Central Basin Municipal Water District v. Fossette (235 Cal. App. 2d 689, 1965)

District Court of Appeal of the State of California 1965-07-15

Citations

Full opinion text

FRAMPTON, J. pro tern.

*— The petition herein was filed on May 19, 1965, in the Supreme Court and was thereafter transferred here for decision.

Petitioner seeks a writ of mandate to compel respondent, as its secretary, to certify to the passage and adoption of its resolution Number 2-65-185, and to transmit a duly certified copy thereof to the Upper San Gabriel Valley Municipal Water District.

Petitioner is a municipal water district organized under the Municipal Water District Law of 1911, as amended. (Stats. 1963, ch. 156, div. 20; Wat. Code, §71000 et seq.) Petitioner’s boundaries lie within the County of Los Angeles and its principal office is located therein. Respondent, at all times since February 10, 1965, has been and now is the duly appointed, qualified and acting secretary of petitioner.

It is respondent’s obligation as secretary to perform in addition to the duties imposed on him by law, such duties as may be imposed on him by the board of directors of petitioner. (Wat. Code, § 71360.) The duties imposed on respondent by law and by petitioner’s board of directors include those relating to the certification of the passage and adoption of ordinances, resolutions, motions and orders of the board of directors of petitioner.

Petitioner, Board of Water Commissioners of the City of Long Beach, and the City of Compton, a municipal corporation, are plaintiffs in an action commenced May 12, 1959, Number 722647, in the Superior Court of the State of California, in and for the County of Los Angeles, against nine cities, two county water districts and 17 public utilities and private water companies, each of which defendants is located within and produces water from an area upstream on the San Gabriel River from the area in which plaintiffs are located. The defendants named and served in said action, together with California Domestic Water Company and the City of Whittier, constitute the major producers of water in the area in which they are located. Issue was joined on the filing of the answers to the amended complaint. By the amended complaint, petitioner and the other plaintiffs, (a) sought to compel each of the defendants to set forth the nature and extent of its claims in and to the water referred to therein as being the water of the “San Gabriel River System,” (b) requested that the court fix and determine the rights, if any, of each defendant in and to said water, and (c) requested that each defendant therein be perpetually restrained and enjoined from taking such water in excess of the amount so fixed and determined by the court. After the commencement of the action there were certain dismissals had and new parties added where there had been mergers or transfers of water rights. California Domestic Water Company, a corporation, and Upper San Gabriel Valley Municipal Water District, a municipal water district (hereinafter referred to as “Upper District”), intervened as parties defendant.

On February 10, 1965, issues having been joined, the petitioner and the two other plaintiffs and the defendants entered into, executed and filed, in the action, a stipulation for judgment which became fully effective on said date. The stipulation provided, inter alia, that upon the occurrence of specified conditions precedent, the form of judgment attached thereto should be rendered. The judgment provided for the appointment of a “Watermaster” consisting of three persons, one as a representative of “Lower Area Parties” (as that term is defined in paragraph 3(c) of the judgment), another acting as the representative of “Upper Area Parties” (as that term is defined in paragraph 3(d) of the judgment), and a third person jointly nominated by petitioner and Upper District. The Watermaster, when duly constituted and appointed pursuant to paragraph 6 of the judgment, will administer and enforce the provisions of the judgment and the instructions and subsequent orders of the court. In order to perform those duties, the Watermaster, by paragraphs 7 through 13 of the judgment, is given certain powers and duties, including the collection of information and data concerning the quantities and quality of various categories of water passing from “Upper Area” (as that term is defined in paragraph 3(e) of the judgment) to “Lower Area” (as that term is defined in paragraph 3(f) of the judgment). Paragraph 4 of the stipulation for judgment provides as follows:

“Plaintiffs and defendants agree that during the period prior to entry of the attached form of Judgment, they will cooperate in endeavoring to collect such information as the Watermaster would obtain if the attached form of Judgment had been entered and the Watermaster had been appointed by the Court pursuant to paragraph 6 of the Judgment, which information is herein referred to as ‘said information.’ To that end, the parties hereto hereby agree that promptly following the complete execution of this stipulation by all parties, Upper District and Central Municipal shall each notify the other in writing as to the identity of the person who it expects will be nominated as the representative of Upper Area Parties or Lower Area Parties, as the case may be, under paragraph 6 of the Judgment. Upon receiving such notice, Upper District and Central Municipal shall each instruct its designated nominee that until the attached form of Judgment is entered and the Watermaster has been appointed pursuant to paragraph 6 of the Judgment he shall in cooperation with the other designated nominee do all things reasonably necessary to obtain such of said information as is available from the parties hereto or any public agency.”

On February 17, 1965, petitioner received a certified copy of a resolution adopted by the board of directors of Upper District, determining- that Thomas M. Stetson was the person expected to be nominated as the representative of the Upper Area parties under paragraph 6 of the judgment. Following the execution of the stipulation for judgment by all parties, petitioner’s board of directors did determine, on February 18, 1965, the identity of the person (hereinafter sometimes referred to as “said designee”) whom petitioner expected would be nominated as the representative of said Lower Area parties under paragraph 6 of the judgment. Identification of Max Bookman as said designee was fixed by resolution Number 2-65-185 duly adopted by petitioner’s board of directors on the above mentioned date. By the terms of said resolution, respondent was ordered to give the necessary written notice to Upper District, identifying said designee by certifying to the adoption of said resolution and by transmitting a duly certified copy thereof to Upper District. On March 17, 1965, respondent did refuse to either certify or to transmit as ordered a certified, or any, copy of said resolution. Respondent bases his refusal to act upon the grounds that a substantial question exists as to the validity of the stipulation for judgment: “ (i) because of the lack of statutory power of petitioner to enter into the Stipulation for Judgment; (ii) because of the lack of statutory power of Upper District to enter into the Stipulation for Judgment; and (iii) irrespective of the power of either petitioner or Upper District to enter into Stipulation for Judgment. ’'

Respondent’s refusal to comply with the order and direction of petitioner’s board of directors was communicated to them at the board’s regular meeting held on March 17, 1965, whereupon the board duly adopted its resolution Number 3-65-186, wherein the determination embodied in and approved by resolution Number 2-65-185, was approved, ratified and confirmed, and respondent was further ordered to give the necessary written notice to Upper District identifying Max Bookman as said designee by certifying the adoption of resolution Number 2-65-185 and by transmitting a certified copy thereof to Upper District. Contrary to such further order, respondent did refuse, at the meeting on March 17, 1965, and still refuses either to certify or to transmit, as required, a certified or any copy of resolution Number 2-65-185.

