Full opinion text
HAINES, J. pro tem. This action is brought by the Orange County Water District, a public corporation, created and existing under a California statute (Stats. 1933, ch. 924, p. 2400), as from time to time amended. This district is invested with broad powers affecting the water supply for the area within its exterior boundaries—an area wholly within Orange County, but which, as now extended, contains inter alia the cities of Fullerton, Anaheim, Orange, Santa Ana and Huntington Beach. Section 2, subdivision 7 of the act involved, as amended in 1953 (Stats. 1953, ch. 770, pp. 2035, 2050), having to do with the powers of the district provides, in part, as follows: “ ... to commence, maintain, intervene in, defend and compromise in the name of said district, or otherwise, and to assume the costs and expenses of any and all actions and proceedings now or hereafter begun to prevent interference with water or water rights used or useful to lands within said district, or diminution of the quantity or pollution or eontamination of the water supply of said district, or to prevent unlawful exportation of water from said district, or to prevent any interference with the water or water rights used or useful in said district which may endanger or damage the inhabitants, lands or use of water in said district....” The present action, claimed to be maintainable under these statutory provisions joins no other parties plaintiff with the district, nor are there any other parties defendant than the four cities of San Bernardino, Redlands, Colton, and Riverside. What was sought in the complaint and what the judgment undertook to award, was, first, a declaration and definition of the extent of the respective rights of the defendant cities to take water from the surface and underground flows of the Santa Ana River and its tributaries and from the underground basins, reservoirs or lakes into which these flows diffuse themselves in their descent from the mountainous area where the streams have their origin to the several points where they are diverted by the defendant cities; and, second, injunctive relief forbidding the defendant cities severally, except for certain temporary arrangements, to divert such waters to any extent in excess of their rights as there declared. As respects the geographical situation the trial court found that: “At all times herein mentioned the Santa Ana River has been and now is a natural nonnavigable stream which rises in the San Bernardino Mountains in San Bernardino County, California, northeasterly from the City of San Bernardino and flows down from said mountains through the San Bernardino valley or plain in said county in a southwesterly direction to and into Riverside County, California, and thence through the northwestern portion of said Riverside County to and into the County of Orange, California, through the Santa Ana Mountains and thence to the coastal plain situated within said Orange County and the plaintiff District, where the waters of said Santa Ana River then sink underground except for portions thereof which during certain periods of large storms pass on down the channel of the river and into the Pacific Ocean. “The watershed of the Santa Ana River embraces approximately 2,000 square miles, the boundaries of which are delineated on plaintiff’s Exhibit No. 1 in evidence. “From the standpoints of geography, geology and hydrology, the Santa Ana River system is one watershed and one basin. It has been and can be divided into three general subdivisions, which, for convenience, are referred to herein as the Upper Basin, the Middle Basin and the Lower Basin, each of which is delineated on plaintiff’s Exhibit No. 1 in evidence. The boundaries of said subdivisions are generally protrusions of the bedrock, faults, relatively impervious zones or in some cases arbitrary lines drawn in order to completely bound the area so designated. Irrespective of the method of division used, any such subdivisions or further divisions are parts of the entire Santa Ana River system, and all the waters thereof, underground and surface alike, are part of one interconnected common supply. In all cases, except those of continuous protrusions of the bedrock, some restricted underflow across the boundaries of such subdivisions is possible and water passes underground as well as on the surface, from one subdivision to the next lower subdivision.” The trial court also found that: “Numerous streams within the watershed are tributary to the Santa Ana River. The waters of the natural, usual and ordinary flow of the Santa Ana River and its said tributaries, when permitted without interruption or interference and when not artificially diverted or extracted, naturally and normally flow down in their respective channels through, over and across the Upper and Middle Basins and into the Lower Basin. The surface lands in said basins are underlaid to various depths with alluvial deposits composed of boulders, gravel, clay, sand, silt and other fluvial and detrital materials of varying textures, all of which materials have been laid down by said Santa Ana River and its tributaries. In a state of nature said materials are saturated with waters supplied by said Santa Ana River and its tributaries which waters percolate and flow as a continuous body of underground waters and which in turn supply, support and contribute to the surface flow of the Santa Ana River. “The upper basin is bounded on its southwesterly side by an underground barrier or dike, which is generally known as ‘Bunker Hill Dike’ and which is sufficiently impervious throughout most of its length to retard the flow of underground waters and to prevent the escape of such waters below the surface to any great extent....” Complaint is made in one of the briefs of the repeated use by counsel for the respondent district and by the trial court in its findings and judgment of the expression “Santa Ana River System,” without definition of what is meant thereby. To avoid any uncertainty we here state that what we shall, in this opinion, mean, whenever we shall use the expression, and what we understand the trial court to have meant by it, is the entire natural flows of the Santa Ana River and its tributaries insofar as they proceed in known and definite channels, whether above ground or below the surface, together with all waters from time to time impounded either in surface lakes or known or ascertainable underground storage basins, wherever overflows from such lakes or basins, through either surface or underground outlets, do or under natural conditions did, directly or indirectly feed the flows of the river or its tributaries. As a matter of fact neither the river itself nor its tributaries, after leaving the mountains, run continuously for all of their distances on the surface, but for many of their stretches most of them sink into and percolate through sands and gravel. At intervals, however, the general downstream trend of these flows and percolations is interrupted by such natural dikes or dams, as those mentioned in the findings quoted, partially but not entirely impermeable. Behind these dams, which do not always rise as far as the surface of the ground, the water backs up wherever they occur and charges underground basins, reservoirs or lakes in which it is impounded, as noted by the trial court, and in which it is stored in great quantities, in various permeable formations. The amount of this storage in any