Glenn County - Tehama County - Colusa County , California.
(c) 2001, Mike Barkley

The printed and published Decree Book -- Plaintiff's Opening Brief: "Destroying the Riparian Menace"

[This is a transcription from the published Decree Book, which was printed and widely distributed after the completion of the work of the Special Master. The Decree bound in the book saw minor changes by the time it was signed and republised in 1930, and it was further changed by minor amendments in April, 1930.

I've made every effort to present the content precisely, but not the form. If you find mistakes, please point them out. I've found mistakes in the printed package, so don't accept the legal descriptions of land without question.

This brief is crucial because it shows how the U.S. Government destroyed California state law on riparian rights while pretending to respect it. See elsewhere on this website for comments and the timeline laying out how they suckered the judge into accepting the decree.

This presentation is 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. The version I have of Netscape does not allow this, but the version I have of Explorer does.]

[ Page ]
1 -- [ case heading ]
7 -- [ "the avoidance of extensive argument or elaborate citation of authority upon the fundamental principles of the law of waters..." ]
11 - [ enlarging the suit to include all possible claimants ]
20 - [ the stipulation simplifying pleadings in the Truckee River case ]
21 - [ the stipulation simplifying pleadings, carried to this case ]
30 - [ Water Commission Act ]
34 - [ rotation ]
37 - [ belated Sutliff Ranch proofs ]
39 - [ belated Stonyford Catholic Church proofs ]
43 - [ conveyance rights ]
46 - [ no need for Reclamation to submit Points & Authorities ]
52 - [ the 40-acre ploy ]
54 - [ the taking of riparian rights by the U.S. Government without compensation ]
61 - [ Water Commission Act 10-year use it or lose it rule ]
70 - [ signature page ]
70 - Appendix
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Northern Division


United States District Court


Northern District of California

Second Division



H. C. ANGLE, et al.,

No. 30



1. This is an equity suit which has for its purpose the determination and adjudication of the relative rights of the parties in and to the waters of Stony Creek and its tributaries. The watershed of this stream system occupies portions of Glenn, Tehama, Colusa and Lake Counties, in California. While the Special Master and the various solicitors in the proceeding are generally familiar with the physical conditions in this watershed, and the lands therein which are dependent on Stony Creek and its tributaries for their irrigation supply, and also with the ditches and irrigation systems which serve said lands, an early refer-


ence to a general map of the territory will be a convenient aid to them and the court. To this end "Plate 1" his been introduced at the end of the Findings of Fact and Conclusions of Law which are submitted for consideration as a part of this brief. With its markings and explanatory legend it reproduces the outstanding features of the illustrative wall maps used at the hearings (plaintiff's Exhibits Nos. 1 and 2).

2. These comprehensive adjudications of the relative rights of great numbers of claimants in a common water source are essentially of sui generis character. They are in the nature of suits to quiet title, but are otherwise affected by intendments and principles -- growing primarily out of the relative character of a water right -- which set them apart from usual formulas and call for certain elasticities or practical interpretations in the application of existing rules of practice; such rules obviously having been set down in no anticipation of proceedings of [inked in: "proceedings of"] this extensive character.

3. The rapid growth of the Western States, and the prompt utilization of the so-called normal summer flow of their streams in the watering of contiguous or neighboring lands, with its demonstration of the stupendous value of reclaimed arid territory, were followed by large investments everywhere in high line canals or storage works which provided for the utilization of the greater stream flows of the spring and winter months. These developments soon predicated the necessity of ascertaining the existing rights in the streams upon which


they ocurred, and in turn the need for a more scientific and effective procedure than that afforded by the unelastic and technical rules of practice in the state courts. Many of the Western States, in attempts at a cure, have enacted legislation whereby administrative agencies with quasi judicial powers are erected and authorized to collect facts, receive proofs from claimants and hand down so-called decrees or determinations of water rights. These decrees are then either filed in the nisi prius courts, where in amended or original form (after consideration of exceptions thereto) they become pronouncements thereof, or are made appealable to such courts. Such laws, although generally withstanding the constitutional test only when the powers of the administrative agencies are reasonably commensurate with those of a referee or master under court control, have at least served to point the way to effective short cuts and simplifications in our judicial processes, and to discount the ever present possibility that these cumbersome adjudication structures might bog down of their own weight or because of multifarious legal entanglements and dilatory pleas. Hundreds (or sometimes even thousands) of parties and a multitude of issues and interests are always involved. Years, as against months or days in other instances, in any event must be employed. Opportunities to cut this time occur and are seized, but it is in making these necessary years count in clean-cut workable decrees that progress is being made.


4. In the case at bar the United States of America is plaintiff, and the suit, under the fixed and well defined policy of the Government, has been brought in the appropiate Federal Court. Its jurisdiction over the cause rests upon the identity of plaintiff, and the location of the subject matter within the Northern Division of the United States District Court for the Northern District of the State. The powers of a Federal Court of Equity are broad and the hearing and temper of its bench usually of a high and liberal cast; qualities which in turn are likely to be reflected in its Masters in Chancery of special designation. It is believed that the present litigants, with their solicitors were peculiarly fortunate in the circumstance that this great case at its outset came before the Honorable William C. Van Fleet, District Judge, and had such a large share of his analytical and sagacious consideration before his death.

[ Died September 3, 1923 ]

These things, with his own selection and appointment of the Special Master herein left a clear and well prepared field for the adoption of a simplified procedure in the settlement of the pleadings and conduct of the trial.

5. The protection and conservation of the Government water rights and Federal investment in the Orland project, coupled with the obvious necessity of ascertaining the extent and character of vested interests to be respected, furnished very cogent reasons for the initiation of the proceeding. Since its commencement, however, plaintiff has conceived that its task also has had a definite relation to the public in-


terest as primarily represented by the defendant and project communities. Therefore, a constant endeavor has been made so to handle the litigition as to afford defendants a full opportunity to achieve all possible economies in the presentation of their claims, and to have the suit concluded in such fashion as to secure for them, as well as for plaintiff, an accurate and accessible definition and record of their rights.

