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HomeMy WebLinkAbout; ; Water Rights; 1940-08-07(/,y2y}/^ 2.^ LEGAL REPORT for HERKELSY BAEOC FOR COOPERATIVES BAY C.EBERHARD GEO.WINFIELD SCOTT MALCOLM M. HAYS MARY A. FLOR SCOTT 8C EBEEHA-RD ATTORNEYS AT LAW 639 SOUTH SPRING STREEL" LOS ANGEILEIS MICHIGAN 60S8 August 10, 1940 Mr. S. XJ. Fraser Carlsbad Mutual VVater Company Carlsbad California Dear Sam; I enclose herewith o-vSg-inal and copy of a letter which 1 have prepared to send to th© Berkeley Bank for Cooperatives. I suggest that you read it over and we can discuss it when I see you Tuesday, There are some things which it may be in- advisable to put in writing at this time. I am, Sincerely yours. RCE: ecc ENCS. - I 1. •' RAY C. EBERHARD , GEO.WirJFiELD SCOTT - ' MALCOLM M.HAYS ScOTT 8c EBERHAED MARY A.FLOR ; ATTORNEYS AT LAW ©39 SOUTH.SPRING STREET LOS ANGELES MICHIGAN 608S August 7, 1940 Berkeley Batik for Cooperatives '.^.Berkeley,' Gailforhia OiBntlemeni •Pureuant to your request, I respectfully submit the following statement concerning the water rights of Carlsbad Mutual Water Company. . • This obmpany was organized on October 2/ 1914, under the.name Oceanside Mutual Water Company. Later, its nam© was •(. changed,to Carlsbad Mutual Water Company, and for convenience I Ijshall refer to the Company by its present name, although in some of the transactions referred to the original name was used'.' " . • • • , . ' . . ' ' •"' . The Company has been in operation continuously since Its .organlBatlon, furnishing the sole water supply, to approxlma- tely SpOG aisres of land in the Carlsbad district, which Is a territory devoted principally, to small tracts of agricultural land, and irrigated entirely from the water supplied by the company. - The annual use bf water by the company's water users over-a period of .several years has been something over 2000 • aor^ fee^^^ wlth.a peak, use ,df approximately S300 acre feet. - 'f • .1.. ' The Company's water rights will be discussed under four headihga. 1. Contract and resisrved rights. ili Appropriation in. Beneficial use over a period of many years. IV. Rights under recent permit. .1. . Rights by Contract end Reservations! Berkeley Bank for Cooperative© wg.. August 7, 1940 In 1906 or thereabouts the Paclflo Light and Power GoTOpaxiy aoQUirod the Warner Ranch, lying some thirty rallee or more east of the olty of Oceanside. The head waters of the Sen £>ula Bey Klver are found upon this property. The primary object of the company In piirchasing this pi^operty wao to ecqxilre a dam site which existed et the westerly bounaery of the ranch, to build s dam thereon, to generate electricity by ^aatQV power and thereafter either to tum tho wator thus utilized Into the river or to divert the seme from the water- shed and to utlliBo it for agricultural purposes on hitherto dry Coast lands. In order to be able to divert these waters from the San Luis Key water-sfoed, the company found It necessary to acquire the riparian rights of the sundry owners of lands on the Sen Luis Roy Hiver, ond this the company proceeded to do, principally by acquiring the fee to said riparian lands. The net result of the operations of the Pacific Light and Power Company during'this period was th© acquloltloa by oho form of contract or another, of practloally all the riparian rSghte along the stream and the oonsequent right of diversion of th© waters in question beyond tho water-shod. .1'. 1.1 The ^outh Coast l^and Cojnpeny, acting as agent for the Pacific Light and.Power Company, eold a groat tflany of the lands acquired by the latter between Warner'e Ranch and the Coast end oubBoquently acquired frcaa the Pacific Light and Power Company all of tho remaining unsold lands. Prom such lands as wore sold by the South Coast ,Land feompony for the • Pacific Light ahd Power Company there were reserved for the benefit of the'Pacific Light ond fower Company certaln.