Water Code section 1052, permitting the State Water Resources Control Board to institute injunction proceedings, must be read in light of California Constitution, article X, section 2 (formerly art. XIV, § 3), requiring full beneficial water use and prevention of water waste. When, as in the instant case, it is undisputed defendant is using diverted water in a reasonable manner and for beneficial purposes, the Constitution commands the state may not obtain an injunction without establishing that the water is necessary for other reasonable and beneficial uses and will not be wasted.
The stipulated facts fall below the state’s burden. I dissent from the majority’s holding that the state is entitled to an injunction. (Ante, p. 310.) Moreover, even if an injunction were permitted, it should recognize defendant’s 10 acre foot statutory water right.
While I concur in the majority determination that the stipulated facts do not evidence a property right in water by prescription (ante, p. 312), the state in seeking the injunction must prevail on its own case—not on the weakness of defendant’s case. Absence of the prescriptive right does not warrant an injunction. Finally, I dissent from the majority’s most startling determination: property rights in water may never be acquired by prescription. (Ante, pp. 306-310.) In making the *314latter determination the majority fail to even mention numerous cases upholding property rights in water acquired by prescription.
I
Prior to 1913 this court rigidly adhered to the common law doctrine that “reasonable use” did not apply between a riparian owner and an appropriator. (E.g., Miller & Lux v. Madera Canal etc. Co. (1909) 155 Cal. 59 [99 P. 502]; Miller v. Bay Cities Water Co. (1910) 157 Cal. 256 [107 P. 115].) In 1913 the Legislature attempted to alter the common law doctrine by adopting the Water Commission Act. (Stats. 1913, p. 1012.) This act attempted to limit riparian water rights to beneficial and reasonable uses and to define, on an acre basis, what constituted beneficial use. Further, the act vested the water commission with authority to determine what waters remained unappropriated. In Tulare Water Co. v. State Water Com. (1921) 187 Cal. 533 [202 P. 874], this court invalidated the provision vesting authority in the water commission as an unlawful delegation of judicial power.
Then, in Herminghaus v. South. California Edison Co. (1926) 200 Cal. 81, 117 [252 P. 607], this court held the Legislature lacked constitutional power to assume “the right to determine” useful and beneficial purposes. The court reiterated: “The doctrine that a riparian owner is limited to a reasonable use of the water applies only as between different riparian proprietors. As against an appropriator who seeks to divert water to nonriparian lands, the riparian owner is entitled to restrain any diversion which will deprive him of the customary flow of water which is or may be beneficial to his land. He is not limited by any measure of reasonableness.” (200 Cal. at pp. 100-101.)
Immediately following the Herminghaus decision, the Legislature proposed the provisions now found in article X, section 2, as an amendment to the Constitution. The arguments made in support of the proposed amendment made special reference to the common law doctrine then in effect. The arguments, however, were not limited to merely repudiating the common law doctrine. They also made reference to the amendment as an effort, in the public interest, to conserve our waters. (Gin S. Chow v. City of Santa Barbara (1933) 217 Cal. 673, 700 [22 P.2d 5].) The arguments spoke of conservation of a valuable natural resource as a general policy matter. The language of the amendment itself also is indicative of a concern larger than the immediate problem *315presented by the Herminghaus decision. Thus, the first two sentences of the amendment are phrased in general terms. And the final sentence makes the amendment self-executing.
Article X, section 2, provides: “It is hereby declared that because of the conditions prevailing in this State the general welfare requires that the water resources of the State be put to beneficial use to the fullest extent of which they are capable, and that the waste or unreasonable use or unreasonable method of use of water be prevented, and that the conservation of such waters is to be exercised with a view to the reasonable and beneficial use thereof in the interest of the people and for the public welfare. The right to water or to the 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 use 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 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 the owner’s land is riparian under reasonable methods of diversion and use, or as depriving any appropriator of water to which the appropriator is lawfully entitled. This section shall be self-executing, and the Legislature may also enact laws in furtherance of the policy in this section contained.”