6. At an early stage in the proceedings the Special Master (generally referred to herein as the Master) had expressed a desire that solicitors for the parties at the conclusion of the hearings before him, submit briefs and arguments in support of their several contentions as an aid to the making up of the first draft of his findings and conclusions; a program which was readily assented to by all, and which involved a presentation by plaintiff in the first instance of more comprehensive character than would ordinarily be required. The present brief, therfore, is accompanied by a draft of findings of fact and conclusions of law which in the conception of plaintiff, after appropriate consideration and review or amendment under the rules, might be embodied in the report of the Master; also by a form of decree, based upon said findings of fact and conclusions of law, which might also be included in the Master's report after such review or modification as might be deemed expedient. With this organized material before them, solicitors for defendants in turn should be able to present, in succinct fashion in answering briefs, such objections and


counter suggestions as they may deem advisable. With an appropriate reply from plaintiff, it is conceived that the Master then will have spread before him at the very beginning of his task a complete exposition, not only of the oustanding issues in the cause, but also of that great body of facts and legal principle which, through a boiling-down process, has come to him in uncontroverted form, and which, if he is in agreement therewith, may be covered into his report as it stands.

7. Rules 59 to 68 inclusive for Courts of Equity of the United States, and No. 114 of the Rules of Practice for this Northern District, have to do with the duties and authority of a Special Master and the proceedings before him. It is provided in Rule 114 that the Master, in settling his report, shall announce same in the form of a draft to be furnished to the parties; a reasonable time being allowed for the various litigants to file objections to the report or suggestions of amendment. These being considered and acted upon, the Master settles and signs his report and files the same, with the objections, in the clerk's office. In a succeeding paragraph provision is made for a review of the report by the court upon exceptions thereto, with the proviso that no such exceptions will be considered, except in the court's discretion for good cause shown unless it appear that the matter of the exceptions had theretofore been presented to the Master in the form of an objection.

[which objections were never ruled on because the Government drafted all this]

8. It will be readily seen that the plan of presentation above described (in paragraph 6) should tend


radically to curtail the number of formal objections made to the report of the Master, and predicate an eventual saving of much time and trouble. It is also apparent that the Master would be under a heavy and unjust disadvantage in any attempt to prepare and submit a draft of his report to counsel without first having advance assistance and suggestions of the sort now contemplated. This statement in no way disregards the universally recognized fact that the Special Master in this cause, through a sagacious conduct of the hearings before him, and assiduous analysis and study of the proof when received, is peculiarly familiar with the facts and issues -- it is a matter in which a mass of complicated and technical detail, affected by cross-relations and issues, must be analyzed and digested and set up in schedules and tabulations through organized joint effort, if reasonably prompt and effective results are to be secured. Although a brief of this sort is bound to extend over many pages and must perforce devote meticulous attention to detail and to legal questions of obviously controversial character, an endeavor has been made to cut down its size when possible. Some ground his been gained by the avoidance of extensive argument or elaborate citation of authority upon the fundamental principles of the law of waters, and by omitting the present discussion of questions which very possibly may become academic by way of later adjustments or better understanding of their significance. Even in some instances of very probable sharp cleavage, it has seeined proper to anticipate


a reduction of such issues to more elementary terms at the time of the hearings upon objections to the Master's report.

9. The findings of fact and conclusions of law as now drafted and submitted for consideration -- designated "findings" as a matter of convenience) are necessarily numerous as they affect and dispose of the interests of a great number of parties. In particular instances of large holdings or interrelated claims they are of considerable length. It also has been necessary to deal with large groups by way of elaborate schedules and tablulations covering a great number of pages. It will be noted that we have ventured to depart somewhat from the usual form and method of setting up findings of fact and conclusions of law. It was desirable to adopt a system under which, as a practical matter, the reader could avoid constant thumbing of pages and cross references to different sections of the document. Therefore, wherever a conclusion of law should be made upon a specific finding of fact, the said conclusion immediately follows the finding, and the two together are included in a separately numbered article,

10. The findings also in a general way, and at least up to the point where they enter upon a detailed definition of asserted rights in the watershed, follow the chronology of the proceeding, and will therefore incidentally reveal the outstanding features of the case history and the significance of the steps taken at its different stages. By a reference to the matters of


preface and intendment which make up the introductory text of the first three pages, it will be noted that the steps subsequently to be taken in the suit [in ink: "s" ending suit crossed off] are anticipated and described. There we are merely attempting to suggest the form and substance of a document which may serve as a basis, not only for the report of the Master, but for the final pronouncement of the court. It is conceived that the findings of fact and conclusions of law (while an integral part of the report which the Master settles and submits to the court for approval) might well be couched at the outset in such terms as to permit their direct adoption and signature by the judge.



11. The probable necessity for an ascertainment of the rights in the Stony Creek watershed which would have to be respected by the Government in its development of the Orland Project, and for some protective measures against unlawful drafts upon its stored supply, had been recognized for some years prior to the commencement of this suit, but it was conceived that some adequate extra-judicial settlement of the problem might possibly be achieved. Conditions came to a head in the spring of 1918 in such fashion, however, as to render an appeal to judicial authority unavoidable. These conditions grew out of the fact that a prolonged dry period had so curtailed the pre-


cipitation and run-off available for storage as to make it imperative that the inadequate supply in the "East Park " or 0rland Project reservoir be conveyed to the lands of the Project intact, subject, of course, to necessary losses from seepage and evaporation. A reference to Plate 1 will show the general situation: some 15 ditches diverted from Little Stony and the main stream between the East Park reservoir and the intakes of the main distributing canals of the Project. The Orland stored supply when released from the reservoir was carried down the channels of these streams to the Government diversions, a distance of some 40 miles. These ditches, by reason of primitive or inadequate diversion dams and head works, and of the lack of any controlled methods of measuring or distinguishing between the natural flow and the stored supply, were making and would be bound to make (as they had in the past under less extreme conditions) illegal drafts upon such stored supply of such size and such wasteful character as to cause heavy and irremedial losses of crops over the project area. The complaint in the first instance, therefore, was directed against a selected list of defendants who were owners or users of the aforesaid ditches. A verified showing of the above described situation was made in this original complaint, with a prayer for summary remedies pendente lite; and a notice to show cause, returnable at Sacramento on an early date certain, was issued and served in the premises. The hearing before Judge Van Fleet in pursuance thereof


resulted in the entry of a preliminary injunction against the defendants named in the complaint and the appointment of Water Commissioner E. T. Eriksen. Mr. Eriksen was directed in the order to make appropriate measurements and calculations of the natural flow at times when stored water was being carried down the creek channels, and so to administer and pilot such stored water down said channels as to confine the diversions of defendants to such natural flow.

