I dissent.

While the issues in this ease are limited to the rights of overlying land owners and appropriators of underground percolating waters, the majority opinion purports to cover a much wider range in its pronouncements in the field of water law. Any student in this branch of our law must be impressed with the hodge-podge of conflicting rules and principles enunciated in the various decisions of this court and the District Courts of Appeal, particularly during the past two or three decades, and the majority opinion in this case simply adds to the confused state of affairs. Having had a somewhat limited experience in the trial of cases involving principles of water law, I have had the urge for some time to prepare a symposium of the decisions of our courts in recent years, which, to my mind, leaves this branch of .our law in a state of hopeless confusion. However, I do not consider this case a proper vehicle in which to undertake this work and I shall await a more propitious occasion.

In view of the limited issues here involved, all discussion relating to water rights in surface streams and lakes has no relevancy to the problems here involved. At the beginning of the majority opinion, the issues here presented are correctly stated as follows: “The principal issues presented on this appeal are whether the trial court properly limited the amount of water that appellant may take from the ground in the Raymond Basin Area, and whether it erred in placing the burden of curtailing the overdraft proportionately on all parties.” Then follows a discussion of “Preliminary Contentions” relative to dismissal of the action and reference to the Division of Water Resources. I am disposed to agree that if the ease were properly referred to the division, appellant was not entitled to have the case dismissed. However, if this were a case of first impression, I would be disposed to • agree with the appellant’s contention that the scope and effect of the reference here made was a violation of the judicial *939 process. But it is apparent from the recent decisions of this court that virtual abdication of the judicial process of the courts in favor of the administrative process of the division has not only been sanctioned, but has been imposed by this court upon the trial courts in cases of this character. Of the wisdom of such imposition I have grave doubt. I can see no objection, however, to a trial court availing itself of the investigating facilities of the division and making use of the data thus obtained in the solution of problems of this character, but I am unqualifiedly opposed to the view expressed in some of the decisions of this court relative to the infallibility of the division, and the necessity that trial courts refer every case involving problems relating to water rights to the division and accept its determination of all questions of both fact and law. I am convinced from an examination of the record in this case that that is just what the trial court did in determining the rights of the parties to this action. It is obvious that principles of water law. were disregarded, that the division made a determination based upon the quantity of water available and the requirements of the respective parties, and divided the water accordingly, regardless of prior appropriations, prescriptive rights, or rights of overlying owners. They accomplish this unique result by evolving a new and novel theory of each user acquiring a right against the other by prescription or adverse use, thus destroying all priorities and placing each user upon an equal footing with the other, regardless of the time of origin or bases of his right. This is certainly a “new look” in the field of water law. We have indeed come a long way from the rugged individualism of the riparian right “rocking chair” doctrine as expounded in Lux v. Haggin, 69 Cal. 255 [ 4 P. 919 , 10 P. 674 ]; Alta Land etc. Co. v. Hancock, 85 Cal. 219 [ 24 P. 645 , 20 Am.St. Rep. 217] ; Southern Cal. Inv. Co. v. Wilshire, 144 Cal. 68 [ 77 P. 767 ]; Montecito Valley W. Co. v. Santa Barbara, 144 Cal. 578 [ 77 P. 1113 ]; Anaheim Union Water Co. v. Fuller, 150 Cal. 327 [ 88 P. 978 , 11 L.R.A.N.S. 1062 ]; Huffner v. Sawday, 153 Cal. 86 [ 94 P. 424 ] ; San Joaquin etc. Co. v. Fresno Flume Co., 158 Cal. 626 [ 112 P. 182 , 35 L.R.A.N.S. 832 ]; Miller & Lux Inc. v. J. G. James Co., 179 Cal. 689 [ 178 P. 716 ] ; Oliver v. Robnett, 190 Cal. 51 [ 210 P. 408 ] ; Pabst v. Finmand, 190 Cal. 124 [ 211 P. 11 ]; Herminghaus v. Southern California Edison Co., 200 Cal. 81 [ 252 P. 607 ]; Fall River V. Irr. Dist. v. Mt. Shasta P. Corp., 202 Cal. 56 [ 259 P. 444 , 56 A.L.R. 264 ]; Miller & Lux Inc. v. Enterprise *940 etc. Co., 169 Cal. 415 [ 147 P. 567 ] ; Morgan v. Walker, 217 Cal. 607 [ 20 P.2d 660 ] ; Moore v. California Oregon Power Co., 22 Cal.2d 725 [ 140 P.2d 798 ] ; Skelly v. Cowell, 37 Cal.App. 215 [ 173 P. 609 ] ; Stepp v. Williams, 52 Cal.App. 237 [ 198 P. 661 ] ; Mt. Shasta Power Corp. v. McArthur, 109 Cal.App. 171 [ 292 P. 549 ]; California Pastoral & A. Co. v. Enterprise C. & L. Co., 127 F. 741 , and other cases; and the doctrine of prior appropriation, as expounded in Osgood v. El Dorado Water etc. Co., 56 Cal. 571; Burrows v. Burrows, 82 Cal. 564 [ 23 P. 146 ] ; De Necochea v. Curtis, 80 Cal. 397 [ 20 P. 563 , 22 P. 198 ] ; Duckworth v. Watsonville W. etc. Co., 158 Cal. 206 [ 110 P. 927 ]; Haight v. Costanich, 184 Cal. 426 [ 194 P. 26 ] ; Joerger v. Pacific Gas Electric Co., 207 Cal. 8 [ 276 P. 1017 ] ; Jennison v. 98 U.S. 453 [ 25 L.Ed. 240 ] ; Telluride Power T. Co. v. Rio Grande etc. Ry. Co., 175 U.S. 639 [ 20 S.Ct. 245 , 44 L.Ed. 305 ] ; and also the doctrine of prescriptive rights, as expounded in Alta Land etc. Co. v. Hancock, 85 Cal. 219 [ 24 P. 645 , 20 Am.St.Rep. 217 ] ; Southern Cal. Inv. Co. v. Wilshire, 144 Cal. 68 [ 77 P. 767 ] ; Anaheim Union Water Co. v. Fuller, 150 Cal. 327 [ 88 P. 978 , 11 L.R.A.N.S. 1062 ] ; Oliver v. Robnett, 190 Cal. 51 [ 210 P. 408 ] ; Pabst v. Finmand, 190 Cal. 124 [ 211 P. 11 ]; Morgan v. Walker, 217 Cal. 607 [ 20 P.2d 660 ] ; Moore v. California Oregon Power Co., 22 Cal.2d 725 [ 140 P.2d 798 ] ; Skelly v. Cowell, 37 Cal.App. 215 [ 173 P. 609 ]; Stepp v. Williams, 52 Cal.App. 237 [198 P. 661]; Mt. Shasta Power Corp. v. McArthur, 109 Cal.App. 171 [ 292 P. 549 ], If it may be said that the doctrine of those eases was based upon a philosophy of “rugged individualism,” I would say that the doctrine laid down in the majority opinion in the case at bar is based upon the philosophy of bureaucratic communism. Under this latter doctrine, long established, and what was thought to be, a prior, vested right to divert and use a given quantity of water is not only placed upon a parity with later acquired rights, but an administrative agency of the state steps in and administers the distribution of such water at the expense of the users. This may not be the type of obnoxious stateism which exists in many other countries, but it is certainly a very definite step in that direction. As one who believes in the concept embraced within both the federal and state Constitutions that an owner of private property has the right to exercise ownership and control over it and make such use of it as he may see fit so long as he causes no injury to others thereby, I am opposed to state supervision and control of *941 privately owned water rights, as well as other privately owned property. I know of no reason, and none has been suggested, why parties engaged in water litigation may not prepare and present evidence in support of their rights with as much probative value as that obtained by the Division of Water Resources.

