Memo on Legal Case

For the reasons discussed below, Gump and not our client Bass appears to have the stronger legal and equitable case.

At common law, "the ownership of land . . . included all that lay under it." City of San Bernardino v. City of Riverside, 186 Cal. 7 (1921). In Peabody v. City of Vallejo, 2 Cal. 2d 351 (1935), the Court summarized the old law as follows: "the riparian owner was entitled to all of the waters of the stream as the same were want to flow in the course of nature regardless of any waste or surplus that might result from the exercise of such a right and regardless of any rule of reason." Under the common law, Gump would have a solid argument that since roughly half of the underground aquifer was located beneath his property, he had the right to use up to that percentage of the water and certainly the 40 percent he has been pumping out for more than ten years.

While Bass would have been free to use the half of the water under his property at common law, he would have had no right to pump out the remaining 35 percent under Gump's property.

In the early 20th century, the rule of reasonableness of use as a measure of the rights to underground water

. . .
erly be put by the riparian owners, consideration being given of course to preferential uses, that determines an apportionment." A use of such water must be beneficial for it to be an important factor in a court's decision in a party's favor. A party will be in even a stronger position if it can argue that its use of the water is superior to that of the defendant. California courts, in interpreting the aforesaid constitutional provision and Section 495(a) of the Water Code, have given a broad interpretation as to what is a beneficial use of water. In the present case, the consumption of water by Gump and Bass and their families tops the list; however, water consumption by resort guests has also been a legally protectible beneficial interest, Prather v. Horburg, supra, at 562, City of Los Angeles v. Aitken, supra, at 473 and United States v. Fallbrook Public Utility Dist., 108 F.Supp. 72, 79-80 (S.D. Cal. 1952). Likewise, the use by Gump of the water to form a lake to produce trout is also a beneficial use. The cases almost universally treat the propagation of fish as not only a beneficial but also a "superior" use, see Ex Parte Elam, supra, at 241 and section 14951 of the Water Code. Section 1243 of the Water Code states that
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Some common words found in the essay are:
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Approximate Word count = 2403
Approximate Pages = 10 (250 words per page)

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