Groundwater and Surface Water Rights

Rights to surface and underground water in California can be placed in four categories: pueblo rights (arising out of the establishment of pueblos such as Los Angeles while California was still part of Mexico), riparian or overlying (attaching to the land adjacent to a surface river or stream (riparian), or underlying land (attached to the land overlying groundwater)), prescriptive (appropriative after five years of open and notorious taking), and appropriative (neither pueblo, riparian, or overlying, and before the five year prescriptive period has run). These four categories are prioritized: pueblo owners generally having superior rights to overlying, riparian or overlying owners having superior rights to appropriative owners, and prescriptive owners having superior rights to appropriative (and in most if not all respect equal to riparian or overlying owners). Water rights are generally considered “usufructuary,” meaning that water cannot be owned per se, but only the right to its “use” and “fruits.” As a result of a 1928 amendment to the California Constitution, water rights are limited to reasonable and beneficial use. (Cal. Const. Art. X, § 2).