The record discloses that in 1911, appellant purchased 171 acres immediately north of Raymond Fault. Appellant retains only a few parcels (about 10%) of the original 171 acres. In every conveyance made, appellant reserved all water rights. One-fourth of appellant’s production has been used for beneficial uses on the 171 acres of overlying land in Raymond Basin Area and three-fourths has been exported for use outside of this area on nonoverlying lands. By the end of the 1918-19 season, appellant’s minimum annual extractions, extending over a period of five consecutive years, amounted to 370 acre feet of water. Before that, its production was 337 acre feet. Three-fourths of its maintained extraction, or 284.25 acre feet, represent prescriptive rights; that is, water diverted from the basin and used on nonoverlying lands. The remainder of the water produced was used on its overlying lands in the basin. During the 1923-24 season, appellant produced on its lands 403 acre feet and exported three-fourths of this quantity. Between the last mentioned season and the 1928-29 season, appellant produced 521 acre feet per annum, of which 118 acre feet was new production which had matured since 1919. Of this new production, 29.50 acre feet was used on overlying lands and 88.50 acre feet represent a new prescriptive right acquired during this period. Appellant claims, and the evidence appears to sustain its position, that by the 1933-34 season, it had acquired a prescriptive right to divert and use from its lands overlying Raymond Basin 390.75 acre feet, and 130.25 acre feet for overlying uses on said land, or a total of 521 acre feet per annum. Appellant’s production from said land since the filing of the complaint is as follows: 1938—613.12 acre feet; 1939—618.73 acre feet; 1940—626.06 acre feet; 1941—578.88 acre feet; 1942—701.30 acre feet; 1943—866.60 acre feet. By the decree in this action, appellant’s production from said land for all purposes was determined to be 521 acre feet per annum which quantity was classified as appellant’s unadjusted right. The decree, however, limited appellant’s total diversion to 359 acre feet per annum for all purposes. In arriving at the foregoing conclusion, the trial court determined as a *942 matter of law that all of the rights of the parties are of equal priority and of the same legal force and effect; that each of the parties had acquired a prescriptive right against the other for the quantity of water which the court determined that each of said parties was entitled to divert and use, and no distinction was made between the rights of overlying owners and rights acquired by appropriation or prescription.