^water rights, all conveyances eontalnlng tho following provisions. "tt is expressly understood end agreed that vmtop shall not be devebped on the land hereby granted by tho grantee, hie heirs, sueoeeeors or transfereeo, by erteelan or surface wells, or otherwise^ to be used on other lends, or inotcess of the requirements of the-lands hereby granted, for Irlgation, dcmiestlc and ©took purposes) and If such development is made by said grantee, or by any other person, then and in that cose the amount of water developed In cssoess of the'requirement® described In this,agreement shall become the property of said grantorj his heirs or ' assigns^ and may be sold, leased, or conveyed to other lands for sale, lease or uiso* and the said • grantor reserves, excepts and retains for himselfj his heirs and assigns, ell rights of way for laying and maintaining plpeSj pipe lines and aqueducts over and across said premises, which now, or at any time hereafter, may be reasonably required to enable said grantor, his heirs or assigns, to take, collect, carry and conduct said excess, or sui^lue waters to other lands, or to enable seid grantor, his hoire Berkeley Bank-for . ^ ^ „ Cooperatives -5- Au^st 7, 1940 or assigns, to inspect, repair end replace,or alter, maintain, enjoy and control, sold pipe lines and aqueducts." The conveyance of th© Paolflo Light and Power Company also contained two further reservefclone, being provlslone lur tesdea primarily for the protection of the Pacific ^IS^^ and Power Company In Its proposed construction and operation of a dam above the Intersection of the San Luis Rey Blvor with the westerly boundary of oaid ranohi "And ,seiid grav-stor also reserves, excepts and retains for himself, his heirs and asalgnSj all the • water, both surface and subterranean, of the San Luis Hey Blver and Its tributaries, above the Intoreocfclon of the said -^an Luis Rey River with tho, western-bounaary of the Isontserrate Benchj TOQBTHEfl TTlth the rl^t to construct, maintain and operator . a dam-or dams, acroes cr In said river, or sald.fcrlb^ utarles, or'either, or any of them, and impound,end reservoir the waters thereof, both surface/sub-;* surrace, storm and oMlnary flow; ALSO the-right to develoii .waters upon tho lands now belonging to, or horeafter acquired by the grantor, his heirs or aQGignei 'ahove said point of intorseetlon, sithor . .by tunnel0 or wells, with tho right to Install and , operate pumping plante thoreonj. -nn^ the right to , dlvex'ti lead and conduct away all or any part of ; ; said'waters at any or all such point or points, to place© within or without said Watershed, as the grantor, hie heirs or esslgnB, may elect." At the.time of acquiring from the Pacific Light and Power Company the said remaining unsold lands lying between the Coast and Warner's Ranch, the South Coast Land Company also acquired from the Pacific Blg^t and Power Company all of the water rights which had been reserved from the said lands sold by the South Cbhst Land Company as agent for tho Pacific Light and Power Company. The transaction between tho two companies'was •carried out by various conveyancoe an*^^ ^thar Instruments of record which' It is not necessary to set forth herein. The net result of these. Instrmaenta, however, was that the South Coa^t'''l^nd Oompony became invested with all of the riparian or other wator rights hold and owned by the Pacific Llffht ond Power Company with rospeot to the waters discharging below the site of sold proposed dam, whether the flow of such waters isilght bo subterranean or othorvjlso, including Berkeley Bank for • ^ „*. n TQA^ Cooperatives -4- ^ August 7, 1940 all rights of diversion and uso of said waters beyond the San Luis Rey water-shed. Subsequently, by deed dated January 29, 1913, South Coast Land Company granted to C. A. Canfleld practioelly all of the lands acquired by It from-the Pacific Light and Power Corporation, reserving therefrom, howeyor, a number of water rights. Including the right to develop upon certain of said lands and to conduct and carry away therefrom 200 miner's Inches of water. The laet«mentloned reservation Is In the following languagei *'Grantor expressly reserves, excepts and retains unto itself, Its successors or assigns? '(1) .....The right to enter upon the East one-half ii) of the Korthwost one-quarter (t) and the Hortheaet one-q^iarter (i) of the Southwest one-quarter (t) of Section Eighteen (18) Township Eleven (11), South of Range Pour (4) West S. B. M., for the purpose of drilling wells and developing water thereon, and for the purpose of erecting a pumplng-plont or plants, laying and constructing pipelines and conduits sufficiently large to pump and carry and conduct away to other