Full opinion text
RICHARDS, J.— A rehearing was granted herein after the decision of this cause by the court in bank in order that an even more full and careful consideration might be given to the important questions involved in this appeal. Upon such consideration we have concluded to reaffirm the conclusions arrived at in our former decision, and to adopt the language of such decision, with such emendations as may be required in view of the further light which has been shed upon the subject by former and further counsel for the respective parties, as ivell as by the briefs of amici curiae filed herein. This action was instituted by the City of San Diego, a municipal corporation, having for its purpose the determination of the question of its title to certain rights in and to the waters of the San Diego River to which the original defendants in said action were asserting and exercising certain adverse claims. The precise nature of this action was aptly described in certain earlier appeals to this court. In the case of Cuyamaca Water Co. v. Superior Court, 193 Cal. 584, 588 [33 A. L. R. 1316, 226 Pac. 604, 605], it was thus stated: “In the pending quiet title action it will not, of course, be determined that the city is or is not entitled to any particular quantity of water. If the litigation terminates favorably to the plaintiff the only right winch will be established and determined to be vested in the city will be a right to the water and the use thereof prior and paramount to the defendants’ rights therein, and then only to the extent necessary for the needs of the city and its inhabitants. The amount needed is necessarily uncertain and conjectural and dependent upon conditions such as rainfall and other established sources of supply. The subject matter of the action is the establishment of the priority of right and not the quantity of water to be taken.” In the case of City of San Diego v. Andrews et al., 195 Cal. 111 [231 Pac. 726], which was a proceeding in mandamus to compel the respondent judge of the Superior Court of the county of San Diego to proceed to hear and determine the present cause, this court restated in substance the purpose of the instant ease. The importance of the foregoing clear concept of the nature and purpose of the present action will appear as we proceed with the consideration of the several issues involved therein. The original defendants in this action were Cuyamaca Water Company, a corporation; Cuyamaca Water Company, a copartnership, and certain individuals and the survivors and personal representatives of the members of said copartnership. The action was commenced in the early part of the year 1923, the amended complaint therein being served and filed on June 9, 1923. The defendants united in filing their demurrer to said amended complaint on June 18, 1923, said demurrer being both general and special and being based upon thirteen alleged grounds of demurrer.- The demurrer was upon hearing overruled; whereupon and in December, 1923, said defendants served and filed their answer, embracing seventeen separate defenses presented by the defendants jointly, and also a number of special defenses urged on the part of certain of said defendants individually. The defendants also presented and filed at the same time their cross-complaint, wherein they asserted affirmatively the particular foundation of their adverse claims to certain portions of the waters of the San Diego River over which the plaintiff was undertaking to have established its alleged prior and preferential right. To the defendants’ answers and cross-complaint the plaintiff on December 21, 1923, served and filed its demurrer upon forty-two specified grounds. Thereafter and while said demurrer was pending and undisposed of, certain other parties appeared separately in the action with applications for leave to intervene. These were one Carroll H. Smith, who in his proffered complaint in intervention alleged himself to be a resident, citizen and taxpayer of the city of La Mesa in the county of San Diego, and also an owner of property within the La Mesa Lemon Grove and Spring Valley Irrigation District in said county, which said city and said irrigation district had for the sole source of water supply of each the waters of the San Diego River, which said waters they and each of them were receiving under and by virtue of an agreement with the defendant Cuyamaca Water Company, a copartnership, with which copartnership and the surviving members thereof the said petitioner wished to join in resisting the claim of prior and preferential right thereto asserted by said plaintiff. The said Carroll H. Smith also alleged himself to be the owner of certain lands within the so-called E'x-Mission Rancho and to be thereby entitled to certain paramount and exclusive rights to the use of the waters of said river derived from grants of said rancho to his predecessors made by and under the Spanish crown. The La Mesa Lemon Grove and Spring Valley Irrigation District also and at the same time presented its application for leave to intervene in the action, basing its alleged right so to do upon its proffered complaint in intervention, wherein were set forth substantially the same averments as were embodied in the complaint in intervention of said Smith. In addition to these, the city of El Cajon, a municipal corporation, situate in the county of San Diego, also petitioned for leave to intervene, making substantially the same allegations as to the source and right of water supply from the waters of the San Diego River as were set forth by said other applicants for leave to intervene. The court upon a hearing permitted the several parties to file their respective complaints in intervention, and in due course the plaintiff, City of San Diego, presented and filed its several demurrers thereto. Thereafter the demurrers of the plaintiff to the answer and cross-complaint of the original defendants and also to the complaints in intervention of said several interveners were submitted to the trial court for decision; and the court in ruling thereon sustained the said plaintiff’s demurrer to certain specified portions of the original defendants’ answer and cross-complaint without leave to amend, and also sustained the demurrer of the plaintiff to certain other specified portions of said defendants’ answer and cross-complaint with leave to amend. The trial court also at the same time overruled the plaintiff’s demurrers to the several complaints in intervention. The effect of these several rulings by the trial court was that of determining as a matter of law that the City of San Diego had by virtue of its incorporation and right of succession become the successor and owner of those certain prior and preferential rights to the waters of the San Diego River with which, from its inception the pueblo of San Diego, as established in the year 1834, had become invested by virtue of its formation under the laws of Spain and Mexico. The question as to whether as a matter of law the plaintiff City of San Diego had originally become invested with these prior and preferential rights in and to the waters of the San Diego River by virtue of its succession to whatever rights of .that nature existed in the pueblo of San Diego is thus presented upon this appeal, involving as it does the correctness of the aforesaid rulings of the trial court touching that point upon demurrer. As to the issues presented by those other specified