I am disposed to agree with counsel for appellant that ‘ One would search the books a long, long time before any law could be found that overlying owners’ rights can be put into a hopper and come out appropriative or prescriptive rights, or that appropriative or prescriptive rights are co-equal with overlying owners’ rights.” I am sure, that no cases can be found, even in the confused and muddled state of our water law which give support to such an absurd pronouncement.

In California, one may acquire rights in underground water by appropriation or prescription. Such right, when established, is paramount to that of the overlying owner. (Burr v. Maclay Rancho Water Co., 154 Cal. 428 [ 98 P. 260 ]; Katz v. Walkinshaw, 141 Cal. 116 [ 70 P. 663 , 74 P. 766 , 99 Am.St. Rep. 35, 64 L.R.A. 236 ] ; San Bernardino v. Riverside, 186 Cal. 7 [ 198 P. 784 ] ; Peabody v. City of Vallejo, 2 Cal.2d 351 [ 40 P.2d 486 ].)

There are, in this case, two types of water rights involved— those of the overlying owners, and those of the nonoverlying owners. While I think the term ‘ ‘ appropriator ” is correctly used only with respect to those persons who acquired water rights prior to the time the lands of other overlying owners were granted by the United States government, in the interest of promoting an understanding of this dissent, in conjunction with the majority opinion, I shall use the term as meaning a nonoverlying owner—in other words, one who has acquired water rights for use other than on land overlying the underground water supply.

Inherent in the opinion as set forth in Katz v. Walkinshaw, 141 Cal. 116 [ 70 P. 663 , 74 P. 766 , 99 Am.St.Rep. 35 , 64 L.R.A. 236 ], is the doctrine of correlative rights. It appears that this doctrine seeks to assimiliate the law of streams—-the analogy of riparian rights—to that of underground waters when used on overlying lands; as to nonoverlying use, the analogy of rights by appropriation is in operation.

In 1928, a new section [art. XIY, § 3] was added to our Constitution. This section was designed to prevent waste of the waters of our state, and was added in the interests of the *943 public welfare. The section reads in part as follows: “The right to water or to use or flow of water in or from any natural stream or water course in this State is and shall be limited to such water as shall be reasonably required for the beneficial use to be served, and such right does not and shall not extend to the waste or unreasonable method of use or unreasonable method of diversion of water. Riparian rights in a stream or water course attach to, but to no more than so much of the flow thereof as may be required or used consistently with this section, for purposes for which such lands are, or may be made adaptable, in view of such reasonable and beneficial uses; provided, however, that nothing herein contained shall be construed as depriving any riparian owner of the reasonable use of water of the stream to which his land is riparian under reasonable methods of diversion and use, or of depriving any appropriator of water to which he is lawfully entitled. This section shall be self-executing, and the Legislature may also enact laws in the furtherance of the policy in this section contained.” [Emphasis added.]

Evidently the first time the above quoted constitutional provision was considered by this court was in the case of Gin S. Chow v. City of Santa Barbara, 217 Cal. 673 [ 22 P.2d 5 ], That case involved the Santa Barbara River, and decided that stream waters not being put to a beneficial use by a riparian owner could be appropriated, and the old law of vested riparian rights was supposedly overruled and obliterated by the 1928 constitutional amendment. In the light of certain language contained in said amendment, such a construction appears to me to be unwarranted. Those words are these: “Riparian rights in a stream or water course attach to, but to no more than so much of the flow thereof as may be required or used consistently with this section, for the purposes for which such lands are, or may be made adaptable, in view of such reasonable and beneficial uses; . . . provided, however, that nothing herein contained shall be construed as depriving any riparian owner of the reasonable use of water of the stream to which his land is riparian under reasonable methods of diversion and use, or of depriving any appropriator of water to which he is lawfully entitled.” (Italics added.)

There is nothing in the above quoted constitutional provision which should be construed as preventing an appropriator from acquiring a prescriptive right to the water he has used beneficially for the prescriptive period. If the appropriator is using wat.er which the riparian may need in the *944 future to irrigate his land, then the riparian should be required to ask for a declaratory judgment in order that such water may be available to him when he does need it. This would prevent waste, and would be in line with the language contained in the constitutional amendment. It would also have the added advantage of letting the appropriator know where he stands and what he may expect. Under the present rule, an appropriator may use water, incur obligations, etc., and then, later, when the riparian owner desires to use water, have his rights taken from him. Such a state of affairs would bring on far more chaos than the “old rocking chair” doctrine was capable of doing.

