THE STONY CREEK WATER WARS - Motion to dismiss State, Underflow defendants, setting down cause for trial, related matters

THE STONY CREEK WATER WARS
Glenn County - Tehama County - Colusa County , California.
(c) 2009, Mike Barkley
Motion to dismiss State, Underflow defendants, setting down cause for trial, related matters

[A transcription of the document on file in the Angle Archives
Important because the court rejected the Government's efforts to dismiss downstream riparian and underflow users.

In straight text without elaborate formatting. Any editorial comments by me are contained within brackets, "[]", which you may delete easily after downloading the "page source" to your own editing software if your browser allows source downloading. ]

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No. 30-Eq. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

IN THE NORTHERN DIVISION OF THE U.S. DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - THE UNITED STATES OF AMERICA,

vs.

H.C. ANGLE, et al.,
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FILED
At ____ o'clock and ____ Min ____ M
June 20, 1922 [typeset; June 10, 1922 typewritten]
W.B. Maling, Clerk
By Thomas J. Franklin, Deputy Clerk - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

IN THE

Northern Division of the District Court of the United States

FOR THE NORTHERN DISTRICT OF CALIFORNIA

SECOND DIVISION
THE UNITED STATES OF AMERICA,

Plaintiff,

vs.

H.C. ANGLE, et al.,

Defendants.

IN EQUITY No. 30

ORDER

Service is acknowledged this ............day of............ 1922 of plaintiff’s written notice, dated May 31, 1922, that plaintiff, at the hour of ten o‘clock in the forenoon on the 24th day of June, 1922, at the courtroom of this Court in the City of Sacramento, or as soon thereafter as counsel can be heard, will present its petition as to the setting of this cause down for trial, dismissal as to certain defendants, and related matters, and move the Court, or Judge thereof, as in said petition set out; a printed copy of said petition being attached to the aforesaid notice. This acknowledgement of service is made for and on behalf of the defendants in said cause for whom the undersigned is acting as solicitor, as the names of said defendants are set out in said notice.

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Solicitor for Defendants Aforesaid.

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IN THE
Northern Division of the District Court of the United States
FOR THE NORTHERN DISTRICT OF CALIFORNIA.
SECOND DIVISION.

The UNITED STATES OF AMERICA,

Plaintiff,

vs.

H.C. ANGLE, et al.

Defendants.

IN EQUITY No. 30.

NOTICE

To the defendant S. Pinkerton, and to THOS. A. BERKABILE, his solicitor.

To the defendants Annie M. Kesselring, F.M. Kesselring, Tim O'Leary and Chas. E. Pearson, and to BROWN & ALBERY, their solicitors.

To the defendants R.T. Bedford, Joseph M. Billiou, Richard J. Billion, Leona S. Billiou, R.E. Blevins, I.L. Brownell (I.E. Brownell), L.E. Brownell, Mrs. L.R. Brownell, (R.L. Brownell), R.H. Brownell, L.R. Cushman, Jas. W. Edwards, (J.W. Edwards), Esperanza Land Corporation, Fruto Land & Improvement Co., Annie Hoever, James Mills Orchard Co., R.T. Jones, Andrew Kaiser, J.F. Mallon, Sacramento Valley Sugar Co., C.L. Simpson (Chas. L. Simpson), Z.E. Simpson, and to FRANK FREEMAN, their solicitor.

To the defendants W. D'Egilbert, Fouts Springs Co. (Fout Springs Water Co.), C.H. Glenn, J.F. Taylor, and to DUARD F. GEIS, their solicitor.

To the defendants Glenn-Colusa Irrigation District, Sacramento Valley Irrigation Co., Sacramento Valley West Side Canal Co., and to HANKINS & HANKINS, their solicitors.

To the defendant Ruby King Mineral Paint Co., and to H.T. HIATT, its solicitor.