portions of the original defendants’ answer and cross-complaint, and which involve the question as to whether the plaintiff had lost its original superior right to the waters of the San Diego River derived from said source, by prescription, or by laches or by estoppel operating in favor of some or all of said defendants and their successors in interest, the trial court permitted said defendants to present amended pleadings, and upon their doing so overruled the plaintiff’s later demurrers thereto; and having already overruled the plaintiff ’s demurrers to the several complaints in intervention, and the interveners having also amended their pleadings so as to embrace and conform to the defendants’ amended answer and cross-complaint, and the plaintiff having answered the interveners’ complaints and the amended cross-complaint of the defendants, the cause was thus brought to issue and proceeded to trial upon the disputed questions of fact thus presented. The cause was tried without a jury; a large mass of evidence was presented involving the testimony of many witnesses and the introduction of numerous exhibits, thus creating a record of unusual proportions, upon which were superimposed briefs and arguments of counsel evincing extraordinary effort, diligence and research. The cause was finally submitted to the trial court for its decision and in due course the findings and conclusions of law of the trial court were filed, the correctness and sufficiency of which furnish the weighty burden laid upon this court in its determination of the merits of the several appeals which have been taken and are being prosecuted by all of the parties to this action. At the outset of our re-examination of the questions thus submitted to our determination it has been strenuously insisted by counsel for certain of the interveners herein that the City of San Diego did not by the terms of its incorporation under the new dominion become the successor to the rights of the former pueblo of San Diego, for the reason, as urged by counsel, that by the first act of its incorporation, adopted by the legislature of California in the year 1850, it was only “the Presidio of San Diego” which ivas purported to be thereby incorporated and known as “the City of San Diego.” It is true that in the body of said act of incorporation the area to be covered thereby is described as being “known as the Presidio of San Diego.” But it is also true that the area to be included within such incorporation embraced those lands which were “included in the survey made by Lieutenant Cave J. Gouts, First Dragoons, U. S. A., for the ayuntamiento,” and which embraced an area of ten square miles. It is a series of significant facts that said area included the then existing pueblo of San Diego, of which the ayuntamiento referred to therein was the ayuntamiento, or in other words the town council composed of the alcaldes, the regidores and certain other municipal officers which were strictly the officers of the pueblo and none of whom were officers of a presidio, which was purely a military as distinguished from a civil foundation. The act further provided that in limiting the area to be known as the City of San Diego to ten square miles it was not to be construed so as “to divest or in any manner prejudice any rights or privileges ivhich the presidio may hold to any land beyond the limits of the charter,” and it was further provided that the corporation created by this act “shall succeed to all the legal rights and claims of the Presidio of San Diego and shall be subject to all the liabilities incurred and the obligations created by the ayuntamiento of said Presidio.” These references should make it sufficiently plain that the use of the term presidio instead of pueblo in said act of incorporation was a misnomer, and that it was the intention of the act of incorporation to impose certain civil and political rights under the new dominion upon the area which was already, by virtue of its pueblo origin, in the enjoyment of certain civil and political rights under the old dominion. It may .be fairly surmised that this blunder in the Avay of designation was presently discovered and Avas promptly sought to be remedied, since we find that the act of incorporation above referred to was repealed by the legislature in 1852 (Stats. 1852, p. 223) and that by said act another form of incorporation was provided, to be known as “the Trustees of the City of San Diego”; and that by an act of the same legislature (Stats. 1852, p. 225) the said “Trustees of the City of San Diego” were declared to be a body corporate under the style of “The President and Trustees of the City of San Diego,” and were authorized and directed by such corporate name and style to “present before the board of land commissioners created by act of congress for the settlement of land titles in this state, or any court before which it may be necessary to appear for the purpose of prosecuting or defending the right or claim which the City or Pueblo of San Diego may have to land known as the common lands of San Diego.” It further appears that, pursuant to such direction, the aforesaid officials of the City of San Diego, purporting to represent it in its capacity as the successor of the pueblo of San Diego, did duly present before the aforesaid congressional commission the claim of said city for the confirmation of its title “to the pueblo lands of San Diego” and that according to the recitals of the certified copy of the patent to the City of San Diego presented in evidence herein (Plaintiff’s Exhibit No. 7), it was adjudged, in the course of the proceedings before said commission, “that the claim of said petitioner is valid and it is, therefore, decreed that the same be confirmed. The. land of which confirmation is made is situated in the county of San Diego and is known as the pueblo or town lands of San Diego.” It further appears from the record herein that the state legislature from time to time adopted certain special acts authorizing the board of trustees of the City of San Diego to deal in different ways with the pueblo lands of said city (Stats. 1855, p. 206; Stats. 1861, p. 270; Stats. 1867-68, p. 8), and it still further appears that the legislature in 1870 re-established the boundaries and areas of the City of San Diego as comprising “all that tract of land known as the Pueblo of San Diego,” etc., and that in the same year the legislature adopted “An act to legalize, ratify and confirm deeds of conveyance and grants of land within the pueblo lands of San Diego.” And it yet further appears that upon several occasions from the year 1872 on, the state legislature has adopted successive acts re-incorporating the City of San Diego, in each of which it is expressly stated that “all that tract of land known as the Pueblo of San Diego . . . shall henceforth be known as the City of San Diego.” (Stats. 1871-72, p. 285; Stats. 1875-76, p. 806; Stats. 