabriel Mountains on the north; the San Gabriel Mountains, San Rafael Hills, and Repetto Hills on the east; the Elysian Hills and Santa Monica Mountains on the south; and the Simi Hills on the west. The “valley fill” portion of the ULARA is divided into four subareas, and one of the issues in the case is whether these subareas should be treated as distinct ground water basins or as parts of a single source of the Los Angeles River. By far the largest of these subareas, comprising 112,047 out of the 123,428 acres in the total valley fill, is the San Fernando subarea, which includes most of the San Fernando Valley plus the Los Angeles River Narrows, located at the southeast comer of the ULARA. The natural course of the Los Angeles River is from west to east along the southern edge of the San Fernando Valley until it reaches what is now the northeast corner of Griffith Park and turns abruptly south, paralleling the Golden State Freeway through the Narrows down to Gauging Station No. F57. The other three subareas of the valley fill are designated as Sylmar, Verdugo, and Eagle Rock. Sylmar is the area north of the City of San Fernando. Most of Sylmar is within the City of Los Angeles, but it also includes a small slice of San Fernando. The Verdugo subarea is the southerly half of the narrow valley east of the Verdugo Mountains, extending along Foothill Boulevard from the middle of the Tujunga district southeast through La Crescenta and Montrose. The Eagle Rock subarea is in the Eagle Rock district of Los Angeles. No issue specifically pertaining to the Eagle Rock subarea remains in the case. The sources of the respective water supplies of the parties within the ULARA are as follows: Plaintiff delivers water imported through its aqueduct from Owens Valley and Mono Basin to all parts of its territory within the ULARA, and for most of this territory, such imported water is the exclusive supply. The rest of this territory contains three service areas which receive some of their water from additional sources as follows: (1) The Mission Wells service area, located south and west of the City of San Fernando, receives ground water from the Mission Wells in the Sylmar subarea. (2) The Sunland-Tujunga service area, overlapping the San Fernando and Verdugo subareas northeast of the Verdugo Mountains, receives ground water from nearby wells in the San Fernando subarea. (3) The Narrows service area, including the Los Angeles River Narrows and parts of the Eagle Rock and Highland Park districts, receives ground water from the San Fernando subarea and in addition receives imported water which emanates not only from the Owens aqueduct but also from the Metropolitan Water District (MWD). Until recently, all MWD water came from the Colorado River. Since entry of the judgment below, MWD has commenced to distribute water received from Northern California through the State Water Project. The ground water which plaintiff extracts from the ULARA and does not deliver to the foregoing three service areas is exported from the ULARA. The exported water is taken from wells in the southeastern San Fernando Valley and in the Narrows and flows by gravity to other parts of the city having a lower elevation. San Fernando, at the time of the judgment below, obtained its entire water supply from city wells in the Sylmar subarea. Following extensive damage to its water supply system from the earthquake of February 1971, San Fernando joined the Metropolitan Water District and now supplements its ground water supply with MWD water. Glendale extracts water from its wells in both the Verdugo and the San Fernando subareas and also purchases water from MWD. Burbank extracts ground water from the San Fernando subarea and purchases MWD water. Crescenta Valley County Water District extracts ground water from the Verdugo subarea and purchases MWD water. All the private defendants extract ground water from various points in the San Fernando subarea except the Wellesley Company and Moordigian, which extract from the Sylmar subarea. Plaintiff’s Claims To ULARA Ground Water Plaintiff makes separate claims to (1) native ground water, and (2) ground water derived from imported water. Native water is derived from rain and snow within the watershed. Imported water reaches the ground supply by two principal means: it may be deliberately “spread” for the purpose of “recharging” the ground supply, or it may return to the ground after use by customers. As of 1955, about 27 percent of the water delivered to customers in the ULARA returned to the ground supply. Of the annual additions to the ground supply, about 42.5 percent was derived from imported water, and the rest was native water. Claim to Native Water: Pueblo Right Plaintiff asserts a pueblo right to all the native waters of the Los Angeles River and the native waters supplying it, paramount to all other claims insofar as such waters are needed by plaintiff for ordinary municipal purposes and the use of its inhabitants within the city. This pueblo right, ascribed to Spanish and Mexican law, has been recognized by a long line of cases, commencing as early as Feliz v. City of Los Angeles (1881) 58 Cal. 73, and continuing most recently with City of L. A. v. City of Glendale (1943) 23 Cal.2d 68 [142 P.2d 289], The pueblo right has been held to attach to the water needs of inhabitants of areas annexed to the city rather than being confined to the needs of inhabitants of the original pueblo. (City of Los Angeles v. Pomeroy (1899) 124 Cal. 597, 649 [57 P. 585].) The right has been held to attach not only to the waters of the Los Angeles River itself but also to ground waters of the San Fernando Valley supplying the river. (City of Los Angeles v. Hunter (1909) 156 Cal. 603, 607-608 [105 P. 755].) Plaintiff now claims that the pueblo right gives it a prior claim to all the native ground waters of the ULARA, including those underlying the Sylmar and Verdugo subareas. Claim to Return Flow From Imported Water The first Los Angeles Aqueduct water from the Owens River Valley reached the San Fernando Valley on November 5, 1913. At first this water was piped directly into distribution mains south of the Santa Monica Mountains. In May 1915, plaintiff annexed most of the San Fernando Valley and in the same month began to distribute Owens water for irrigation within the valley. Plaintiff contends that in delivering this imported water in the San Fernando Valley, it intended that the water would return to the ground after use and thereby become available for recapture in its wells in the southeastern part of the valley where it had been extracting water since the turn of the century. Plaintiff further asserts that this intent has continued with respect to water delivered to, and returned from, urban customers in the San Fernando Valley. Consistent with this theory, plaintiff contends that the defendants who purchase and distribute imported MWD water in the ULARA have prior rights in such water when it is returned to the ground after use. The amount of such imported water delivered in the ULARA by defendants is very small in comparison to the amount of imported water delivered by plaintiff. Plaintiff also claims the right to recapture imported water which it deliberately spreads to