given basin varies, of course, from year to year, depending in part on the character of the subsoil, in part on the general rainfall in the region, in part on the proportion between the inflow into the basin from above and its outflow below, and in part on artificial drafts made upon its waters. When these dikes or dams occur, more or less of the water above them, whenever the basin is sufficiently full, is brought to the surface. Either upon, or beneath the surface, or partially above and partially beneath it, the water of the stream, at such times, spills over the lip or rim of the underground basin and resumes its general downward course toward the sea. Reference to the map, plaintiff’s Exhibit I, in evidence, referred to as above by the trial court, will disclose that the three “basins” described in the findings occupy areas approximately as follows: The “Upper Basin” is depicted as occupying the San Bernardino Valley from the base of the mountains on the north and northeast, downward until it is interrupted by the long northwesterly to southeasterly barrier known as the “Bunker Hill Dike,” probably the most prominent, so far as its effect on the stream flows is concerned, of the numerous natural dikes or dams above described. The “Middle Basin,” to use the nomenclature used by the trial court, embraces the whole area of the watershed below the “Bunker Hill Dike,” down to another obstruction labeled on the said map “Chino Fault” lying just above the Prado Dam hereinafter referred to. Everything below the last named barrier is included in what the trial court described as the “Lower Basin.” Both the “Upper” and the “Middle Basin” referred to in the findings are, in fact, further divisible by natural barriers, of varying degrees of prominence, into smaller basins, and are so treated in the briefs of defendant cities in discussing them, and it will, therefore, be convenient at this point to distinguish them. The “Upper Basin” is treated in the briefs of counsel for the cities of Redlands, San Bernardino, and Colton as actually consisting of four basins, the first three from northeast downward, known as the “Mill Creek” “Reservoir” and “San Bernardino” Basins. The city of Redlands overlies what are thus described as the “Mill Creek” and “Reservoir” Basins and a small part of what is thus described as the “San Bernardino ’ ’ Basin. The fourth of these subdivisions is referred to as the “Lytle Basin.” It consists of the watershed of the Lytle Creek, a tributary of the Santa Ana River coming in from the northwest and skirting the northeasterly edge of the Bunker Hill Dike to its outlet. It is, with substantial correctness, said in the opening brief of counsel for the cities of Redlands, San Bernardino and Colton (pp. 6, 7) that: “Because Bunker Hill Dike is, in large part, impervious, it holds back to a very considerable extent the water which accumulates in the subterranean area above it. But it is not a dam in the sense that it is completely watertight. Roughly speaking it is merely a rim to the basin which impedes the flow of underground water except at a gap in the vicinity of Colton. This gap was variously estimated to be from 6000 feet to five miles wide. Through this gap the water percolates southwesterly....” The city of San Bernardino overlies the “San Bernardino Basin,” as above described, and if the nomenclature of the trial court and of the plaintiff are followed, then both it and the city of Redlands lie within what the findings describe as the “Upper Basin.” Of the four more or less distinct areas or basins, thus included in the trial court’s “Upper Basin,” by far the largest and most important is the “San Bernardino Basin.” It has a length of some 25 miles and a breadth of about 12 miles. It attains depths known to be in places more than 1200 feet. At some points its porous formations never have been plumbed. It has been well described, under the name “San Bernardino Artesian Basin,” in the opinion of the Supreme Court in the case of City of San Bernardino v. City of Riverside, 186 Cal. 7,11-12 [198 P. 784], in part as follows: “The gradient of the surface of the basin from the foot of the mountains toward this” (the) “outlet varies from twenty-five to fifty feet per mile. Near the center there are level spaces which, prior to any artificial drainage, were swamps or marshes. It is probable that the basin was originally a lake and that its present condition is the result of the gradual filling of the bed in the course of ages by detritus washed down by the adjacent mountains. The material of the basin is composed of boulders, gravel, sand and soils of varying textures. As the lake-bed gradually filled, the torrents from the mountain canyons changed their courses from time to time, forming underground strata or waterways of coarser material in which the water percolates more freely than elsewhere. . . . The whole mass of underlying strata composing this basin is saturated with water. The upper stratum is soil of a closer texture than the strata beneath. This overlying cap confines the water to the porous strata below, and the gradient of these formations causes a hydrostatic pressure therein. ’ ’ Not only is the San Bernardino Basin crossed by the Santa Ana River, but within its limits that stream is joined by several of its tributaries. One of its tributaries, however, known as “Warm Creek,” which is forced to the surface by the hydrostatic pressure, already described, flows through the easterly part of the city of San Bernardino and thence follows a channel paralleling that of the river, through the gap in the Bunker Hill Dike, and joins the main stream just below. The appellant city of Redlands obtains its municipal water supply from the basins which it overlies, the appellant city of San Bernardino from the “San Bernardino Basin,” and the appellant city of Riverside, although lying outside the “San Bernardino Basin,” and below what the findings describe as the “Upper Basin,” reaches upward to the “San Bernardino Basin” for a point of diversion for at least a part of its water supply. The several subdivisions of the trial court’s “Middle Basin,” marked off from one another by various natural barriers, are distinguished in the brief of counsel for the defendant city of Riverside, for the most part concurred in by counsel for the other defendants, as follows: the more or less connected “Rialto” and “Colton” Basins, the “Riverside-Arlington” Basin, the “Chino” Basin and the “Temescal” Basin. Of these the Rialto and Colton Basins are next downstream from the gap in the Bunker Hill Dike. They are supplied by the flows of the river and Warm Creek, and the seepage under their beds from the San Bernardino Basin and also by water diversions from the Lytle Creek Basin, and probably, as may be gathered from the map, plaintiff’s Exhibit I, by some seepage of the waters of Lytle Creek through the Bunker Hill Dike. The city of Colton overlies the “Colton” Basin and derives its water therefrom and from the Lytle Creek diversion above referred to. The “Rialto” and “Colton” Basins result from an underground dike or dam below them known as the “Rialto Fault.” The next lower, “Riverside-Arlington” Basin, which has, at points, a depth of as much as 500 feet, is confined at its lower end by this so-called “Riverside Narrows,” the rocky barriers of which rise on either side of the river at a stretch in its course approximately where it leaves the limits of the city of