1889, p. 302.) It would seem to sufficiently appear from the foregoing statements of both law and fact that the findings and conclusions of law of the trial court were supported by an amplitude of evidence, wherein it expressly found and determined: “That about the year 1834 there ivas founded, and until about the year 1850 there continued to exist upon what is now the site of the City of San Diego, a certain Mexican pueblo then designated as the Pueblo of San Diego; that the location and site of said Mexican Pueblo of San Diego at the time the same was founded, was, ever since has been, and now is, situated and located upon the banks of a certain unnavigable river or stream, then, ever since and now known as the San Diego river; that said stream at the time of the organization of said Pueblo of San Diego and at all times thereafter during its existence flowed into and through said pueblo, and the banks and bed of said stream from the mouth to the easterly territorial limits of said pueblo a distance of approximately five miles, were located and lay entirely within the territorial limits and formed a part of the lands and waters of said Pueblo of San Diego. “That said Pueblo of San Diego and the inhabitants thereof from its organization during the entire term of its existence, enjoyed, asserted and exercised a preference or prior right to the use of the waters of said San Diego river for the benefit of said pueblo and the inhabitants thereof. “That said preference or prior right of said pueblo and of the inhabitants thereof to the use of all the waters of said river necessary to supply the domestic wants of the inhabitants of said pueblo, to irrigate the lands thereof, and for other municipal purposes within the general limits of said pueblo, was a right, and the distribution of said waters for such purposes by the pueblo authorities was a trust created, imposed and recognized by the laws, orders and decrees of the government of the Kingdom of Spain and the Republic of Mexico. “That the plaintiff herein, The City of San Diego, was incorporated on or about March 27, 1850, and thereupon became the successor and ever since has been the successor of said Mexican Pueblo of San Diego, and as such successor to said Mexican Pueblo succeeded to and acquired all the rights and privileges theretofore held or exercised by said Pueblo of San Diego and in particular as the successor of said Mexican Pueblo of San Diego The City of San Diego succeeded to and acquired all the rights and privileges theretofore enjoyed, asserted and exercised by said Pueblo of San Diego in and to the waters of said San Diego river; that since said incorporation said The City of San Diego, as the successor to said Mexican Pueblo, has at all times enjoyed, asserted and exercised a right of priority in and to the use of all the waters of said San Diego river necessary or convenient for the use of said The City of San Diego and the inhabitants thereof, and has not in any manner, nor to any extent, surrendered, forfeited or abandoned said right, save and except in the manner and to the extent hereinafter found and declared. “That the San Diego river is an unnavigable natural stream of water located wholly within the county of San Diego, state of California, and takes its rise in the Cuyamaca Mountains in said county on the southerly and westerly slopes thereof, and flows in a southwesterly direction approximately fifty miles from its source until it reaches the easterly boundary of The City of San Diego, formerly the easterly boundary of said Pueblo of San Diego, from which point said river flows westerly through said The City of San Diego a distance of approximately five miles, discharging its waters into the Pacific Ocean through Mission Bay in said city and county.” It will thus indisputably appear that by the foregoing findings of the trial court, supported by sufficient evidence, the City of San Diego was as to all of its property rights and' powers placed within the same category as the other several cities of California which were founded upon the sites of the former pueblos thereof, and which by virtue of their said foundation became and have since remained the successors of those property rights and powers with relation thereto which were possessed by said pueblos. The appellants, however, undertake to argue that the trial court was in error in holding as a matter of law that the pueblo of San Diego, by virtue of its organization as such, became entitled, under the Spanish and Mexican laws, to any prior or preferential right to the waters of the San Diego River passing above and underground through the allotted leagues which were to constitute the area of the -pueblo lands. In support of this argument counsel for said appellants would have us go back even prior to the Christian era and consider in our review the history of civilization in so far as the same relates to the slow, involved, and obscure development of the civil and religious institutions of ancient and medieval Spain. If for the first time in the history of our California jurisprudence such a review was being asked, or such an elaborate argument as these appellants now urge was being presented we might be disposed to consider as persuasively as we have now read interestingly the pages upon pages of Spanish history collated in that behalf. But the difficulty with the situation which appellants’ diligent counsel now seek to have us reconsider is that the same question has already ■ on several occasions, early and late, been presented to and passed upon by this court in decisions which are uniformly adverse to the appellants’ present contention. While there were other and earlier cases in the courts of this state and even in the Supreme Court of the United States which touched upon the subject of the formation of pueblos under the laws, institutions and regulations of Spain applicable to the settlement and development of lands in what had become known as “New Spain and the Indies,” the great leading case upon the subject applying these laws, institutions and regulations particularly to those pueblos which had come into existence in California under both the Spanish and Mexican dominion, is the case of Hart v. Burnett, 15 Cal. 530, to 624, wherein Mr. Justice Baldwin, Mr. Chief Justice Stephen J. Field concurring, discussed at great length and with much learning the nature and extent of the rights which inhered in such pueblos by virtue of their foundation in those lands which lay within their immediate vicinage and beyond this to the extent of the additional four leagues of surrounding lands allotted to such pueblos as a result of their formal establishment as civil governments or quasi municipalities. It is not necessary to further refer to this leading case in other terms than those in which it has been referred to and commented upon by later decisions of the courts of this state and of the United States. In 'the case of Townsend v. Greeley, 5 Wall. (U. S.) 326, 336 [18 L. Ed. 547, see, also, Rose’s U. S. Notes], the effect of that earlier decision was briefly but clearly stated by Mr. Justice Field, who wrote the latter decisión, and his language as used therein was quoted approvingly by this court in the case of Hale v. Akers, 69 Cal. 160, 166 [10 Pac. 385], which was presently to hand down its decision in the case of Lux v. Haggin in the following month of the same year and which is reported in 69 Cal. 255, 454 [4 Pac. 919, 10 Pac. 674, 715], In this latter decision, which is the longest and most exhaustively treated cause in the history of California jurisprudence, Mr. Justice McKinstry, who wrote the opinion, went over the entire ground of the land and water rights of the owners of each in California whose title thereto looked for their derivation to the laws, institutions and regulations of Spain and Mexico. In the course of his most learned and comprehensive dissertation he referred approvingly to the decision in Hart v. Burnett, supra, as