recharge the underground supply. The amount of spread imported water has been greatly reduced in recent years. Res Judicata Plaintiff brought a prior action against the Cities of Glendale and Burbank in which it obtained a judgment declaring its prior right to native and imported ground waters in the San Fernando Valley. The judgment was affirmed with a modification in favor of plaintiff in City of L.A. v. City of Glendale, supra, 23 Cal.2d 68. We unanimously reaffirmed plaintiff’s pueblo right to “all of the waters of the Los Angeles River and the waters supplying it,” (23 Cal.2d at p. 74), and we declared that the right is “measured, and therefore circumscribed, by the needs of the city.” (23 Cal.2d at p. 75.) We also upheld plaintiff’s prior right to imported water returned underground after being sold to and used by farmers in the San Fernando Valley, citing “evidence that plaintiff sold water in the San Fernando Valley because the water would have seeped underground in other valleys without reaching a destination where it could be recovered.” (23 Cal.2d at p. 76.) Because there was a conceded surplus of water under the San Fernando Valley, plaintiff at that time had no grounds for an injunction and defendants' could claim no prescriptive rights. (23 Cal.2d at pp. 78-80.) Plaintiff therefore claims that the Glendale decision collaterally estops defendants Glendale and Burbank from questioning the plaintiff’s pueblo right to native waters and its right to recapture returned imported waters. Injunctive Relief All parties concede that at least as of 1955, when this action was commenced, there was an annual overdraft, and therefore no longer a surplus, in the San Fernando subarea and in the ULARA as a whole. Plaintiff now asserts a need for, and capacity to distribute to its inhabitants, the entire safe yield of the ULARA. Plaintiff claims that defendants’ taking of its ground water causes it irreparable injuiy because imported water is more costly than ground water. Plaintiff further asserts this is not a case about water but about money, i.e., who should pay for the more expensive imported water. If granted an injunction, plaintiff is willing to consider a “physical solution.” Defendants’ Claims Plaintiff Has No Pueblo Right Defendants deny that the prior decisions of this court require recognition of plaintiff’s pueblo water right in the present case. Defendants Glendale and Burbank deny that recognition of the pueblo right is res judicata as to them under City of L. A. v. City of Glendale, supra, 23 Cal.2d 68, and all defendants deny that recognition of the pueblo right is required on principles of stare decisis. Numerous reasons are given for this position. The principal ones may be grouped under two general contentions: (1) that recognition of a pueblo right is grossly unfair under modern conditions and (2) that the judges and courts who previously declared the existence of a pueblo water right were misled and mistaken as to the true state of Spanish and Mexican law in that regard. Defendants also contend that even if the pueblo right is recognized under principles of res judicata or stare decisis, the right does not extend to all the native ground waters of the ULARA as claimed by plaintiff. At most, they insist, the pueblo right extends only to waters having a significant effect on the supply to the Los Angeles River and does not allow plaintiff to claim water whose flow to the river is substantially blocked by underground formations or barriers. Thus, San Fernando contends that the pueblo right in no event extends to the waters under the Sylmar subarea; Glendale and Crescenta Valley County Water District contend that the pueblo right in no event extends to waters under the Verdugo subarea; and various private defendants assert that the ground waters claimed by them are sufficiently isolated, geologically and hydrologically, from the Los Angeles River to be immune from the pueblo right. The Right to Return Flow From Imported Water Defendants deny that plaintiff has a prior right to ground water derived from water imported by plaintiff and sold by it to customers who returned it after use to the ground. City of L. A. v. City of Glendale, supra, 23 Cal.2d 68, which upheld such a right as against defendants Glendale and Burbank, is distinguished as dealing only with returns from imported water sold to farmers for irrigation and not with the present urban conditions of the San Fernando Valley. Defendants further contend that there is no affirmative showing that the sale of imported water by plaintiff was accompanied by any affirmative intent to reserve the right of subsequent recapture. Defendants contend that in any event it is not practical to determine what part of the total recharge added to the ground supply is derived from water delivered to customers by a particular party. Mutual Prescription Defendants claim they have acquired rights by mutual prescription under the principles of City of Pasadena v. City of Alhambra (1949) 33 Cal.2d 908 [207 P.2d 17]. They assert that these prescriptive rights supersede all other water rights including those claimed by plaintiff based on a pueblo right and on a right to recapture returns from imported water. Defendants also contend that the present case falls squarely within the precedent of the Pasadena case under the following theory: (1) More than five years before the complaint was filed, the total annual extractions of ground water exceeded the “safe yield,” which is, in essence, the maximum amount of water that could be extracted annually, year after year, without eventually depleting the underground basin. (2) When annual extractions exceeded safe yield, there was an “overdraft” signalling the beginning of a prescriptive period. (3) Each party has a prescriptive right to its “highest continuous production of water for beneficial use in any five (5) year period” after the beginning of overdraft and before commencement of the present action “as to which there has been no cessation of use by it during any subsequent continuous five (5) year period.” (33 Cal.2d at p. 922.) (4) The trial court properly awarded each party a pumping right calculated by adjusting the prescriptive rights proportionately so that the total extractions from the basin were limited to its safe yield. Defendants further contend that in applying the Pasadena formula it was proper to calculate separate safe yields for the San Fernando, Sylmar, and Verdugo subareas, and to base the prescriptive rights to water in each subarea on each party’s extractions in that subarea. Plaintiff’s Reply To Mutual Prescription Claim Plaintiff contends that its water rights are not subject to prescription, mutual or otherwise, because of the express provisions of Civil Code section 1007. Between 1935 and 1968, this section stated that “no possession by any person, firm, or corporation no matter how long continued of any land, water, water right, easement, or other property whatsoever dedicated to or owned by any . . . city . . . shall ever ripen into any title, interest or right against such ... city ....” (Italics added.) Plaintiff asserts that Pasadena did not hold that the water rights of cities were subject to mutual prescription or that Civil Code