To the defendants J. A. Flanagan, Joseph J. Flanagan, Francis D. Flanagan, Anna Flanagan, Mrs. D.H. Masterson, Frank Masterson (F.J. Masterson), Kendrick Masterson (J.K. Masterson), Olive Scearce Parsons, W.E. Scearce, Mary J. Scearce, and to W.E. JOHNSON, their solicitor.

To the defendants Butte County Savings Bank, Ed. Harkness, and to GUY B. KENNEDY, their solicitor.

To the defendant E.H. Tryon, and to WM. E. KOLLMYER, his solicitor.

To the defendant C.M. Hall (Chas. M. Hall, Chas. Hall), Gertrude M. Hall, and to McCOY & GANS, their solicitors.

To the defendants Frank Bagatela, E.M. Bartholomew, A.C. Bayley, L. Bedford, Peter V. Berkey, O.F. Bickford, Harry N. Brittan (H.W. Brittian, H.N. Brittian, or H.B. Britton), James O. Brittan (J.O. Britton), Alex. Brown, Henry Chastain, A. Conklin, M.L. Conklin, Wells Conklin, W.B. Cooper, Jacob Diefenbach, (J. Diefenbach), J.T. Edwards, Geo. C. Ellis (G.C. Ellis), Thos. Fairlee, Joel Ford, W.F. Forman, W.J. Foutch, N.H. Garrison, W.W. Gatliff, W.A. Glenn, Anna B. Glenn (A.B. Glenn), Alvin Gollnick, Leonard W. Gollnick, Carl

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Green, S.N. Green, Oswald Handlos, James Harmon, S.A. Hineline (C.A. Hineline), L. Huffmaster, Edgar Hunter, Ellen Hunter, Administratrix of the Estate of Genevieve H. Brown, deceased, John O. Johansen (John Johansen, Jr.), Wiebeke Johanseim, Lucy Kimmel, Frank M. Kirkpatrick (F.M. Kirkpatrick), Margaret Kirkpatrick, R.L. Kirkpatrick, J.E. Knight, Ed. Franklin Laux, Fred Laux Jr., Geo. W. Lewis, Frank W. Lewis, Ellen Lucas, L.E. Mann, G.W. Markham, Edith McGahan, Edith McGahan, administratrix of the estate of R.L. Walkup, deceased, J.C. Mogk, Irma I. Moon (Irma Moon), Pruda Moon, John M. Morris, Preston Morris, Perry Mulford, Wm. Niesen, Mary O'Leary (Mrs. M. O'Leary), S.F. Paine, E.C. Phelps, Harvey E. Province, D.P. Ray, Eugene K. Reynolds, Administrator of the estate of Isidore Reynolds, deceased, Charles H. Ridley, I.L. Robertson, Robt. Rowecroft, J.S. Sale, J.W. Sawyer (James W. Sawyer), Maude C. Sehorn, Rose Servel, Administratrix of the Estate of Fred Servel, deceased, E.E. Smith (Edward E. Smith), John H. Soeth, H.R. Stewart, John Stice, C.E. Studybaker, Joseph M. Tanson, Paul Teilh, Abe L. Triplett, Frank W. Troxel (Frank Troxel), Jessie E. Troxel (Jessie Troxel), Lloyd Troxel, I.E. True, Matt Urjevich, A.P. Wakefield, Guy H. Ward (Guy Ward), Marguerita Williams Welch, A.T. Welton, Henry Werth, May E. Werth, Frank Whalley, F.C. Wood and to CLAUDE F. PURKITT, their solicitor.

To the defendants John M. Adams, J. H. Driscoll, Dora A. Fender, E.C. Kaerth, J.R. Kennedy, R.P. Kennedy. C.W. Lovelace, T.F. Lovelady, Wm. J. Lovelady, Annie Evans Lovelady (Mrs. T.E. Lovelady), John W. Millsaps, J.F. Stites, Rufus G. Stites, and to THOMAS RUTLEDGE, their solicitor.

To the defendant State of California, and to U.S. WEBB, its solicitor.