to the right and title which the pueblo had to land within its general limits. The court then proceeded to say: “By analogy and in conformity with the principles of that decision, we hold the pueblos had a species of property in the flowing waters within their limits, or ‘a certain right or title’ in their use, in trust to be distributed to the common lands, and to the lands originally set apart to the settlers, or subsequently granted by the municipal authorities. It may be conceded that such authorities were not authorized to make concessions to individuals of the perpetual and exclusive use of portions of the waters, without reference to the needs of the other inhabitants; or that such concessions would be an abuse of the trust. But they had a species of right or title in the waters and their use, subject to the public trust of continuously distributing the use in just proportion. . . . Each pueblo was quasi a public corporation. By the scheme of the Mexican law it was treated as an entity, or person, having a right as such, and by reason of its title to the four leagues of land, to the use of the waters of the river on which it was situated, while as a political body, it was vested with power, by ordinance, to provide for a distribution of the waters to those for whose benefit the right and power were conferred.” After quoting certain passages from Escriche, an eminent Spanish authority upon the subject, the court further proceeded to say: “From the foregoing it appears that the riparian proprietor could not appropriate water in such manner as should interfere with the common use or destiny which a pueblo on a stream should have given to the waters; and semble that the pueblos had a preference or prior right to consume the waters even as against an upper riparian proprietor.” The court, however, suggested that it “is not necessary here to decide that the pueblos had the preference above suggested; nor is it necessary here to speak of the relative rights of two or more municipalities on the same stream.” In the next and later case of Vernon Irr. Co. v. Los Angeles, 106 Cal. 237, 251 [39 Pac. 762], the question directly arose. In that case the Vernon Irrigation District, a corporation, owned a tract of land riparian to the upper reaches of the Los Angeles River, and commenced its action to enjoin the city of Los Angeles, which was and is the successor of the pueblo of Los Angeles, and certain other defendants, from so diverting the waters of the Los Angeles River as to interfere with the plaintiff’s riparian right therein. The city of Los Angeles by its answer put forth the claim that by virtue of its succession to the rights of the pueblo of Los Angeles, founded in 1786, it possessed the prior and preferential right to take all of the waters of the Los Angeles River. The trial was prolonged and the findings of the trial court voluminous, in the course of which it was found and decreed that the city of Los Angeles, by virtue of its succession to rights of said pueblo, was the absolute owner of all of the water flowing in the Los Angeles River for the use of its inhabitants and for all other municipal purposes. Prom the judgment in its favor based upon this finding the plaintiff took an appeal and thus presented to this tribunal for determination the correctness of the aforesaid finding of the trial court. This court, Mr. Justice Temple writing the opinion, gave its most careful and exhaustive consideration to the determination of this question, in the course of which he quoted exhaustively from the Spanish and Mexican laws, approving the principles enunciated in the ease of Hart v. Burnett, supra, and which were adopted by this court in Lux v. Haggin, supra, and quoted also with approval the language of the latter case above referred to and wherein it had been suggested, though not in that case found necessary to be decided, that the pueblos had a preferred right to the waters of rivers flowing through their lands, which could be asserted to the extent needed to supply the wants of their inhabitants. There were other questions presented in that case not necessary to be here considered, but it must be conceded that the question as to the prior and preferential right of a pueblo to the waters of a river passing through it to the extent above indicated was therein squarely presented and fully upheld by the terms and' scope of that decision, and that the later formed municipality organized as the successor of the pueblo fully succeeded to these rights to which the pueblo had become entitled by virtue of its creation under the Spanish and Mexican laws. The next case wherein this question arose was that of City of Los Angeles v. Pomeroy, 124 Cal. 597, 650 [57 Pac. 585], which was an action in which the city of Los Angeles undertook to condemn certain lands lying in the San Fernando Valley along the Los Angeles River and to which stream said lands were riparian, for the purpose of utilizing the same in collecting and conserving the waters of said stream for delivery to the main supply pipe and distributing system of said city. The plaintiff based its claim of right to condemn the land in question for the utilization of its asserted right to the waters of said river, in part at least, upon the averments of its amended complaint to the effect that the city, as the successor of the pueblo, was the exclusive owner of all of the waters of said river for the purpose of supplying water for the irrigation of the irrigable lands embraced in the four square leagues of the pueblo, and for other municipal uses. These averments were traversed by the defendants. The cause was tried before a jury, to which the court gave the following instruction: “The city of Los Angeles is situated on the river below these lands, and is the owner of the right to take from the Los Angeles river all the water that is reasonably necessary to give an ample supply for the use of its inhabitants and for all municipal uses and purposes for which the city may require water. This right is measured by the necessity, and if the needs increase in the future the right will expand to include all that the needs require. This right of the city is paramount and superior to the rights of the defendants in the waters of the river.” This court upon appeal, Mr. Chief Justice Beatty writing the opinion, fully sustained said instruction in so far as it correctly stated the paramount and superior rights of the city to whatever expanding uses of the waters of said river the pueblo by virtue of its formation possessed, and in so doing expressly approved in principle the case of Vernon Irr. Co. v. Los Angeles, supra; the court, however, held that the instruction was erroneous in according to the city of Los Angeles greater rights to the waters of said river than those which, as the successor of the pueblo, it had received from it, the area of the modern city having expanded so as to embrace territory not within that of the pueblo lands. The next case in which the same question controversially arose was that of City of Los Angeles v. Los Angeles Farming & Milling Co., 152 Cal. 645 [93 Pac. 869, 871, 1135], wherein the city of Los Angeles asserted its prior and paramount ownership of the use of the waters of the Los Angeles River from its source to the city and from the surface to bedrock in so far as it was necessary to supply water for the use of its inhabitants, by virtue of its successorship to the pueblo and against