Petitioner asserts that the respondent is adversely affecting and frustrating the agreement of petitioner and Upper District to perform the stipulation for judgment in accordance with its terms, particularly as provided in paragraph 4 thereof, in that until said written notification is given to Upper District, Upper District cannot lawfully comply with paragraph 4 of the stipulation and instruct its said designated nominee that he shall, in cooperation with the designated nominee of petitioner, do all things reasonably necessary to obtain the information referred to in said paragraph 4 as “said information” to the extent such information is available from the parties to the stipulation for judgment or any public agency. Petitioner urges that respondent’s failure to act is delaying the day when there will be delivery to said Lower Area of such quantities of “Make-up Water” (as that term is defined in paragraph 3(m) of the judgment) as it is entitled to receive pursuant to the terms of the judgment once such judgment is rendered, in that (1) respondent’s refusal will result in a substantial delay in the program for cooperative collection of that information which the Watermaster would obtain after the judgment had been entered and the Watermaster had been appointed by the court pursuant to paragraph 6 of the judgment, and (2) the delay in collecting such information will necessarily mean all such information will have to be collected after the Watermaster is appointed by the court, resulting in an extended delay in the making of the numerous determinations required by the Watermaster, which determinations provide the basis for the obligation of Upper District to deliver such “Make-up Water,” such obligation being determined from October 1, 1963, under the terms of the judgment.

Petitioner asserts that the controversy involved in action Number 722647 and its resolution by the stipulation for judgment and entry of the judgment, attached thereto, present vital questions affecting the public health, necessity, and welfare of a substantial portion of southern California areawise and populationwise. That the ease involves questions of water rights as between owners of water rights, owners of land, and inhabitants, of two adjacent areas, the Upper Area and the Lower Area, which areas contain approximately 408.344 square miles, having a population of approximately 2,319,408 and an assessed valuation of approximately $4,116,-788,225. That Upper Area contains, in addition to county territory, the 15 cities located within Upper District, plus the cities of Alhambra, Monterey Park, Azusa, and West Covina. Upper Area contains approximately 166.47 square miles, has a population of approximately 737,431 and an assessed valuation of approximately $1,174,034,000. Of those totals, Upper District contains approximately 132.47 square miles, a population of approximately 538,569, and an assessed valuation of approximately $855,754,000. Lower Area contains approximately 241.874 square miles, a population of approximately 1,581,977 and a total assessed valuation of not less than approximately $2,942,754,225. Of those totals, petitioner has approximately 186.78 square miles, a population of approximately 1,136,407 living in 22 cities and county territory, and a total assessed valuation of not less than approximately $2,162,434,835. The City of Long Beach has approximately 46.77 square miles, a population of approximately 368,782 and an assessed valuation of not less than approximately $683,058,000. The City of Compton has approximately 8.324 square miles, a population of approximately 76,868 and an assessed valuation of not less than approximately $97,261,390.

It is urged that Upper District and other agencies in the Upper Area need and desire to intensify efforts immediately to replenish ground water supplies in Upper Area. That so long as action Number 722647 is pending and the judgment is not entered, it is, as a practical matter, impossible for such efforts to be undertaken in any substantial respect because the physical facts, such as location and capacity of water spreading grounds make it relatively certain that Lower Area would be the immediate and primary beneficiary of much of such replenishment, and it would, therefore, be uneconomical and unwise to expend Upper Area funds for such replenishment. It is urged further that Upper Area presently has no public agency such as a replenishment district with power to assess a pump tax to cover the cost of purchasing and spreading imported water in Upper Area. Nor can the pumpers in Upper Area justify, as a business decision, voluntarily engaging in such activities on a joint cooperative basis unless and until the issues in action Number 722647 can first be resolved. It is urged that it is important that delivery of make-up water under the terms of the judgment be expedited to the greatest extent possible so as to maximize the chances for success of extensive efforts recently taken by it on behalf of Lower Area parties to mitigate salt water intrusion in certain coastal areas due to excessive over drafting of presently inadequate supplies of fresh water. That the effective date of the judgment for the purpose of determining the rights and obligations of the parties thereunder is October 1, 1963, and therefore, it is of the utmost concern that a final judgment be obtained at as early a date as possible so that the necessary quantities of water, both natural and supplemental, will flow from Upper Area into the Central Basin and prevent further salt water intrusion.

Petitioner urges further that controversies over water rights as between adjacent areas deriving their natural water supplies from a single river system are now frequently before the courts of California. That the Santa Ana River system, for example, has twice been the subject of such an action. (Orange County Water Dist. v. City of Riverside (1957) 154 Cal.App.2d 345 [316 P.2d 43] ; (1959) 173 Cal.App.2d 137 [343 P.2d 450] ; Orange County Water District v. City of Chino, et al., Orange County Superior Court, Number 117628, filed October 18, 1963.) The second such action is still in its initial exploratory stages. Petitioner estimates that if it becomes necessary to try action Number 722647, a minimum of 200 days of trial time will be necessary in order to properly try the case. Therefore, if the approach taken by the judgment attached to the stipulation for judgment is approved as a valid solution for the controversy involved, it will offer an acceptable prototype consent judgment for use by the parties in other similar river adjudication actions. That such a consent judgment will relieve the courts of the considerable burden upon available court trial time, and will substantially reduce the time between the commencement of such actions and the date when effective relief is available to the downstream users.

Respondent has interposed a demurrer to the petition claiming four major grounds upon which the stipulation and proposed judgment should be held invalid as a matter of law. Under these circumstances, we must assume the truth of all material allegations of fact set forth in the petition. (Stigall v. City of Taft, 58 Cal.2d 565, 567-568 [27 Cal.Rptr. 441, 375 P.2d 289] ; 3 Witkin, Cal. Procedure (1954) pp. 2553-2554.)

We will discuss the four grounds of alleged invalidity in the order in which they appear in the demurrer.

I

It is claimed that the stipulation for judgment is invalid because such an agreement is beyond the powers granted to petitioner by law.

Section 71751 of the Water Code provides “A district may commence, maintain, intervene in, and compromise, in the name of the district, any action or proceeding involving or affecting the ownership or use of water or water rights within the district, used or useful for any purpose of the district, or a common benefit to lands within the district or inhabitants of the district.” (Italics added.) The stipulation for judgment here under consideration, when carried into effect by the terms and conditions of the judgment attached to and made a part of it, will constitute a compromise and settlement of a controversy affecting the ownership and use of water and water rights as contemplated by such section, and the section constitutes a valid legislative sanction of the procedure adopted by petitioner in the trial court.