The majority purport to expound rules relative to surplus or excess water, but admittedly there is no water answering such a classification in this case. The majority opinion states: “Prescriptive rights are not acquired by the taking of surplus or excess water, since no injunction may issue against the taking and the appropriator may take the surplus without giving compensation. ...” What the majority mean by the phrase “surplus or excess water” is not clear. If it is meant that so long as there is water available for those who desire to use it, any additional water is “surplus or excess water,” then the above pronouncement is directly contrary to the following cases: Butte Canal & Ditch Co. v. Vaughn, 11 Cal. 143 [70 Am.Dec. 769]; Ortman v. Dixon, 13 Cal. 33 ; Kidd v. Laird, 15 Cal. 161 [76 Am.Dec. 472] ; Stein Canal Co. v. Kern I. I. C. Co., 53 Cal. 563 ; Lux v. Haggin, 69 Cal. 255 [ 4 P. 919 , 10 P. 674 ] ; Alta Land etc. Co. v. Hancock, 85 Cal. 219 [ 24 P. 645 , 20 Am.St.Rep. 217 ] ; Southern Cal. Inv. Co. v. Wilshire, 144 Cal. 68 [ 77 P. 767 ] ; Montecito Valley W. Co. v. Santa Barbara, 144 Cal. 578 [ 77 P. 1113 ] ; Anaheim Union Water Co. v. Fuller, 150 Cal. 327 [ 88 P. 978 , 11 L.R.A.N.S. 1062 ] ; Duckworth v. Watsonville etc. Co., 150 Cal. 520 [ 89 P. 338 ]; Wutchumna Water Co. v. Pogue, 151 Cal. 105 [ 90 P. 362 ] ; Huffner v. Sawday, 153 Cal. 86 [ 94 P. 424 ] ; Miller v. Bay Cities Water Co., 157 Cal. 256 [ 107 P. 115 , 27 L.R.A.N.S. 772 ] ; Walnut Irrigation Dist. v. Burke, 158 Cal. 165 [ 110 P. 517 ]; San Joaquin etc. Co. v. Fresno Flume Co., 158 Cal. 626 [ 112 P. 182 , 35 L.R.A.N.S. 832 ] ; Miller & Lux Inc. v. Enterprise etc. Co., 169 Cal. 415 [ 147 P. 567 ] ; Miller & Lux Inc. v. J. G. James Co., 179 Cal. 689 [ 178 P. 716 ]; San Bernardino v. City of Riverside, 186 Cal. 7 [ 198 P. 784 ] ; Antioch v. Williams Irr. Dist., 188 Cal. 451 [ 205 P. 688 ] ; Oliver v. Robnett, 190 Cal. 51 [ 210 P. 408 ] ; Pabst v. Finmand, 190 *945 Cal. 124 [ 211 P. 11 ] ; Herminghaus v. Southern California Edison Co., 200 Cal. 81 [ 252 P. 607 ] ; Fall River V. Irr. Dist. v. Mt. Shasta P. Corp., 202 Cal. 56 [ 259 P. 444 , 56 A.L.R. 264 ] ; Joerger v. Pacific Gas & Electric Co., 207 Cal. 8 [ 276 P. 1017 ] ; Morgan v. Walker, 217 Cal. 607 [ 20 P.2d 660 ] ; Miller & Lux Inc. v. Tulare Lake etc. Dist., 219 Cal. 41 [ 25 P.2d 451 ] ; Peabody v. City of Vallejo, 2 Cal.2d 351 [ 40 P.2d 486 ]; Tulare Irr. Dist. v. Lindsay-Strathmore Irr. Dist., 3 Cal.2d 489 [ 45 P.2d 972, 1014 ] ; Meridian, Ltd. v. San Francisco, 13 Cal.2d 424 [ 90 P.2d 537 , 91 P.2d 105 ] ; Moore v. California Oregon Power Co., 22 Cal.2d 725 [ 140 P.2d 798 ]; Skelly v. Cowell, 37 Cal.App. 215 [ 173 P. 609 ] ; Stepp v. Williams, 52 Cal.App. 237 [ 198 P. 661 ]; Mt. Shasta Power Corp. v. McArthur, 109 Cal.App. 171 [ 292 P. 549 ] ; Califorfornia Pastoral & A. Co. v. Enterprise C. & L. Co., 127 F. 741 . This court has never stated forthrightly that the above cases are overruled. There are expressions in some decisions to the effect that the doctrine of those cases is out of harmony with the concept embraced in the 1928 constitutional amendment, but the confusion resulting from such interpretation of this amendment was probably not envisioned by the members of this court who participated in the decisions in which this amendment was interpreted. Under this interpretation, one who diverts water for a nonriparian use can never acquire a right to the water diverted and beneficially used by him as against a riparian owner who does not see fit to use his share of the water of a stream to which his land is riparian. This means that many of the most valuable water rights in this state could not now be acquired. For example, A diverts water from a stream for a nonriparian use for the prescriptive period. During all this period there is water flowing past the lands of the riparian owners downstream who are not cultivating their land, and, therefore, have no present need for water. But after A has fully developed his nonriparian land by the use of water from the stream for the prescriptive period, the downstream riparian owners decide to develop their lands and need the water. Under the doctrine of the Gin Chow and Peabody cases, the downstream riparian owners are entitled to all of the water if they need it to the exclusion and detriment of the nonriparian owner who has made a beneficial use of it for the prescriptive period. This was not the law before these decisions.