Riverside. This basin is supplied by the overflow from the Rialto and Colton Basins. After passing through the Riverside Narrows, the Santa Ana River proceeds downward until it reaches the flood control reservoir which is confined by the structure; built in 1941 by Army engineers, known as the “Prado Dam.” This structure is impervious down to bed rock and impounds all water reaching it which is not released from it. Northwest of the city of Riverside and of the “Riverside-Arlington” Basin is a series of heights known as the Jurupa Mountains, and to the north and northwest of these is the large “Chino” Basin. This is fed by the waters of San Antonio and Cucamonga Creeks, both of which originate well to the west of the San Bernardino area in the San Gabriel Mountains, and the waters of which, insofar as they are supplied by these creeks, constitute a contribution to those of the river entirely distinct and separate from any of those that we have hitherto, considered. The respondent, however, contended in the trial court that there also percolate or percolated under natural conditions, into this ‘ ‘ Chino ’ ’ Basin through gaps in the formation constituting the Jurupa Mountains, and north of them, considerable quantities of water from the San Bernardino and Colton-Riverside areas (“Rialto,” “Colton” and “Riverside-Arlington” Basins). The appellants dispute the fact of such percolation, but the trial court found that it occurs and in the face of a conflict of evidence on the subject we are bound by its finding. The matter is of some importance for if there were no such percolation it would follow that no contribution to the waters of the river from the Chino Basin would suffer diminution from the appellants’ diversions. Bordering the left bank of the river, below Riverside Narrows but above the Prado Dam is the small “Temescal” Basin, fed by the Temescal Creek coming from the region of Lake Elsinore. This basin, except for such seepage, if any, as it may receive from the Santa Ana River, is unconnected in the source of its waters, with any other. All of the basins above referred to and forming part of the trial court’s “Upper” and “Middle” basins, in addition to such flows or seepage as they get from the Santa Ana River or areas above them, receive also whatever accessions to their waters result from rainfall on their respective surfaces or return flows from irrigation or sewage effluents from cities within or above their limits. From the point where it leaves the Prado Dam the river enters a canyon through which, with relatively little loss from seepage, it penetrates the Santa Ana Mountains and emerges into the broad plain of Orange County where, except to the extent that it is interrupted by diversions, largely as a stream sunken in the dry season beneath the sand, it pursues its way to tidewater. In the stretches below the Prado Dam its course is through what the trial court has designated as the “Lower” Basin, which, so far as it consists of arable land, is identical with what the appellants describe as the “Santa Ana” or “District” Basin, so called because the territory of respondent district occupies it and extends to an area somewhat exceeding it. Appellant cities, both in every stage of the proceedings in the trial court and in many pages of their briefs and in their oral arguments at the hearing in this court, have attacked the complaint as failing to state a cause of action. In this connection we have to consider the character of the district as a public corporation, the general authority given it by subdivision 2 of section 2, of the statute under which it exists, to sue and be sued (Stats. 1953, ch. 770, pp. 2035, § 2, subd. 2, p. 2050), and the special provisions of subdivision 7 of said section 2, quoted at the outset of this opinion, in connection with sections 367, 369 and 382 of the Code of Civil Procedure. There can be no question that any owner, within the district, of an individual water right, whether riparian, overlying or appropriative, may maintain an action to quiet his title to it as against any adverse claimant or to protect it by obtaining declaratory or injunctive relief against unlawful infringement of it. Appellant cities, however, complain that the district, claiming for itself no proprietary interest in any water right, is here seeking to represent all water rights, riparian, overlying or appropriative of all of its cities, inhabitants and all landowners within its boundaries, without pleading their nature or extent, or setting out any basis for a finding that they constitute any legally recognizable class, which may properly form the subject of such representation. In proceeding to examine these contentions we have first to consider with some particularity, what, so far as pertains to these objections, the complaint does and what it does not contain. The corporate organization and existence of the respondent district and appellant cities is duly alleged. Section III of the complaint inter alia states the area within the boundaries of the district to be “approximately 170,000 acres. ’ ’ Section IV described the topography of the Santa Ana River system and its general physical characteristics. Section V is as follows: “All of the lands within the District are fertile and tillable and are valuable and especially adaptable to the raising and cultivation of avoeadoes, grapes, berries, oranges, lemons and other citrus and deciduous fruit trees, alfalfa, beans and other farm products. To grow and produce such fruit trees and other crops thereon, water for domestic use and irrigation is necessary and indispensable, and without such water no fruit trees or other crops can be grown thereon, and said lands would be of little value. Said lands are also valuable for the raising and grazing of livestock, and for residential purposes, and water is necessary for the watering of livestock and for domestic use and for the irrigating of lawns and flowers and vegetable life necessary for such purposes. Large areas of said lands heretofore have been and now are planted with fruit trees which are under cultivation and in full bearing, and large areas of said lands have been and now are raising large quantities of vegetables, sugar beets, beans and other crops annually planted. All of said lands devoted to such trees and crops have been and are dependent upon irrigation, in order to produce such fruit and crops. There have been and are erected houses on said lands which have heretofore been and now are occupied for residential purposes, and without the use of said water said trees and crops on said lands would die, and the houses erected thereon would be uninhabitable, and said lands would be of no value for the purposes aforesaid.” Section VI is as follows: “There lies and exists within the District an artesian or underground-water basin (hereinafter called the ‘District Basin’) sloping generally from the mountains to the sea, and embracing an area of about 120,000 acres. The surface lands in said Basin are underlaid at a depth varying from a few feet to about 2,000 feet, with an alluvial deposit composed of boulders, gravel, clay, sand, silt and other fluvial and detrital materials of varying textures, all of which alluvial materials have been laid down in the form of lenses, lozenges, kidneys and strata by said Santa Ana River and its tributaries, and which in a state of nature are saturated with water and through which percolates a continuous body