II

Respondent urges that the clear implication of the stipulation is that the Upper District, in exchange for its obligation to cause 98,415 acre-feet of water to be available to Lower Area users, is obtaining a relinquishment of all rights that Lower Area parties may have, vis-a-vis Upper Area parties, in the natural waters of the San Gabriel River system, whether as riparian owners, overlying owners or appropriators, and that to the extent that the stipulation would divest the persons represented by petitioner Central Municipal of their water rights, it is invalid. He urges further that the extraordinary power to divest private citizens of their property rights in the absence of an exercise of the power of eminent domain, is obviously not expressly granted to the district and is, therefore, available only if it can be implied from the grant of power to compromise actions pursuant to the provisions of section 71751 of the Water Code. The answer to this is contained within the four corners of the stipulation and proposed judgment. These documents do not purport to deprive any individual of a property right, but on the contrary disclose a careful and concerted effort on the part of the litigants to conserve and protect the individual rights to the use of water within the watershed, where the need for such water is growing and the supply is limited. The provisions of the stipulation and proposed judgment have not been arrived at by guess and speculation, but on the contrary according to the memorandum of points and authorities of amici curiae in support of the petition, since May of 1959, when the action was commenced, there have been constant studies and negotiations toward settlement. Negotiating committees of five men each were appointed for the plaintiffs and for the defendants represented by amici curiae. These committees met together on 45 different occasions. In addition, there were literally hundreds of conferences both between opposing counsel and among the attorneys and experts on both sides. Further there were almost continuous studies of various aspects of the hydro-logic picture. Expenses involved in arriving at the settlement represented by the stipulation and proposed judgment are estimated to exceed $300,000 disregarding the value of the time devoted by members of the negotiating committees. It cannot be said that prolonged and costly litigation on the same subject would result in any different or better solution than the physical solution arrived at and contained in the stipulation and proposed judgment. Furthermore, the proposed judgment, in paragraph 15, provides in part “Full jurisdiction, power and authority is retained and reserved by the Court for the purpose of enabling the Court upon application of any party by motion and upon at least thirty (30) days notice thereof, and after hearing thereon (i) to make such further or supplemental orders or directions as may be necessary or appropriate for the construction, enforcement or carrying out of this Judgment, and (ii) to modify, amend or amplify any of the provisions of this Judgment whenever substantial changes or developments affecting the physical, hydrological or other conditions dealt with herein may, in the Court’s opinion, justify or require such modifications, amendment or amplification. ...” Certainly, a determination of individual rights is deferred or suspended so long as the physical solution shall continue in effect. However, the proposed judgment does not by its terms or by implication eliminate or impair whatever rights the Lower Area parties may now have, even though it does not pass upon them so long as they are being taken care of by the physical solution. The adoption by the parties of a reasonable physical solution to the complicated problems relating to their respective rights in the use of the water within the San Gabriel River system is in accord with the rule laid down in City of Lodi v. East Bay Mun. Utility Dist., 7 Cal.2d 316, 341 [60 P.2d 439], wherein the court said “Other suggestions as to possible physical solutions were made during the trial. The trial court apparently took the view that none of them could be enforced by it unless the interested parties both agreed thereto. That is not the law. Since the adoption of the 1928 constitutional amendment [art. XIV, § 3], it is not only within the power but it is also the duty of the trial court to admit evidence relating to possible physical solutions, and if none is satisfactory to it to suggest on its own motion such physical solution.” In the present action all parties thereto have agreed to the proposed physical solution.

The propriety of the resolution of complex problems relating to conflicting claims to the right to use water, by the adoption of a physical solution of such problems was also approved in the case of Rancho Santa Margarita v. Vail, 11 Cal.2d 501, 558-562 [81 P.2d 533],

The proposed judgment also provides in part (Declaration of Bight, paragraph 4) ; “. . . If in the future a court of competent jurisdiction shall decree that any person downstream from Whittier Narrows within Central and West Basin Water Beplenishment District who is not bound by this Judgment, shall have, as against Upper Area Parties and substantially all other pumpers in the San Gabriel Valley, a right to receive from Upper Area a stated amount of usable supply consisting of Surface Flow, Subsurface Flow, Export to Lower Area or Make-up Water, which right arose out of and is based upon the ownership of land or the production of water downstream from Whittier Narrows and within Central and West Basin Water Beplenishment District, then and in that event the stated amount of such right so decreed shall not increase the declared right as set forth in this paragraph 4 [Note: The right of Lower Area parties and all other persons downstream from Whittier Narrows, who receive water from the San Gabriel Biver system or have rights in and to such water, to receive from Upper Area an average annual usable supply of 98,415 acre-feet]; and the receipt of water from Upper Area by such person in such stated amount or portion thereof, consisting of Surface Flow, Subsurface Flow, Export to Lower Area or Make-up Water, shall be deemed a partial satisfaction of such declared right.” This provision tends to preserve to an individual the privilege to establish, in a proper case, his right to use a specified quantity of water, rather than to destroy such right. Where a judgment provides for a physical solution of the rights of litigants to the use of water, and includes therein appropriate flexibility to meet pertinent changes and developments, it is proper that a trial court should retain jurisdiction over such decree. (City of Pasadena v. City of Alhambra, 33 Cal.2d 908, 937 [207 P.2d 17].)

Ill

Respondent claims that the stipulation for judgment is invalid because such an agreement is beyond the powers granted by law to the Upper San Gabriel Valley Municipal Water District, in that (a) the Upper District cannot contract to furnish water outside its boundaries and (b) the Upper District is not authorized to contract in a manner that would involve the use of public funds for private benefit.

As to proposition (a), section 71611 of the Water Code provides “A district may sell water under its control, without preference, to cities, other public corporations and agencies, and persons, within the district for use within the district.” Section 71612 of the Water Code provides “Whenever the board finds that there is a surplus of water above that which may be required by consumers within the district, the district may sell or otherwise dispose of such surplus water to any persons, public corporations or agencies, or other consumers. ” It is upon these sections that respondent relies as prohibiting the Upper San Gabriel Valley Municipal Water District from entering into the stipulation. These sections impose restrictions upon the sale of water under normal operating conditions. The litigation, stipulation and proposed judgment here under consideration have a much broader aspect. The action below raises issues as to the right of the district to water within the San Gabriel River system. Also the complaint asserts rights in the plaintiffs to water within such system paramount to the rights of the defendants therein named, including the defendant Upper San Gabriel Valley Municipal Water District; and, therefore, in a broad sense, questions the right of the district to function as such. Whatever limitations there may be on the district’s power to supply other than certain enumerated areas with water, it is clear that if, in order to operate its project at all, water must be furnished to a prior claimant, the district possesses the implied power so to furnish the water. (City of Lodi v. East Bay Mun. Utility Dist., supra, 7 Cal.2d 316, 341.)