12. It, of course, was apparent that the run-off in Stony Creek available to these particular defendants would in turn be affected by facts and conditions obtaining upon the upper reaches of the stream system, in that excessive or wasteful uses above, or illegal diversions under upstream junior rights, would improperly curtail the downstream supply. Indeed Judge Van Fleet, speaking from the bench at the time of the hearing, suggested that the suit neccessarily would have to be enlarged to include all parties whose rights or claims might affect the situation, stating that a decree in the case otherwise would leave the purpose of the proceeding unfulfilled. It was just as clear, because of the relative character of water rights from the same source, that no complete regimen for the use of the available supply could be established without a definition or disposition of all rights and claims along the course of the main stream and on its various tributaries, whether acquired by appropriation or claimed by the owners of riparian areas. With these things in mind at the outset the original complaint had been


drafted so as to require no radical amendments in its text in furthurance of a general adjudication, and the task of enlarging the suit consisted primarily of an ascertainment of the additional parties defendant which would have to be named in the amended coinplaint.

13. The original complaint was filed on May 28th, 1918. The amended pleading above referred to was filed on April 3d, 1919, and is available in the record in convenient printed form. Articles I to X of the findings explain themselves. The bringing in of additional necessary parties defendant through court orders, and the voluntary appearances noted in the text, served to make up the total list of the defendants of record. The appropriate elimination of certain names by way of corrections and substitutions, and facts and conclusions calling for the dimissal of the suit as to a considerable number of those entitled as defendants therein, are also described and set down in these articles of the findings; resulting in the disposal of 88 of the 596 defendants of record,



[ Anyone answering had to deposit funds in advance for both the Special Master and the court reporter; examining the docket, it appeared that each answer or other filing incurred a charge by the clerk.]

14. Of the remainder some 51 have filed disclaimers in the cause as shown in Articles XI, XII and XIII of the findings. In the ordinary run of cases disclaimers generally have the significance which the term itself implies, to-wit: that the defendant who thus dis-


claims actually has no present or potential interest in the subject matter of the controversy or in the issues arising therein. In litigation of this wider and more complicated scope, a considerible number of people, although not actively asserting claims to or using water, are named as defendants by reason of known bases upon which they might claim some interest in the subject matter. Where such defendants, as is often the case, do not regard their interests of sufficient importance to warrant their assertion in the proceeding, or do not think their importance commensurate with the time, effort or expense involved, they find that the situation can be adequately handled by the filing of disclaimers

15. It is evident that such disclaimers, as exemplified primarily by the 36 instances referred to in Article XI, have a very definite place in the determination of the relative rights to waters of the Stony Creek system. This was recognized at the trial by making sure that proof was available in the record as to the lands owned by these defendants which were touched or traversed by the main stream or any tributary thereof. Some of this proof is found in the earlier pages of the transcript, but it is appropriately supplemented and rounded up in Volume 26, which, as paged from 4705 to 4792 and from 4800 to 4830, records the title testimony and evidence which was introduced by plaintiff in the hearing before the Special Master in March, 1926. The outstanding facts in the above premises are set down in orderly fashion in Article XI, coupled with an appropri-


ate reference to the possibility that other water courses than those named may possibly touch or traverse some parcel of the lands in question, particularly where situate in the higher reaches of the watershed. A conclusion of law in consonance with these facts is written into the article. Thus, the interests of all active parties in the case are served through a definite holding that none of said disclaiming defendants or their assigns or successors in interest, for or on account of said lands or otherwise, can thereafter be heard to assert or claim any right in Stony Creek or its tributaries as against any of the parties herein. The 9 additional disclaimants listed in Article XII owned lands for which the streams named would be probable sources of irrigation supply, but which are not touched or traversed thereby. In the absence of any proof of actual steps toward appropriations of water from the creeks in question, claims by these defendants would be ephemeral, and the ownership of the lands given under each name has the significance set down in Article XI only to the extent that such lands may after all be touched or traversed by some unnamed artery of the stream system. The finding itself and the conclusion of law which is appended thereto appropriately take account of this feature, and provide for a full confirimation and embodiment in the decree of their said disclaimers of all interest in the subject matter of this suit, whether or not there might be any basis for any claims in that regard. The significance of Article XIII, and of the disclaimers by the 6 defendants named therein, will be apparent from the reading of the brief text.


16. In the settlement of the pleadings in the case every helpful effort was made and all reasonable allowance given in connection with the filing of answers by defendants.


The adoption of a liberal and considerate policy in this relation is an essential of these adjudication proceedings. There came a time, however, when it was entirely proper to insist upon definite action or choice in the premises, and it developed that some 320 of the defendants failed to present their answers or any other defense in the suit. This feature of the case, was closed by way of the issuance of orders pro confesso against these parties, dated respectively May 20th, June 2d and 24th, and September 15th, 1922. Articles XIV and XV of the findings set up the facts and present the conclusions of law upon which a decree pro confesso as against said defendants should issue. After appropriate recitals of the default and the making of the pro confesso orders aforesaid, these articles properly correspond quite closely in text with Articles XI and XII. Reference, therefore, is made to the foregoing discussion of said last-named articles as to proof of ownership of lands and record thereof and as to the significance and application of the pronouncements therein. It will be noted that this correspondence is carried into the distinctions made between Articles XIV and XV, which respectively parallel those applying to XI and XII. Disposal is made not only of those defaulting defendants whose ownership of lands might have been bases for some sort of riparian claim, but also of those whose areas were outside the riparian classification under the


proof. As in the previous articles, the current text includes appropriate clauses of general application in discount of the remote possibility that occasional parcels might be touched or traversed by some unrevealed water course of the system.