of underground waters, practically all of said waters being supplied by said Santa Ana River. ’ ’ Section VII sets up the dependence of the district, its lands and inhabitants on the flow of the river for recharging the strata underlying what this complaint itself calls the “District” Basin, as constituting the main source for water replenishment for the basin and providing the principal water supply to most of the inhabitants of the district. Section VIII reads: “The greater portion of the lands within the District overlie the water-bearing strata and continuous body of percolating waters in said District Basin, and the remainder of said lands are irrigated from wells sunk into said water-bearing strata and continuous body of percolating waters in said Basin, and said strata and body of percolating waters are naturally and constantly supplied by the waters from the natural, ordinary and usual flow of said Santa Ana River, and its tributaries, sinking in and percolating through said underground strata, as above alleged.” Section IX describes in general terms the methods used by land owners within the district to avail themselves of its water supply, alleges that within the last 50 years over 4,500 producing wells have been sunk therein “to a depth sufficient to contact and penetrate the underground strata of water bearing gravel and sand which underlie said lands and are common to said basin”; that such wells are in operation and provided with pumps and other machinery and equipment, and that in development of the water supply the expenditure within the district has exceeded $25,000,000. Section X enlarges upon the inadequacy of the Santa Ana River and its waters to replenish the water supply of the “District” Basin, and states that the water table therein has for many years been receding; alleges that the overdraft upon it exceeds 12,000 acre feet annually and would be greater had not the cities of Santa Ana, Anaheim and Fullerton and the district itself obtained additional water from the Colorado River (setting out the quantities of water imported by each) and alleges that but for such importations the overdraft would exceed 20,000 acre feet per annum. Section XI is as follows: “The subject matter and questions involved in this action are of common and general interest to the many owners of land within the District and bordering upon and riparian to said Santa Ana River and to the many owners of land overlying, and the users of water in said District Basin, and to the inhabitants of the District. Said riparian and other landowners and water users and inhabitants are too numerous and it is impossible and impracticable to bring them all before this Court in this action. By reason thereof and by reason of the powers granted to and vested in the District by said “Orange County Water District Act,” this action is brought, maintained and prosecuted for the benefit of the District and also of all riparian and other landowners, water users and inhabitants within the District, and having a common and like need of the waters as above alleged, and for the common object and purpose aforesaid.” It is true, as counsel for the appellant cities assert, that no attempt has been made to plead specifically the water right of a single one of the water users whom respondent district claims to represent, nor as to such riparian or overlying rights that any of them may have, to describe any of the particular tracts or parcels of land in which such rights inhere, nor to state the quantities of water required for reasonable use on any of such tracts, nor how much of the same is being actually used, nor to set out the extent of any appropriative rights of the cities or any other water users within the district, nor to set out any data from which it can be determined to what quantities of water such appropriative rights have matured into prescriptive rights, nor are there any allegations with respect to the dates when such several appropriative rights accrued, as a basis for adjudging how far, if at all, they may have priority over such prescriptive rights to take water from the river system, as the appellants or any of them may possess. Indeed there is not in the complaint any statement as to how much water, whether in acre feet or other units of measurement, is required to satisfy overall requirements of the water users within respondent district. What is stated with respect to the aggregate requirements of the agencies and individuals sought to be represented by the respondent district is simply that the replenishment of the annual supply falls short by amounts which are stated, of meeting their annual drafts upon it, even when the supply is augmented by the importation in stated amounts of Colorado River water. The first question, therefore, which we have to determine, is whether the complaint as thus summarized should be held to state a cause of action. While the situation is arguable, we believe that it does. If, as does appear from the complaint, the “District” Basin, that is that portion of the area of the district alleged to be underlain by water, fed by the river system, amounts to as much as 120,000 acres, it is manifest that, initially, the whole of that acreage was invested with overlying rights to the use of such water, and that such rights, inhering in the several tracts that made up the area, were correlative with each other (Katz v. Walkinshaw, 141 Cal. 116 [70 P. 663, 74 P. 766, 99 Am.St.Rep. 35, 64 L.R.A. 236].) None of such rights were lost by mere nonuser. If any have been lost or curtailed it has either been in consequence of voluntary surrender of them or some part of them by their owners, for a consideration or otherwise, to the needs of some appropriator, or by condemnation, or else by the ripening through prescription of appropriations into prescriptive rights adverse to them. Insofar as such overlying correlative rights have not been lost either in one or the other of these three ways they are manifestly still in existence and included in the water rights which the respondent district seeks by this action to protect, and are prior and paramount to any appropriative claims of appellant cities that have not ripened into prescriptive rights. To be sure riparian and doubtless, for that matter, overlying rights also, are divested by severance as to that part of any tract which, by conveyance, condemnation or otherwise is severed from areas formerly a part of it which retain contact with the stream or underground basin. But, if the allegations of the complaint are true that 120,000 acres within the district do presently overlie the “District” Basin, then it follows that no part of that 120,000 acres has lost contact with the water supply or lost its overlying right through mere severance. A scrutiny of the complaint discloses nothing from which it can be elicited that any part of the 120,000 acres referred to, have lost their overlying rights by conveyances, condemnation or by reason of infringement thereon by appropriators within the district, and to require the district to negative in its complaint the loss of any overlying rights by reason of conveyances, condemnation or such conflicting appropriations would be to require it to plead a negative which is not ordinarily required (Farr v. Bramblett, 132 Cal.App.2d 36, 48 [281 P.2d 372].) To be sure the complaint does disclose the existence within the district of irrigation districts, some of which may be, but need