lands within or without tho San Luis Roy v?atershed 200 miners inches of water, and for the purpose of doing any and all things necessary or convenient for the maintenance, operation and repair thereofj and all lands, rights of way and rights of ingi'oss and egress necessary or convenient for the above4)urpoes8 are hereby expressly excepted, reserved and retained unto said grantor, ita successors or assigns, from the abovo last mentioned premises, and from any other of the lands conveyed hereby vdilch said pipelines or conduits may cross, and If said grantor, its successors or assigns for any reason at any time should find it impossible or impracticable to develop SOG miners inches of water upon the premises last hereinabove described, theu and- in that event the grantor, its successors or assigns, may enter upon any of the other lands convoyed by this instrument that lie west of the east boundary line or Its extension of Section 8, Township 11 south. Range 4 west, S.B.M., for the puroose of developing said amount of water, and all lands and rights of way of every description in this paragraph mentioned as being reserved as to the.property last hereinabove particularly described are also expressly excepted, reserved, and retained Berkeley Bank for Cooperatives,,,.,, , -5- August 7, 1940 ^'<4i-i r unto said grantor, its successors and assigns, from any other of the lands conveyed by this instrument as may be necessary or convenient for said purposes; and said grantor further expressly excepted, reserves and retains unto Itself, its suocessors or assigns, any and; all water and water rights of every nature and description whatsoever appurtenant to the lends in this" paragraph specifically described, such exception and reservation, however, to be limited to the development, use or conducting away by said grantor of not to ^eaeeed 200 miners inches' of water, and in particular the grantor, for Itself, Its successors or assigns, excepts^ reserves and retains any and all water rights which may be acquired by the grantor herein, by or through that certain deed dated January" 29fch, 1913, wherein Charles E. Culver Is the • transferor and the grantor herein the transferee." On February 29, 191S, tho South Coast Land Company hav- ing acquired from the Pacific B.lght and Power Company all of the reserved water rights hereinbefore referred to, together with certain other water righte which had been acquired by Pacific Light and Power Company Independently of any owner- ship of land, the South Coast Land Company transferred to said C, A. Canfield all of the rights thus acquired, together with all of the water rights: reserved In its said former deed to Canfield.dated January 29, 1913, -excepting, however, the reservation of 200 miner's Inches of water here3jiabove referred to, eald exception being In the following language. t'EXCEPTING HOWEVER, from this. Instrument, and conveyance, that certain reservation by first party of two hundred (200; miner's inches of water reserved by first party In said last mentioned deed from first party to.second party, together with any and all rights of way and other rights reserved In said deed relative to eald two hundred miner's inches of water.*" On August 15, 1913, the.South Coast Land Company entered Into a contract with the City of Oceanside wherein the Company recognized and acknowledged certain priority of rights of the City of Oceanside to the waters of the San Luis Rey River, and wherein the City agreed not to Interrupt nor Interefore with the establishment and operation by the Company of a pumping plant to be used for pumping subterranean waters from the San Berkeley Bank for Cooperatives -6- August 7, 1940 Luis Rey River for use within a described district In en amount not exceeding 200 miner's inches. Such contract contained certain other agreements, but as a copy has been supplied to you, it la unnecessary to set the same out In detail here. Assuming that this contract Is still In effect, essentially It is a limitation on any right which the City of Oceanside might otherwise have to object to the diversion by the Company of 200 miner's Inches of wator. I say "assiamlng that this contract is still In effect" for the reason that the contract referp to a specific well, which well was drilled, and a year, or twoj thereefter entirely