section 1007 is not an obstacle to such prescription. The sole appellant in Pasadena was a public utility to which section 1007 did not then apply. All the other parties in the case, including a number of cities, had stipulated to a judgment limiting their rights to extract ground water from the basin in accordance with the formula of mutual prescription as described above. The sole question on appeal was whether the judgment could be imposed on appellant without its consent. Since the cities did not object to being subjected to the judgment imposing mutual prescription, there was no occasion to decide whether they would have been entitled to resist such a judgment under Civil Code section 1007. This view of the Pasadena case is reinforced by the fact that section 1007 is not cited in the opinion. Apart from section 1007, plaintiff contends that the prior judgment in Glendale (supra, 23 Cal.2d 68), declaring plaintiff’s pueblo and imported water rights against defendants Glendale and Burbank, collaterally estopped those defendants from claiming to have taken water adversely to plaintiff at least until such time as they should give express notice of a claim that their extractions of water were not in subordination to those rights. Defendants do not contend that such express notice was ever given before commencement of the present action. And finally, plaintiff contends that the necessary five-year prescriptive period could not have run prior to the filing of the complaint because the surplus of water did not end and overdraft did not commence until within five years before the complaint was filed. Plaintiff concedes that the safe yield was exceeded for more than five years before the complaint was filed in that the annual volume of extractions of ground water, if continued indefinitely into the future, would eventually have depleted the basin. However, plaintiff contends that when the sáfe yield was first exceeded by extractions, there was a temporary surplus, and that overdraft did not commence (or any prescriptive period become operative) until that temporary surplus ended. The temporary surplus, it is asserted, was the amount of water whose extraction from the basin would prevent waste in subsequent wet years by providing underground storage space in which rainfall in excess of the annual average could be stored for future use. It is not until this storage space has been provided and temporary surplus ended. that plaintiff considers it proper to measure overdraft by safe yield. Proceedings In Trial Court On September 30, 1955, the same day it initiated the present action, plaintiff filed a motion for modification of the judgment and for an injunction in its consolidated actions against the Cities of Glendale and Burbank in which a declaratory judgment in favor of plaintiff had been affirmed by this court in Glendale, supra, 23 Cal.2d 68, and in which jurisdiction had been retained to grant such additional relief as might be necessary (23 Cal.2d at p. 81). Judge Philip H. Richards denied the motion on two grounds: (1) that by seeking to enjoin defendants from taking water on the ground that the available quantity of water no longer exceeded plaintiff’s needs the application for injunction raised issues of the quantities of the water supply and of the parties’ respective needs and accordingly was beyond the scope of the jurisdiction retained under the declaratory judgment which dealt only with priorities in a ground basin containing more than enough water to satisfy the parties’ needs, and (2) that since the same issues were being concurrently raised by commencement of the present case, the court in its discretion should in any event deny permission to raise them by reopening the prior actions involving only two of the present defendants (Glendale and Burbank). A subsequent similar application to reopen the prior cases and consolidate them with the present case was denied on similar grounds in May 1964. In the present action, after the pleadings were filed and the case was at issue, in 1958, Judge Virgil M. Airola referred the case to the State Water Rights Board (succeeded in 1967 by the State Water Resources Control Board, Wat. Code, § 1003.5) for investigation of and report on the physical facts. (Wat. Code, § 2001.) The referee was ordered to report on the geography and geology of the area, the available water resources, and the parties’ respective supplies of and needs for water. The referee’s report, consisting of two volumes plus two supplements, was completed in October 1964. Plaintiff objected to the reference order and has appealed from the judgment in favor of the referee, entered pursuant to Water Code section 2048, apportioning the reference expenses of $493,264 among the parties. By statute, the referee’s report is “prima facie evidence of the physical facts therein found.” (Wat. Code, § 2019.) The accuracy of the referee’s report remains substantially unchallenged but both plaintiff and defendants introduced vast amounts of other evidence on matters within the general scope of the referee’s report. In September 1964, the case was assigned to Judge Edmund M. Moor. Extensive pretrial proceedings consuming 86 court days before Judge Airola and 18 days before Judge Moor culminated in a pretrial conference order of August 26, 1965. Trial began March 1, 1966 and continued for 181 court days until June 15, 1967. The trial judge’s memorandum of decision (134 pages plus 174 pages of addenda) relating to the principal issues was filed October 30, 1967. After. further proceedings, comprehensive findings of fact and conclusions of law were filed on March 14, 1968, and the judgment was entered the following day. Trial Court’s Findings And Judgment In essence the judgment of the trial court awarded the parties mutually prescriptive rights patterned after the Pasadena decision, supra, 33 Cal.2d 908, and rejected plaintiff’s claims of a pueblo right in native waters and of a right to reclaim ground water returned from imported Owens water sold to customers. Pueblo Right The findings of the trial court stated that “[m]any cases have held" that plaintiff succeeded to the “pueblo water right,” defined as “a prior and paramount right to all the waters of the Los Angeles River so [jzc] far as is reasonably necessary for the needs of the pueblo and its inhabitants.” It was found, however, that the judgment rolls, appeal transcripts, and briefs from these cases which were introduced into evidence at the trial support the defendants’ claim “that the so-called ‘pueblo water right’ had no support in Spanish or Mexican law and that its statement in some of the cases was based solely upon erroneous translations, incomplete and inaccurate citations, and unsupportable conclusions drawn therefrom.” The findings listed 11 civil actions, all reviewed by this court, involving plaintiff’s rights to take waters of the Los Angeles River. It was found that in the three earliest of these cases we did not rule on the pueblo water right. A lengthy finding on the fourth case (Vernon Irrigation Co. v. City of Los Angeles (1895) 106 Cal. 237 [39 P. 762]) described numerous errors and omissions in the record and in plaintiff’s brief in that case. The subsequent seven cases were distinguished