To the defendant J.E. Ayer, and to C.L. WTTTEN, his solicitor.

To the defendants J.L. Hardin and R.M. Hardin (R.W. Hardin) and to H.S. YOUNG, their solicitor.

To the defendants Elizabeth P. Case, M.L. Dimmick, J.M. Eastby, John Harbison, Robert Jameson, A.Z. Jones, Wm. Kaiser, M.V. Kallock, Kate Karrier (Nate Karrier), Alex. Kraft, J.N. Mahan, James McCall, Mary J. McCune, Elizabeth Miller, H.M. Nelson, Savina C. Nelson, Northern Electric Ry. Co., E.K. Piersol, George Ray, J.G. Tenney, Geo. Trank, A.P. Valine, Jesse Wolcott, Frank S. West, A.E. Williams,

You and each of you are hereby notified that plaintiff, at the court room of this Court in the City of Sacramento, California, at the hour of ten o‘clock in the forenoon of the twenty-fourth day of June, 1922, or as soon thereafter as counsel can he heard, will present its petition as to the setting of this cause down for trial, dismissal as to certain defendants, and related matters, and move the Court, or the Judge thereof as in said petition related and set out; a true copy of said petition being hereto attached and made part of this notice.

/s/ John T. Williams
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United States Attorney.

Dated May 31, 1922.

/s/ Oliver P. Morton
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Special Assistant to the Attorney General.
Solicitors for Plaintiff.

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IN THE
Northern Division of the District Court of the United States
FOR THE NORTHERN DISTRICT OF CALIFORNIA
SECOND DIVISION.

THE UNITED STATES OF AMERICA

Plaintiff,

vs.

H.C. ANGLE, et al.,

Defendants.

IN EQUITY No. 30.

PETITION FOR DISMISSAL AS TO CERTAIN DEFENDANTS, FOR SETTING
DOWN OF THE CAUSE FOR TRIAL, AND AS TO RELATED MATTERS.

The United States of America, plaintiff in the above entitled cause, respectfully shows:

I.

That it is sought in this proceeding to adjudicate the relative rights to the waters of Stony Creek and its tributaries, and that those claiming or purporting to have some claim or right in or to said waters, in so far as plaintiff has been able to ascertain same, have been made parties defendant herein; that as against the thirty-nine defendants named in the original complaint a preliminary injunction is in force, prohibiting the diversion of the stored water released from the East Park reservoir of the Orland Project as same is carried by the diversions of said defendants to the distributing canals of said Project, and a water Commissioner, under the order of this Court, is piloting such stored water past such diversions and administering the available natural stream flow in that relation.

II.

That the original complaint, amended complaint, and subsequent orders bringing in new parties defendant, name as defendants in the cause a total of 575 as follows:



Named in original complaint (also in amended complaint)  ................. 39
Additional defendants named in amended Complaint .........................457   
Added by Order of October 4, 1919 ........................................ 55
Added by Order of April 28, 1921 ......................................... 11
Added by Order of March 31, 1922 ......................................... 13
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  Total ..................................................................575

That the following have been added as defendants by way of stipulations of substitution, approved by the Court:



Henry Chastain for Emma Wicher and W.E. Wicher, Lucy Kimel for J. Van Scyoc,
  Marguerita Williams Welch for Roy Welch, Ellen Lucas for C.A. Lucas ....  4

And the following, not being named in the amended complaint or subsequent orders, have voluntarily appeared as defendants in the proceeding:



Wells Conklin, Alvin Gollnick, Gertrude M. Hall (wife of Chas. M. Hall),
  Wiebeke Johansen, Ed. Franklin Laux, Eugene K. Reynolds, Administrator of
  Estate of Isidore Reynolds, deceased; Charles H. Ridley, Mary J. Scearce,
  W.E. Scearce, Rose Servel, Administratrix of Estate of Fred Servel,
  deceased; Leland Shults, Jessie Taylor, Administratrix of Estate of
  W.S. Taylor, deceased; M.A. Tanson, Frank Whalley ....................... 14

  The grand total being....................................................593

I

III.

