California Landmark Cases on the Water Code
Before the adoption of Fish and Game Code section 1602, the usage of divert in the context of California water law was entirely consistent with the Department's interpretation, and undermines the Farm Bureau's.
Leading California water treatises emphasize:
"'It is immaterial ... whether the water was taken from the river by means of a canal, ditch, flume, or pipe, or by any other method.' It is the fact of diversion, and not the mode, that is material." (Hutchins, supra, Exercise of Appropriative Right, p. 162, fn. omitted; see 1 Rogers & Nichols, Water for Cal. (1967) Riparian Rights, 172, p. 233 "riparian owner can divert water ... in any way he desires as long as he does not take more than his reasonable share"; see id., Appropriative Water Rights, 204-206, pp. 294-298 same rule for appropriators.)
A statutory definition flowing from a source predating section 1602, Water Code section 1706 (see Stats. 1943, ch. 368, 1706, p. 1629), provides:
"The person entitled to the use of water by virtue of an appropriation ... may change the point of diversion, place of use, or purpose of use if others are not injured by such change ... ." (Italics added.) As the trial court recognized, some cases interpreting this provision involve diverting water for ranching or other agricultural purposes. (See, e.g., Barnes v. Hussa (2006) 136 Cal.App.4th 1358, 1364-1365 39 Cal. Rptr. 3d 659; Pleasant Valley, supra, 61 Cal.App.4th at pp. 746, 779.) Case law can help define terms, as we have noted in another case involving water law. (Osborn, supra, 116 Cal.App.4th at p. 773.)
What is more significant about Water Code section 1706 is that equivalent language appeared in Civil Code former section 1412, enacted in 1872, and that statute, in turn, codified then extant law. (See Code commrs. note foll. 1 Ann. Civ. Code 1410 (1st ed. 1872, Haymond & Burch, commrs.-annotators) p. 402 citing, e.g., Kidd v. Laird (1860) 15 Cal. 161; see Hutchins, supra, at pp. 175-177; Barnes v. Hussa, supra, 136 Cal.App.4th at p. 1368, fn. 7; see also 2 Kinney on Irrigation and Water Rights (2d ed. 1912) 825, pp. 1448-1449 "any lawful means" of diversion permitted; 1 Weil, Water Rights in the Western States (3d ed. 1911) 501, p. 538 appropriators; id., 754, pp. 827-829 riparians.)
Consistent with such usage, California courts used the term "divert" to mean the mere taking of water from a channel. (Miller & Lux v. Enterprise C. etc. Co. (1915) 169 Cal. 415, 433 147 P. 567 opening headgate "would inevitably divert into the canal water that would otherwise pass into the slough"; see Tulare Irrigation Dist. v. Lindsay-Strathmore Irrigation Dist. (1935) 3 Cal.2d 489, 519 45 P.2d 972 pumping underground water described as a diversion; Hutchins, supra, p. 249 "Diversion of the water by raising it over the banks of the stream 'by pump, or other similar appliances' has been specifically upheld"; see also People v. Glenn-Colusa Irrigation Dist. (1932) 127 Cal.App. 30, 32 15 P.2d 549 "diversion ... by means of a battery of pumps located near the head of the canal".)
As the California Supreme Court has held, discussing riparian rights, "Whatever be the just proportion of water to which any riparian proprietor is entitled, that proportion cannot be diminished by the fact that in order to utilize it he must raise it from the bed of the stream by pumps, or other similar appliances. Every diversion of water from a stream is artificial--a disturbance of the natural order of things. A dam or a ditch is as much an artificial mechanism as a pump, it may indeed be much more so; and the one alters the natural conditions in the same sense that the other does. The right to take the water at all is a right to change the ordinary course of nature; and the methods employed, so long as their use does not infringe the like and equal rights of others, are immaterial." (Charnock v. Higuerra (1896) 111 Cal. 473, 480-481 44 P. 171, italics added.) This broad meaning of diversion has never been changed in California water law. (See Simons v. Inyo Cerro Gordo Co. (1920) 48 Cal.App. 524, 537 192 P. 144; 62 Cal.Jur.3d (2013) Water, 300, p. 374; 62 Cal.Jur.3d, supra, 154, p. 209 riparians; 62 Cal.Jur.3d, supra, 215, p. 274 prescriptive rights.)
This reading of "divert" is consistent with its usage in a case involving the public trust doctrine. As stated by our Supreme Court: "'If the public trust doctrine applies to constrain fills which destroy navigation and other public trust uses in navigable waters, it should equally apply to constrain the extraction of water that destroys navigation and other public interests. Both actions result in the same damage to the public interest.'" (Audubon, supra, 33 Cal.3d at pp. 436-437, third italics added, quoting Johnson, Public Trust Protection for Stream Flows and Lake Levels (1980) 14 U.C. Davis L.Rev. 233, 257-258, and citing Dunning, The Significance of California's Public Trust Easement for California Water Rights Law (1980) 14 U.C. Davis L.Rev. 357, 359-360 "It is clear that diversions sometimes may interfere with navigable waters just as seriously as physical obstacles do and that in such cases the public trust easement may logically be invoked to protect the public uses.".) Accordingly, the court held "the public trust doctrine ... protects navigable waters like Mono Lake from harm caused by diversion of nonnavigable tributaries." (Audubon, supra, 33 Cal.3d at p. 437.)
The mere diversion of water from the tributaries triggered the public trust doctrine, because such diversion could damage Mono Lake. Thus, under the public trust doctrine, as under riparian and appropriative rights rules, mere diversion of water--i.e., without changing or obstructing a stream or river--may itself be deleterious.
Thus, the terms "divert" or "diversion" as used in California water law have always applied to the taking of water from a stream or river, and not the mere blocking or altering the course of the stream or river itself. This long-standing usage was presumably known to the Legislature when it considered the 1959 Senate Report, which addressed a bill containing different language than that ultimately adopted by the 1961 Legislature and by subsequent statutory revisions.
"When the Legislature enacts language that has received definitive judicial construction, we presume that the Legislature was aware of the relevant judicial decisions and intended to adopt that construction." (Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 675 254 Cal. Rptr. 211, 765 P.2d 373; see Estate of McDill (1975) 14 Cal.3d 831, 839 122 Cal. Rptr. 754, 537 P.2d 874.)