as not involving the kind of injunction requested here and four of them (including the actions against Glendale and Burbank, affirmed in Glendale, supra, 23 Cal.2d 68) were found to have enunciated the pueblo water right principle by reason of stare decisis. Another finding referred to all seven of these cases as having “followed Vernon.” The court also found that the 1943 decision against Glendale and Burbank in Glendale is not res judicata in this case because (1) there have been subsequent changes in -factual circumstances and in the law applicable to relative rights in underground water supplies, (2) great public interests are involved and application of res judicata would defeat the ends of justice, and (3) the res judicata objective of preventing vexatious litigation cannot be accomplished by reason of the time and expense already spent in litigating the issues. The court further found that the doctrine of stare decisis does not require it to recognize plaintiff’s pueblo right against any defendant for the following reasons: (1) There is no precedent case on the pueblo right on which the court can completely rely to fix the parties’ rights here; (2) to follow the prior cases would be unsound and unjust and would drastically affect thousands of people; (3) . to follow the prior cases “would be contrary to the principles announced” in Pasadena; (4) the prior cases were wrongly decided in that: (a) none of them refers to any Spanish or Mexican law that used the words “pueblo water right” or their equivalent; (b) the pueblo water right doctrine was never substantially' tested by an adversary trial court proceeding with expert testimony on Spanish and Mexican, law; (c) the reasons for a pueblo water right stated in Lux and Vernon were “clearly and unequivocally wrong”; (d) the remaining cases followed Vernon, and to apply them here “would be unsound and unjust.” The trial court then found that it was required to examine Spanish and Mexican law pertaining to the pueblo water right because of uncertainties in the prior cases, vast changes in circumstances since they were decided, the inclusion in the present case of parties and areas not previously involved in similar litigation and the allegation in plaintiff’s complaint that its rights are based on Spanish and Mexican law. The trial court made extensive findings on the Spanish settlement of California and particularly the Pueblo of Los Angeles, Mission San Fernando, and the ranchos in the ULARA. It was found that the dominant institutions were not the pueblos but the presidios and missions which were planned as the nuclei of future cities, that the purpose of the pueblo was to help supply the agricultural needs of the presidios, and that the Pueblo of Los Angeles was under direct control of the Spanish royal government and never became an independent, self-governing entity during the Spanish period. Findings further described the Spanish-Mexican governmental and legal systems. Numerous additional findings were made to the effect that under Spanish-Mexican law river waters were to be shared and úsed by all persons subject to the king’s authority to apportion water equitably in times of shortage. It was found that the sovereign could grant specific quantities of river waters for irrigation subject to common usage for domestic needs and subject to governmental authority to apportion in time of shortage. It was also found that a pueblo’s rights to take river water for municipal purposes were equivalent to the rights of individuals, that a pueblo could not go outside its boundaries to take water for its inhabitants in the absence of an express grant and that the Pueblo of Los Angeles had no such grant. In addition there were numerous findings negating the existence of various forms of pueblo water rights under Spanish-Mexican law. It was also found that the Spanish-Mexican law governing well and spring water was different from such law governing river water, that all landowners had a right to take and use water from wells and springs on their lands as long as they did not harm their neighbors with malice or intent to cause harm, that the parties to the present action are extracting only well and spring water (as distinct from river water) from the ULARA, that each of the defendants owns land with wells located thereon as successor in interest to owners who enjoyed these well water rights under Spanish and Mexican law, and that well water rights constitute a limitation on the Pueblo of Los Angeles’ rights to take and use waters of the Los Angeles River. The court further made findings on the sources of water supply available to plaintiff in addition to ground water extracted from the ULARA. These sources are the water imported from Inyo and Mono Counties (also called “Owens” water), ground water from the West Basin and Central Basin of the Los Angeles Coastal Plain and imported MWD water. The court found that water from these sources is sufficient to satisfy plaintiff’s needs through the year 2020 even if plaintiff were to take no further water from the Los Angeles River or the ULARA. Rights to Return Flow From Imported Water The court found that each party which imported water and delivered it within the ULARA did so to meet existing water needs and did not do so for the purpose of (1) storing the water underground, (2) conveying it underground to diversion facilities or (3) recapturing any portion of it. It was also found that the return flow from the water imported and delivered by any particular party was commingled with the return flow from other delivered waters and became part of the conglomerate underground water supply of which no part can be traced to any particular source. An additional finding dealt with Owens water spread by plaintiff into spreading grounds in the San Fernando Basin continuously from 1931 to 1944 and sporadically thereafter until 1964-1965. It was found that such waters became part of the conglomerate water supply, that plaintiff had no means of separately extracting it and that there was no proof of an intent by plaintiff to recapture the water which it spread. Award of Mutually Prescriptive Rights The court found that its determination of mutually prescriptive rights and limitation of extractions of water will result in an equal sharing of burdens and promote the public interest and that a pro tanto limitation of water devoted to its present uses would be less disruptive than total elimination of some of the uses. The court expressly found and concluded that its award of mutually prescriptive rights is not barred by Civil Code section 1007 (relied on by plaintiff as immunizing cities from prescription). Additionally the court found that the ULARA valley fill is divided into four separate ground basins (corresponding to the subareas previously described) and made separate awards of prescriptive rights in the San Fernando, Sylmar, and Verdugo basins, respectively. The tiny Eagle Rock basin (0.6 percent of the valley fill) was excluded from the judgment, none of its water being claimed by any of the defendants before the court. As factual support for the separateness of the basins, the court found: “The extractions of water in the respective basins affect the other water users