As to proposition (b), respondent asserts that the stipulation and proposed judgment is in violation of article IV, section 31, of the California Constitution, in that it authorizes the use of public funds for private benefit. He claims in this regard that the Upper District is attempting to incur not only the primary obligation to furnish water or pay money to the Central Municipal, but has incurred and presumably will continue to incur substantial expense in connection with this litigation and the implementation of the stipulation for judgment to the direct benefit of the other defendants. We assume that respondent has reference to the provisions of paragraph 5 of the judgment wherein specific obligations are set forth dealing with the physical solution, and which impose certain obligations upon Upper District in the way of accounting, providing Make-up Water or to pay Central Municipal for the benefit of all Lower Area parties for the expense of reclaiming water or for the purchase of reclaimed water. Respondent does not make it clear as to how this provision of the Constitution should apply to the problem here. This provision is a limitation upon the power of the Legislature to make or authorize the making of a gift of public funds for the benefit of a private person. The prime object and purpose of the stipulation and proposed judgment insofar as it relates to Upper District is to preserve to the district and its inhabitants the right to use waters within the San Gabriel River system. This obviously is a public purpose and is for the benefit of the district and its inhabitants, and the fact that it may benefit others is incidental. It is well settled that funds directed toward a public purpose are not within the constitutional prohibition merely because of incidental benefits to individuals. (American Co. v. City of Lakeport, 220 Cal. 548, 556 [32 P.2d 622] ; Patrick v. Riley, 209 Cal. 350, 357-358 [287 P. 455].) Furthermore, the Legislature is vested with a large discretion in determining what is for the public good and what are public purposes for which public moneys can be rightfully expended and that discretion cannot be controlled by the courts, except when its action is clearly evasive. (People v. Standard Acc. Ins. Co., 42 Cal.App.2d 409, 414 [108 P.2d 923].) In addition, a contract of reimbursement has been entered into between the Upper San Gabriel Valley Municipal Water District (Upper District) and other defendants in the action below whereby Upper District will be reimbursed for expenses incurred by the latter pursuant to the obligations assumed by it under the terms of the stipulation and proposed judgment. Such contract is incorporated herein and is attached hereto as Appendix 3.

Under the circumstances here presented neither the stipulation nor the proposed judgment violates article IV, section 31, of the California Constitution.

IV

Respondent next urges that the stipulation for judgment is invalid as an unreasonable and arbitrary exercise of governmental power. He argues that whatever may be the scope of the power of municipal water districts to compromise lawsuits, that power, like any governmental power, cannot be exercised in a way that is unreasonable, arbitrary or capricious in its effect on private rights. He claims that paragraph 4 of the so-called “Declaration of Right” of the proposed stipulation for judgment indicates most clearly the arbitrariness and unreasonableness of this stipulation. He says that Lower Area parties are declared to have rights of unknown nature and scope in the water supply of the San Gabriel River system; but the substituted exchange for those rights — in essence the Upper District’s obligation to make 98,415 acre-feet of water available annually to downstream users — runs to Lower Area parties and all other persons downstream from Whittier Narrows who receive or have rights in water of the San Gabriel River system. He asserts that these other persons include water users in the West Basin who are not represented in the action and who clearly would not be bound by any judgment entered therein. He claims that if such persons, in a subsequent action, successfully assert a right against Upper Area parties to receive water through Whittier Narrows, the water they would be entitled to receive would be deducted from the 98,415 acre-feet entitlement of the Lower Area parties, and thus the petitioner is attempting to relinquish the water rights of its inhabitants without ever ascertaining the nature and extent of those rights sufficiently to even make a contention as to their scope, and to accept in exchange a contractual obligation that, by its terms, could be reduced to an unknown amount by a successful claim against the Upper Area by other users of water from the San Gabriel River system.

In this contention, respondent has overlooked the fact that the quantity of 98,415 acre-feet of water which flows from the Upper Area through the Whittier Narrows to the Lower Area has been determined to be the average quantity of water per year to be expected, and this figure has been arrived at by constant study over a period of several years by competent and skilled engineers. The methods used to arrive at this figure cannot be said to be unreasonable, arbitrary or capricious. Furthermore, it is not unreasonable to assume that, after prolonged litigation, the trial court would arrive at a figure substantially the same as that used by the parties to the stipulation and proposed judgment in their effort to arrive at a practical solution of their problem. It is also reasonable to assume that after such a prolonged and careful study of the hydrology of the area by the various water districts, water companies and municipal corporations, through their personnel, skilled engineers, and attorneys, they have accurately assessed the rights of other users, not parties to the action, so as to minimize the possibility of the loss of water to their inhabitants in the manner posed by respondent. We find nothing invalid, unreasonable, arbitrary or capricious in the provisions contained in the stipulation and proposed judgment.

V

Next, respondent urges that the stipulation for judgment is invalid because such an agreement is beyond the powers granted to the City of Long Beach by its charter. He does not question the right of the board of water commissioners to bring and maintain the action below on behalf of the city without the authority of the electorate, even though a judgment rendered therein after a protracted and costly trial might result in a disposal in whole or in part of water rights claimed to be vested in the city. Subdivision (7) of section 217 of the charter gives the board of water commissioners the right11 To sue and be sued in the name of said Board, and to exercise complete control over all litigation wherein it is involved, or which pertains to any matters within the jurisdiction of said Board; ...” (Italics added.) To require the board to obtain the consent of two-thirds of the qualified voters of the city each time it became necessary to make some concession or compromise in litigation in which the board is involved would not only deprive the board of its right to exercise complete control over the litigation, as is granted by the provisions of subdivision (7) of section 217 of the charter, but would set up conditions which are unreasonable and unworkable. The compromise and settlement of the action below, by means of a practical solution as posed by the stipulation, proposed judgment and contract of reimbursement is not such a disposal of water or water rights owned or controlled by the city as would require the consent of the voters of the city in order to give it vitality. The purpose of the action below and of the compromise and settlement of it is to secure water and water rights in gross to the inhabitants of the City of Long Beach, not to dispose of them. The provisions of section 216d of the Charter of the City of Long Beach have no application to the situation here and are not a bar to the board of water commissioners in proceeding to a reasonable compromise and settlement of the litigation, on behalf of the City of Long Beach.