the asserted riparian rights of the defendant, based upon its ownership of riparian lands lying along said river some ten miles above said city. The trial court accorded the plaintiff such right and upon appeal this court, Mr. Justice McFarland writing the opinion, after stating that the only question in the case was as to whether “under the general law of the locality the old pueblo of Los Angeles and the respondent herein as its successor had and has as against appellant the prior and paramount ownership of the use of so much of the water of the Los Angeles river as is necessary for its inhabitants and for general municipal purposes,” proceeded to state that “this question need not be discussed as an original one, for it has been answered in the affirmative by former decisions of this court.” The cases which are above referred to are there reviewed at length and expressly approved, and after such review and approval it is said: “The foregoing decisions are determinative of the prior and paramount right of the pueblo and of plaintiff as its successor to the use of the water of the river necessary for its inhabitants and for ordinary municipal purposes. The question as to what extent the right goes, a question somewhat considered in the Pomeroy case—that is, for the use of the inhabitants of what territory and for what municipal purposes can the water be taken as against a riparian owner—does not arise and need not be considered in the case at bar.” Neither, it may be said, does this latter question arise in the present case. The law and the attitude of this court toward the law upon this subject stood as above stated during the twenty years which preceded the presentation of the same question to this court in the case of Cuyamaca Water Co. v. Superior Court, supra, which was a prior proceeding in the instant case, and in which the issues primarily involved were those quoted from in that decision in the earlier stages of the present opinion. The appellants herein contended in the trial court and here contend that they were and are entitled to have reconsidered and relitigated the question as to whether or not a Spanish or Mexican pueblo organized in California under the laws, institutions and regulations of Spain or Mexico during their successive governments thereof, became possessed by virtue of such laws, institutions and regulations of a prior and paramount right to the use of the waters or rivers or streams passing through and over or under the surface of their allotted lands so far as may be or become necessary for the pueblo and its inhabitants, and as to whether or not a municipality organized under American rule as the successor of such pueblo succeeded to such pueblo rights. We are of the opinion that by virtue of the foregoing long line of cases, and particularly of the decision of this court in the case of the City of Los Angeles v. Los Angeles Farming & Milling Co., supra, wherein the cases preceding it were specifically reviewed and held to be determinative of this question, the subject is no longer an open one for further consideration and review before this court, and that by said decisions, so long and uniformly followed and adhered to, the proposition that the prior and paramount right of such pueblos and their successors to the use of the waters of such rivers and streams necessary for their inhabitants and for ordinary municipal purposes, has long since become a rule of property in this state, which at this late date in the history and development of those municipalities which became the successors of such pueblos we are not permitted, under the rule of stare decisis, to disturb. We are not unmindful of the contention elaborately presented and argued by counsel for appellants that the pueblo of San Diego, even if conceded to have been regularly established as such in the year 1834, never became entitled to any prior, preferential or other rights in or to the waters of the San Diego River for the reason that long prior to the alleged establishment of said pueblo the entire and exclusive right to the use and benefit of the waters of said river had been granted by the viceroy of Spain to the mission of San Diego. In support of this contention the appellants introduced in evidence before the trial court and have here presented for our inspection and interpretation a photostatic copy of such purported grant. It bears the date, according to the translation thereof with which we have been kindly furnished, of the 17th of December, 1773, and the signature, by secretary, of Bucarely, the then viceroy of the King of Spain over Mexico. It purports to approve the removal of the mission of San Diego from its former location near the presidio on the shore of the bay of San Diego to a new site several miles up the arroyo, and in order to facilitate such removal and the development of the then small and in a sense still speculative and quite problematical success of the first mission established in Alta California, it proceeded to suggest the cultivation of its surrounding lands through the use of water from the stream, and for that purpose directs the “Reverend Fathers of the Mission to acquire and administer this concession and Royal grant (privilegio) to the waters of this arroyo referred to for the common benefit of all the nation, whether Gentile or converted, who dwell to-day or in the future in the province of the mission of San Diego de Acala. This concession and the fruits also shall be held (ser tener) as to these children and their children and successors forever.” The document proceeds to state in immediate connection with the foregoing that “Although a Presidio is thus placed near to the entrance of this stream near to the Port of San Diego there can be no prejudice in this respect because there is always sufficient water for the service of the soldiers, and in the topography and report of Sr. Don Miguel Castro there is evident to the south of this place a worthy river and a torrent smaller in flow and some smaller arroyos from which to drain (disaguas) the Rancho del Rey where their cattle may wander under the vigilant eye of the herdsmen.” We are loathe to believe that the viceroy of Mexico, framing this document in the then far-distant capital of New Spain ever intended by its terms to confer upon this primitive and as yet largely experimental mission settlement any such enlarged, prior, paramount or exclusive rights in and to the waters of the San Diego River as the appellants -herein claim for it. Its language does not so import and it may be said to be doubtful, to say the least of it, whether even the viceroy of the kingdom of Spain in making such a concession would not have done violence to those laws, institutions and regulations of Spain which provided for the establishment of civil governments of the sort known as pueblos in new lands so as to take away from these the whole of those "water rights in rivers traversing their allotment of land which -would be essential to the cultivation of such lands when occupied by civil settlement. We learn from public history, of which we take judicial notice, that the civil settlement of Alta California was coequally contemplated by those who were officially in charge of the primary expedition -which only four years before this purported grant had been put forth and provisioned for the discovery and occupancy of Alta California through the joint effort of Padre Junípero Serra and of Jose de