destroyed by a flood, after which a new well, located approximately a mile from the well described In the contract was drilled by the Company and has been In uao ever since. Under these circumstances, it might be contended that the contract with the City of Oceanside was abandoned twenty- five or more years ago by both parties,'in which event the Company would not be bound by Its terms, but Its i*lght to water would still be secure by virtue of Its rlghts by appropriation end by many years of beneficial use. However, the City of Oceanside treats the contract as still In effect, and the Company never has definitely taken any position to tho contrary. After the execution of the contract between the South Coast Land Company and the City of Oceanside, to-wlts by deed dated March 14,- .M5; South Coast Land Company conveyed to Carlsbad (then, Oceanside) Mutual Water Company several Items of property, both personal and real. Items 1 and 2 are the only ones In which we need bp concerned hez*e, since the others consist of rights of way over various peroele of land. "(1) The right to- enter upon the E.^ of N.W. J and the N.E.i of S.W.i of Sec. IB, Township 11 S. Range 4 West, S.B.M,, in the County of San Diego, State of California, for the purpose of drilling wells and developing water thereon, and for the purpose of erecting a pumping plant or plants, laying and construct- ing pipe lines end conduits sufficiently large to pump and carry and conduct away to other lands within or without the San Luis Rey water shed, two hundred (200) miners Inches of water and for the purpose of doing any and all things necessary or convenient for the maintenance, operation arid repair thereof 5 and all lands, rights of way and rights of ingress end egress necessary or convenient for the above purposes. "(2) A certain contract by and between South Coast Land Company and City of Oceanside dated the 13th day of August, 1913, and filed for record in the records 'i^/2%/.2:^ Berkeley Bank for • Cooperatives .7- August 7, 1940 of the County of San Dtego, State of California. nr Mm? ?f ^""It^' l^^^ ®^ extension of time relating thereto granted by the Board of Trustees of said City of Oceanside, subject to any and all obligations Incident to the fulfillment of said contract and extension thereof provided to be performed by South Coast Land Company, which obligations second party herein hereby assumes and agrees to fulfill and perform." wn^ ^ r ^^-^L^® observed that Item 1 conveys to the Water Company the right to drill wells and to export 200 miner's inches of water, being, of course, the water referred to in tne grants and reservations hereinabove described. ... ^ Item 2 refers to the contract with the Citv of Oceanslda which the water Company assumed and agreed to perfom as successors of South Coast Land Company. h'^'^^^i-m as th^^n ^^^11"" ^ "^^^ examined all the deeds under which ^7 f^ m^^"^ conveyed to the various predecessors In interest «L!^^!i^^^f>.^^"'^^''^T^ ^^^^ examined the recorded copy of ?hr?«^-f f-^ rt^^""^ I ^^^<'^^^^ fey person.: fardUar with 111 ^!:^::^„^^^^.^^^'%ter rights ao acquired affected substantially all of uhe Irrigaole lands along the river. Rights were not ^f^^h^^^ particularly lands nf.r the mou?h of the rxver for the reason that it wae felt that these lands were practically useless, and the water rights tho.relor of ^^sult of tbe foregoing is that the Company mtlnt^f 1''^^^''^ ''''.^^^ *^ position to dispute to 200 ^ ^erv^tLnran^^^^^ ^"^^^ ^^^^'^^^ '•^'^ • " II. Klghte by Appropriation; u/r^""^ to the effective date of the Water Commission Act which was adopted by the legislature In 1913, tat, as a llo llJ'Lf, Referendum did not take ef.fect until December, 1914, J""^ require any formal application for the appropriation of water to be used for agx'lcultural purposes. The approor?atlon I ^^sssora of Carlsbad Mutual V;ator Companyms mde when the law wao in that condition; that is, prior to thr effective date of the Water Commission Act. and fall'^of lo??