It is the policy of the law to discourage litigation ,and to favor compromise and voluntary settlements of doubtful rights and controversies, made either in or out of court. (People ex rel. Dept. Public Works v. Forster, 58 Cal.2d 257, 263 [23 Cal.Rptr. 582, 373 P.2d 630] ; Potter v. Pacific Coast Lumber Co., 37 Cal.2d 592, 602-603 [234 P.2d 16] ; Pettie v. Superior Court, 178 Cal.App.2d 680, 689 [3 Cal.Rptr. 267] ; Hamilton v. Oakland School Dist., 219 Cal. 322, 329 [26 P.2d 296] : Estate of Green, 138 Cal.App.2d 211, 215 [292 P.2d 651].)

The efforts of the parties to the action pending in the trial court to compromise and settle their differences by entering into the stipulation for judgment is in full accord with the policy of the law, and we find no legal obstacle which would stand in the way of the parties entering into and being bound by their agreement of compromise as evidenced by such stipulation.

The stipulation and proposed judgment are incorporated herein and are attached as appendices 1 and 2.

Let the peremptory writ issue as prayed.

Wood, P. J., and Lillie, J., concurred.

Appendix 1

SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES

BOARD OF WATER COMMISSIONERS OFO THE CITY OF LONG BEACH, a municipal corporation; CENTRAL BASIN MUNICIPAL WATER DISTRICT, a municipal water district; and CITY OF COMPTON, a municipal corporation, Plaintiffs, vs. SAN GABRIEL VALLEY WATER COMPANY, a corporation; AZUSA AGRICULTURAL WATER COMPANY, a corporation; AZUSA VALLEY WATER COMPANY, a corporation; CALIFORNIA CITIES WATER COMPANY, a corporation; CALIFORNIA WATER & TELEPHONE COMPANY, a corporation; COVINA IRRIGATING COMPANY, a corporation; CROSS WATER COMPANY, a corporation; EAST PASADENA WATER CO. LTD., a corporation; GLENDORA IRRIGATING COMPANY, a corporation; SOUTHERN CALIFORNIA WATER COMPANY, a corporation; SUBURBAN WATER SYSTEMS, a corporation; SUNNY SLOPE WATER CO., a corporation; VALLE CITO WATER CO., a corporation; CITY OF ALHAMBRA, a municipal corporation; CITY OF ARCADIA, a municipal corporation; CITY OF AZUSA, a municipal corporation; CITY OF COVINA, a municipal corporation; CITY OF EL MONTE, a municipal corporation; CITY OF GLENDORA, a municipal corporation; CITY OF MONROVIA, a municipal corporation; CITY OF MONTEREY PARK, a municipal corporation; CITY OF SOUTH PASADENA, a municipal corporation; BALDWIN PARK COUNTY WATER DISTRICT, a county water district; and SAN GABRIEL COUNTY WATER DISTRICT, a county water district, Defendants, UPPER SAN GABRIEL VALLEY MUNICIPAL WATER DISTRICT, a municipal water district, and CALIFORNIA DOMESTIC WATER COMPANY, a corporation, Intervenors. J

No. 722,647

STIPULATION FOR JUDGMENT

Plaintiffs Central Basin Municipal Water District, a municipal water district (herein sometimes referred to as Central Municipal); City of Long Beach, a municipal corporation, acting by and through the Board of Water Commissioners of the City of Long Beach; and City of Compton, a municipal corporation; and defendants City of Alhambra, a municipal corporation; City of Arcadia, a municipal corporation ; City of Azusa, a municipal corporation; Azusa Agricultural Water Company, a corporation, sued herein as DOB 1; Azusa Valley Water Company, a corporation, for itself and as successor by merger to Azusa Irrigating Company, a corporation; Baldwin Park County Water District, a county water district; California Cities Water Company, a corporation (successor by merger to Columbia Land and Water Company, a corporation, and to San Dimas Water Company, a corporation, sued herein as DOB 3); California Water and Telephone Company, a corporation; City of Covina, a municipal corporation; Covina Irrigating Company, a corporation; Cross Water Company, a corporation, sued herein as DOB 2; Bast Pasadena Water Company, Ltd., a corporation, for itself and as successor by merger to California-Miehigan Land and Water Company, a corporation; City of El Monte, a municipal corporation; City of Glendora, a municipal corporation; Glendora Irrigating Company, a corporation; City of Monrovia, a municipal corporation; City of Monterey Park, a municipal corporation; San Gabriel County Water District, a county water district; San Gabriel Valley Water Company, a corporation; Southern California Water Company, a corporation; City of South Pasadena, a municipal corporation; Suburban Water Systems, a corporation; Sunny Slope Water Company, a corporation; and Valleeito Water Company, a corporation; and intervening defendant Upper San Gabriel Valley Municipal Water District, a municipal water district (herein sometimes referred to as Upper District) ; and intervening defendant California Domestic Water Company, a corporation ■ stipulate and agree as follows:

1. A Judgment in the form attached hereto as Exhibit I may be made and entered by the Court in the above-entitled action.

2. The following facts, considerations and objectives among others, provide the basis for this Stipulation for Judgment:

(a) By their complaint plaintiffs seek a determination of the rights of the defendants, other than Upper District, in and to the waters of the San Gabriel River System and further seek to restrain defendants, other than Upper District, from an alleged interference with the rights of plaintiffs and persons represented by Central Municipal in and to said waters.

(b) At the present time, and for some time prior to the commencement of this action, the water supply of the San Gabriel River System has been inadequate to supply the diversions and extractions of both plaintiffs and defendants other than Central Municipal and Upper District but including the persons represented by Central Municipal and by Upper District, and as a result said diversions and extractions have exceeded, and still exceed, the natural replenishment of the water supply of the San Gabriel River System.

(c) The parties recognize and agree that the natural outflow from the San Gabriel Valley to the Lower Area as defined in the Judgment has varied, and will vary from year to year, depending on the amount of precedent rainfall and other conditions.

(d) The parties recognize and agree that there is a need for a declaration of rights and a physical solution for the problems resulting from the inadequate and varying water supplies of the San Gabriel River System.

(e) The parties agree that the physical solution contained in said Judgment will bring about a fair division of the water of the San Gabriel River System as between plaintiffs and defendants other than Central Municipal and Upper District but including the persons represented by Central Municipal and by Upper District.

(f) The parties recognize that it may be necessary for defendants or some of them to use supplemental water in order to comply with the obligations imposed under said physical solution.