Galvez, visitor-general of New Spain. In the broad and detailed plans and express decrees of the latter, precise provision ■was made for the foundation and development of presidios, pueblos and missions in the as yet unknown region, and these three forms of occupation were expected, as nearly as possible, to proceed simultaneously as a result of the joint military, civil and religious expedition then about to set forth. It may bo fairly assumed that these joint settlements designed to be established simultaneously were also intended to function harmoniously and not to become involved in disputes over the respective jurisdiction and property rights of each. This will appear to be plain when the nature, functions and purposes of each of these foundations is considered both historically and in the light of the Spanish and Mexican laws and regulations relative to each. Presidios were purely military foundations to be occupied by soldiers, and to exist for the establishment of order and for the protection of the pueblo and mission foundations. The pueblos, on the other hand, were purely civil and political foundations, as the term itself implies, being equivalent to the English word “town” and signifying a civic body corporate and politic, and intended, through the cultivation of the lands with which under the Spanish and Mexican laws it was by virtue of its foundation to be invested, to furnish sustenance for its own inhabitants and for the presidios. Mission settlements, on the contrary, were purely ecclesiastical foundations, made or to be made, in Alta California by monks or padres of the Franciscan Order, and existing and being conducted by these for the sole purpose of bringing the blessings and fruits of Christian civilization to the Indian population of Alta California, theretofore in a state of barbarism. A mission foundation in its inception possessed and exercised none of the ordinary forms or properties of civil government, but was, and was for a time at least to be, purely paternal in character, with such material possessions as were required for the maintenance and exercise of its ecclésiastical development. The lands which were to be occupied by the missions were to be held in possession by the priests for the purpose of carrying forward the main object of the mission foundation, but these lands Avere to be possessed, occupied and cultivated only by permission and were to be and remain the property of the nation and to be subject at all times to grants under the laws of Spain and Mexico relating to colonization. So said the Supreme Court of the United States in the case of United States v. Ritchie, 17 How. (U. S.) 525, 540 [15 L. Ed. 236, see, also, Rose’s U. S. Notes]. It Avas thus upon this theory and assumption that the so-called secularization of the missions of Alta California by officials of the Mexican government, to which we shall presently refer, was ordered and carried forward to its disastrous conclusion. We are referred upon this subject, by counsel representing both sides of the instant controversy as an authority, to the very interesting pamphlet entitled “The Colonial History of San Francisco” and embracing the argument of John W. Dwindle, Esq., in the case of the City of San Francisco v. United States in the District Court of the United States for the Northern District of California. We do not, however, in this case find it necessary to finally determine the scope and intent of Bucarely’s concession to the mission of San Diego in respect to its new location. The reason we are not called upon to do so is that, according to the evidence educed herein, the mission of San Diego Avas in or about the year 1834- secularized by Governor Figueroa of Alta California and his official coadjutors, purporting or pretending to act in so doing under decrees of the Mexican government enacted in the preceding year. It is not necessary for us to herein determine whether or not the secularization of the mission San Diego, put into effective operation in that and the following year or two, was in all or in any of its aspects lawful. It is sufficient to note that by the consensus of both the civil and ecclesiastical historians of the time and event it was successful and that within a very few years at most the spoliation of the mission was so far completed that its productive activities had ceased, its Indians and its priesthood had departed, the former to relapse into their aboriginal condition, and the latter to seek and find other fields of labor. The mission life in fact was destroyed and the mission lands, which by virtue of their secularization were to become part of the public domain, were within a decade thereafter conveyed by private land grant executed by Governor Pico to one Santiago Arguello, whose grant of the same was subsequently confirmed by the board of commissioners for the settlement of private land claims created by the United States government in 1851, and a patent therefor issued to said grantee a few years later. It has not been seriously, as it could not be successfully, contended herein that any of the original rights of the mission or of its founders or their successors derived from Bucarely’s concession either survived the secularization of the mission or passed to Arguello or his successors by virtue of his private land grant and the confirmation thereof by the government of the United States. It follows necessarily that upon the establishment of the pueblo of San Diego in the 5rear 1834, as found by the trial court, it became invested with whatever land and water rights it was entitled to under the laws, institutions and regulations of Spain and Mexico, and that in the possession and continued exercise of those rights it was nowise impeded or impaired by the existence of any similar or even superior rights in the mission of San Diego which either had ceased or would presently cease to be. There is, therefore, no merit in the contention of the defendants herein that they or any of them by virtue of their occupancy of the former mission lands are to be held the successors of whatever rights the mission had, since the entire right and title of the present occupants of such lands relate as to their origin solely to the Arguello grant. As to the claim of title to the so-called mission lands, whether derived from the foundation of the mission itself and its occupancy of said lands, or from the Bucarely concession, it is clear that such rights, if any existed, either prior or subsequent to the secularization of the mission, ceased to exist for the additional reason that such claim was never presented to the board of land commissioners as required by the act of Congress of March 3, 1851 (9 Stat. 631), and therefore lapsed and ceased to exist, under the authority of Hihn v. Santa Cruz, 170 Cal. 436, 444 [150 Pac. 62], and Botiller v. Dominguez, 130 U. S. 238 [32 L. Ed. 92'6, 9 Sup. Ct. Rep. 535, see, also, Rose’s U. S. Notes]. As to the Arguello grant, which was, as we have seen, confirmed, it stood upon no other footing as to the rights in the lands and water within its area than that of the several thousand other private land grants in California and having been made subsequent to the establishment, of the pueblo of San Diego and to its right and title to the lands and waters embraced within its allotted area, and which were also confirmed, was necessarily subject thereto, and hence in no way available in aid of the contention of the appellants