^' constmcted during the Bur^aner ana laix ot iSl^ and tlie plant and plpaines were Installed, and Berkeley Bank for Cooperatives -8- August 7, 1940 pumping begun, and the plant placed In operation and water served to consumers during the year 1914, and prior to December 19th of that year. The full 200 miner's inches of water referred to In the deeds and contracts above mentioned were pumped and used for a considerable time prior to December 19, 1914, and that constituted an effective appropriation certainly of that aiaount of water, and, we contend, of such addltlonalr^Wateitsas might be necessary to complete the development then begun by the Company; When the Water C'oraralBsion Act became effective In December 19, 1014, it contained. In Section 33, the following provision: . "All existing lawful appropriations of water or the use thereof, shall be and hereby are respected and upheld to the extent of the amount of water appropriated and actually put or in process of being put, from the initial date of the act of appropriation, with due diligtience in porportion to the magnitude of the work necessary properly to utilize the wator for the useful or beneficial purpose for which it was appropriated, or for which it is being used." This constituted an express recognition of the rights of tho Company,acquired prior tb tho effective date of the act, and as the waters so acqp^ired have been applMed continuously to beneficial uso, there was valid appropriation of water for the use of all th© lands upon which water has been put to a beneficial use. As a matter of fact, there never hae been any claim of any prior appropriation or diversion by any per- son claiming to have.acquired any rights In these waters while any part of the waters wero still eubject to appropriation. In Wells V. Mantes, 99 Cal. 5B3, DeNecochea v. Curtis, 80 Cal. 397, ahd other cases, the rule is laid down that whepe^ waters have actually been applied to bsnefToial use without compiyihg with a statute, the water user Is protected even against a later appropriator who did comply v/lth the statute. As iiidicated above, the Carlsbad ^^utiial Water Company actually has applied to beneficial use In ono year 2290 acre feet Be'rkoi^y.Bahk for Cooperates .^9^ August 7, 1940 of water, mile that is the maxlzimm amount used in any one yeai^, that does not neoessartly moan that tho OojnpanTr h&B not put nor?o than that am^unf; of wator to beneficial uaeli lhe o^^aractor of use in tho district In such that water Is aiot always used^OB tho mmo landa esc^,3 year. Aa a matter of fact. eppro)s:lmately all of the SOOO acroe of 5and to which water has been nlloted has boon,st ono t.hso, or another, u^jdor Ir^pl^ation* The avjrag© ^-atj of wator at thiD pump 1© 1.04 aca;'a foet per acre ^fd the average uee of water per acre is 1.S2 aero ieot, BO that, as a matter of fact, the company baa actualiy doyoloped a uao for in excess of 3000 acre feet of water to which it thus has oatablieh^^d vibnt wo believe to be ea in- Qofoaoiblo rl^t. It niay be contondod that this %.B more v?ater than the bSf ITJ^nf to use aa aga'.,nat the City of Ocoansldo, LUt it must be remembered chat the contract wtth the Citv ^Ll^'t^^^^^^^^f' ^^sentlally, simply a rocosnltion that the oit> has-certain prior rights t?Mch the company will respect, cuia tnat, conversely, the City will not interfere with the ' U60 by tti^ Company of 200 miner's anohes. 1?here Is no pro- il tZt^^- ^^ifr^^f-^^^Q ooaipany u^lng moi^-e than 200 inches unloea It thoreoy c.epletoa the srapply necessary to the City of • yooans^do. Ihoro never has been a time when this condition neo srifijcn, or even thr ©atenolol. Moreox-Cr, the divor.*5loQ of Carlabad ?»rutual ^ater Comoonv ur;o on fchoee SGDO acres of land, and the construction .of ^'''•'"^ the works to so apply tho water was begun 1913. Since that ^ime, tJrie nation hes gone through a -fsrorld" wpr, almo^'t Immediately followed by a profit depression In Q^^rlculturo. ^rom which agr^cxatural regior*£ werr. just i^-ocovering"at the tlio" th^ worIdj/lde,depression engulfed tho United Stetea. and from ?mlcb wa have not.yet recovered. * « V. ^t^^^^ f^cts iuiist be taJjon into conaid©ration in consider- In® whether cr n^^t^Oarlsbad tihitual Water Company hea ^:>roceeded with reasanabie dili^cKce to apply to a beyieflciel use the watet* whica lfc,a.ppro|iriated. to eon m?SHrc*V««fi£5^''l^^ 1^^^ ^^^^ ^^^I Oceanoide vemW^A A ^ inches of ^mter, es a matter of faSt, the x:?^anv fSet of^1?!^^''' capable or pumping aud dollverlns five ^ecoX^ ltl\l^ ^v' oonsuiaera, who ovm and constitute the tonpi^ny, developed lands noodlng.ln the airf^roffate in e^oofifl of fivo aacond feet of water. It ia%ell lotMll^tn ihis Berkeley Bank for'Cooperatives;^, .