within that basin but do not significantly or materially affect the ground water levels in any of the other basins.” Rejecting plaintiff’s contention that the ULARA contains a single basin, the court found: “The mere existence of hydraulic continuity between ground water reservoirs does not cause them to become one basin or one ground water body.” In the San Fernando basin, the court found that in each of the water years (Oct. 1 - Sept. 30) 1941-1942 through 1964-1965 there was a condition of overdraft in that the annual draft on the ground water of the basin exceeded the safe yield. Implicitly rejecting plaintiff’s theory of a temporary surplus created by the desirability of lowering the ground water level to prevent waste from rising water outflow and other causes in wet years, the court found that plaintiff was capable of preventing rising water outflow waste from San Fernando basin by reasonable methods without the necessity of permanently removing ground water from storage in the basin. Having found the overdraft in the San Fernando basin beginning in 1941-1942, the court awarded mutually prescriptive rights consisting of the “highest continuous annual production of water for beneficial use in any five (5) year period subsequent to the commencement of overdraft and prior to the filing of the complaint by each of the parties from the San Fernando Basin as to which there has been no cessation of use by it during any subsequent continuous five (5) year period.” The court then reduced these mutually prescriptive rights proportionately insofar as necessary to limit the total extractions from the basin to its safe yield for 1964-1965, and enjoined future extractions in excess of these limited amounts, designated “restricted pumping.” The mutually prescriptive rights and restricted pumping rights thus adjudicated in the San Fernando basin in acre feet of water were as follows: In the Sylmar basin, the court found that there was overdraft from 1936-1937 through 1941-1942, 1944-1945 through 1953-1954, and 1959-1960 through 1964-1965, and that in the intervening years there was surplus, i.e., the draft was less than the safe yield. Based on the commencement of this overdraft, the court fixed mutually prescriptive rights in the Sylmar basin, applying the same formula as was used to fix such rights in the San Fernando basin. However, the court found that the Sylmar basin’s safe yield for 1964-1965 exceeded the total of the mutually prescriptive rights, and provided for the “restricted pumping,” to which each party is limited in the judgment, by increasing the mutually prescriptive rights proportionately so as to aggregate the 1964-1965 safe yield. The respective rights fixed by the court in Sylmar basin, in acre feet, were as follows: In the Verdugo basin, the court found that there was overdraft (annual extractions exceeded safe yield) from 1940-1941 through 1949-1950, and surplus (safe yield exceeded extractions) from 1950-1951 through 1964-1965. The court fixed mutually prescriptive rights under the formula applied to the San Fernando and Sylmar basins and, as with Sylmar, allotted restricted pumping rights by increasing the mutually prescriptive rights proportionately to the extent necessaiy to make their total equal to the 1964-1965 safe yield. The rights in the Verdugo basin, in acre feet, were fixed as follows: A “flexibility” provision of the judgment provided that any party may exceed its restricted pumping right in any basin by up to 10 percent in any year with the excess to be. offset by a reduction the following year. Conversely, any decrease below the restricted pumping right, not exceeding 10 percent, may be made up the following year. Restriction on Artificial Recharge of Underground Basins The judgment enjoined the parties from spreading imported water over the ground for the purpose of artificially recharging the underground basins except pursuant to order of court made after notice and hearing. Certain minor spreading incidental to plaintiff’s water system operations was exempted. The injunction was based on a finding that such artificial recharge “affects ground water storage capacity, ground water in storage, ground water movement (rate and direction), and ground water levels,” and that-its control is necessary to protect the public interest and will equitably apportion the parties’ use of underground reservoirs for regulatory storage and preserve the water therein for emergency conditions. Administration of Judgment To enforce the judgment the court appointed the California Department of Water Resources, Southern District, as watermaster, and provided for a six-member advisory board appointed by the major parties to advise the watermaster. In addition to collecting information and submitting periodic reports and recommendations to the court, the watermaster was empowered, subject to court review, to adjust the restricted pumping rights of any party “because of emergency requirements or in order that such party may secure its proportionate share of its rights as determined herein.” The court reserved continuing jurisdiction to redetermine the total amount of available water in the ULARA and to make changes in various details of the judgment but generally precluded changes in the proportionate pumping rights of the parties in the absence of abandonment or forfeiture. Separate Judgment for Reference Expenses The State Water Resources Control Board was entitled to reimbursement of expenses (but not to a fee) as referee. (Wat. Code, § 2040.) On August 31, 1967, pursuant to Water Code section 2043, the board (then the State Water Rights Board) filed with the trial court a statement that its total reference expenses were $493,264 and that it had made a formal finding that these expenses should be apportioned 50 percent against plaintiff and the balance against those defendants who appeared in the action without disclaimer in proportion to the average amount of water pumped annually by each such defendant during the five years preceding commencement of the action. On this basis, the apportionment was as follows: Plaintiff and defendants filed objections to the board’s report which were orally argued. (Wat. Code, § 2045.) At the time that the court rendered its judgment on the merits, it rendered a separate judgment in favor of the board determining the total reference expenses to be as stated by the board but ordering a different apportionment. (Wat. Code, § 2048.) Under this judgment Glendale and Burbank were required to contribute to the reference expenses “in the proportion that their respective mutually prescriptive rights bear to the total mutual prescriptive rights” awarded by the judgment on the merits. No other defendants now before this court were required to contribute, but the interim partial payments previously made under Water Code section 2042 by former defendants who had been eliminated from the case were to be retained by the referee and were not to be refunded. The balance of the expense was to be paid by plaintiff. The amounts apportioned under this judgment were as follows: Plaintiff appeals from this judgment, objecting to the apportionment itself and to the court’s refusal to receive evidence at the hearing on apportionment of