Rowland

I concur in the majority opinion to the extent that it reverses the trial court’s judgment upholding a decision of the state Water Resources Control Board (Board) which entirely extinguished appellant’s prospective riparian rights. I respectfully dissent, however, from that portion of the opinion which upholds the Board’s authority to limit or “quantify” those prospective rights or to declare them subordinate to existing uses. It is my view that longstanding provisions of the state Constitution (art. X, § 2, formerly art. XIV, § 3) forbid the limitation, quantification or subordination of a riparian owner’s prospective rights until he seeks to exercise those rights. While the applicable principles of law are fully and fairly stated in the majority opinion, unfortunately they are not applied to the facts of the present case.

As we explained many years ago, prior to November 1928, a riparian owner such as appellant was entitled to all of the waters of an adjoining *361 stream “regardless of any waste or surplus that might result from the exercise of such a right and regardless of any rule of reasonable use.” (Peabody v. City of Vallejo (1935) 2 Cal.2d 351, 363 [ 40 P.2d 486 ]; see…

I concur in the majority opinion insofar as it holds that the judgment of the trial court, upholding the Board’s order of determination, must be reversed. I agree that although the subject provisions of the Water Code should not be interpreted to permit the Board to altogether extinguish the presently unused portion of a riparian right, they may be interpreted in a manner consistent with the relevant constitutional provision (Cal. Const., art. X, § 2; formerly art. XIV, § 3) to permit the Board to undertake a present quantification of the right in order to bring about certainty and thereby promote the efficient and beneficial use of the water resources of this state. I do not agree, however, that in the course of such a determination the Board has the power to fix such a right at the level of its present user and “determine that the future riparian right shall have a lower priority than any uses of water [the Board] authorizes before the riparian in fact attempts to exercise his right.” {Ante, at p. 359.) In my view the exercise of such a power would be plainly inconsistent with the provisions of article X, section 2, of our state Constitution; the considerations which have led…

The significant problem in this case is the extent to which the State Water Resources Control Board (Board) has the power to define and otherwise limit prospective riparian rights when, pursuant to the statutory adjudication procedure set forth in Water Code section 2500 et seq., it determines all claimed rights to the use of water in a stream system. We conclude that the Legislature, in order to foster more reasonable and beneficial uses of state waters, has granted the Board broad authority to ascertain the nature of future riparian rights in this adjudication procedure. In delimiting the scope of this authority, however, we are guided by prudential considerations to apply the presumption that the Legislature does not intend a statute to raise substantial constitutional questions that may result in total or partial invalidation of the enactment, unless a contrary intention is clearly expressed. This case presents such a constitutional issue with respect to the Board’s determination to extinguish a riparian landowner’s future right to the use of water.

In Tulare Dist. v. Lindsay-Strathmore Dist. (1935) 3 Cal.2d 489 [ 45 P.2d 972 ], we held that section 11 of the Water…