That of the defendants named in the amended complaint, it has been ascertained that the following are one and the same person:



Correct Name.				 Other or Incorrect Name.


H.W. Brittian (Harry N. Brittan)	 H.B. Britton
F.W. Troxel (Frank W. Troxel)		 Frank Troxel
J.L. Edwards 				 J.F. Edwards
S.A. Ervin (Stewart A. Ervin)		 Stewart Ervin
Zeller C. Finnell 			 Mrs. Z.C. Finnell
Chas. M. Hall (C.M. Hall)		 Chas. Hall
H. Hayward 				 Harry Haywood
W.A. Morris 				 I.A. Morris
C.L. Simpson 				 Chas. L. Simpson
E.E. Smith 				 Edward E. Smith.

IV.

That of the defendants named in the amended complaint it has been ascertained that the following, through typographical error or other mistake, were incorrectly named, the incorrect and correct names thereof being listed in appropriate columns below:




Incorrect Names.			Correct Names.

C.V. Apperson, Administrator of the	V.V. Apperson, Administrator of
  Estate of John A. Apperson, 		  the Estate of John A. Apperson,
  deceased.				  deceased.
B.A. Baird				O.A. Baird
R.L. Brownell				Mrs. L.R.. Brownell
I.E. Brownell				I.L. Brownell
E.J. Butler				E.T. Butler
Anna C. Burrows				Aura C. Burrows
F.H. Cushman 				F.N. Cushman
H.V. Cushman				H.S. Cushman
G.C. Ellis 				Geo. C. Ellis
A.B. Glenn				Anna B. Glenn
R.W. Hardin				R.M. Hardin
C.A. Hineline				S.A. Hineline
John Johansen, Jr.			John O. Johansen
Nate Karrier				Kate Karrier
Mrs. T.E. Lovelady			Annie Evans Lovelady
Alice H. Lovelady			Alice M. Lovelady
Will Lyons				William Lyons
Pery Mulford				Perry Mulford
Pearl McKinney				Pearl Makinney
W.G. Newton				W.C. Newton
Mrs. M. O'Leary				Mary O'Leary
C.F. Soeth				C.T. Soeth
Geo. M. Taylor				Geo. N. Taylor
Jessie Troxel				Jessie E. Troxel
H.W. Brittian, H.B. Britton		Harry N. Brittan
J.O. Britton				James O. Brittan
T.L. Brittian				J.L. Brittan

V.
That of the defendants named in the amended complaint and subsequent orders (see paragraph II hereof) the following have voluntarily appeared without service of process, to-wit:

Harry N. Brittan, F.M. Millsaps, Mrs. J.A. Price, Henrietta Steinegger, H.R. Stewart, Guy H. Ward, F.C. Wood,

2 And all of the remainder except 75 thereof have been served with process herein; the last named figure, to-wit: the 75 defendants who have neither appeared voluntarily nor been served with process, being made up as follows:

(a) Further examination indicates that the following are not now parties in interest:



E.W. Bradley, Geo. Hoag, Geo. Hoering, Elizabeth Jensen, Chas. A. Krohn,
Etta Lund, R.H. Mahoney, J.R. Parkhurst, Trustee, Dan Rice, Lucinda
Rich, A.N. Soliss, Leo Wertheimer, Administrator of Estate of Jacob
Wertheimer deceased; J.A. Wood, C.F. Young, Jacob Wertheimer .............. 15

(a) Certain of the defendants, according to information now at hand, have conveyed their holdings to others, and such successors in interest have been served with process or have appeared in the proceeding, to-wit:



					Successors in Interest
Grantors (Not Served)			(Served or Appeared)