17. We have a balance of some 140 defendants who presented answers in the cause and presumably would submit proof in support thereof. However, as is to be expected in suits of this nature, a certain number of these defendants failed to follow up their answers with proof of any sort, although accorded full and free opportunity so to do, and there is lacking in the case any testimony or evidence upon which rights of any character or extent in the waters of Stony Creek or its tributaries could be adjudged to them. Article XVI deals with the 27 defendants who so chose

[ CHOSE ? Anyone not choosing had to deposit funds in advance for the Special Master and the Court Reporter ]

to withdraw from further participation in the proceedings. There is there set down in tabulated form, under the name of each of said defendants, the stream from which he claims a water right in his answer, and the lands for or in connection with which his claim to the use of water is made. It is believed that the finding of fact and conclusion of law, as given in the article, present their own obvious reasons for the holding there suggested. Note should of course be made of the one of these defendants [in ink: comma crossed off] who is carried over into the next group under a stipulation of sub-


stitution. The subject matter of Article XVI, as now placed in the findings, does some small violence to an orderly chronology in that it has to do with defaults which occurred after the settlement of the pleadings described later in the findings. However, the reason for its position under a process of elimination which will make for a readily indexed and useful record [in ink: comma crossed off] will be apparent.



18. As to the actual trial of the outstanding issues, then, the proceeding resolved itself into a determination or other disposal of the relative rights and claims of the 113 defendants whose names are alphabetically listed in Article XVII of the findings. They, with plaintiff, can properly be designated as the active parties in the cause -- those whose interests have been continued to be represented by counsel and whose rights or claims are to be explicitly defined or denied in the decree. The article further records the circumstances that the answers of defendants generally carried an

[ ADMISSION ? - - Not exactly. ]

admission of the facts set up in the amended complaint, which, when qualified at all, merely reserved a priority of appropriation as against plaintiff, or the like. An appropriate reference also is made to the general stipulation between plaintiff and defendants of January 16, 1923, wherein amendments to the amended complaint relating to the rights of plaintiff under the Stony Creek and Lemon Home appropria-


ions, and for the Grindstone Indian Reservation, were assented to, and the material allegations thereof deemed to have been denied.

19. In the comparatively few instances in which these comprehensive adjudication suits have been undertaken and carried to a conclusion, the matter of the interests and claims of defendants inter sese has presented a problem. Rule, No. 31 of the Rules of Practice for Courts of Equity of the United States is obviously intended to provide for the ordinary case in which a number of defendants are sued, and one or more defendants file counter-claims which are not only directed against plaintiff but which also affect the rights of other defendants. In such instances the rule requires that the solicitors of each of the other defendants whose rights are so affected shall be served with a copy of the counter-claim within ten days of the filing thereof, and that ten days shall be accorded to such defendants for reply thereto. It is obvious at a glance that this rule was not conceived in anticipation of any such proceeding as a suit for the adjudication of the relative rights to the use of water. In the first place, the defendants in such a suit (unless it have to do with a diminutive source) invariably run into the hundreds of persons and not rarely into numbers represented by four figures. Secondly, the complaint in its very nature must necessarily call for affirmative allegations, in the answers of defendants which, if they can be classified at all in current legal terminology, must be designated as counter-claims or pleadings of like and purpose. And thirdly,


the affirmative pleadings in each of these answers, because it sets up the claim of its subscribing defendant to a water right which is relative in character, must be deemed to affect the rights of every one of the other defendants. In the case at bar the pleadings, as shown in the article of the findings heretofore referred to, have been narrowed dovn to the amended complaint of plaintiff, the answers of some 140 defendants, and the separate replies of plaintiff to each of said answers. With but around six hundred parties at the outset, and with some

[ PECULIAR ? more like relentless]

peculiar success in eliminating some hundred of the claims, the active contestants in the proceeding are considerably less in number than is usually the case. Nevertheless, it is of interest to note that a strict compliance with Rule 31 would have required the cross-service of approximately 19,300 answers, and possibly also of the same number of replies. Such an undertaking must be regarded, to put it charitably, as a stupendous and even impracticable mechanical task. Furthermore, the very weight and number of the papers, if any serious attempt were made to do this thing, inevitably would tend to bog down the whole structure of the litigation.

20. In United States of America v. Truckee River General Electric Company et al., the Government initiated an adjudication of the relative rights to the waters of the Truckee River in the Federal Court for the Nevada District. Service of original process was had upon some six hundred defendants, if the writer of this brief, who was identified with the proceeding on the Government's side, remembers correctly, An-


swers were filed by some 300-odd defendants, and plaintiff presented replies thereto. The settlement of the pleadings, as is invariably the case in the sui generis litigation, covered a year or two or more, but no cross-services were undertaken in pursuance of Equity Rule No. 31. The number of such cross-services which would have been necessary if such a course had been adopted is a matter of a simple arithmetical calculation, and would run well through the second hundred thousand. While the rule was ignored, as aforesaid, it was recognized by counsel that any settlement of the pleadings upon that basis would set up an incongruous structure which, certainly as a technical matter, and even presumably on its substantive side, might fall into the slough of a mistrial.