(g) Defendant Upper District is now a member unit of The Metropolitan Water District of Southern California, which will be supplied with water from sources in northern California under an existing contract with the State of California. Certain of the defendants not within the area of defendant Upper District are within the area of San Gabriel Valley Municipal Water District, which district also has contracted with the State of California for delivery of water from sources in northern California. It is anticipated that the importation of this water will augment the natural supply of ground water within Upper Area as defined in the Judgment. Defendant Upper District intends to replenish the San Gabriel Valley with supplemental supplies.

3. The parties hereto hereby waive any and all Findings of Fact, Conclusions of Law, and any and all notice of the making or entry herein of the attached form of Judgment, and all rights of appeal, if any, from such Judgment.

4. Plaintiffs and defendants agree that during the period prior to entry of the attached form of Judgment, they will cooperate in endeavoring to collect such information as the Watermaster would obtain if the attached form of Judgment had been entered and the Watermaster had been appointed by the Court pursuant to paragraph 6 of the Judgment, which information is herein referred to as “said information.” To that end, the parties hereto hereby agree that promptly following the complete execution of this stipulation by all parties, Upper District and Central Municipal shall each notify the other in writing as to the identity of the person who it expects will be nominated as the representative of Upper Area Parties or Lower Area Parties, as the ease may be, under paragraph 6 of the Judgment. Upon receiving such notice, Upper District and Central Municipal shall each instruct its designated nominee that until the attached form of Judgment is entered and the Watermaster has been appointed pursuant to paragraph 6 of the Judgment he shall in cooperation with the other designated nominee do all things reasonably necessary to obtain such of said information as is available from the parties hereto or any public agency.

5. Judgment shall not be rendered pursuant hereto unless and until the execution of this stipulation by Central Basin Municipal Water District and by Upper San Gabriel Valley Municipal Water District shall have been validated by a decree or decrees rendered in a proceeding or proceedings instituted in a court of competent jurisdiction of the State of California, and either such decree or decrees shall have become final or both of said Districts shall have further stipulated that said Judgment shall be rendered.

6. This stipulation may be executed in counterparts (each counterpart being an exact copy or duplicate of the original) and all counterparts collectively shall be considered as constituting one complete Stipulation for Judgment.

Dated : February 10, 1965.

Attorneys (for the respective party listed opposite and to the right of the respective attorneys listed below) Leonard Pt-tnam City Attorney Clifford E. Hates Principal Deputy City Attorney City of Long Beach By /s/ Clifford S. Hayes Burris & Lageblof Stanley C. Lageelof H. Jess Senegal Jack T. Swafford By /s/ Stanley C. Lageelof Burris & Lageelof Stanley C. Lageelof H. Jess Senegal Jack T. Swafford By /s/ Stanley C. Lageblof Lloyd A. Bulloch City Attorney City of Compton /s/ Lloyd A. Bulloch_ Burris & Lageblof Stanley C. Lageblof H. Jess Senegal Jack T. Swafford By /s/ Stanley C. Lageblof

Signature of Stipulating Party and Its Designation of Mailing Address Board of Water Commissioners of the City of Long Beach By /s/ Fred S. Dean_ Its_President By /s/ Helen L. Penland_ Its_Secretary 1800 East Wardlow Boad Long Beach 7, California Central Basin Municipal Water District By /s/ Milo Dellman_ Its President By /s/ Carl Fossett_ Its Secretary 7439 East Florence Avenue Downey, California City of Compton By /s/ Chester R. Crain Its Mayor 205 South Willowbrook Avenue Compton, California

Attorneys (for the respective party listed opposite and to the right of the respective attorneys listed below) Don D. Bercu City Attorney City of Alhambra /s/ Don D. Bercu_ Taylor & Smith By /s/ Edward F. Taylor James A. Nicklin City Attorney City of Arcadia /s/ James A. Nicklin Surr & Hellyer By /s/ John B. Surr_ Clayson, Stark, Rothrook & Mann By /s/ Donald D. Stark Harry C. Williams City Attorney City of Azusa /s/ Harry C. Williams Taylor & Smith By /s/ Edward F. Taylor Taylor & Smith By/s/Edward F. Taylor

Signature of Stipulating Party and Its Designation of Mailing Address_ City oe Alhambra By /s/ Horma L. Yocum_ Its Mayor /s/ William F. Longley_ City Auditor-Clerk City Hall 111 South First Street Alhambra, California City oe Arcadia By /s/Dale E. Turner_ Its Mayor City Hall Arcadia, California City of Azusa By /s/ Louis G-. Memmesheimer Its Mayor City Hall 213 East Foothill Boulevard Azusa, California Azusa Agricultural Water Company By /s/ Hickory S. Jackson Its_President By /s/ D. H. MoKellab_ Its_Secretary 18352 East Foothill Boulevard Azusa, California

Attorneys (for the respective party listed opposite and to the right of the respective attorneys listed below) Surr & Hellyer By /s/ John B. Surr_ Clayson, Stark, Rothrock & Mann By /s/ Donald D. Stark_ Surr & Hellyer By /s/ John B. Surr_ Clayson, Stark, Rothrock & Mann By /s/ Donald D. Stark Allard, Shelton & O’Connor By /s/ L. A. Shelton_ Surr & Hellyer By /s/ John B. Surr_ Clayson, Stark, Rothrock & Mann By /s/ Donald D. Stark_ Bacigalupi, Elkus & Salinger By /s/ Tadini Bacigalupi Surr & Hellyer By /s/ John B. Surr_ Clayson, Stark, Rothrock & Mann By /s/ Donald D. Stark

Signature of Stipulating Party and Its Designation of Mailing Address_ Azusa Valley Water Company By /s/ Elbert B. Griffitts Its_President By /s/ Ira R. Calvert_ Its_S ecretary P. O. Box “W” Azusa, California Baldwin Park County Water District By /s/ Roy W. Judd_ Its_President By /s/ Ralph B. Helm_ Its_S ecretary 14521 East Ramona Boulevard Baldwin Park, California California Cities Water Company By /s/ Donald R. O’Neill_ Its Vice-President By /s/ Robert W. Bruce_ Its Asst. Secretary P. O. Box 188 San Dimas, California California Water & Telephone Company By /s/ W. J. Hays_ Its Vice President 2020 Santa Monica Blvd. Santa Monica, California

Attorneys (for the respective party listed opposite and to the right of the respective attorneys listed below) Allard, Shelton & O’Connor By /s/ L. A. Shelton_ Surr & Hellyer By /s/ John B. Surr Clayson, Stark, Róthrook & Mann By /s/ Donald D. Stark_ Kerokhoef & Kerokhoep By /s/ Anton W. Kerckhopp Surr & Hellyer By /s/ John B. Surr Clayson, Stark, Rothrock & Mann By /s/ Donald D. Stark George C. Gillette /s/ Geo. C. Gillette Gray & Maddox By /s/ Frank E. Gray Surr & Hellyer By /s/ John B. Surr_ Clayson, Stark, Rothrock & Mann By /s/ Donald D. Stark