not necessarily be, exercising appropriative rights, and also of the cities of Santa Ana, Fullerton, Anaheim and Huntington Beach, and we may take judicial notice that there are other such communities, which draw water from the District Basin, all of which may be assumed for the sake of the argument and doubtless are in fact, in greater or less degree appropriators therefrom, but it does not appear from the complaint nor can it be elicited therefrom that any appropriations on their part have in fact excluded any acreage that overlies the water bearing basin from contact with its waters or from participation in their use, though it may be elicited from what the complaint sets out that appropriations on the part of such agencies, in addition to those of appellant cities and withdrawals by other water users in areas above the “District” Basin, have resulted in diminishing the available water supply. It seems to us, then, that the allegations of the complaint amount, to an assertion that there are not less than 120,000 acres of land within the district possessing overlying rights in this subterranean water fed by the river. Neglecting, then, for the moment, any claim of the district to represent any appropriative rights of water users within its limits, and looking to the allegations of the complaint alone, we believe it. sufficient to assert affirmative rights on the part of the overlying lands and their owners and the water users exercising such rights to participate in the underlying water supply sufficient to entitle their rights to protection against any infringement by. others having inferior rights. Even if the allegations of the complaint could be read as conceding that, as to any tract or tracts overlying the “District” Basin the overlying rights had been extinguished in either of the ways above mentioned, yet if the complaint could be, as it must be, so read as to assert that any part of the overlying land still retains such rights, in any degree, an action would still lie to protect them. All in all, while it must be admitted that in its description of the rights which it seeks to protect the complaint is at best sketchy, and might even be called cryptic, we are unable to say that it is not in that respect legally sufficient. We have now to notice a contention particularly insisted on in the briefs of counsel for the cities of San Bernardino, Colton and Redlands. It is asserted (closing brief pp. 43-45) that, if the act under which this district exists, is construed as authorizing it to represent the rights of those whom it here undertakes to represent, by asserting them in such general terms as are contained in the complaint, then the act must be held to violate article XIV of the amendments to the Constitution of the United States as authorizing the taking of property of appellant cities without due process of law. In that connection counsel say that the “judgment in favor of the District is based upon a complaint which makes no claim that either the respondent or those it assertedly represents, have any right to water which is superior to that of any one of the cities.” Then counsel assert that “the evidence does not show any right superior to that of any of the appellants.” But we have not yet come to the consideration of the evidence and will discuss that when we reach it. What we are presently discussing is the sufficiency of the complaint to show that the respondent is entitled to maintain the action. It certainly asserts—whether with desirable particularity or not, it does assert—overlying water rights in the District Basin in behalf of property owners within its borders, which, if they exist, are the analogues of riparian rights on a stream and as such entitled to protection against all interference by upstream appropriators except those whose interference is rightful. Respondent district does not claim such protection against the taking by appellant cities of water within the limits of their prescriptive rights. What property of appellant cities can it then be claimed that in violation of the Constitution respondent is seeking to take? Counsel’s answer will be found on page 105 et seq. of the brief last referred to under the heading “A municipality has the right to extract from an underlying basin, and to distribute to its inhabitants all of the water which can be beneficially used by such inhabitants upon lands which are within the city and which overlie the basin.” The argument is that the individual inhabitants of a city overlying such a basin have been recognized in such cases as City of San Bernardino v. Riverside, 186 Cal. 7 [198 P. 784], and Eden Township County Water District v. City of Hayward, 218 Cal. 634 [24 P.2d 492], as having, with respect to the basin over which they live, correlative or overlying rights substantially the same as those of riparian owners on a stream, for which, as individuals, they may undoubtedly invoke the protection of the courts, and that it is logical that the municipal corporations, as the administrators of the water systems which such individuals must use, should be allowed to pool their interests and represent them in protecting these rights. This court, then, is asked to break new ground by recognizing in municipal corporations the authority to thus represent the collective individual overlying rights of their inhabitants. This action we are asked to take by proceeding after the analogy of the action of the Supreme Court in Katz v. Walkinshaw, supra, which brushed aside the common-law doctrine, Cicjus est solum ejus est usque ad coelum et ad inferos, and inaugurated the opposite doctrine of correlative rights. Whatever persuasiveness this argument may have, however, it is not properly addressed to this tribunal. It was squarely decided in City of San Bernardino v. City of Riverside, supra, that municipalities, in the absence of some statute authorizing them to do so, are without authority to represent the individual water rights of their inhabitants, but themselves in taking water from an underground basin are appropriators only and as such that their rights are strictly measured by the law governing appropriators. This being the legal situation, this court, as an intermediate court, can only deal with it as it is. It is not for us to inquire what the law ought to be when the Supreme Court has emphatically informed us what the law is. Counsel’s suggestion, therefore, cannot be addressed with propriety to any court subordinate to the Supreme Court. As an alternative, however, to the contention thus disposed of, it is claimed that if the cities must be treated as appropriators they are here, in violation of the constitutional provisions referred to, being deprived of property. This property, it is said, is their inchoate right to take water from a stream or basin in excess of what their prescriptive rights entitle them to, by reason of their having started to take such excess water. Clearly, however, as against riparian users on a stream or the owners of land overlying a basin or even as against appropriators having valid prescriptive claims to such water, they have no such “inchoate” rights. To the extent that, in excess of their prescriptive use, they are taking anything but surplus water they are merely trespassers (Anaheim Union Water Co. v. Fuller, 150 Cal. 327, 334-335 [88 P. 978, 11 L.R.A. N.S. 1062] ; Fall River Valley Irr. Dist. v. Mt. Shasta Power Corp., 202 Cal. 56, 70 [259 P. 444, 56 A.L.R. 