Shortly after the adoption of the amendment, it was emphasized that the reasonable use doctrine applied as between riparian owners and appropriators and between overlying owners and appropriators and that the “right to the waste of water is not now included in the riparian right.” (Peabody v. City of Vallejo (1935) 2 Cal.2d 351, 368 [40 P.2d 486]; Tulare Dist. v. Lindsay-Strathmore Irr. Dist. (1935) 3 Cal.2d 489, 524 [45 P.2d 972]; Joslin v. Marin Mun. Water Dist. (1967) 67 Cal.2d 132, 138-141 [60 Cal.Rptr. 377, 429 P.2d 889].)1
*316Thus, when a riparian sought to enjoin an appropriator, it was no longer sufficient to find merely that the riparian was making a beneficial use of water. Rather, the quantity of such use must be determined, and if surplus exists, the appropriator may take it for reasonable and beneficial purposes. And if the riparian is contemplating future uses of some or all of the surplus, the appropriator may continue his use until such time as the riparian needs the water—“putting all of the available water to beneficial uses.” (Tulare Dist. v. Lindsay-Strathmore Dist., supra, 3 Cal.2d 489, 524-525.)
The Constitution’s command of conservation is as applicable to the board as it is to riparians and appropriators. The board should not be permitted to require water wastage as a means to compel applications for permits to appropriate from those persons already making reasonable and beneficial use of water. Such administrative muscle flexing runs afoul not only of the constitutional provision but also of the basic statutes relating to the board’s powers and duties. (See, e.g., Wat. Code, §§ 100, 101, 105, 1256-1258.) While the board may be hindered in performing its administrative function by lack of knowledge of all water claims, this does not warrant adopting rules that encourage water wastage. Because appropriation proceedings are often expensive, requiring permits of those who reasonably and beneficially use water that otherwise would be wasted may cause discontinuance of beneficial use and therefore waste. Those who use water reasonably and beneficially *317should not be subjected to expensive appropriation proceedings or other administratively imposed burdens.2
Although the stipulated facts do not entirely settle the matter, they indicate that enjoining defendant’s appropriation will result in wastage. Defendant captures the first flow of Arnold Creek. Flood control releases exist downstream at Friant Dam. Because of our annual rainfall and snowmelt patterns (see fn. 1), it is questionable whether the waters impounded by defendant would be used for reasonable, beneficial purposes if defendant did not appropriate.
Water Code section 1052, empowering the board to enjoin diversion of water other than that authorized, must be read in light of the conservation requirement of the Constitution and other statutes of the code. This provision was first adopted in 1913 (Stats. 1913, ch. 586, § 38, p. 1032), when, as we have seen, a riparian owner was entitled to enjoin any diversion depriving him of the customary flow, without regard to reasonableness of the riparian’s use. (Herminghaus v. South. California Edison Co., supra, 200 Cal. 81, 100-101.) The constitutional amendment of 1928 made clear that our water resources must be put to beneficial use “to the fullest extent” capable and that waste, unreasonable use, and unreasonable method of use must be prevented. On the basis of the constitutional amendment this court concluded that the right to waste water is no longer included in the riparian right and that so long as surplus water exists the holder of prior rights may not enjoin its appropriation. (Peabody v. City of Vallejo, supra, 2 Cal.2d 351, 368; City of Pasadena v. City of Alhambra (1949) 33 Cal.2d 908, 926 [207 P.2d 17]; City of Los Angeles v. City of San Fernando (1975) 14 Cal.3d 199, 282 [123 Cal.Rptr. 1, 537 P.2d 1250].)
There being no exemption for administrative agencies or courts in the self-executing constitutional amendment, it follows that they may not require wastage. To the extent that Water Code section 1052 might permit enjoining reasonable, beneficial use of water with the result that water is wasted, the section is invalid. In accordance with conservation requirements of the Constitution, reasonable, beneficial water use may *318only be enjoined where the water will be reasonably and beneficially used by riparians or other appropriators.
Moreover, absent interference with riparian or prior licensed appropriative right, defendant has a statutory “water right” to impound 10 acre feet of water in a stockpond (Wat. Code, §§ 1226-1226.2), and even assuming that an injunction should issue against the 19 acre feet impoundment, it should recognize the statutory water right.
II
I concur in the majority opinion insofar as it holds the stipulated facts do not provide the necessary elements for a prescriptive right. “[A]n appropriative taking of water which is not surplus is wrongful and may ripen into a prescriptive right where the use is actual, open and notorious, hostile and adverse to the original owner, continuous and uninterrupted for the statutory period of five years, and under claim of right. [Citations.]” (City of Pasadena v. City of Alhambra, supra, 33 Cal.2d 908, 926-927; City of Los Angeles v. City of San Fernando, supra, 14 Cal.3d 199, 281-282.) The stipulated facts fail to show the water was not surplus or the requisite adversity.