Signature of Stipulating Party and Its Designation of Mailing Address_ City op Covina By /s/ Oscar G. Yaeger_ Its Mayor City Hall Covina, California Covina Irrigating Company By /s/ Verne Jobe Its_President By /s/ Faye D. Ferguson Its_Secretary 146 East College Street Covina, California Cross Water Company By /s/ John Ferrero Its_President By /s/ H. L. Smith_ Its_Secretary 15825 East Main Street La Puente, California East Pasadena Water Company, Ltd. By /s/ Camille A. Garnier Its_President By /s/ Roger G. Etter Its Assist. Secretary 269 South Rosemead Pasadena, California

Attorneys (for - the respective party listed opposite and to the right of the respective attorneys listed helow) James A. Nicklin City Attorney City of El Monte /s/ James A. Nicklin_ Suer & Hellyer By /s/ John B. Surr_ Clayson, Stark, Bothrook & Mann By /s/ Donald D. Stark_ Leonard A. Shelton /s/ Leonard A. Shelton_ Sure & Hellyer By /s/ John B. Sure_ Clayson, Stark, Bothrook & Mann By /s/ Donald D. Stark_ Allard, Shelton & O’Connor By /s/ L. A. Shelton_ Sure & Hellyer By /s/ John B. Surr_ Clayson, Stark, Bothrook & Mann By /s/ Donald D. Stark_ Homer H. Bell City Attorney City of Monrovia /s/ Homer H. Bell_ Sure & Hellyer By /s/ John B. Surr Clayson, Stark, Bothrook & Mann By /s/ Donald D. Stark

Signature of Stipulating Party and Its Designation of Mailing Address_ City of El Monte By /s/ Charles E. Wiggins Its Mayor City Hall El Monte, California City of Glendora By /s/ Joe M. Finkbiner Its Mayor City Hall Glendora, California Glendora Irrigating Company By /s/ C. F. Gordon_ Its_President By /s/ O. J. Hammer Its_S eeretary 224 North Michigan Avenue Glendora, California City of Monrovia By /s/ Boy S. Kropke_ Its Mayor City Hall Monrovia, California

Attorneys (for the respective party listed opposite and to the right of the respective attorneys listed below) Charles R. Martin City Attorney City of Monterey Park /s/ Charles R. Martin_ Taylor & Smith By /s/ Edward F. Taylor Surr & Hellyer By /s/ John B. Surr_ Clayson, Stark, Rothrock & MLann By /s/ Donalp D. Stark_ J. E. Skelton /s/ J. E. Skelton_ Surr & Hellyer By /s/ John B. Surr Clayson, Stark, Rothrock & Mann By /s/ Donald D. Stark O’Melveny & Myers By /s/ Lauren M. Wright Surr & Hellyer By /s/ John B. Surr_ Clayson, Stark, Rothrock & Mann By /s/ Donalp D. Stark

Signature of Stipulating Party and Its Designation of Mailing Address_ City of Monterey Park By /s/ William M. Erambert Its Mayor City Hall 320 West Newmarlc Avenue Monterey Park, California San Gabriel County Water District By /s/ Robert S. Brummett Its_President By /s/ Lupie Peters_ Its_Secretary 829 Bast Las Tunas Drive San Gabriel, California San Gabriel Valley Water Company By /s/ M. E. Moseley_ Its_President By /s/ C. H. Palmer_ Its_Secretary 11142 Garvey Avenue B1 Monte, California Southern California Water Company By /s/ Philip F. Walsh Its_President By /s/ W. C. Welmor_ Its_Secretary 11911 South Vermont Avenue Los Angeles 44, California

Attorneys (for the respective party listed opposite and. to the right of the respective attorneys listed below) Charles R. Martin City Attorney City of South Pasadena /s/ Charles R. Martin_ Surr & Hellyer By /s/ John B. Surr_ Clayson, Stark, Rothrock & Mann By /s/ Donald D. Stark_ Frank E. Gray /s/ Frank E. Gray_ Surr & Hellyer By /s/ John B. Surr_ Clayson, Stark, Rothrook & MÁ.NN By /s/ Donald D. Stark_ Hahn & Hahn By /s/ Allyn H. Barber_

Signature of Stipulating Party and Its Designation of Mailing Address_ City oe South Pasadena By /s/ Burton E. Jones_ Its Mayor 825 Mission Street South Pasadena, California Suburban Water Systems By/s/ Camille A. Garnier Its_President By /s/ C. H, Deitz_ Its_Secretary 16340 East Maple grove Street La Puente, California Sunny Slope Water Company By /s/ Robt. T. Clary_ Its_President By/s/. Its_Secretary 1040 El Campo Drive Pasadena, California

Attorneys (for tlie respective party listed opposite and to the right of the respective attorneys listed helow) Sure & Hellyer By /s/ John B. Surr_ Clayson, Stark, Rothrock & Mann By /s/ Donald D. Stark_ Stearns, Gross and Moore By /s/ Thomas B. Moore Helm & Budingbr By /s/ Ralph B. Helm

Signature of Stipulating Party and Its Designation of Mailing Address_ Vallecito Water Company By/s/ Camille A. Garnier Its_President By /s/Wm, Roby_ Its_Secretary 749 South Ninth Avenue City of Industry, California California Domestic Water Company By /s/ Fred M. Anderson_ Its-President By /s/ Camille A. Garnier Its_Secretary P. O. Box 1026, Perry Annex Whittier, California Upper San Gabriel Valley Municipal Water District By /s/ Frank E. Vachon_ Its_President By /s/Howard H. Hawkins Its_Secretary 11229 East Valley Boulevard El Monte, California