264]; City of Pasadena v. City of Alhambra, 33 Cal.2d 908, 926-927 [207 P.2d 17].) Not even a permit from the state to appropriate a given quantity of water can convert the taking of such nonsurplus water from a trespass into an “inchoate” right to the prejudice of users having superior rights (Fall River Valley Irr. Dist. v. Mt. Shasta Power Corp., supra, 202 Cal. 56, 67-69.) These principles have not been in any wise nullified by the amendment in 1928 to article XIV of the state Constitution, restricting riparian rights to the reasonable requirement for their beneficial use of the waters of streams. Undoubtedly this amendment will in many cases properly result in the classification as “surplus” of more water than would previously have been so classified, but in no way enlarges the right of appropriators to take water which is not surplus and it still leaves to the courts the function of determining whether or not in given eases there is any surplus. The appellants claim, also, that the necessary averments to bring the case within the provisions of section 1060 of the Code of Civil Procedure authorizing action for declaratory relief are insufficiently pleaded, in that it does not sufficiently appear that there is an “actual controversy between the respondent and appellants relating to the legal rights and duties of the respective parties” (citing Ephraim v. Metro politan Trust Co., 28 Cal.2d 824, 836 [172 P.2d 501], to the effect that it is insufficient for a complaint to assert that such a controversy exists hut it must appear that defendant’s position is in opposition to that of the plaintiff). It is claimed that the “controversy,” if any here, is between the respondent’s water users and the appellants, not between the respondent and the appellants. The objection is overtechnical. If respondent is entitled to represent its water users, or any of them, then in legal effect any controversy over their respective water rights between the water users represented and the appellants is a “controversy” between the respondent District and the appellants. That the district is empowered to represent the rights of its overlying water users does not, we think, admit of a doubt. It is true that under section 367 of the Code of Civil Procedure: ‘ ‘ Every action must be prosecuted in the name of the real party in interest, except as provided in section three hundred and sixty nine of this code.” Section 369 authorizes such prosecution by one “expressly” authorized by statute, without joining with him the persons for whose benefit the action is prosecuted and it must be deemed settled that the authority to commence, maintain, intervene in, defend and compromise “in the name of the District and otherwise, ’ ’ actions and proceedings of the character contemplated in subdivision 7 of section 2, which we have quoted, of the act under which the district exists, as amended, is “express” authority within the meaning of said section 369 of the Code of Civil Procedure (Coachella Valley County Water Dist. v. Stevens, 206 Cal. 400 [274 P. 538].) This Coachella case was brought under the provisions of what was known as the County Water District Act by a district formed thereunder, to protect the interests of the water users, both riparian and appropriative, taking their supply from a basin backed up by a natural dam in a stream known as the Whitewater River, against what were alleged to be unreasonable drafts, actual and threatened by an upstream riparian owner whereby it was claimed that the district water users were being and would be damaged. There, as here, what was sought was declaratory and injunctive relief. There, as here, the plaintiff district relied on statutory authority to maintain the suit in its own name without joining its water users as parties plaintiff or at all. There, also, its complaint omitted any specific description of their lands or individual rights though it did contain allegations as to the extent of the aggregate requirements of the plaintiff’s water users and as to what the extent of reasonable use by the defendants was. A demurrer was interposed on the grounds (1) that the plaintiff had not the legal capacity to sue; (2) that the complaint fails to state a cause of action; and (3) that there was a defect or misjoinder of parties plaintiff. The trial court sustained the demurrer and rendered judgment for the defendants. This was reversed by the Supreme Court on appeal. That court dismissed the contention that no cause of action was stated in the complaint with the curt comment that (pp. 405-406) “it is clear that sufficient has been set forth to constitute a cause of action. The second ground of objection to the complaint is therefore found to be without merit.” It is true that a plaintiff must succeed, if at all, on the strength of the title on which he sues, and not in consequence merely of a weakness in the title of a defendant, but if we are right in believing that the complaint does, though in general terms, set out the existence of overlying rights on the part of those or any of those whom the district assumes to represent, then to that extent a “title” has been alleged as a basis for an action to protect it. Doubtless if the suit were one by an individual for protection of rights inhering in any particular parcel of land or to quiet title to such rights, greater particularity would be required, but the object of the present action is not to quiet title as to any individual property but includes, at least, the protection of the rights of all overlying agricultural lands and land owners, to the extent that such rights have not been divested, within the whole district, and it is manifestly true that to plead them otherwise than in general terms, or protect them by individual provisions in a judgment would be difficult and possibly impracticable. We do not see why the owners of such overlying rights may not properly be treated as a class possessing such common interests as to justify the maintenance of a single action for their protection. Whether or not the overlying landowners using water for other purposes than agriculture or the holders of appropriative rights within the district are properly to be included within the same class is another question but not a question that goes to the right of the district to maintain the action at all. We note, however, that the Coachella ease makes no distinction between holders of riparian and appropriative rights within the district, as respects the authority of the district to represent them. The power of the state or its duly authorized public agencies to undertake the representation in the courts of interests common to great numbers of its inhabitants, though the particular character and extent of their water rights may greatly differ as between themselves, is generally recognized. An apt illustration is readily at hand. The flow of the Colorado Biver, actual and potential, has been allocated by interstate agreement between what are known as the states of the “Upper” and the “Lower” Basins. As between the states of Arizona and California, however, which participate in the allocation to the Lower Basin, there has been no final allocation and the quota to which each is entitled, as against the other, is at this moment a subject of litigation in the Supreme Court of the United States. It is certain, however, that the flow of the river will not suffice for the full needs of both or for that matter of either. Section 