O.A. Baird				C.A. Lucas
Mark Bailey				E.M. Bartholomew
Geo. M. Bickford			W.F. Forman
G.C. Bond				John Bond
Genevieve H. Brown			Ellen Hunter, Administratrix
A.E. Brune				C.T. Soeth
Mark Bailey Bump			E.M. Bartholomew
Irene Clark				Oliver P. Wiggins
J.R. Clark				Oliver P. Wiggins
Mary A. Conlon				E.T. Butler
A.W. Cooper				E.H. Tryon
James Dougherty				M. Golden
W.P. Forman				W.F. Forman
L.R. Frisbee				D.H. Masterson
S. Haines				J.L. Edwards
John Hanson				R.A. Gordon
Peter Hanson				James McCall
H. Hayward				M.A. Hayward
Robt. E. Jeffres			C.A. Lucas
C.J. Johnson				Henry Steinbach
H.B. Julian				Susan A. Julian
Rebecca Kirkpatrick			A.P. Valine
Philip P. Krantz			W. D'Egilbert
F.S. Lewis				E.K. Piersol
F. Locastelli				W.F. Forman
Ira C. Martin				Jesse Wolcott
M. Mendahall				John Hull
May Z. Merrill				F.M. Kesselring
H. Miller				O.F. Bickford
J.C. Miller				Elizabeth Miller
L.W. Miller				J.J. Chambers
A.J. Milisaps				John H. Millsaps, Administrator
Josephine M. Morrison			M.L. Dimmick
W.C. Newton				Mary Ann Newton
M. O‘Keefe				James Mathews
C.W. Pitcairn				Paul Teilh and Justin Firmignac
L. Scearce 				W.E. Scearce, Mary J. Scearce, and
		   			  Olive Scearce Parsons.
L.S. Scott				F.J. Wells



					Successors in interest
Grantors (Not Served)			(Served or Appeared)

Annie Shaddock				M.L. Carlton, Administrator
Wm. Steward				Clarissa Shaw
Chas. Strawn				John Stice
W.S. Taylor				George W. Lewis and Frank W. Lewis
D.L. Thornberg				Rosedale Realty Co.
Henry H. Van Scycle			Amelia G. Van Scycle, Administratrix
W.W. Warnick				Henrietta Steinegger
T.W. Waysman				J.L. Brittan
W.E. Wicher				Henry Chastain
J.C. Williams				Della Ludlow
S. Wilson				Frank Wilson, Administrator ....... 49

(c) Service by order upon J.M. Eastby at Volga, South Dakota, now pending... 1

(d) Incorrect names for defendants for whom two names were given 
(paragraph III) ........................................................... 10
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Total ..................................................................... 75

That plaintiff proposes to ask at the proper time for such order as will appropriately dispose of defendants finally classified under items (a) and (b) above.

VI.

That of and as between defendants served with process or appearing herein as aforesaid, substitutions by stipulation, approved by the court, have been made as follows:

Henry Chastain for Emma Wicher and W.F. Wicher.
Thos. Fairlee for John M. Morris.
Lucy Kimel for J. Van Scyoc.
Fred Laux Jr., for Katherine Laux.
Ellen Lucas for C.A. Lucas.
L.E. Mann for Walter Dickson.
Edith McGahan, Administratrix for W.A. Morris.
H.R. Stewart for Thos. Fairlee.
Guy H. Ward for S.M. Silver.
Marguerita Williams Welch for Roy Welch.

VII.

That 29 of the defendants herein are the owners or purported owners of lands along or in the vicinity of Stony Creek between the easterly boundary of the Orland Project and the junction of said Stony Creek with the Sacramento River, and claim or purport to claim water rights from said creek or some interest in the waters thereof, or claim or purport to claim to have appropriated water therefrom; that a further investigation of the physical situation in this locality by plaintiff and consultation with a number of the solicitors representing said defendants and other defendants in the upper portion of the watershed of Stony Creek, has resulted in the conclusion that the amended complaint and this suit may be dismissed as to these so-called lower river parties, without prejudice, and that the adjudication of the water rights on Stony Creek and its tributaries will be as effective, and as well serve the purposes sought to be accomplished herein, if dismissal be had as aforesaid as to said defendants; that the defendants thus affected are the following:

Frank Bagatela, Joseph Billion, Richard J. Billiou, Leona S. Billiou, Butte County Savings Bank, Esperanza Land Corporation, Glenn-Colusa Irrigation District, Oswald Handlos. Ed. Harkness. Annie Hoever, James Mills Orchard Company, R.T. Jones,

4

Andrew Kaiser, Wm. Kaiser, Kate Karrier (Nate), Alex Kraft, Jas. McCall, Mary J. McCune, H.M. Nelson, Savina C. Nelson, Northern Electric Ry. Co., Sacramento Valley Irrigation Co., Sacramento Valley Sugar Co., Sacramento Valley West Side Canal Co., Maude C. Sehorn, Geo. Trank, Matt Urjevich, Frank S. West, A.E. Williams.

That no answers or other defenses have been filed by any of said last named defendants (excepting the Glenn-Colusa Irrigation District, whose counsel have since been advised of these proposals) in pursuance of an understanding which was ventured to be entered into by the plaintiff and said defedants [sic], in light of the conditions above described.

VIII.

That the State of California was named as a party herein, and subpoena ad respondendum, with copy of the amended complaint, was duly served upon the Attorney General of said State; that it has now been ascertained that all but one or two small parcels of the State land in the watershed which is traversed or bounded by Stony Creek or a tributary thereof has been sold, and that said remaining parcels, as well as those sold, apparently contain no irrigable areas, and are not physically or economically capable of irrigation; that these circumstances (as well as the grave doubt that jurisdiction over the State has been or can be acquired in this cause) have caused Plaintiff, as herein later prayed, to ask that the amemded complaint and this suit be dismissed, without prejudice, as to the State of California.

IX.

That the following named 138 defendants have filed their answers in this cause, to wit:

John M. Adams, J.E. Ayer, E.M. Bartholomew, A.C. Bayley, L. Bedford, R.T. Bedford, Peter V. Berkey, O.F. Bickford, R.E. Blevins, Harry N. Brittan, James O. Brittan, Alex Brown, Mrs. L.R. Brownell, I.L. Browimell, R.H. Brownell, L.E. Brownell, Henry Chastain, A. Conklin, M.L. Conklin, Wells Conklin, W.B. Cooper, L.R. Cushman, Jacob Diefenbach, J.H. Driscoll, J.T. Edwards, Jas. W. Edwards, Geo. C. Ellis, Thos. Fairlee, Dora A. Fender, Anna Flanagan, Francis D. Flanagan, J.A. Flanagan, Joseph J. Flanagan, Joel Ford, W.F. Forman, W.J. Foutch, Fouts Springs Co., Fruto Land & Improvement Co., N.H. Garrison, W.W. Gatliff, C.H. Glenn, W.A. Glenn, Anna B. Glenn, Leonard W. Gollnick, Alvin Gollnick, Carl Green, S.N. Green, Chas. M. Hall, Gertrude M. Hall J.L. Hardin, R.M. Hardin, James Harmon, S.A. Hineline, L. Huffmaster, Edgar Hunter, Ellen Hunter, Admx., John O. Johansen, Wiebeke Johansen, E.C. Kaerth, J.R. Kennedy, R.P. Kennedy, F.M. Kesselring, Annie M. Kesselring, F.M. Kirkpatrick, Margaret Kirkpatrick, R.L. Kirkpatrick, Lucy Kimel, J.E. Knight, Fred Laux, Jr., Ed. Franklin Laux, Geo. W. Lewis, Frank W. Lewis, C.W. Lovelace, Wm. J. Lovelady, T.F. Lovelady, Annie Evans Lovelady, Ellen Lucas, J.F. Mallon, L.E. Mann, G.W. Markham, Mrs. D.H. Masterson, Frank Masterson, Kendrick Masterson, Edith McGahan, Edith MeGahan, Admx., John W. Millsaps, J.C. Mogk, Irma I. Moon, Pruda Moon, John M. Morris, Preston Morris, Perry Mulford, Wm. Niesen, Mary O'Leary, Tim O'Leary, S.F. Paine, Olive Scearce Parsons, Chas E. Pearson, E.C. Phelps, S. Pinkerton, Harvey E. Province, D.P. Ray, Eugene K. Reynolds, Adm., I.L. Robertson, Robt. Rowecroft, Ruby King Mineral Paint Co., Charles H. Ridley, J.S. Sale, Jas. W. Sawyer, Mary J. Scearce, W.F. Scearce, Rose Servel, Admx., Z.E. Simpson, Chas. L. Simpson, E.E. Smith, John H. Soeth, H.R. Stewart, John Stice, J.F. Stites, Rufus G. Stites, C.E. Studybaker, Joseph M. Tanson, J.F. Taylor, Paul Teilh, Abe L. Triplett, Frank W. Troxel, Jessie E. Troxel, Lloyd Troxel, I.E. True, E.H. Tryon, A.P. Wakefield, Guy H. Ward, Marguerita Williams Welch, A.T. Welton, Henry Werth, May E. Werth, Frank Whalley, F.C. Wood,