Appendix 2

SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES

BOARD OF WATER COMMISSIONERS OF^ THE CITY OF LONG BEACH, a municipal corporation; CENTRAL BASIN MUNICIPAL WATER DISTRICT, a municipal water district; and CITY OF COMPTON, a municipal corporation, Plaintiffs, vs. SAN GABRIEL VALLEY WATER COMPANY, a corporation; AZUSA AGRICULTURAL WATER COMPANY, a corporation; AZUSA VALLEY WATER COMPANY, a corporation; CALIFORNIA CITIES WATER COMPANY, a corporation; CALIFORNIA WATER & TELEPHONE COMPANY, a corporation; COVINA IRRIGATING COMPANY, a corporation; CROSS WATER COMPANY, a corporation; EAST PASADENA WATER CO. LTD., a corporation; GLENDORA IRRIGATING COMPANY, a corporation; SOUTHERN CALIFORNIA WATER COMPANY, a corporation; SUBURBAN WATER SYSTEMS, a corporation; SUNNY SLOPE WATER CO., a corporation; VALLECITO WATER CO., a corporation; CITY OF ALHAMBRA, a municipal corporation; CITY OF ARCADIA, a municipal corporation; CITY OF AZUSA, a municipal corporation; CITY OF COVINA, a municipal corporation; CITY OF EL MONTE, a municipal corporation; CITY OF GLENDORA, a municipal corporation; CITY OF MONROVIA, a municipal corporation; CITY OF MONTEREY PARK, a municipal corporation; CITY OF SOUTH PASADENA, a municipal corporation; BALDWIN PARK COUNTY WATER DISTRICT, a county water district; and SAN GABRIEL COUNTY WATER DISTRICT, a county water district, Defendants, UPPER SAN GABRIEL VALLEY MUNICIPAL WATER DISTRICT, a municipal water district, and CALIFORNIA DOMESTIC WATER COMPANY, a corporation, Intervenors.>

No. 722,647

JUDGMENT

The original complaint herein was filed by Plaintiffs on May 12, 1959, and an amended complaint was filed herein on June 8, 1961. Bach Defendant in this action filed an answer to the amended complaint denying the material allegations therein. Heretofore, Upper San Gabriel Valley Municipal Water District, a municipal water district, and California Domestic Water Company, a corporation, have intervened in the action as Defendants. There has been filed herein a Stipulation for Judgment signed by all of the parties to this action.

After due examination and consideration of the pleadings, said Stipulation for Judgment and other documents and papers on file herein, it appears to the Court that:

(a) In bringing and maintaining this action, plaintiff Central Basin Municipal Water District, a municipal water district, has done so as a representative of and for the benefit of all owners of water rights within, all owners of land within, and all inhabitants of, the district, except to the extent that defendant California Domestic Water Company is representing itself.

(b) In intervening in this action, defendant Upper San Gabriel Valley Municipal Water District, a municipal water district, has done so as a representative of and for the benefit of all owners of water rights within, all owners of land within, and all inhabitants of, the district, except to the extent that other Defendants who are within the district are representing themselves.

(c) There is a need for a physical solution to the complex water problems which have given rise to this action.

(d) The physical solution embodied in this Judgment is a feasible, equitable and just resolution of the issues presented by the amended complaint and answers thereto on file herein, and it will bring about a fair division of the water supply of the San Gabriel River System between Upper Area and Lower Area, as those terms are hereinafter defined.

(e) On the basis of the Stipulation for Judgment filed herein and the consent of all Plaintiffs and Defendants it is in the interests of justice and in furtherance of the water policy of the State of California to proceed without trial and to make and enter this Judgment.

Now, therefore, i Decreed : is hereby Ordered, Adjudged and

JURISDICTION"

EXHIBITS

DEFINITIONS

1. The Court has jurisdiction of the subject matter of this action and of the Upper Area Parties and Lower Area Parties, as those terms are hereinafter defined.

2. The following Exhibits marked A and B, are attached to this Judgment and made a part hereof:

(a) Exhibit A — Map entitled “Rio Hondo and San Gabriel River in Vicinity of Whittier Narrows Dam.”

(b) Exhibit B — Engineering Appendix.

3. As used in this Judgment, the following terms shall have the meanings assigned to them:

(a) Central Municipal — Central Basin Municipal Water District.

(b) Upper District — Upper San Gabriel Valley Municipal Water District.

(e) Lower Area Parties — the Plaintiffs, and all persons, firms and corporations, public or private, who are represented by Central Municipal.

(d) Upper Area Parties — the Defendants, and all persons, firms and corporations, public or private, who are represented by Upper District.

(e) Upper Area — the area (exclusive of the Raymond Basin and the portion of San Gabriel Mountains tributary thereto) wherein surface and subsurface waters are tributary to Whittier Narrows upstream from the common boundary of Upper District and Central Municipal through Whittier Narrows.

(f) Lower Area — the area which lies downstream from the common boundary of Central Municipal and Upper District through Whittier Narrows and which is included within the incorporated limits of the Plaintiffs.

(g) Whittier Narrows — a gap between Merced Hills and Puente Hills shown on Exhibit A.

(h) Montebello Forebay — the area designated as such on Exhibit A.

(i) Export to Lower Area — water diverted from surface streams in Upper Area or pumped or developed from underground sources in Upper Area, and in either ease conveyed by conduit through Whittier Narrows.

(j) Subsurface flow — all water which passes as ground water through Whittier Narrows at the “narrowest section” as shown on Exhibit A.

(k) Surface flow — all water other than Export to Lower Area and Subsurface Flow, which passes from Upper Area to Lower Area through Whittier Narrows.

(l) Usable Water — all Surface Flow, Subsurface Flow and Export to Lower Area, but excluding:

(1) that portion of Surface Flow, if any, which crosses the southerly boundary of Montebello Forebay as surface runoff less the amount of Surface Flow which has been caused to flow out of Montebello Forebay as surface runoff by any spreading of water in Montebello Forehay by or on behalf of Lower Area Parties, or any of them;

(2) water imported by or on behalf of Lower Area Parties from outside of the watershed of the San Gabriel River System ;

(3) Reclaimed Water, as defined in subparagraph (o) herein, provided, however, that Reclaimed Water (other than that reclaimed by or on behalf of Lower Area Parties) which is percolated and commingled with ground water in Upper Area shall be deemed Subsurface Flow, Surface Flow, or Export to Lower Area as the case may be, when and if it passes through Whittier Narrows;

(4) that portion, if any, of Export to Lower Area which in any Water Year after September 30, 1966, exceeds 23,395 acre-feet;

(5) Make-up Water, as defined in subparagraph (m) herein; and

(6) any water whether flowing on the surface or beneath the surface of the ground which has passed any of the points of surface measurement in Whittier Narrows shown on Exhibit B and prior to its passing from Upper Area to Lower Area is intercepted and returned upstream by conduit or otherwise so that it could again pass any such points of measurement.

(m) Make-up Water — water of usable quality for ground water recharge which is either (a) required to be delivered to Lower Area under terms of paragraph 5 of this Judgment, or (b) designated by the delivering party as a delivery to Lower Area in advanee satisfaction of some possible future delivery requirement under terms of paragraph 5 of this Judgment.

(n) Water Year — October 1 through the following September 30.

(o) Reclaimed Water — water reclaimed from sewage generated in the water