21. In seeking a practical and expeditious solution of the problem plaintiff prepared, and submitted for signature by all of the solicitors, a stipulation in similar vein to that described in XVIII of the findings in the case at bar. It came after the damage had been done, so to speak, as all were in default under the rule, and a good many of the solicitors for defendants were uncertain and hesitant about voluntarily subjecting their clients to the provisions of the unique document. It became neccessary, therefore, to present the whole matter to the court in the form of a motion or petition, and to pursue the elaborate and necessarily cumbersome process of setting the matter down for hearing on written notice. After extensive hearings and argument, and an expenditure of months


of time and effort as well in the earlier premises, a court order was evolved out of this ancillary undertaking which required that all defendants serve true copies of their answers upon every other defendant or his solicitor, and that each of said other defendants, in turn, have a stated time within which to reply thereto and to accomplish cross-service of his said reply in all appropriate instances, with the proviso that this great task could be avoided through the signing of the above described stipulation. It is needless to add that the signature of the document was general, and that this orderly settlement of the pleadings furnished a sound foundation for the adjudication of the relative rights in the common source. Recent advices indicate that all exceptions to the Special Master's Report have now been disposed of, and that the water rights along the Truckee River are being administered by a Commissioner under the decree, although the court has allowed certain matters to remain open for final pronouncement within a limited time.

[ THE STIPULATION LIMITING MOST PLEADINGS, CARRIED TO THIS CASE - This cut the cost to answer for most defendants, but did not extend to briefs which may be why the principal brief in the case was the government's .]

22. In the present case, as illustrated by Article XVIII, the whole procedure was immeasurably simplified through a generally simultaneous or advance execution of the stipulation by duly authorized solicitors when the answers of the defendants were being filed or on the way. Furthermore, under an organic provision of the document itself, advantage could be taken of the stipulation by anyone then or thereafter made a defendant in the cause merely by the signing and filing, under stated conditions, of a separate assent thereto. It will be noted that the text of the article,


witten in such form as to permit its use as a pronouncement of the court, assumes, as of that time, that the few outstanding omissions in the filing of such assents heve been cured. These omissions have been explicitly called to the attention of counsel, and will undoubtedly be taken care of during this concluding period of the trial.

23. Article XVIII carries a further reference to the above-named general stipulation, and cites the provision thereof whereby the requirements of the practice rule anent the character and form of answers in an equity proceeding might be dispensed with. General, in lieu of specific and detailed, admissions and denials were permitted, and provision was made for the setting up of affirmative matter in simple form by way of intelligible schedules and other convenient or graphic methods -- a course which was [in ink: "is" changed to "was"] very generally adopted by solicitors for defendants.



24, In any definition of the rights of the defendants listed in Article XVII, as related to the enterprise of plaintiff, and in their relation to each other, it is apparent that one other preliminary must be disposed of: there are a few instances in which, according to the views of plaintiff, there was a total failure to support the claims set up in the answers of certain of these defendants by any adequate proof, although an


active effort

[ not exactly ]

was made in that relation. It also well may be that plaintiff's interpretation of the record in certain other instances may be regarded by one or more of defendants' solicitors or by the Master as of too liberal a character, and presentations to the Master to that effect, or his own consideration [in ink: "s" ending "considerations" crossed off] of the record, may result in a holding that there has been a failure in these instances also to show a right of any character or extent. It is obvious in any event that provision should be made in the findings for this situation, and Article XIX is submitted to that end. It will be noted that the text is set down in such a way as to admit of the inclusion of additional names and data without changing its letter.



25. In Article XX we approach the determination of those specific facts and conditions which directly affect and control the character, extent and priority of the existing rights to the waters of Stony Creek and its tributaries. The location of the Stony Creek watershed is described in its physical and jurisdictional aspects, and there is an appropriate reference to the graphic exemplification thereof in plantiff's Exhibits I and II and Plate 1. The next ensuing paragraphs of the finding describe those physical and hydrographic characteristics of the watershed which directly affect and delimit the available supply and the conditions under which water rights may be acquired there-


in. These recitals, while based upon the very complete


proof available in the record of the cause, often deal with matters of which judicial knowledge may be taken or upon which there is no controversy -- which are recognized as fundamental truths upon which all can agree.

26. It is an outstanding fact that future irrigation development of any sort or appreciable amount in the Stony Creek watershed, as a practical matter must necessarily carry provision for the storage of the higher winter and spring run-offs of the stream system, in that the available natural flow during that crucial season of each year when lands must be irrigated to produce crops of value has been long since accounted for through direct diversions and uses for the irrigation of existing ranches. In other words, we are faced at the very outset of any attempt to define and determine the rights in the watershed with a postulate which cannot be gainsaid. to-wit: that the establishment in this proceeding of superior rights in any or any number of the defendants to irrigate any considerable body of the unreclaimed land in the district (unless supplemental storage should be a part the development) would mean such a direct invasion of the existing uses as to cause a disastrous crippling, if indeed not a complete destruction, of the farming communities along the main stream. The testimony of Engineer E. T. Eriksen, as recorded at pages 3231 to 3239, Vol. 17, and 3265 to 3267 and [in ink: "also" changed to "and"] 3288 to 3292 (Vol. 18) of the transcript, and as graphically illustrated by plaintiff's Exhibit 42, is directly in point.


The conservative figure of 4,000 acres was adopted by the witness as the probable extent of the riparian claims as eventually made and attempted to be proved in the suit. It happens that this figure was exceeded by some hundreds of acres, but that the successful establishiment of riparian titles by defendants, according to plaintiff's estimate in Article XXIII of the findings, approximated only about 2,500 acres of unirrigated lands. It will be noted that even the use in the Eriksen equations of this smaller figure (while still retaining the unwarranted assumption that all appropriators would share in the available supply) would predicate a destruction or abandonment of more than half of the existing ranches. Engineer Burch's testimony (Transcript pp. 49, 50 and 60, Vol. 1; pp. 3218 to 3229, Vol. 17) with plaintiff's Exhibits 27 and 28, furnishes cumulative proof to the same effect. This presentation, while somewhat in advance of its more particular application to certain of the issues, has such vital significance in our consideration of larger policies and principles as to make it pertinent at this place -- a fitting background for the joint endeavor by all counsel to present for consideration a workable analysis and interpretation of the proof in the cause.