And replications to such answers in turn have been duly filed by plaintiff; That 40 of the defendants have filed their disclaimers herein; That time following named defend-

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ants have been recently served with process under the order of March 31, 1922, making new parties defendant or by way of alias subpoena; to-wit:

Elizabeth D. Case, W. D'Egilbert, M.L. Dimmick, John Harbison, Robert Jameson, A.Z. Jones, M.V. Kallock, J.N. Mahan, Elizabeth Miller, E.K. Piersol, George Ray, J.G. Tenney, A.P. Valine, Jesse Wolcott.

That the period within which they will he required to answer will expire in advance of the date of the hearing of this petition, and replications to such answers as may be made by them or an order pro confesso, as the case may be, will be filed or taken prior to said date; That but a few small parcels of the lands purported to be owned by the defendants last named are being irrigated, and there seems but little likelihood that more than one or two, if any, of said defendants will deem it necessary to appear in the proceeding.

X.

That as against all of the defendants herein, who have been served with process or appeared without service as aforesaid, save and excepting those named or numbered in paragraph IX hereof, and excepting those named in the second column of the tabulation in paragraph VI and those named in paragraphs VII and VIII hereof, plaintiff has caused orders pro confesso to be taken and entered in this cause, and that said cause, as of the present date of the notice of said hearing, may be regarded as now at issue, save for the possibility that one or more of the few defendants recently served with process or the defendant against whom service by order is pending, as aforesaid, may yet answer; That this contingency is discounted and will be disposed of as described in paragraph IX hereof, and this cause thus will he fully at issue prior to the hearing of this petition and in any event long prior to the taking of the testimony and evidence herein.

XI.

That this proceeding is so largely sui generis and of such comprehensive character as to render it impracticable for the parties to so anticipate their necessities in the matter of depositions as to act within the time limits set down in Equity Rule 47 for the taking of such depositions; wherefore the setting down of this cause for trial, and the disposal of other preliminaries thereto, such as the appointment of a Master, as hereinafter described, should be not delayed until the expiration of the 110 days after the filing of the answers and replications in this cause, but should be done forthwith, and reasonable facilities for the later taking of depositions under the latter part of Equity Rule 56 should he accorded the parties herein; that the notice to defendants herein of the hearing of this petition is intended to suggest and accomplish the formal or tacit consent of defendants to the foregoing proposal.

XII.