III
The majority today decree that no property right in surface water or subterranean stream has been acquired by prescription since 1913.3 This is both startling and disturbing. It boldly ignores what has been occurring in the California courts for 65 years.
*319Numerous cases have recognized and enforced property rights by prescription in surface and subterranean streams based on post-1913 conduct. (Moore v. Cal. Oregon Power Co. (1943) 22 Cal.2d 725 [140 P.2d 798]; Morgan v. Walker (1933) 217 Cal. 607 [20 P.2d 660]; Pabst v. Finmand (1922) 190 Cal. 124 [211 P. 11]; Armstrong v. Payne (1922) 188 Cal. 585 [206 P. 638]; Antioch v. Williams Irr. Dist. (1922) 188 Cal. 451 [205 P. 688]; Vallejo v. Montebello Sewer Co. Inc. (1962) 209 Cal.App.2d 721 [26 Cal.Rptr. 447]; Orange County Water Dist. v. City of Riverside (1959) 173 Cal.App.2d 137 [343 P.2d 450]; Lindsay v. King (1956) 138 Cal.App.2d 333 [292 P.2d 23]; Akin v. Spencer (1937) 21 Cal.App.2d 325 [69 P.2d 430]; Big Rock M. W. Co. v. Valyremo Ranch Co. (1926) 78 Cal.App.266 [248 P. 264].)
Thirty years after the 1913 enactment, this court stated in a unanimous opinion: “The law is so well-established in this state as to require no extended citation of authorities that an upper riparian owner may acquire a prescriptive right to the waters of a stream as against a lower riparian owner by an adverse use of said waters for the prescriptive period. [Citation.]” (Moore v. Cal. Oregon Power Co., supra, 22 Cal.2d 725, 735.)4
*320Failing to recognize the numerous decisions enforcing prescriptive rights, are we not inviting future justices of this court to accord similar deference to our opinions?
The appropriation provisions of Water Code section 1225 do not require abrogation of rights acquired by prescription. The section provides: “[N]o right to appropriate or use water subject to appropriation shall be initiated or acquired except upon compliance with the provisions of this division.” (Italics added.) Water Code section 1201 makes clear that the waters “subject to appropriation” are surplus waters—waters which are not reasonably needed for useful and beneficial riparian purposes or previously appropriated. (See also Wat. Code, § 1375, subd. (d).)
The statutes have no relation to property rights acquired by prescription because prescriptive rights may not be acquired in surplus waters. “Prescriptive water rights in California are, in a sense, the parasite of water rights. The only way to obtain such rights is to take water rights away from someone else.” (1 Rogers & Nichols, Water for Cal., supra, § 226, p. 325.)
“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.” (City of Pasadena v. City of Alhambra, supra, 33 Cal.2d 908, 926; City of Los Angeles v. City of San Fernando, supra, 14 Cal.3d 199, 282.)
While the board has the power to define riparian rights among competing riparian users and to quantify future riparian rights (Wat. Code, § 2500 et seq.; In re Waters of Long Valley Creek Stream System (1979) 25 Cal.3d 339, 347 et seq. [158 Cal.Rptr. 350, 599 P.2d 656]), I am unaware of any case permitting the board to terminate existing reasonable riparian rights by licensing new appropriators. By way of contrast, when the prescriptive right matures, it is a right originally belonging to someone else. (1 Rogers & Nichols, Water for Cal., supra, § 228, p. 328.) In order to show the requisite adverse use, the claimant must establish actual invasion of the former owner’s right (e.g., City of Pasadena v. City of Alhambra, supra, 33 Cal.2d 908, 926), and because of the requisite adverse use, the taking ordinarily will be from an existing riparian user.