27. The succeeding articles of the findings are devoted to a complete analysis and delineation of the existing rights in [in ink: "of" changed to "in"] the waters of Stony Creek and its tributaries, according to plaintiff's conception of the proof in the cause. A survey of the record will reveal the outstanding fact that existing uses by defendants of


water in the Stony Creek area are in pursuance of so-called "appropriations". The plaintiff's large uses for the Orland project are also within this classification, but are founded as well upon reservations of a water supply for the project, accomplished under the pertinent Federal statutes as hereafter more fully explained. As a first basis of adjudication, therefore, the findings deal with:


28. These are shown in Article XXI, which is centered around a comprehensive tabulation of such rights, [inked in: the comma] or Appropriation Schedule. Its text in great measure furnishes its own reasons and argument. The applicable testimony and evidence is generally so well identified in the transcript under the names of the defendants involved, or that of Mr. Eriksen as principal witness for plantiff, as to argue against extended and specific references to pages thereof. An endeavor has been made to limit the following explanatory notes and discussion of applicable legal principle to obvious essentials:
(a) Plaintiff's rights, and that for the Glenn-Colusa Irrigation District, while referred to in the schedule at proper places in the priority table, are set up in extenso in later articles of the findings;

(b) Priority dates, when set down in the schedule as of April 15 of any given year, refer to instances in which the appropriation was commenced by acts upon the ground as distinguished from the posting of a written appropriation notice under pertinent California


statutes. Proofs of the beginning and completion of the building of ditches and of application of water, being dependent upon the fallible memory of more aged witnesses about longpast events, but seldom could be pointed at the exact day or even month, although the year was generally marked with clearness. However, such ditches ordinarily were small and quickly built in anticipation of use during the current season, and the assignment thereto of dates of priority coincident with the beginning of the irrigation season of the appropriate year was the logical solution;

(c) Appropriation Notices, as proved in the cause by way of the introduction of certified copy or record thereof, marked the initiation of the other rights (not classified under (b) above) which are set down in the schedule. In these instances evidence of the commencement and completion of construction, and of application to beneficial use, within the diligence requirements of the statute, was generally available, and the dates of the posting of said notices were properly reproduced in the schedule as the priority dates of such rights;

(d) The Measurement or Definition of the Rights, as set out in the concluding columns of the schedule in terms of diversion from the source, is in accord with modern practice, and eminently practicable in its recognition of larger uses during the hotter period of the irrigation season. The water requirement or "duty" there stated is in accord with the figures of Engineer S. T. Harding, as directly ascribed to the land in his own testimony, or as applied to like soils and conditions by Mr. Eriksen. This evidence, which properly can be said to stand

[ UNDENIED ? - not exactly. ]

undenied in the record, may be readily turned to in the transcript (See pp. 3129 to 3216


Vol. 17; and pp. 3293 to 3333, 3356 to 3456 and 3477 to 3518 Vol. 19; 4000 to 4147, 4155 to 4184, and 4208 to 4234 Vol. 22; 4240 to 4250, 4252 to 4255, and 4364 Vol. 23; 4413 to 4420 Vol. 24). Where rights for small holdings are necessarily defined by maximum rates of diversion which fall below essential irrigation heads, the rotation measure provided for in the finding and in Article XV of the decree, together with the compensated increase of individual diversions under the conditions stated in said article, offer a most practical solution of the difficulty. Authority in law for the judicial requirement that rotation be employed is discussed in a subsequent paragraph.
29. Appropriation rights, as acquired in the Western States are rooted in the Federal grant (Act of Congress approved July 26, 1866; 14 Stat. 253; R. S. Sec. 2339), and controlled by regulatory statutes concerning their initiation and establishment. These State laws restate, or are the successors of, local customs or regulations. Judicial decisions in numerous leading cases and authoritative text books present the governing rules and principles. The pertinent California Statute will be found at Sections 1410 to 1422 of the Civil Code. The Original Act bore the date of March 21, 1872, and in general essentials corresponded with current code provisions. The various amendments as to detail since 1872 are described in the annotations for the code sections. An interesting and authoritative statement of the appropriation principle and its ancillary "doctrine of relation" appears in Section 141, at pages 170 to 172 of the 3d edition of Mr. Samuel


Wiel's work on Water Rights, in the Western States. Judge Hawley's able opinion in Hewitt v. Story, 64 Fed. 510, is there cited, and quoted in part. Pronouncements by the California courts are of special significance. It is held:
(1) That the priority of a right of appropriation relates back to those overt acts upon the ground (such as the commencement of the construction of a ditch of adequate capacity) which reasonably reveal the intention of the appropriator, provided the work of construction, and application of the water to the beneficial use intended, are accomplished with reasonable diligence.
Kelly et al. v. The Natonia Water Co., 6 Cal. 105, 109;
White v. Todd's Valley W. Co., 8 Cal. 443, 444;
Weaver v. Eureka Lake Co., 15 Cal. 271, 273-4;
Nevada Co. et al. v. Kidd, 37 Cal. 282, 315;
Union Mill & Mining Co. v. Dangberg, 81 Fed. 73, 109.
It will be noted that the custom of posting notices of intention at or near the places of proposed diversions was in existence prior to the provision therefor by statute, and that such notices, when employed by claimants, were regarded as material (though not essential) in applying the doctrine of relation. Such statutes, as in the instance of the California legislation above cited, primarily served to establish a definite and readily ascertainable date to which the right might relate for its priority,

(2) That appropriations of water may be made and right to it acquired without following the course laid down in the code as to posting and recording of notice;