I am convinced that the doctrine of Lux v. Haggin supra, did not establish a wise policy for the development of the *946 water resources of California, and had I been a member of this court when that case was decided, I would have joined with the dissenters. However, there were many salutary principles of water law which were engrafted onto that doctrine, under which valuable rights were established, and those principles should not be swept away by a stroke of the pen because the majority of this court believe that the 1928 constitutional amendment has modified the riparian right doctrine by limiting the right to the quantity of water reasonably necessary for the beneficial use of the riparian owner. This modification should not operate to prevent a nonriparian owner from acquiring the same character of right he could have acquired under the superseded doctrine. I take the position, therefore, that a prescriptive right may be acquired to so-called “surplus or excess water” and that a holding to the contrary fails to recognize fundamental and well settled principles of water law which were not abrogated by the 1928 constitutional amendment.

In this case we have overlying owners who are analogous to the riparian owners, and we have many different appropriators. These different persons have all been using the water for their various purposes for a great many years—far more years than is legally necessary to acquire a prescriptive right against anyone. The majority say they have been using adversely to each other, and have acquired prescriptive rights against each other. This is a statement with which I am not in accord. In order that one may gain a prescriptive right there must be an adverse user for the prescribed period of five years under such circumstances that the person against whom the use is adverse has knowledge, either actual or constructive. The majority charge the various appropriators with such knowledge because the water level in the wells was lowered. This is absurd. The level in these wells was, due to the very nature of the source of supply, subject to change. The duration and severity of the winter season, the length and intensity of the rainy season, the humidity or lack of humidity with its attendant lack of evaporation or evaporation would all have an effect on the supply of water available in the wells. The mere user of the water for the prescriptive period is not sufficient of itself to confer prescriptive title; the use must be adverse. Otherwise it can never ripen into a prescriptive title, no matter how long continued. And before a use can be adverse in the sense of this rule, it must be an inyasjon of the rights of the party against whom it is *947 set up, of such character as to afford him grounds of action; that is, it is the fact that the claimant has been exposed to an action which the opposite party has neglected to bring, that is seized on as the ground for presuming a grant in favor of long continued possession and enjoyment. The theory being that this adverse state of things would not have been submitted to if there had not been a grant. A general principle which has been applied is that a use of the water of a stream or lake by a common proprietor, although excessive, is not to be regarded as adverse, so as to ripen into a prescriptive right, however long continued, so long as it is the common use, and so long as other common owners are not injured thereby or prevented or excluded from making such use as of common right belong to them. (56 Am.Jur., Waters, pp. 766-768.)

In this case we have both overlying owners and appropriated using the water, and apparently all the water any of them had had need for. Yet we are asked to believe that each and every one of them has, in some way, gained a prescriptive right against each and every one of the others because the water level in the wells has been lowered. It appears from the report of the Water Commission that the underground supply has been withdrawn to a greater extent than is consistent with water conservation measures. It appears to me that the only question involved is that of priority in time of appropriation.

With respect to appropriators, the Civil Code provides that one prior in time is prior in right. (§1414.) This rule seems to be agreed upon by the text writers and a great number of cases. To state the general rule affirmatively, an appropriator of water is entitled, as against all subsequent claimants, to the exclusive use of the water to the extent of his appropriation, without diminution or material alteration in quantity or quality. The residue after a prior appropriation may be appropriated by others out of the water of the same stream, if there is no interference with the prior appropriation. When a senior appropriator does not need all or some portion of the water, a junior appropriator may, at such times, use such unused waters, although the rights of the senior appropriators, when fully exercised, consume the entire flow.

It is the very essence of the doctrine of prior appropriation that as between persons claiming water by appropriation, he has the best right who is first in time; in other words, the prior appropriator is entitled to it to the extent appropri *948 ated to the exclusion of any subsequent appropriator for the same or any other use. But where both rights can be enjoyed without interference with or material impairment of each other, the enjoyment of both is allowed. (56 Am.Jur., Waters, pp. 758-9; Wiel, Water Rights in the Western States, p. 307 et seq.; Wishon v. Globe Light & Power Co., 158 Cal. 137 [ 110 P. 290 ] ; Tulare Irr. Dist. v. Lindsay-Strathmore Irr. Dist., 3 Cal.2d 489 [ 45 P.2d 972, 1014 ] ; United States v. 4,105 Acres of Land, 68 F.Supp. 279 ; 121 A.L.R. 1044 ; Farnham, Waters and Water Rights, p. 2089; City of Lodi v. East Bay Mun. Utility Dist., 7 Cal.2d 316 [ 60 P.2d 439 ] ; Larsen v. Apollonio, 5 Cal.2d 440 [ 55 P.2d 196 ]; Meridian, Ltd. v. San Francisco, 13 Cal.2d 424 [ 90 P.2d 537 , 91 P.2d 105 ].)

As a solution to the problem, the majority opinion affirms the trial court and in so doing holds that the appropriators, including appellant, shall have allocated among them the water shortage. This is to be done by a proportionate reduction of the amount each appropriator has heretofore been pumping. The majority cite no authority for this proposition. It is submitted that this is not, and should not be the law. In times of natural or other deficiency, also, unless otherwise provided by statute, the prior appropriator may still claim his full amount; the loss must fall on the later appropriators. (Wiel, Water Rights, supra, p. 311, and cases cited therein.) This follows naturally from the rule that prior in time is prior in right, and this rule is found in section 1414 of the Civil Code.