*321While Water Code section 1200 et seq. relates primarily to allocation of surplus waters, whereas prescriptive rights are obtained by adverse user infringing upon riparian rights or unenforced appropriative rights, the two acquisitions are essentially unrelated. Regarding reasonable riparian uses, prior licensed appropriative uses, and claimed prescriptive uses, the board has an adjudicatory function—determining rights. Regarding surplus waters, the board possesses much greater power, performing a licensing function—permitting allocation among various potential users. The statutory system is comprehensive only as to surplus waters; it is not comprehensive as to riparian rights for reasonable use, prior appropriative rights for such use, or loss of rights through prescriptive reasonable use.5 Accordingly, the statutory system does not support this court’s abolition of rights obtained through prescription— reasonable and beneficial uses exercised over the past 60 years.
It is true as the majority states that recognizing prescriptive rights may hinder the board in determining what waters are now available for appropriation. But the hindrance is minor. There being no requirement to register riparian uses, the uncertainty is not alleviated by governmental abrogation of prescriptive rights and resurrection of lost riparian rights.6
The majority’s suggestion that those losing prescriptive rights for reasonable beneficial use will now be able to acquire appropriative permits—and therefore such uses are not jeopardized by today’s decision—must be rejected. (Ante, p. 310.) Issuance of an appropriation permit depends on availability of surplus water. As pointed out above, prescriptive rights may not be acquired when there is surplus water. Reason suggests a paucity of situations in which there have been in the past a lack of surplus water permitting a prescriptive right under traditional law, but at the present time there exist surplus waters permitting appropriation permits. Available surplus water decreases as population increases.
*322Until 1913, one acquired a property right in water on three bases: riparian, appropriation or prescription. Water acquired by prescription has been of importance not only in irrigating our great agricultural valleys (1 Rogers & Nichols, Water for Cal., supra, § 227, p. 327) but also in serving our cities. Had the Legislature in 1913 or later sought to abrogate one of the three methods of acquiring a property right in water, it would have been a simple matter to so state. The Legislature did not do so. While our discovery of implied legislative intent may serve from time to time to furnish minor details to complete a legislative scheme, implied intent should not give the court a basis for radical or fundamental changes in the law. Rather than rely on the 1913 legislation, the majority should candidly admit that they—not the Legislature—prospectively and retroactively abolish property rights in water acquired through prescription.
Richardson, J., concurred.
Respondent’s petition for a rehearing was denied March 13, 1980, Clark, J., and Richardson, J., were of the opinion that the petition should be granted.
In Gin S. Chow v. City of Santa Barbara, supra, 217 Cal. 673, 701-702, the court stated: “The present and future well-being and prosperity of the state depend upon the conservation of its life-giving waters. In his concurring opinion in Miller v. Bay Cities Water Co., supra, [157 Cal. 256 (107 P. 115, 27 L.R.A. N.S. 772)], Mr. Justice Shaw made the following appropriate comment on general water conditions in this state: ‘In many parts of the state, especially in the large interior valleys, practically all the flood *316waters are waste waters. They contribute little or nothing to the saturation of any subterranean gravel beds which are resorted to for a supply of water for useful purposes. They rush in great volume to the sea, carrying destruction in their path and overflowing the low lands to the great damage of the owners, serving no useful purpose whatever. If they were stored in reservoirs they might be made to serve a triple purpose. The extreme floods and consequent overflow and destruction would be prevented; the stored water could be used to irrigate large areas of the valley land, now left unproductive for lack of water; if distributed upon the plains, for irrigation, a large portion of these waters would in due course of time find their way by seepage and percolation to the channels of the streams...; all of which would add tremendously to the growth, prosperity and wealth of the state and to its ability to support the large population which its climate and productions attract. The question of the right to store such flood waters and the terms upon which it can be obtained or exercised is of the greatest importance to the future welfare of the state.’.. .These observations are self-evident, not only under present conditions, but for all time to come. It requires no extraordinary foresight to envision the great and increasing population of the state and its further agricultural and industrial enterprises dependent upon stored water—water that is now wasted into the sea and lost to any beneficial use. The conservation of other natural resources is of importance, but the conservation of the waters of the state is of transcendent importance. Its waters are the very life blood of its existence.” (217 Cal. at pp. 701-702.)
Before granting an appropriation permit the board must determine that there are surplus waters available for appropriation. (Wat. Code, § 1375, subd. (d).) Proceedings to determine whether such surplus exists may be and often are lengthy and complex, imposing large financial burdens not only on those seeking permits but also upon riparians and those having prior appropriative rights who must defend their rights. (Wat. Code, § 1300 et seq.)