^j^- - August 7,- 1940 •• State that the;'quantity of water to v;hlch a person (or company) may become entitled by diversion is not limited to.that actually used at, the. time of its original, diversion, but he may take additional water to meet Ihcreaalng needs where such nedds are wlthlnnthe scope of his original intent If done within a. reasonable time "and with reasonable diligence..,.' • ' ' 2 EAXGHT 'Vv G0Sm^ICH,,-.d84 Cal.,. 426,. 431. •''-PA5ST ,v., FimiTO, 190 Oai., 124, 133. *• .AS^TXdCH v.. 'iiJILLIAMS IRFIGA'PiOE DISTRICT, 188 Cal. 451, 456 •, • :-AKIM-'V. SPEHGER, 21 Cal. App.. (2d) 325, 328, ''330.' ' ••:'-MmmB- v^- mo CERRO CTORDO M., & p. co. 48 cai. App.524. . Since the irrigation of the entire 2000 acres to which • . waA.e|^.^s'alio ted >-and for which a'distribution system has'been conip|:ructed,;waB within the original Intent of the Carlabad.- - Mutual -Water-Company, and, particularly, since-: water has' at " - one ,tiiT!e ;or another been supplied tO-practically all of said f2^^'/e^.es, we believe that the company has the rig.ht to complete lte, development and. use the amount'of water.i^hlch may be necessarv to supply ail of such land. . . , ^ ' ^ • „• -.- .-»"-It''W-Ul be. remembered that the waters of the San- Luis- l^J'.^.l'^f^ }^^^^:r^0QntlY been the subject of d proceeding before - tne State ^Msiqn of Water Rlghfc-fl, and that after an S^austlve ' examination the Division found that there were surplue i^-atera • in the stream: subject to appropriation. .The Fallbrook Irrigation ^'xsT^rlct , was-ailoted .certain water, under very astringent con- ' ditions ot uB^ aeslgned to protect the lov?er users, -principally • those in the Mission Basin, of which Garlgbad Mutual Water Company and the Oity of-Oceanside aro the largest and, most important.-' Water was also alloted to the City of Oceanside and Carlsbad Mutual Fater Company, Prom the attitude of the Division of Water Rights in these cases, It is almost certain that no further cermit wil3 be given to divert any substantial quantity of water from the San Luis Rey Hiver unless resoaroh discloses t>iat there is more water in the underground flow than now seems to be the case. In any event, any further permits certainly will protect the present users." Prom the standpoint of riparian rights above the Company's point of diversion.there ie no ground for concern, since through most of its length, the stream flows through a narrow canyon, or valley, with precipitous sides, so that the'possibility of any future substantial use by riparian owners ia so sliglit as to be negligible. This physical fact wae taken into considera- tion by the Division of Water Rights in determining that, giving ef.ect to all the present uses and to possible future uees by riparian owners, there was water oubjoct to apr^roprlatlon by F-allbrook, Carlsbad and the GIty of Oceanside,"respectively. Berkeley Bank for Cooperatives -11- August 7, 1940 III., Beneficial Uses As Iriaicated abbve, the Company's use of water has' con?i , tiniied for inoro than' twehty-flvo years.. As against substantially ' J alii or ;posaibly all, riparian or overlying owners above the point .of dlversloh the^^ to divert ahd export the .4/.. .water'.has .been acquired'by contract or deed; As against lower owners>..eveh\those: few their water.- .rights by'deed, .the,Company has acquired such right by adverse .possession, based upon beneficial Use for many years.. .-This is "true weather the water be treated as underground • flow of San Luis Rey River or.'as. percolating waters. The •, Division, of Water Rights, in the matter of the'respective appllca- , .tions of Fallbrook, Oceanside and Carlsbad Mutual Water Company ^e.tielTnined. .that'.the uhde.rgrouhd water iii the various basins , ialoiig the Sah Luis, Rey River entering the iMlssion Basin . . cohstltute ,part ^of the. iinderground flow of the" stream. Onder . that itheoi^,;. the" Company!haig ^a^ against the lower .,oTOors,as. riparian.or^.overl^^^ owners*- , ' ' ' '• Oh .the .Other hand, if these waters are percolating waters, the "equities" .of the situation,' aa stated In Burr V. -Maclay Rancho Water Co., 154 Cal* 428, would control, and the-fact that the i;;:overlying lands in the Hleslon Basin