In City of Lodi v. East Bay Mun. Utility Dist., 7 Cal.2d 316, 341 [ 60 P.2d 439 ], this court said: “The city is a prior appropriator and as such cannot be compelled to incur any material expense in order to accommodate the subsequent appropriator. (Tulare Irr. Dist. v. Lindsay-Strathmore Irr. Dist., supra, p. 574.) Although the prior appropriator may be required to make minor changes in its method of appropriation in order to render available water for subsequent appropriators, it cannot be compelled to make major changes or to incur substantial expense. (Peabody v. City of Vallejo, supra, p. 376 ).” [Emphasis added.] It was also said at page 339, “Under such circumstances the 1928 constitutional^ amendment, as applied by this court in the eases cited, compels the trial court, before issuing a decree entailing such waste of water, to ascertain whether there exists a physical solution of the problem presented that will avoid the waste, and that will at the same time not unreasonably and adversely *949 affect the prior appropriator’s vested property right.” [Emphasis added.]

The majority of this court, in holding that the prior appropriator’s rights should be diminished proportionately with those of subsequent appropriators, is, in so doing, interfering with a vested property right, and comes squarely within the limitation on the police power of the state as set forth in the Fourteenth Amendment to the Constitution of the United States. The subsequent appropriators are charged with knowledge of the rights in the water acquired at a time prior to the time their rights were acquired, and it is they, rather than those who were first in time, whose rights should be subject to the exercise of the police power in the interests of the public in water conservation.

It is difficult to see how prescriptive rights can be said to have been gained by subsequent appropriators against prior appropriators without a determination of the extent of such rights. It seems that the scattered operations conducted by respondents should not have been lumped together to constitute one prescriptive right, but that there should have been a determination of each prescriptive right, if any, that respondent had acquired as against the appellant. Appellant sought, by its demurrer to the complaint, to have the court below require respondent to plead the exact quantities and locations of water rights which it claimed. Its demurrer was overruled. It sought to ascertain the same thing by a demand for a bill of particulars. The demand was denied.

The right to water acquired by prescription extends only to the quantity actually taken at the time the right matured and does not include the taking of an additional quantity in the future. (Burris v. People’s Ditch Co., 104 Cal. 248, 252 [ 37 P. 922 ] ; North Fork Water Co. v. Edwards, 121 Cal. 662, 665 [ 54 P. 69 ] ; Southern Cal. Inv. Co. v. Wilshire, 144 Cal. 68, 72 [ 77 P. 767 ]; Wutchumna Water Co. v. Ragle, 148 Cal. 759, 765 [ 84 P. 162 ] ; Pabst v. Finmand, 190 Cal. 124, 132 [ 211 P. 11 ] ; San Bernardino v. Riverside, 186 Cal. 7, 25 [ 198 P. 784 ] ; Tulare Irr. Dist. v. Lindsay-Strathmore Irr. Dist., 3 Cal.2d 489 [ 45 P.2d 972, 1014 ] ; Elliott v. Bertsch, 59 Cal.App.2d 543, 547 [ 139 P.2d 332 ].)

The majority opinion states that the trial court concluded that each party owned “by prescription” its “present unadjusted right, ’ ’ that is, the amount which it had been actually pumping. To reach this result is to say that one may acquire a prescriptive right merely by using the water. As I have *950 pointed out previously, the use must be adverse, and the persons against whom the right is gained must have knowledge, either actual or constructive. (City of San Diego v. Cuyamaca Water Co., 209 Cal. 105, 134 [ 287 P. 475 ].) Adverse use of water involves the invasion of the usufructuary right of another in a water supply common to both. Appropriative or prescriptive rights may be invaded only by interference by another resulting in actual diminution of the amount of water covered by such right. (Faulkner v. Rondini, 104 Cal. 140, 147 [ 37 P. 883 ] ; E. Clemens Horst Co. v. Tarr Min. Co., 174 Cal. 430, 440 [ 163 P. 492 ].)

Conceding that a restriction of the water supply was necessary, iand assuming for the purpose of argument only, that the rules as to appropriation should not be applied, the restriction should have been based upon the elevations at appellant’s wells ráther than limiting it to a specific number of acre feet per year regardless of the status of the water tables.

Professor C. F. Tolman, Professor of Economic Geology at Stanford University, the leading authority on ground water, in his work “Ground Water” says: “It must not be concluded that a considerable lowering of the water table is serious or is detrimental to the water supply. Just as a surface reservoir must be drawn down in order to catch and preserve flood flow, so the subsurface-reservoir level (water table) must be lowered sufficiently to prevent loss by effluent seepage. A decrease in the area of effluent seepage increases the area of influent seepage (absorptive area) and in turn increases the rate of ground-water recharge. A depleted reservoir at the end of the dry season or cycle of dry years is necessary if the water is to be salvaged in the following wet season or cycle. In legal controversies an unreasonable view has been taken in the past in regard to the necessity of maintaining the water table at the ‘natural level.’ ” (P. 469.) And at page 487: “Many of the underground reservoirs are so large that they have capacity to carry over great quantities of water not only from a wet season to the following dry season but also from a period of wet years to a period of dry years. However, to utilize these reservoirs fully it is necessary to pump enough water out of them to make room for all the inflow during the wettest seasons and during the periods of successive years of heavy precipitation. This was well illustrated by some of the underground reservoirs of Southern California, whose water tables, under heavy pumping for irrigation, went down a little lower each summer than they *951 had risen in the previous winter, until it appeared that excessive depletion must inevitably compel reduction in irrigagation. Then came a period of wet winters when recharge occurred to a remarkable extent and the water levels rose beyond all expectations. ’ ’