That time trial of this cause will involve the taking of the testimony of many witnesses--more than one hundred and perhaps a much larger number, as your petitioner is informed and believes--and the adduction of a great amount of documentary evidence; that a very large number if not all of the defendants will be witnesses in their own behalf, and they, and those to be called by them, generally reside on or in the vicinity of the lands for which water rights are claimed, and at a great distance from the court room of this Court; that this cause presents matters of complicated detail, and the trial thereof, on the above accounts as well as the varied character of the claims and number of parties and solicitors involved, is bound to extend over a considerable period of time; that petitioner understood the Court to intimate at an earlier hearing herein, when advised of the comprehensive and complicated character of this suit, that the Court would presumably find it necessary of its own motion to direct a reference of the cause or a part thereof to a suitable person as Master pro hac vice; that while your petitioner would prefer, if it were practicable, to have the judge of this Court pass upon the important issues of fact and law in the case in the first instance, and does not deem it expedient or proper to itself formally or otherwise apply for an order for such reference to a Master, this showing and recital is made in order that the

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Court and all interested defendants may be informed and have notice of the situation, and be prepared to aid the court in reaching a conclusion upon the matter; that the ends of justice and the expeditious and effective ascertainment and protection of the rights involved require that this cause be set down for trial forthwith, and that the reference to a Master pro hac vice, with such powers as the Court may direct--if a reference of this cause, or any or some of the issues herein, is to be made--be promptly ordered and said Master directed to begin and carry to completion the taking of testimony and proof herein.

XIII.

That E.T. Eriksen, of Orland, California, under the order of this Court, as described in paragraph I hereof, was appointed and has been acting as the Water Commissioner herein, and has prepared during each season monthly reports of the performance of his duties in that relation as directed in said order; that these reports through a misunderstanding of said order were forwarded direct to the Judge of this Court by said Commissioner, and since his attention was called to the error, at a ventured suggestion of plaintiff’s solicitor, have been retained in his office at Orland, California; that all of said reports since and including the first thereof, have been available to the parties herein by original impression or copy at his said office, and his task as such Commissioner, as plaintiff is informed, has been so satisfactorily handled as to provoke no protest or exception by any of the parties hereto; that the purpose of the original order in relation to said reports and the ends of justice will be adequately served by the filing of all of said reports, or authentic copies thereof, as may be practicable, with the Clerk of this Court at the time this petition is heard.

WHEREFORE petitioner respectfully prays:

1. That those making voluntary appearance herein as described in paragraph II hereof be made and held to be parties defendant herein, and subject to such judgment and decree as may be rendered upon their answers, disclaimers, or failure to make answer or other defense herein, as the case may be, as well as though named in the amended complaint, to-wit:

Wells Conklin, Alvin Gollnick, Gertrude M. Hall, Wiebeke Johansen, Ellen Lucas, Ed. Franklin Laux, Eugene K. Reynolds, Administrator of the Estate of Isidore Reynolds, deceased; Charles H. Ridley, Mary J. Scearce, W.F. Scearce, Rose Servel, Administratrix of Estate of Fred Servel, deceased; Leland Shults, Jessie Taylor, Administratrix of Estate of W.S. Taylor, deceased; M.A. Tanson, Frank Whalley.

2. That the schedule and names of defendants as written in the title and at the head of the amended complaint herein be reformed to correspond with the showing made in paragraphs III and IV hereof;

3. That the amended complaint and this suit be dismissed, without prejudice, as to the defendants named in paragraph VII hereof;

4. That the amended complaint and this suit be dismissed, without prejudice, as against the State of California;

5. That this cause be set down for early trial, and that the Master pro hac vice, if a reference of this cause or part hereof be made to such master as hereinabove indicated, be directed to begin and complete the taking of testimony and proof herein, or such portion thereof as may be within the said reference;

6. That plaintiff be authorized to file the reports of the Water Commissioner with the Clerk as described in paragraph XIII hereof;

7. And for such other and further relief as to the Court may seem meet and proper.

JOHN T. WILLIAMS,
United States Attorney.

OLIVER P. MORTON,
Special Assistant to the Attorney General.

Solicitors for Plaintiff.

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--Mike Barkley, 161 N. Sheridan Ave. #1, Manteca, CA 95336 (H) 209/823-4817
mjbarkl@inreach.com