102 of the state Water Code provides: “State Ownership of Water; Right to Use. All water within the State is the property of the people of the State, but the right to the use of water may be acquired by appropriation in the manner provided by law. ’ ’ Let us for the sake of illustration assume, however (in the circumstances not an unreasonable assumption), that every drop of the river flow which can possibly be allocated to California, has already passed by appropriation, recognized under state law as valid, to corporations, public or private, and to individuals within the state, so that the state, as such, has no longer any proprietary right in a drop of the flow. Has anyone contended that the state has thereby forfeited the right to represent its citizens before the federal courts to establish what may be found to be the aggregate of their rights? Or will anyone assert that, as a condition to establishing their rights, the State of California must plead or prove the extent and validity of each individual appropriation or water right, as such, even though it may be, as a matter of precaution, doing it? The answer to both questions is, of course, no. It is enough, for that purpose, if it appear that the aggregate of their rights is sufficient to be in danger from the claims asserted by Arizona in behalf of its inhabitants, and to require protection to the full extent that does not infringe on what may be found to be the aggregate rights of the inhabitants and lands of Arizona. The defendant city of Riverside asserts that the language of subdivision 7 of section 2 of the act under which the district exists is insufficient to authorize the maintenance of this action in that, although it authorizes the district to represent its water users in actions or proceedings “to prevent interference with water used or useful to lands within said district or diminution of the quantity ... of the water supply of said district . . . ,” it omits any such language as was contained in the 1923 amendment to the act involved in the Coachella case in terms authorizing that district to oppose “diminution of the natural flow of any stream or natural subterranean supply of water used or useful for any purpose of the District or of common benefit to the lands within the district or its inhabitants ...” and counsel urge that the water supply which plaintiff district is authorized to protect is only such water supply as may be owned by the district as distinguished from the “natural flow of any stream” of common benefit to any land within the District or of its inhabitants, and, in that connection, reference is made to the title of the Orange County Water District Act (Stats. 1933, ch. 924, p. 2400) which is claimed not to be sufficiently broad to authorize the district to protect the private rights of water users in the river system and the “District” Basin. We think it sufficiently evident, however, from the title itself of the Orange County Water District Act, that the overriding purpose of the act was to insure an adequate water supply for the whole area within the district and that everything else contained, either in the title or the body of the act, amounts merely to spelling out some of the means for accomplishing that result. Thus the powers given to import water into the district and to prevent waste of water therein or exportation of water therefrom and to provide for reclamation of drainage, flood and other water for beneficial use in the district and control of storm and flood water flowing into the district, are none of them expressed as being for any proprietary interest of the district, as a corporation, but are obviously intended to subserve the needs of all who are beneficially entitled to water within the district. So, although the district is, indeed, empowered in.its corporate capacity, to construct works, acquire property, incur indebtedness and sue and be sued, to empower it to do all these things seems to us merely to authorize these expedients as means that may be employed, where needful, to effect the essential purpose of the district, i.e., to insure the water supply, not provisions designed to erect the district into the position of an exclusive purveyor of water. If this is, as we think it, the correct view, then the situation falls within the rule stated in this court’s opinion in Orange County Water Dist. v. Farnsworth, 138 Cal.App.2d 518, 526 [292 P.2d 927], that “the title is sufficient if the provisions of the act are germane to the subject matter expressed in the title and if the title naturally suggests to the mind the field of legislation which is included in the text of the act, ’ ’ for, as further said in the opinion cited: “it was never intended that the title of the act should be an index to all of its provisions. ’ ’ Accordingly, we see no discrepancy between the title of the act and the provisions of section 2, subdivision 7 of the act, as amended, when the latter is interpreted as sufficient to authorize the present action, and, as the opinion just cited also points out, it is settled that “reference in the title of an amendatory act to the title of the statute amended is sufficient if the subject matter of the amendatory act falls within, the subject expressed in the title of the original statute.” Counsel for the cities of San Bernardino, Colton and Redlands further object to the maintenance of this action by the District in behalf of its water users generally, urging that a question is not one of “common” or “general” interest within the meaning of section 382 of the Code of Civil Procedure defining the conditions under which one or more parties may sue or defend for a group unless the members of the group “are so united in interest with the person who brings the action or defends against it, as to make them necessary parties under the first sentence of the section, ’ ’ there referred to as “those who are united in interest.” (Citing Carey v. Brown, 58 Cal. 180, 183-184.) It is urged that to justify a representative suit the minimum requirements are that “(1) There must exist a well defined community of interest in questions of law and fact between those bringing the suit and those claiming to be represented; and (2) That the suing and non-suing group must constitute a definite ascertainable class. If the rights of each member of the class are dependent upon facts applicable only to him there is not this required ascertainable class required for a representative suit.” (Quoting Barber v. California Employment Stabilization Com., 130 Cal.App.2d 7,14 [278 P.2d 762]. Citing Weaver v. Pasadena Tournament of Roses Assn., 32 Cal.2d 833 [198 P.2d 514].) It should be noted, however, that in the Weaver ease it was said (p. 841) that “it cannot be said that a ‘representative suit is warranted only in those cases where the represented group is so united in interest with the actual plaintiff in the action as to make them necessary parties under the statute.’ ” (Referring to § 382.) It must be observed, moreover, that the present action is not, strictly speaking, prosecuted under the provisions of section 382 of the Code of Civil Procedure, but, in conformity with section 369 of that code, under the special statute giving the District the power to maintain actions “to prevent interference with water or water rights used or useful to lands within the District.” In Coachella Valley County Water Dist. v. Stevens, 206 Cal. 400, 410, supra, the court noted arguendo that the defendant there properly conceded that an action would under section 382 have lain “on behalf of each landowner in the District to protect his individual right.” And though it appeared that such rights were not identical but that some were riparian and others appropriative, the court went on to say that “it would necessarily follow that under section 382 of the Code of Civil Procedure one might sue for the benefit of all. ’ ’ But that did not mean that the right of the district to sue was dependent on that section, nor that the act there involved required, any more than does the act here involved require, that such landowners be joined as necessary parties. What the court did say was that: “The fact that the district as such does not assert title in itself to any of such rights is of no consequence, if it has the power to proceed in a representative capacity to protect the rights of all of the land owners and other users of water in the District.” (Italics ours.) In fine we hold, then, both (1) that a cause of action has been stated and (2) that the plaintiff district has the necessary standing in court to maintain it. As respects the question of parties, it follows from what has already been said that, though overlying land owners and others claiming water rights within the district might properly have been made parties plaintiff, it cannot be held that the district was required to join them as parties, nor that their absence amounts as a matter of law to a defect of parties plaintiff. Neither do we think that, for the purposes of seeking a determination of the extent of the prescriptive rights of appellant cities themselves to produce appropriated water from the Santa Ana River System (as distinguished from their acquisition of water from nonmunicipal agencies themselves having prescriptive rights to the same) the district was required to join, as parties defendant, other appropriators of water from the river system upstream from the District Basin. If, as respondent asserts, appellants, even apart from such water as they may get from others, are tort feasors in themselves extracting from an overdrawn system more water than they have the prescriptive right to take, respondent would not be precluded from obtaining relief at law against them because it has not chosen to sue others who may also be tort feasors. (Grundel v. Union Iron Works, 127 Cal. 438, 440 [59 P. 826, 78 Am.St.Rep. 75, 47 L.R.A. 467] ; Heath v. Manson, 147 Cal. 694, 701 [82 P. 331].) The rule in equity is that when a decree may be made without concluding in any way the rights of an interested person he is not a necessary, although he may be a proper party. (Reed v. Wing, 168 Cal. 706, 708 [144 P. 964], citing Story v. Livingston, 13 Pet. (U.S.) 359, 375 [10 L.Ed. 200] and Lytle Creek Water Co. v. Perdew, 65 Cal. 447, 455 [4 P. 426].) In the instant case it is manifest that if the evidence is found to sustain the allegations of the complaint some relief may be granted to the district without prejudice to the rights of others whom respondent has not seen fit to sue. Undoubtedly where adjudication is sought of rights to a stream the preferable course is, so far at least as is practicable, to “have all owners of lands on the watershed and all appropriators who use water from the stream ... in court at the same time.” (California v. United States, 235 F.2d 647, 663), and it would have been a proper exercise of the trial court’s discretion had it acceded to appellants’ motion to bring in at least the more important among the other appropriators of water from the river system. By resisting their joinder, however, respondent has not foreclosed itself from obtaining any relief, although, as will be hereinafter seen, it has limited the relief which it may seek. Appellants claim that the evidence in many particulars fails to sustain the findings. In discussing these we shall generally but not always follow the order in which they appear in the record. Findings I to IX, both inclusive, have to do with the organization and capacities of the several parties to the action; with the area of the district, its boundaries and corporate powers including the power to maintain this action; with the' common interests of the riparian landowners and the owners of lands overlying the district basin as well as other land owners and inhabitants of the district and the dependence of all of them on the Santa Ana River System for their water supply; with their number and the consequent impracticability of making them individually parties to the action; with the description of the river system including the Santa Ana River itself, its tributaries, the several basins involved; with a finding that all the waters of the river system “underground and surface alike are part of one interconnected common supply” and another finding that the whole constitutes essentially one watershed and one basin; with the geology of the area; with the character and fertility of the lands within the district and the extent and cost of their development and the fact that they would be of small value without water from the river system. Much of the matter in these nine findings is either admitted by appellants or subject to no real dispute. Some of what is found is more matter of law than of fact and has already been discussed in this opinion. The description of the topography of the region insofar as it appears in these first nine findings is not, in general, disputed, though some details such as the flow from the Colton area through or north of the Jurupa Mountains have, as we have noted, been a subject of conflicting evidence. Appellants view with some distrust the emphasis in the findings on the unity of the river system, taken as a whole. The findings on the subject are, in some sort, conclusions of facts, the facts from which they are drawn being clear enough. There can be no question of the existence of underground basins of large areas and considerable depth, in which water is relatively stationary, and in the lower levels of which, particularly in the San Bernardino Basin, it may not be in motion at all. These basins from that standpoint may be regarded as distinct geographical units. On the other hand, at least from their upper levels, the basins spill into each other and feed the general downward flow of the river. Whether, then, the river system is to be taken as a series of lakes or one single stream, is more a question of the use of terms and of emphasis in points of view than of any dispute over the essential facts. Finding IX contains certain other matters, as to which the facts are not in dispute, namely that, so far as not supplied from wells, of which all but 68 are sunk in the water bearing strata of the District Basin, the lands within the district receive their water supply “by way of surface diversion from the flow of the Santa Ana River.” It is further found that: “The two principal water companies making such surface diversions from the flow of the Santa Ana River are the Santa Ana. Valley Irrigation Company and the Anaheim Union Water Company, both of which have been diverting water from the river for about three quarters of a century. The amounts of water so diverted by said companies have remained substantially the same over the years. ’ ’ The testimony of A. F. Shroeder, president of the Santa Ana Valley Irrigation Company, is to the effect that his company supplies 14,422 acres of irrigated land all