the assistance rendered by plaintiff to the referee. The total amount of the referee’s expense is not in issue. The judgment recites that $488,786 out of the total $493,264 has been paid and orders that out of the $97,480 for which judgment is entered against plaintiff, $93,002 shall be refunded to defendants in stated proportions. According to defendants’ brief, the water board has received the entire amount due it under the judgment. Provision for Costs in the Principal Judgment The judgment as originally entered provided that each defendant before the court should recover its costs of suit from plaintiff leaving the amounts blank. (Code Civ. Proc., § 1033.) Two months after the judgment was filed the court entered an “Order re Motion to Plaintiff to Tax Costs,” setting out the costs awarded to each defendant which were thereafter inserted in the original judgment, as follows: The bulk of the costs awarded to Glendale and Burbank were reference costs (their apportioned shares of the separate judgment in favor of the referee) and reporters’ fees, as will appear from the following breakdown: The combined effect of the separate judgment in favor of the referee and the award of costs in the judgment on the merits was to impose upon plaintiff $480,836 of the total reference costs of $493,264. Pueblo Right Existence of Pueblo Right: Res Judicata Issue Plaintiff claims that the declaration of its pueblo right in its prior judgment against defendants Glendale and Burbank (City of L. A. v. City of Glendale, supra, 23 Cal.2d 68) makes the existence of that right res judicata against those defendants in the present proceeding. The present action is for injunctive relief, not adjudicated in Glendale, and so is based on a different cause of action from that underlying Glendale. (Langley v. Schumacher (1956) 46 Cal.2d 601 [297 P.2d 977]; Cason v. Glass Bottle Blowers Assn. (1951) 37 Cal.2d 134, 141 [231 P.2d 6, 21 A.L.R.2d 1387].) Under the collateral estoppel aspect of the doctrine of res judicata, any issue necessarily decided in the prior final determination of a cause of action by a court of competent jurisdiction is conclusively established between the parties or their privies in a subsequent lawsuit on a different cause of action. (Teitelbaum Furs, Inc. v. Dominion Ins. Co., Ltd. (1962) 58 Cal.2d 601, 604 [25 Cal.Rptr. 559, 375 P.2d 439]; Bernhard v. Bank of America (1942) 19 Cal.2d 807, 810 [122 P.2d 892].) We hereafter examine the possible exception to this rule when the prior determination was of an issue of law rather than offact. Defendants Glendale and Burbank contend that plaintiff waived its claim of res judicata by (1) failing to plead the prior judgment (see Code Civ. Proc., former § 1962, subd. 6), (2) pleading that the pueblo right was based on Spanish and Mexican law and (3) requesting that the trial court take judicial notice of Spanish and Mexican law. Plaintiff replies that its res judicata claim was raised in its demurrer to these defendants’ answer and cross-complaint, which was overruled. In any event, the water rights of the respective parties based upon “the doctrines of res judicata, law of the case and/or stare decisis” were expressly put in issue by the pretrial conference order, which superseded any inconsistent pleading. (Cal Rules of Court, rule 216.) Defendants Glendale and Burbank contend that the declaration of the pueblo right in the Glendale judgment is not res judicata because of changes in the factual circumstances. The two changes relied upon are (1) the urbanization of the valley fill areas and some of the hill areas of the ULARA and (2) the disappearance of surplus in the underground water supply. In 1940, at the time the trial court’s judgment was rendered in Glendale, the Sylmar subarea and the plaintiff’s portion of the San Fernando subarea were predominantly rural and agricultural. Before the trial of the present action, most of the valley fill areas had become urban and highly developed land. Defendants Glendale and Burbank fail to point out, however, any specific relevance of such changes to the legal effect to be given to the prior judicial declaration of plaintiff’s pueblo water right. Urbanization was anticipated long before the Glendale action. The clearest indication of this is the fact that most of the San Fernando Valley was annexed to Los Angeles in May 1915. The annexation included the Sylmar subarea and most of the San Fernando subarea outside the territories of the three defendant cities. The change from agricultural to urban uses has been more marked in the Los Angeles portion of the ULARA than in the Cities of Glendale and Burbank. No reason appears why this anticipated shift in the use of delivered water from agricultural irrigation to domestic purposes should detract from the weight to be given the prior adjudication of the pueblo right. Since domestic use is declared by law to be a higher use than irrigation (Wat. Code, § 106) the proportionate increase in domestic uses within Los Angeles territory, if relevant at all, may serve to enhance and not to diminish the public importance of the water rights protecting plaintiff’s municipal supply. Another factual change relied upon by defendants—disappearance of surplus in the underground water supply—affects our determination of such issues as the existence of prescriptive rights and the nature of the relief which should be granted but does not alter the effect to be given Glendale’s declaration of the existence of plaintiff’s pueblo water right. Defendants contend that application of res judicata with respect to Glendale’s determination of the pueblo right is precluded by an intervening change of law. This contention might have merit if the change of law were relevant to the issue on which res judicata is to operate. (See Pacific Tel & Tel Co. v. City & County of San Francisco (1961) 197 Cal.App.2d 133, 158 [17 Cal.Rptr. 687].) However, the only change of law which defendants point to is the decision in Pasadena (City of Pasadena v. City of Alhambra, supra, 33 Cal.2d 908). That decision does not determine or even discuss the pueblo right but deals with prescriptive rights in the waters of an underground basin. Regardless of any effect that decision might have had on the creation of prescriptive rights to water claimed under a pueblo right, it is clear that it does not affect the issue on which res judicata is asserted here, to wit, the existence of the pueblo right in the first place. Additional objections by defendants Glendale and Burbank to the application of res judicata may conveniently be considered together. These objections are: (1) that the res judicata objective of preventing vexatious and expensive litigation (see O’Connor v. O’Leary (1967) 247 Cal.App.2d 646, 650 [56 Cal.Rptr. 1]) cannot be accomplished here because the presence of numerous other defendants to whom res judicata does not apply necessitated the relitigation of the pueblo right at the trial; (2) that the res judicata rule should be relaxed where great public interests are involved; (3) that the evidence at the trial supported the findings of the trial court that the pueblo right is without foundation, and therefore to establish its existence by res judicata would defeat the ends of