and interveners herein. We have thus, we think, disposed of every vital question presented by the defendants as appellants affecting that portion of the judgment of the trial court as to which the plaintiff herein is the respondent, and it only remains for us to consider and dispose of those portions of said judgment as to which all of the parties herein have presented their separate appeals. In that portion of the findings of the. trial court which are quoted in the earlier passages of this opinion it will be seen that the prior and preferential rights of the City of San Diego as the successor of the pueblo were made subject to certain exceptions to be in said findings subsequently set forth. In these, its later findings, the trial court deals with those special defenses of said defendants and also of said interveners wherein it is pleaded and sought to be proven that whatever prior or preferential rights in and to the waters of the San Diego River the City of San Diego had or acquired by virtue of its succession to the pueblo of San Diego it has subsequently and either wholly or partly lost by prescription or by laches or has become estopped to assert as against these defendants and interveners through certain alleged affirmative action on the part of itself or its authorized officials. On the, threshold of the discussion as to the nature of these several defenses and, if available at all to the defendants, the extent to which they or any of them should be given application to the instant case, it will be well to recur to the statement made by this court upon the former hearing in Cuyamaca Water Co. v. Superior Court, 193 Cal. 584, 588 [33 A. L. R. 1316, 226 Pac. 604], and which is quoted in the early pages of the present opinion, and from which it will appear that the plaintiff herein is not seeking by this action to have it determined that it is entitled to any particular quantity of water, based upon its prior or present use of the waters of the San Diego Eiver, to the extent of its asserted prior and paramount rights therein. The plaintiff in its pleadings asserts no such use of said waters in the past by either its predecessor, the pueblo, or itself, further than such use thereof under such claim of right as was from time to time necessary for the needs of the pueblo and its successor the city. On the other hand, the defendants and interveners herein have both 'by their pleadings, their proofs and their argument, asserted and shown that neither the pueblo nor the City of San Diego ever did, prior to the institution of the present action, make actual use of any considerable amount of the waters of the San Diego Eiver for any public or municipal or other purpose whatever, and that during the entire history of both pueblo and city the larger part of the waters of the San Diego Eiver, except for the uses thereof undertaken by the defendants and interveners herein, would have flowed through and past said plaintiff and gone unused to the sea. In the findings of the trial court no finding is made and no estimate given as to the quantity of the waters of said river which the plaintiff or its predecessor had made use of, or could have made use of to the full extent necessary for the needs of the city or its inhabitants from time to time in the course of the development and growth of the pueblo and the city’s civic life, nor is there to be found in the findings of the court or in the evidence in the case anything tending to establish that whatever actual uses or diversions of the waters of said river the defendants and interveners herein, or any of them, are shown to have made, ever resulted in a diminution in any appreciable degree of the amount of flow of the waters of said river which the plaintiff herein or its inhabitants were from time to time putting to actual use under or in pursuance of the exercise of the city’s aforesaid prior and preferential right to the waters of said river. On the contrary, the undisputed evidence in this case discloses the following facts with relation to the uses heretofore made of the waters of the San Diego River by the respective parties hereto: The maximum amount of water which the City of San Diego has annually required in order to fully supply its public needs and the needs of its inhabitants between the year 1890 and the year 1921 is disclosed by an exhibit (No. 22') introduced by the defendants herein showing the total amount of water delivered to the City of San Diego from all sources during the aforesaid series of years, from which it appears that during the year 1918 there was so delivered to said city a total of 3,634,205,289 gallons of water. This amount appears to denote the peak of the city’s requirement for all of its aforesaid needs during the years immediately preceding the institution of the present action, and it may fairly be talcen, therefore, to exemplify the full amount which the City of San Diego would have required to fully satisfy its prior and preferential right to the waters of the San Diego River to annually supply its aforesaid needs and uses, and hence the full amount of the waters of the San Diego River to which under its prior and preferential right it would have been entitled at and during the several years prior to the institution of this action. The evidence herein further discloses, according to a report which the Cuyamaca Water Company made and filed with the Railroad Commission, purporting to show the amount of water which it had sold and delivered to its consumers between the years 1913 and 1921 that the total amount of the waters of the San Diego River extracted therefrom and actually applied by it to such uses amounted during the year 1921 to 1,762,435,542 gallons. There is not to be found in the record herein any definite statement or evidence showing, with any degree of accuracy, the total annual outflow of water from the San Diego River; but that it is from year to year far in excess of the amount which would be represented in the "aggregate of the foregoing figures would seem to have been made sufficiently plain during the long controversy between the parties hereto over the use of said waters. Counsel for the defendants and appellants herein have presented to this court, in support of their plea of estoppel, an interesting document in the form of a resolution adopted by the common council of the City of San Diego on August 30, 1918, in response to an anxious inquiry from the city of La Mesa, and which will be more particularly adverted to hereafter, and from which resolution it is made to appear that “during the past twenty years eighty-four per cent of the water of said San Diego river has gone to waste in the Pacific ocean,” and, further, “that the undeveloped waters of the SaH Diego river would, if impounded, prove entirely adequate to meet all present and reasonably probable future demands of the City of San Diego and of the neighboring communities adjacent to the San Diego river watershed.” It is important that the foregoing facts relative to the volume and use of the waters of the San Diego River should he borne in mind dealing with the questions which we are about to consider touching the respective rights of the parties hereto to the waters of said river as affected by the defenses of prescription, laches and estoppel urged by the defendants and appellants herein. In dealing with these defenses it is also important to bear in mind the nature of each and the differences, if