I concur in the judgment for the reason that the evidence showed and the court found (1) that all of the waters naturally flowing in Fall River and its tributaries are and ever since January 1, 1919 (a point of time antedating the applications of the plaintiff's predecessors in interest), have been reasonably needed for useful and beneficial purposes upon the lands riparian thereto, and more particularly upon the lands owned by the defendant which constitute all of the riparian lands between the defendant's point of diversion and its power plant and which riparian lands or rights the defendant had acquired by purchase or condemnation; and (2) that substantially all of said waters, except only such parts thereof as have been diverted or used by the owners of lands riparian to Fall River above the defendant's diversion dam, have, since the *Page 74 autumn of 1922, actually been put to a reasonably useful and beneficial purpose. The court was, therefore, justified in concluding that no portions of such waters were "public waters of the State of California" at the time the applications for said permits were made. No question of the validity of section 11 of the Water Commisison Act may properly arise in this case for the obvious reason that under the express provisions of that section, waters flowing in any river or stream which "are or may be reasonably needed for useful and beneficial purposes upon lands riparian thereto," are excepted from the waters which are declared by the act to be "public waters of the State" and subject to appropriation under provisions of the act. Nor had the ten-year period after the effective date of the act, also prescribed by section 11, expired when the defendant commenced the construction of its works.
It is apparently conceded in the main opinion that the riparian right may yield to the proper exercise of the police power in the interests of the people of the state, but it is asserted that the Water Commission Act does not purport to be an exercise of such power for any purpose. To this assertion I cannot accede. It was the obvious purpose of section 11 of the act to subject the exercise of the riparian right to the reasonable use of the waters of the stream and to declare in the interests of the people of the state that the use of all waters shall be restricted to that which is reasonable and useful for a beneficial purpose, whether the user be a riparian owner or an appropriator. The right of the riparian owner to the full use of the waters of the stream in so far as the same may be put to a reasonably useful and beneficial purpose may not be abridged. The result of the main opinion, however, is to further entrench such owner in what may be entirely unreasonable demands — a result which the Water Commission Act was plainly and properly designed to avoid.
A situation is presented in this case which was not intended to be affected or disturbed by the Water Commission Act in the exercise of the police power. Such being the fact, it would seem to require no argument or citation of authority to support the right of the defendant as riparian owner to the full enjoyment of the reasonably beneficial use to which the waters of the stream are put. The said permits *Page 75 were in fact issued "subject to vested rights." All discussion in the main opinion in defense of riparian rights and as to the scope of the police power applicable to the exercise of such rights is, therefore, under present law, in my opinion, entirely outside of the issues necessary to be determined in this case on the record presented, and is uncalled for except, perhaps, in justification of the opinion of a majority of the court in the Herminghaus case, concerning which I have had occasion to express my views.
Rehearing denied.