justice; and (4) that to establish the pueblo right as to defendants Glendale and Burbank by means of res judicata and then to hold that there is no pueblo right as against the other defendants would result in inconsistent judgments. All four of these additional objections must be considered in light of this court’s historic treatment of the existence of plaintiff’s pueblo right as a proposition of law rather than of fact. This treatment is most strikingly illustrated by City of San Diego v. Cuyamaca Water Co. (1930) 209 Cal. 105 [287 P. 475], in which this court relied on its earlier decisions upholding the pueblo right of Los Angeles in the waters of the Los Angeles River to hold as a matter of law that the City of San Diego has a similar pueblo right in the waters of the San Diego River. Refusing to consider arguments to the contrary based on Spanish-Mexican history and law, we declared that by virtue of the prior line of cases the existence of a prior right of pueblos and their successors to use the waters of rivers passing through the pueblo territory as far as necessary for ordinary municipal purposes and for the use of their inhabitants was no longer an open question and had “long since become a rule of property in this state, which at this late date in the history and development of those municipalities which became the successors of such pueblos we are not permitted, under the rule of stare decisis, to disturb.” (209 Cal. at p, 122.) Similarly, in Glendale we did not examine the factual historical basis for the existence of a pueblo right but commenced our discussion of the issue by declaring: “It has long been established that as successor to the-pueblo of Los Angeles, the city of Los Angeles has a right, superior to that of a riparian or an appropriator, to satisfy its needs from the waters of the Los Angeles River. (Citations.)” (23 Cal.2d at p. 73.) (See also City of Los Angeles v. Hunter (1909) 156 Cal. 603, 608 [105 P. 755]; City of Los Angeles v. Los Angeles Farming & Milling Co. (1908) 152 Cal. 645, 652 [93 P. 869, 1135], writ of error dism., 217 U.S. 217 [54 L.Ed. 736, 30 S.Ct. 452]; City of Los Angeles v. Pomeroy, supra (1899) 124 Cal. 597, 641, writ of error dism. sub nom. Hooker v. Los Angeles, 188 U.S. 314 [47 L.Ed. 487, 23 S.Ct. 395].) The res judicata effect of the prior determination between the parties of a question of law may differ from the effect of such prior determination of a question of fact. This court observed in Louis Stores, Inc. v. Department of Alcoholic Beverage Control (1962) 57 Cal.2d 749, 757 [22 Cal.Rptr. 14, 371 P.2d 758], as follows: “An important qualification of the doctrine of collateral estoppel is set forth in section 70 of the Restatement of Judgments, which reads as follows: ‘Where a question of law essential to the judgment is actually litigated and determined by a valid and final personal judgment, the determination is not conclusive between the parties in a subsequent action on a different cause of action, except where both causes of action arose out of the same subject matter or transaction; and in any event it is not conclusive if injustice would result.’ (Italics added.) Comment f to this section explains: ‘The determination of a question of law by a judgment in an action is not conclusive between the parties in a subsequent action on a different cause of action, even though both causes of action arose out of the same subject matter or transaction, if it would be unjust to one of the parties or to third persons to apply one rule of law in subsequent actions between the same parties and to apply a different rule of law between other persons’ (Italics added.) The conclusion and reasoning of the Restatement find support in United States v. Stone & Downer Co., 274 U.S. 225, 235-237 [47 S.Ct. 616, 71 L.Ed. 1013].” (See also Cochran v. Union Lumber Co. (1972) 26 Cal.App.3d 423, 427-428 [102 Cal.Rptr. 632].) The Louis Stores opinion also states that the public interest attached to the resolution of a question of law may require that it be determined without restriction from the collateral estoppel effect of prior litigation. (57 Cal.2d at p. 758.) These principles apply to our consideration in this case of the legal issue of the existence of plaintiff’s claimed pueblo right. If we were to decide that the prior decisions declaring the existence of such a right should no longer be followed with respect to the defendants who were not parties to Glendale, it would be unjust to hold defendants Glendale and Burbank bound to the pueblo right solely because of the doctrine of collateral estoppel. Another reason for disregarding collateral estoppel under such circumstances would be the public interest attaching to the proper determination of the conflicting claims of major public entities to water resources capable of furnishing substantial portions of their respective water needs. Accordingly we must determine whether the pueblo right exists for reasons other than collateral estoppel and res judicata. Existence of Pueblo Right: Historical Data on Spanish-Mexican Law • Irrespective of res judicata, plaintiff urgés us to follow prior decisions of this court upholding the existence of its pueblo water right under the doctrine of stare decisis. Defendants, on the other hand, ask us to overrule these prior decisions by adopting the trial court’s conclusion that the Pueblo of Los Angeles did not have any prior or paramount right to any of the waters of the Los Angeles River under Spanish or Mexican law and that plaintiff therefore acquired no such right as the pueblo’s successor. The trial court based its conclusion upon its extensive findings on (1) the history of the Spanish and Mexican settlement and development of the Pueblo of Los Angeles, the Mission San Fernando, the ranchos of the ULARA, and surrounding areas of Southern California and on (2) the laws, orders and regulations of Spain and Mexico relevant to the pueblo water right question. These findings were based in turn on the trial court’s inferences and conclusions from lengthy expert testimony and voluminous historical documents and other exhibits. Even if the existence of the pueblo right were a question of first impression in our appellate courts, we would not apply to these findings the standard of appellate review by which findings must be upheld if supported by substantial evidence. Spanish and Mexican laws governing property rights in California before the annexation remained in effect after the change of sovereignty unless duly repealed or altered, and we are required to take judicial notice of such laws as part of the law of this state. (Ohm v. San Francisco (1891) 92 Cal. 437, 450 [28 P. 580].) Historical facts concerning the Spanish and Mexican settlement of California are also proper subjects of our judicial notice. (City of San Diego v. Cuyamaca Water Co., supra, 209 Cal. at p. 124; Ocean Industries, Inc. v. Superior Court (1927) 200 Cal. 235, 241 [252 P. 722].) Thus, in adjudicating California property rights dependent on a question of Spanish or Mexican law never before considered by us, we are called upon to make our own determination independently from the conclusions of the trial court even though we may be greatly aided by expert testimony