any, between them. It should at the outset be understood and stated that the pueblo rights, and hence the rights of its successor, the City of San Diego, to whatever of the waters of the San Diego River were from time to time required for the needs of the pueblo and of the city and of the inhabitants of each, were rights which were essentially “governmental” in character, as much so in fact as were the rights of the ancient pueblo and modern city to the public squares or streets, and that the term “proprietary,” as employed with reference to certain commercialized uses made by municipalities and other public bodies, of water, light and power, for example, has no application to the fundamental rights of the plaintiff herein to its ownership of its foregoing classes of property dedicated and devoted to public uses. (Ames v. City of San Diego, 101 Cal. 390, 394 [35 Pac. 1005].) It should also he noted upon the threshold of the impending discussion that the questions which might arise upon any attempted use of the waters of the San Diego River by the plaintiff herein for the supply thereof to the inhabitants of areas outside of the corporate limits of the original pueblo, whether such areas were or were not within the four league square allotment of lands to said pueblo, are not presented or presentable in the instant case, and hence that whatever authorities may have been cited bearing upon such questions are inapplicable, since, as was aptly stated in our earlier decision (193 Cal. 584 [33 A.L.R. 1316, 226 Pac. 604, 605]) “the subject matter of the action is the establishment of the priority of right and not the quantity of water to be taken. ’ ’ It should also be noted at this stage of the discussion that whatever rights the original defendants herein are entitled to claim and assert in the waters of the San Diego River, or any portion thereof, are rights and claims which rest for their support upon the several appropriations made of such waters by the Cuyamaca Water Company, a copartnership, or by the members thereof, and by the San Diego Flume Company, their predecessor and original appropriator of such waters, to the extent of the use thereof. We hold to be without merit the contention of these defendants that they derive their rights to such waters from a higher source, viz.: from certain rights acquired by them, or certain of them, under the congressional act of July 26, 1866 (14 Stat. 253, chap. 263, sec. 9), and the supplementary act of January 12, 1891 (26 Stat. 714, chap. 65, sec. 8), and that such rights derived from such source are superior to any right whatever in the waters of said river held by the City of San Diego, as the successor of such pueblo. We find from an examination of these congressional acts, without going into further detail, that they consisted in certain action taken by the United States government at a time subsequent to the vesting in the City of San Diego of whatever rights it possessed and still possesses in the waters of San Diego River by virtue of its successorship to the rights and interests of such pueblo and which were confirmed by the action of the aforesaid commission, and that whatever permissive grants of rights of way to private persons over public lands lying along the upper reaches of the San Diego Elver were made were subordinate and not superior to the already vested rights of the plaintiff herein, derived from its succession to the pueblo. (Los Angeles Farming & Milling Co. v. City of Los Angeles, 217 U. S. 217 [54 L. Ed. 736, 30 Sup. Ct. Rep. 452, see, also, Rose’s U. S. Notes, and cases cited.) With these preliminary observations we pass to a discussion of the remaining questions presented for our determination by the original defendants and by their successors in interest, the interveners herein. The first of these questions relates to the defense of prescription. The nature of the right claimed to have been acquired in the waters of a flowing stream by prescription rests as a prime essential upon an adverse use thereof by the claimant under a claim of right which has, to the extent thereof and for the required term of years, been acquiesced in by the person or persons otherwise entitled to the ownership and enjoyment of the waters thus adversely abstracted from said stream and to enforce those rights by appropriate action. It is needless to cite authorities to a proposition thus deeply grounded in the law of waters; but there are certain instructive cases which bear directly upon the situation of the parties to this action as disclosed by the record herein. The first of these is that of Anaheim Water Co. et al. v. Semi-Tropic Water Co., 64 Cal. 185 [30 Pac. 623]. This was a ease which involved certain alleged conflicting riparian rights to the diversion of the waters of the Santa Ana River, which formed the dividing line between two ranchos, from the owners of one of which the plaintiffs had derived by grant the right to use a certain definite amount of the waters of said river, to which the lands of the grantors were riparian, and of the other of which the defendant was the owner and was entitled to all of the riparian rights incident to such owner, unless the same or some portion thereof had been lost by prescription. The trial court found that the plaintiffs for many years had openly, notoriously and continuously appropriated and used the waters of said river to the full capacity of their ditch, claiming the right so to do adversely to all the world; but the court also found that prior to a year or so before the commencement of the action such diversion and use on the part of the plaintiffs, even though thus claimed to have been done adversely, had never interfered with the use which defendant during the same time was making of said waters, and that with the exception of the aforesaid brief time before the commencement of the action there had at all other tim.es been sufficient water flowing in the river to supply the wants and demands of all of the parties to the action. In dealing with that situation this court (p. 192 of 64 Cal. supra) said: “In the face of such facts as these, how can wé be expected to hold that as against the owners of the Santiago Rancho the plaintiffs have established any prescriptive right? In order to establish a right by prescription, the acts by which it is sought to establish it must operate as an invasion of the right of the party against whom it is set up. The enjoyment relied upon must be of such a character as to afford ground for an action by the other party. This is thoroughly settled. Now it is very clear that while there was sufficient water flowing in the river to supply the wants and demands of all the parties, its use by one could not be an invasion of any right of any other; and as the court below found, as a fact, that until within a year or two prior to the commencement of the action, there was sufficient water flowing in the river to supply the wants and demands of all the parties, it'is plain that the plaintiffs as against the owners of the Santiago Rancho have acquired no right by prescription.” The next case to which we would refer is that of Faulkner v. Rondoni, 104 Cal. 147 [37 Pac. 883], wherein (without stating the facts of the case) we find that the doctrine above announced was expressly approved, the trial court having found that during the period claimed to have given rise to the prescription there had been sufficient water in the stream for the use