Alameda

Two actions were brought to recover taxes claimed to have been illegally collected. The first included the assessment for the fiscal year 1911-1912 and the other for 1912-13. The amount of the two was $88,237, and the same legal question is involved in each action. In fact, they were tried together but the record is presented in two different transcripts.

The trial was before Hons. William H. Waste, Everett J. Brown, and William S. Wells, judges of the superior court of Alameda County, sitting in Bank, and they decided that the purported assessments, as follows: “In Washington township, said county: Riparian rights. The right to take, divert and use water from Alameda Creek and its tributaries”—$21,677.00 and “In Pleasanton township, said county: Riparian rights. The right to take, divert and use water from Alameda Creek, Calaveras Creek, Arroyo de Laguna, Arroyo del Valle, Arroyo Honda, San Antonio Creek and contributory branches”—$20,160.00, were and are invalid and void. They based their conclusion, apparently, upon the following grounds: “1 That there is no sufficient or adequate description in the said assessment book of the property assessed, or intended to be assessed, as…

I concur in the judgment on the

ground last stated in the opinion of Justice Burnett, viz.: That the riparian rights attempted to be assessed are not so described in the assessment as to conduce to a ready or definite identification of the particular water-rights thus sought to be burdened. As pointed out by Justice Burnett, the failure thus to describe said riparian rights is plainly repugnant to the requirements of section 3650 of the Political Code.

The findings and conclusions of law, however, appear to be susceptible of inferences which might be so construed as to establish the principle that riparian rights are not capable of being assessed separately from the lands to which they are appurtenant, and upon this point I am not now prepared to express an opinion satisfactory to myself. But it may not be amiss to suggest that, if such rights may be granted without granting the lands to which they are appurtenant, it would seem that necessarily they may be assessed as property separately from such lands, unless it may justly be held that, although so granted or conveyed to another, they are still to be included in the assessment of such lands, and thus assessed to the grantor…