Although the majority opinion might be read as being limited to denial of prescriptive rights only in the absence of appropriative permit, such limitation would be without meaning. All prescriptive rights in surface waters and subterranean streams are now precluded whether or not the claimant possesses a permit to appropriate. Prescriptive rights are initiated by trespass; there must be a wrongful taking. (City of Los Angeles v. City of San Fernando, supra, 14 Cal.3d 199, 281; City of Pasadena v. City of Alhambra, supra, 33 Cal.2d 908, 926-927; Beckett v. Petaluma (1915) 171 Cal. 309, 316 [153 P. 20]; 1 Rogers & Nichols, Water for Cal. (1967) § 226, p. 325.) Obviously, if water is taken pursuant to board permit, it is not taken wrongfully and no prescriptive right arises.
The majority state that they are not determining “whether and under what circumstances prescriptive rights in water may be perfected as between private parties.” (Ante, p.312,fn. 15.) However, as a practical matter, the majority decide the issue they disclaim. We may not expect that the board will unlawfully discriminate in exercising its power to enjoin asserted post-1913 prescriptive rights to water. Thus all will be enjoined. Faced with the certainty of injunction, private parties may not be expected to seek to establish prescriptive rights against other private parties. Accordingly, the effect of today’s opinion is to prevent recognition of all post-1913 prescriptive claims.
Six years later, this court again stated the doctrine that water rights could be acquired by adverse user: “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; however, both overlying owners and appropriators are entitled to the protection of the courts against any substantial infringement of their rights in water which they reasonably and beneficially need. (Peabody v. City of Vallejo, 2 Cal.2d 351, 368-369, 374 [40 P.2d 486].) Accordingly, an appropriative taking of water which is not surplus is wrongful and may ripen into a prescriptive right where the use is actual, open and notorious, hostile and adverse to the original owner, continuous and uninterrupted for the statutory period of five years, and under claim of right. (City of San Bernardino v. City of Riverside, 186 Cal. 7, 22-23 [198 P. 784]; Katz v. Walkinshaw, 141 Cal. 116, 135 [70 P. 663, 74 P. 766, 99 Am. St.Rep. 35, 64 L.R.A. 236]; 25 Cal.Jur. 1178, 1157-1158; 1 Cal.Jur. 585; 26 Cal.Jur. 278-279; cf., Wutchumna Water Co. v. Ragle, 148 Cal. 759, 764-765 [84 P. 162].) To perfect a claim based upon prescription there must, of course, be conduct which constitutes an actual invasion of the former owner’s rights so as to entitle him to bring an action. (City of Los Angeles v. City of Glendale, 23 Cal.2d 68, 79 [142 P.2d 289].) Appropriative and prescriptive rights to ground water, as well as the rights of an overlying owner, are subject to loss by adverse user. This is in accord with the rule announced in cases dealing with water in a surface stream. (See Yankee Jim’s Union Water Co. v. Crary, 25 Cal. 504, 508-509 [85 Am.Dec. 145]; Big Rock M. W. Co. v. Valyermo Ranch Co., 78 Cal.App. 266, 273 [248 P. 264]; Peabody v. City of Vallejo, 2 Cal.2d 351, 374 [40 P.2d 486]; Duckworth v. Watsonville etc. Co., 150 Cal. 520, 529-532 [89 P. 338]; Davis v. Gale, 32 Cal. 26, 35 [91 Am.Dec. 554]; 3 Farnham, Waters and Water Rights [1904]; § 680a, p. 2106; 1 Wiel, Water Rights [3d ed., 1911], § 580, pp. 625-626; 56 Am.Jur. 773.)” (City of Pasadena v. City of Alhambra, supra, 33 Cal.2d 908, 926-927.)
A prescriptive right to unreasonable water use is unobtainable. (Oliver v. Robnett (1922) 190 Cal. 51, 53-54 [210 P. 408].)
Although the matter does not appear from the record the instant decision may impose a huge monetary burden on governmental agencies ánd utilities. In some cases a utility building a dam to store water for power purposes has been held to have acquired a prescriptive right through adverse use against riparians. (E.g., Moore v. Cal. Oregon Power Co., supra, 22 Cal.2d 725.) By the majority’s destruction of prescriptive rights and resurrection of lost riparian rights, the riparians appear able to claim inverse condemnation.