The language used by this court in City of Lodi v. East Bay Mun. Utility Dist., 7 Cal.2d 316, 344 [ 60 P.2d 439 ] is applicable to the contention made by appellants: “In our opinion the cause should be sent back to the trial court to permit it to take evidence as to the levels, to which plaintiff’s wells may be lowered without substantial danger to the city’s water supply. In fixing this danger level an adequate safety factor in favor of the city should be allowed. There is no necessity for a retrial of the case on the issues of fact as to which the court has made extensive findings, as above noted. The facts as thus found may be considered in connection with the further evidence taken to fix the danger level of Lodi’s wells. The decree should then be reframed to provide that the duty rests upon the District to maintain the levels of the plaintiff’s wells above the danger level so fixed by the trial court; that in the event the levels of the wells reach the danger points, the duty be cast upon the District to supply water to the city, or to raise the levels of the wells above the danger mark; and if the District does not comply with this order within a reasonable time, then the injunction decree already framed, or upon a proper showing as modified by the court under its continuing jurisdiction, shall go into effect. The trial court should by its judgment preserve its continuing jurisdiction, to change or modify its orders and decree as occasion may require.

“Such a decree would adequately meet the requirements of the Constitution by preventing an unreasonable waste of the waters of the stream and at the same time would adequately protect the prior rights of the City of Lodi. It would afford to the city a continuance of its water supply, the same, for all practical purposes, as if natural conditions were required to persist. If its wells go down to the danger level, it would immediately obtain water from the District at the latter’s expense, or the injunction decree by means of which the underground levels will be artificially maintained would go into effect." It would accord to the District the right and place upon it the duty of working out a physical solution unhampered by a rigid decree which, with changing conditions and new methods of conservation constantly being developed, may not operate inequitably but might actually en *952 courage waste. It would place upon the District the duty at its expense to maintain the underground water levels, and if the District fails to do so, or fails to supply water directly to the City of Lodi, the decree provides for compulsory releases so as to maintain natural conditions. Such a decree would say to the District: You should maintain the water levels so as not to cause substantial damage to the city, and you may do this in any way best suited to your needs, or if you do not maintain those levels you should supplement the city’s supply to the extent of the deficiency caused by your operations by the furnishing of water by artificial means and at your expense. If you do not do these things you are subject to an injunction compelling releases to maintain natural conditions. Such a decree would undoubtedly prevent a multiplicity of suits. It would fix the rights of the prior appropriator and would determine the effect of the subsequent appropriator’s diversions. Since there is no immediate danger to the prior appropriator, it would fix the danger levels of the prior appropriator’s wells and when that level is reached, upon a showing to that effect, it would require the subsequent appropriator either by direct delivery of water or by compulsory releases to supply the prior appropriator’s needs. .

“Such a decree would permit the full use of all available waters, guarantee to the prior appropriator full protection, and would do this without unduly restraining the operations of the subsequent appropriator.”

To accomplish the restriction by requiring appellant to maintain a certain level in its wells is a far more equitable solution than that proposed by the majority. In the first instance, during wet years he may, without court action, pump as much water as he has need for; in dry years, he will know exactly where he stands and that he may not go beyond the danger line. To place the restriction on the water-level basis will save time, money and expense.

The respondent seeks to answer appellant’s contention as to the water-level basis of restriction with the argument that the decree was responsive to the pleadings “in that each claimed a certain amount of water and not that certain water levels should be maintained. As the Western Unit herein considered is an underground reservoir, the abstraction of an acre foot of water by one party is to that extent detrimental to the rights of every other party in the Unit.” Of course the parties claimed a certain amount of water; appellant claimed, *953 and introduced evidence to support the claim, that, in accordance with the law, a prior appropriator had a prior right, but the decree is certainly not consistent with that claim.