are much liees valuable for agricultural purposes than the lands which'arie'being watered by the company, plus the fact tha^he - Company has actually developed and supplied water for,use on these, lands.by several.hundred-private landowners,-for a ' , period pf. over 25 yearsi certainly would confirm the right of .the^ company to continue to ^ use all the waters which it ever . has used as against any landowners in the Mission Basin., In this'Connection, it Is-important to remember"that, although the;Cbritract with the City of Oceanside specifies 200 miner's Inches, and defines a miner's inch as l/50th inch of a second foot, as a matter of fact, the Company has for many years, beginning probably in 1914, openly and notoriously, and under a claim of right, pumped five second feet,, or 250 miner's inches, on the 50-lnch basis, during the greater part of each, irrigation-season.. It is^our contention the Company's , prescriptive.right, as well as its appropriatlve-right, there- fore; amounts to 5 second feet continuous flow at least during .the, irrigation season.' In any event, the company has complied wlfc^ ©very requirement necessary to establish a prescriptive right to use the water which It actually has applied to a • beneficial uso for many years.. Berkeley Bank for Cooperativea ^12- Aupiet 7, 1940 Bights trnder Reoent Permltf In addition to the water righte hereinabove dlsoussedy the Company has the right to divert, store and use additional . water under a pormlt- issued by the State Division of Water Hlgbta in the ^all of 1938 after a protracted hearing* ' * This permit authorises the Company to divert, by both direot diversion and storage^ not to exceed five second feet, and!not more than 750 aore feet in any year, beginning April lst» and permitting the Oompany to puisp water in excess of such amounts ddrli^^ any time that the pumping reduces In like amount the water flowing into the ooean* . In other worde* the Company has, under this pemlt^ the right to divert and storej' 750 aore feet per annum, at the rate of five oubio feet per eeoond* in addition to ^e righte hereinbefore dleou08ed» and, hae the further^ very important right to pump and store oven more water at any time that water is,flowing Into the ocean* Since the purpose of the proposed loan le to eonatruot a reservoir In which waters which othorwlee would,be wasted can be stored, thle permit, including the portion thereof relating to (sumplhg while wjater ta wasting into the oooan; le of great value' to the Coinipany and probably would Justify the oonetruotlon of the dam, oven^ if there were no advantages to be derived from ha\^fng atorago eapaelty'for use in eonnedtion with the water rights owned by the Company before thia permit was received* Aa' a iBopy of f^ persalt has boon supplied to you, no further e:{planatloh of ito'terms aeoma neceesary* In view of-' the foregoing* it lo respectfully submittedt (l}i That the right of Carlabad filatual Water Coispany to a mihimum of SOO miner'a Inohee oontinuous flow ie incontestable! t^t to take full advantage of this right* it is necessary that the Obn^any pro'vlde some storage, and that the expenditure oohtemplated. w6u}h be juatified if the Company had no other rights what.'eci>over.«! Berkeley Bank for Cooperative -13- August 7, 1940 (2)8 That the Company has a right to divert and use five second feet of' water during the irrigatibh season, which right is good .either under the. theory of appropriation, or by preacrlptlon. as. against .overlying owners and riparian owners "in'the Mission Basin, which is the only source from which objection to the Company's operation might conceivably come. .i5)i|'' T^^ a right to develop and divert the amount,,pf .water,,no.eessary to lirpigate 2000 acres of land," for which Its dlstrlbutloh . system Is now constimoted* /" / - (4) I That the Company has the right, by recent apprbpriatloh, to'divert; store and use 750.acre feet pl^s .;.the-.right to divert..and..stoi^e .additIprarwater whenever water Is „ . wasting lnto„ tfhe ocean. '^/•/•'"^'-^'XbYi Thaf'these right justify, and that the efficient • operation .of the, Cpmpahy's. system requires, the expense of v'the .construction.of, a. .surface storage reservoir. • ' • . V ^ ' Trusting that the foregoing will bo of value to you, I am Very truly yours. RCEseco