Burrows v. Burrows, 82 Cal. 564, 569-70; 23 Pac. 146, 147-8;
Wells v. Mantes, 99 Cal. 583, 585-7; 34 Pac. 324, 325;
Waterson v. Saldunbehere, 101 Cal. 107, 112; 35 Cal. 107, 112; 35 Pac. 432, 433;
30. In their relation, then, to the statutory provision as to posting and recording of notice, the priorities shown in the Appropriation Schedule fall into three divisions:
(a) Those having dates prior to March 21, 1872 -- they are of the type described in subdivision (b) of paragraph 28 supra, and rest, upon the principle stated in subdivision (1) of paragraph 29;
(b) Those having dates subsequent to March 21, 1872, but which were not initiated by way of the posting and recording of appropriation notices under the statute -- they are also of the type described in subdivision (b) of paragraph 28, but rest upon the principle stated in subdivision (2) of paragraph 29; and
(c) Those initiated under the statute through the posting and recording of appropriation notices -- they are classified under subdivison (c) of paragraph 28, and rest upon the provisions of the statute itself.
31. The Water Codes which have been enacted in a large number of the Western States have been referred to in a previous paragraph of this brief. California, although laboring under the heavy


disadvantage of an endeavor to recognize and reconcile appropriation and riparian rights, has also enacted a similar law known as the "Water Comission Act". It was


first passed on June 16th, 1913, and thereafter subjected to a referendum which resulted in its confirmation. In the absence of a judicial determination, the best opinion holds that the legislation was in effect on December 19th, 1924. Although subjected to some amendments in matters of detail, and although the Water Commission's duties thereunder are now assigned to the so-called Division of Water Rights of the State Board of Public Works, the fundamental provisions of the Act still obtain (Henning's General Laws of California, Part II, p. 3520-Act 5489). One of its primary purposes was to provide for appropriations of water by way of applications to the administrative Commission or Board for a permit so to do. Filing fees and charges commensurate with the acreage involved are imposed, and the approval of an application results in a permit which defines the priority and extent of the right, sets a time for its perfection, etc. This method of appropriation, on the face of the bill, appears to be exclusive and the Act carries a blanket repeal of laws in conflict therewith. Code compilations of the State, however, still carry the statute (Sections 1410 to 1422, C.C., supra) permitting the posting and recording of notice. Whatever may be the conflict here, the rule of the cases cited in subdivision (2) of paragraph 29 would seem to apply, and an actual diversion and application of water to beneficial use constitute an appropriation, even though no application for permit had been made under the Act. These matters have not come up in this state for judicial


determination, as far as the writer could ascertain, but the opinion in
Tulare Water Co. v. State Water Commission, 187 Cal. 533, 536; 202 Pac. 874, 876;
apparently furnishes support for the above in its holding that the board can not refuse to issue a permit under the conditions there described and may be mandamused to that end, and in the following comment upon the legislation:
"Under the law in force (Civil Code, Secs. 1410-1422), prior to the adoption of this Act no permission was required for the appropriation of water of the state. All that was required to create a preferential right to such water was to actually appropriate it to some authorized beneficial use, or to make a water filing to be followed with due diligence by an actual user. The obvious aim of the Water Commission Act was not to abolish but to regulate and administer this privilege."
32. It will be noted that the Appropriation Schedule lists some 14 rights whose priority dates are subsequent to the Water Commission Act. These appropriations were not preceded by the posting and filing of notice under the old law or by application for permit under the above Act. They come under two classifications:
(1) About half of them mark the beginning of a new priority for a ditch to which a much earlier right has already been ascribed; the evidence as interpreted by plaintiff showing that they were not entitled to relate to the priority of the original enterprise by reason of failure to meet the diligence requrement, or of enlargements,


or of beginnings not within the original intention;

(2) The irrigation for the first time of small areas by way of a ditch or pump from a neighboring stream.
The neglect or refusal of these people to make application for permit, or even to post and file notice under the older law, may be ascribed to one or more of the following causes:
(a) The assumption, by those classed under (1) above, that they were still acting under their original appropriation priority;

(b) The suggestion of the Water Commission, as I am advised, when inquiries as to applications are made by owners of lands bordering on streams, that their riparian position made it unnecessary for them to apply. We have no specific information as to whether any of those classified under (2) above made such an inquiry, but it is reasonable to suppose that some of them may have done so.

NOTE: The State Agency doubtless considered itself bound to this policy under the stare decisis rule. It seems to us offhand that a freedom of election in such instances would make for progress in administering the water resources of the State.

(c) The disinclination to undertake the expense, although it might not be very large -- and to go to the very considerable trouble -- of applying for a permit, when they were only proposing to irrigate a very small acreage; coupled with the prevalent conviction among such water users that the actual building of a small ditch (or installation of a pump), and the taking out and use of the water, were an adequate foundation for a right anyway as of the date of that action.
[ not exactly. . . . ]


When it came to pleading and proving the rights of these defendants, particularly referring to those under (2) above, they were again faced with a somewhat difficult question in light of their inconsiderable size. Attempts by those who happened to own lands bordering on the stream to set up riparian claims would have involved incommensurate expense and, as was illustrated by other instances in the suit, might well prove unsuccessful by reason of rifts in title, surrenders or conveyances of riparian claims by predecessors in interest or the like. In any event, they all made appropriation proof without objection by their codefendants or by plaintiffs

[ not exactly. . . . ]

and it is conceived as proper that their priorities should stand as between the parties herein. It might be added that any danger which may be predicated upon the assumption that the application for permit provisions of the Water Commission Act are exclusive, and that any stranger to the suit, although subsequently securing such a permit, would be prior in time to these people, is apparently fully discounted in a practical way (at least as to such of said rights as the schedule shows to be prior to Febuary 17, 1921) by the fact that the plaintiff itself then intervened on the stream with a Federal reservation and application for permit in relation to additional storage.

[ Government is our friend and protector?]

Plaintiff having conceded the priority of these small claims as against its supplemental reservoir, it would seem that they are at least protected against the possibility of the technical invasion by newcomers of the sort above described.