In summary, the majority opinion seems to hold that “surplus or excess water,” without defining it, may be appropriated, but no prescriptive right may be acquired thereto; that a subsequent appropriator may acquire a prescriptive right against a prior appropriator of percolating water even though the prior appropriator has continued to divert and use his full appropriative right and has never been deprived of any portion of the quantity of water so appropriated by him; that an overlying owner may acquire a prescriptive right against another overlying owner who is using water from the same underground basin even though each has diverted and used the full quantity of water he could put to a beneficial use; that an overlying owner may acquire a right by prescription against a prior or subsequent appropriator and that the latter may acquire such a right against the former even though each has diverted and used the full quantity of water that he could reasonably put to beneficial use. Obviously, the effect of this holding is to place upon an equal footing users who have diverted and used a given quantity of water from an underground basin for a continuous period of five years regardless of the origin or period of time during which the diversions were made. This holding does not find support in a single authority or decision of any court in any common law jurisdiction since court decisions have been published. On the other hand, it is contrary to every decision which has ever been rendered by the courts of this state and every other jurisdiction which has considered the subject. Viewed in relation to the practical aspect of the case and the physical situation which must exist in every case of this character, the effect of this holding is to overrule every decision which has been rendered by this court in cases where similar factual situations existed. We must assume that, in a state of nature, the underground basin here involved was full of water in normal years of precipitation and runoff; that is, the water would be up to the top of the rim which confined it to the basin area. If all users from such a basin were overlying land owners, then under the settled rules of law as announced by this court, the rights of such users would be equal and correlative, and no user would have a prior or superior right to the other. (San Bernardino v. Riverside, 186 Cal. 7 [ 198 P. 784 ]; Burr v. Maclay, 154 Cal. 428, 439 [ 98 P. 260 ] ; Katz *954 v. Walkinshaw, 141 Cal. 116 [ 70 P. 663 , 74 P. 766 , 99 Am.St. Rep. 35, 64 L.R.A. 236 ].) Then an appropriator comes into the picture. I mean by “appropriator,” one who diverts and uses water on nonoverlying land. Obviously, the same rule does not apply to him as to an overlying owner because his use is clearly adverse to the latter, unless there is surplus or excess water in the basin, and this presents a most complex problem—one which it may take years to solve. Its solution depends upon many factors, such as topography, the area and depth of the basin, the quantity and source of supply, the outflow, if any, the character of use by the overlying owners, the type of crops raised, and various other factors which may not be immediately apparent. This court has held, and in my opinion correctly, that any appropriation made subsequent to the vesting of title in an overlying owner is adverse to such overlying owner and gives rise to an immediate cause of action on his behalf (San Bernardino v. Riverside, 186 Cal. 7 [ 198 P. 784 ] ; Burr v. Maclay Rancho Water Co., 154 Cal. 428, 439 [ 98 P. 260 ] ; Katz v. Walkinshaw, 141 Cal. 116 [ 70 P. 663 , 74 P. 766 , 99 Am.St.Rep. 35 , 64 L.R.A. 236 ] ; Miller v. Bay Cities Water Co., 157 Cal. 256 [ 107 P. 115 , 27 L.R.A.N.S. 772 ]; McClintock v. Hudson, 141 Cal. 275, 281 [ 74 P. 849 ] ; Cohen v. LaCanada etc. Co., 142 Cal. 437 [ 76 P. 47 ]; Montecito etc. Co. v. Santa Barbara, 144 Cal. 578, 584 [ 77 P. 1113 ]; Verdugo Canon Water Co. v. Verdugo, 152 Cal. 655 [ 93 P. 1021 ]; Hudson v. Dailey, 156 Cal. 617 [ 105 P. 748 ]), because such use will necessarily ripen into a right by prescription against such overlying owner in five years. This is not true as between appropriators, as the rule always has been, as declared in section 1414 of the Civil Code, that “As between appropriators, the one first in time is first in right.” (Wishon v. Globe Light & Power Co., 158 Cal. 137 [ 110 P. 290 ] ; San Bernardino v. Riverside, 186 Cal. 7 [ 198 P. 784 ] ; Meridian, Ltd. v. San Francisco, 13 Cal.2d 424 [ 90 P.2d 537 , 91 P.2d 105 ] ; Sherwood v. Wood, 38 Cal.App. 745 [ 177 P. 491 ]; Jones v. Pleasant Valley Canal Co., 44 Cal.App.2d 798 [ 113 P.2d 289 ].) Not only is the above cited section of the Civil Code completely abrogated and nullified, but all of the above cited cases are, in effect, overruled by the majority decision in this case.

The effect of the majority decision is to say to the overlying owners of land situated on an underground basin filled with percolating waters, that: “Ton have no cause of action against an appropriator of water for a non-overlying use unless you *955 can show that he is taking other than excess or surplus water, but if you do not commence an action to restrain such diversion, such an appropriator may obtain a prescriptive right against you if it should later be determined that he is taking water to which you and other overlying land owners may be entitled.” Anyone who has the slightest knowledge of situations of this character should realize that this would place an impossible burden upon the overlying land owner and greatly jeopardize his rights. His difficulty would be multiplied if there were a number of overlying owners taking water from the same basin. Obviously, the overlying land owner should have an immediate cause of action against the appropriator, and the burden should be on the latter to show that he is taking only surplus or excess water or cease his diversion. So far as subsequent appropriators are concerned, the prior appropriator should have the right to rely upon section 1414 of the Civil Code and the above cited authorities which should vouchsafe to him a prior and superior right based upon his prior appropriation.

Since the decision of the trial court, which is affirmed by the majority decision of this court, is completely out of harmony with every statute, principle and rule of law which has heretofore been enacted and promulgated, I would reverse the judgment and remand the cause for a new trial in accordance with what should be the settled law of this state.

Appellant’s petition for a rehearing was denied June 27, 1949. Carter, J., and Schauer, J., voted for a rehearing.