and historical documents presented to and considered by the trial court and made part of the record on appeal. (Estate of Chichernea (1967) 66 Cal.2d 83, 85-87 [57 Cal.Rptr. 135, 424 P.2d 687].) A different approach must be taken, however, to an issue such as the existence of plaintiff’s claimed pueblo water right under Spanish and Mexican law which has already been decided by this court in several prior cases. Even assuming that the exhibits and expert testimony in the present record would have persuaded us to decide against the pueblo right as an original question, we should not now so rule if to do so would unjustly impair legitimate interests built up over the years in reliance on our former decisions. (See United States v. Maine (1975) 420 U.S. 515 [43 L.Ed.2d 363, 95 S.Ct. 1155]; Hart v. Burnett (1860) 15 Cal. 530, 597-612.) Accordingly, we should not undertake the formidable task of reviewing in detail the vast mass of material in the record on the issue of pueblo water rights under Spanish-Mexican law unless we are first assured of a reasonable possibility of finding grounds for denying the pueblo right which would outweigh the countervailing policies of stare decisis. To consider this possibility, we now summarize the major points covered by this material. The case for the existence of the pueblo right is essentially based on inferences from historical circumstances rather than on any express provision of Spanish or Mexican law. These circumstances relate to the founding of the pueblo and to subsequent events involving conflicts or potential conflicts between the pueblo’s claims and the claims of others to the water of the Los Angeles River. The pueblo was established by order of the royal Spanish government as a permanent settlement to be inhabited principally by farmers who would grow crops on irrigated tracts of farm land as well as raise livestock and would furnish an essential source of agricultural supplies for the presidios. The pueblo was deliberately located to take maximum advantage of the Los Angeles River as a source of water for irrigation and the orders for the pueblo’s founding included detailed provisions for an irrigation dam and canals. These circumstances strongly suggest a governmental policy of assuring the pueblo a supply of water sufficient for its maintenance and growth, at least in the absence of any other town or settlement of comparable importance competing for the same water supply. Events subsequent to the pueblo’s founding in 1781 indicated continued recognition and protection of the pueblo’s priority to the river water. Rancho San Rafael, directly north of the pueblo, was granted in 1784 and 1798 but only after the grantee had given express assurances that the pueblo would not be injured. In 1797 the Mission San Fernando was founded, not along the Los Angeles River, but in the northern San Fernando Valley where it could use the water available from the artesian springs of the Sylmar subarea. The mission carried on agricultural operations throughout most of the San Fernando Valley in the course of which it used water from the Los Angeles River for irrigation. Yet the recorded incidents of concern over the possible infringement of these operations upon the pueblo’s water supply show consistent recognition of the pueblo’s priority. In 1810, when the pueblo complained to higher authority about possible injury from the mission’s using the river for irrigation, the mission agreed to desist whenever injury to the pueblo was shown. In 1817 the governor granted permission to the mission to irrigate land along the river only after first summoning pueblo officials and ascertaining from them that the proposal would not injure the pueblo. In 1836, after the mission lands were secularized, pueblo officials examined and investigated a dam on the river in the same area and obtained assurances that the administrator of the dam would break it if the pueblo ran short of water. Although most of the secularized mission land was granted to private parties by the Mexican government between 1840 and 1846, the trial court in Feliz v. City of Los Angeles (1881) 58 Cal. 73, 76, found that throughout the period of Mexican rule all of the owners of land along the river from its source to the pueblo recognized and acknowledged the pueblo’s prior right. The historical evidence relied upon by defendants as supporting the trial court’s findings against the pueblo right falls well short of demonstrating that our prior holdings upholding the right were palpably erroneous or unreasonable. Principal reliance is placed upon Laws 5 and 7 of Title 17, Book IV, of the Laws of the Indies. Law 5 states in pertinent part: “We command that the use of all pastures, woods and waters of the provinces of the Indies be common to all the citizens of them, that are now, and afterwards may be so that they can use them freely.” Law 7 states in pertinent part: “The woods, pastures and waters of the settlements . . . must be common to Spaniards and Indians.” Although defendants claim that these provisions for “common” use are inconsistent with a prior pueblo right, they necessarily concede that prior rights to water did exist. Irrigation rights could be granted, and defendants’ expert, Lie. Oñate, testified that a grant of “irrigable” land adjoining a river conveyed a right to irrigate. Thus, these provisions of the Laws of the Indies were not necessarily inconsistent with an implied grant to the Pueblo of Los Angeles of a prior right to use water from the river to the extent necessary to carry out the governmental orders and policies for which the pueblo was founded. Similarly, the provisions of the Laws of the Indies were not necessarily inconsistent with the establishment of a pueblo water right based on usage, as exemplified by the repeated instances of acknowledgment of the right by the mission fathers, higher governmental officials and upstream landowners. Nor is the existence of the pueblo right necessarily precluded by the qualifications which defendants cite as being placed upon grants to use water for irrigation. The subjection of these grants to common use of the water for domestic purposes permitted the filling of portable containers directly from the river with water for domestic use but did not necessarily cover the delivery of water through pipes or other conduits. Another qualification to which irrigation grants were subject was the governmental authority to apportion water in the event of drought or shortage, but such authority was a form of police power exercisable to alleviate physical deprivation caused by drought or other emergency and did not necessarily impair the pueblo’s priority for its needs under normal conditions. A further qualification relied upon by defendants, is the right of landowners to use water from springs or wells on their land. This private right was.concededly subject to the pueblo’s right to take water needed for its inhabitants but defendants assert that the owner was then entitled to compensation from the pueblo. No compensation was required, however, if the pueblo had acquired the use of the water by means of title or prescription. If the ground water supplying the well or spring was part of an underground flow to a river s