33. The provision for rotation, where rights for small holdings are necessarily defined in the Appro-

priation Schedule by way of maximum diversions which fall below essential irrigation heads, has already been referred to in subdivision (d) of paragraph 28 supra, and reference is made in this relation to Article XXI of the findings and to Article XV of the decree. The imperative need for such a measure has been fully recognized of late years in the irrigation states, and so generally acquiesced in as to limit the instances in which the matter has been questioned and made the subject of judicial decisions. The pronouncements of the courts as thus far made are to the effect that such rotation undoubtedly tends to conserve the waters of the State and to increase and enlarge their duty and service, as well as to solve a very practical problem as between neighboring small water rights owners, and is consequently a practice that deserves encouragement in so far as it may be done within legal bounds; that courts have a right to compel the adoption of such rotation as between such owners to the fullest extent of its practicability, and so long as the measure does not injuriously affect vital priorities as between them.
Cook v. Evans, 45 So. Dak. 31, 42-3; 185 N. W. 262, 265-6;
Helpherry v. Perrault, 12 Idaho 451, 453; 86 Pac. 417, 418;
State v. Twin Falls Co., 21 Idaho 410, 437-44; 121 Pac. 1039, 1048-51;
Rotation is provided for by Federal Court order in U. S. v. Truckee River Electric Co. et al., referred to in an earlier paragraph. While its employment (as

above indicated) his been taken for granted rather than judicially questioned, on account of its obvious necessity and wisdom, the numerous decisions cited in the authoritative text books on waters strongly support the underlying principle. The more elastic and workable administrative regulation provided for in our proposed findings and decree are obviously preferable to the limitation of the rights themselves to alternating periods of time, or the like, found in the earlier cases thus cited:
Long on Irrigation (2d Ed.), Secs. 136, 137;
2 Kinney on Irrigation (2d Ed.), Secs. 790, 909-10, and page 2830 of Vol. 3;
1 Wiel on Water Rights in Western States (3d Ed.), pp. 335-340, 509.
34. Explanation of the Appropriation Schedule would not be complete without reverting to the failure of a certain number of the defendants to answer and make proof concerning lands which then or in comparatively recent times have been irrigated. With the exception of the Sutliff ranch (which will be again referred to) the lands in question were generally situate in the higher reaches of the water shed [sic] and were very small in area. Again saving the exception, plaintiff conceived that its broad endeavor to achieve fairness to all parties in the trial might well include at least some measure of relief to these claimants. It was rather assumed at that time that the failures of these small owners in the premises might be largely due to discouragement or

[ or having to post in advance costs for the Special Master and the Court Reporter or pay for each filing which was the District Court custom at the time]

misconception in the matter of the expense involved in making and supporting


their claims, and that in this light a partial injustice might be done if a considerable area of irrigated land was deprived of its water rights,

[ Compassion smokescreen ? ]

even though their late priorities might argue against their having great value. It seemed, under such conditions, that there should be something in the record upon which at least a motion to set aside the orders pro confesso against these defendants might be based, and plaintiff therefore ventured to introduce such testimony in relation to the history of the irrigation of these areas, and the means thereof, as was within Mr. Eriksen's knowledge as acquired during his examinations in the water shed [sic]. On the other hand, such further knowledge and incidental information as was gained during the balance of the trial has tended to the conclusion that these irrigation activities generally were sporadic in character, or not so recent as at first indicated, and that at least many of the parties had made a deliberate choice in neglecting to set up their claims; either regarding them as unimportant or incapable of establishment. The Sutliff ranch, which contains some 220 acres of irrigated land, was an exception as aforesaid in that the owners, although all served with original process and having an interest large enough to warrant a careful presentation of the claim, through some personal vagary or ill-advised conviction, paid no attention to the proceeding. It was not the desire of the plaintiff, even under circumstances of this sort, to oppose the establishment of a legitimate priority for this area, and the later attempt of the owners of the ranch, through counsel, to introduce proof of the appropria-


tion (Transcript, pp. 3335 to 3354, Vol. 19), in anticipation of a motion to set aside the order pro confesso was unresisted by the Government, although subjected to objections by other defendants. Plaintiff's acquiescence in this irregular procedure was conditioned upon the proof being limited to the support of an appropriation as distinguished from any riparian claim. Testimony in rebuttal as to irrigated areas, water requirements, etc., was submitted by plaintiff (Transcript, 4417 to 4420, Vol. 24). We understand that solicitor for the defendant Sutliff, Mr. Belcher, of Marysville, is planning to make an appropriate motion or application in avoidance of the pro confesso order and for the admission into the record of the evidence now tentatively written into the transcript, and we assume that this matter will be heard and determined in the first instance by the Master at the time of his consideration of the other issues herein.

35. A tabulation in form identical with that of the Appropriation Schedule is set down in an appendix to this brief and shows such facts in the above connection as could be reasonably based upon the adduced testimony (Transcript, pp, 4523 to 4540, Vol, 24); the statement of priority in each instance, of course, being an estimate as distinguished from a definitely proved date. As a matter of consistency, the Appropriation Schedule has been so spaced as to admit of the introduction of any or any number of these items in the order of their priority therein, and the "serial number" column of the Schedule has not been filled in.


Attention is also pointed to the statement of plaintiff's counsel on page 4539 [FIND THIS] of the transcript (Vol. 24) in relation to defaulting areas below the project which are or have been served by pumps,


but which (under the decision then anticipated) are not listed in the said tabulation. In light of the conditions and circumstances above described, plaintiff is contenting itself with presenting the matter in this form, and leaves it with the Master and solicitors in the cause for such consideration as may be deemed proper; making no formal motion or suggestion in the premises, except in the single instance noted below. The tabulation shows 1.6 acres of irrigated land and water right therefor opposite the name of the Stonyford Catholic Church. Water for this land has been delivered through the Kesselring ditch. While counsel is wholly unacquainted with the institution and those in charge, it is recalled that an attorney in Sacramento, a Mr. T. A. Farrell, in answer to an inquiry during the settlement of the pleadings, was advised that he should make arrangements with Mr. Kesselring for, or himself submit, answer and proof; it being also, however, incidentally stated in substance (according to counsel's recollection) that, plaintiff had been considering the policy of introducing such proof as it might have of irrigated areas in the case of default by small holdings. With this in mind, and in order to avoid all possibility of injustice or confusion in the premises, the writer is disposed to ask that the Master and opposing counsel assent to the inclusion (if it be con-


sistent wth the existing contractual relations between the institution and Mr. Kesselring) of this small right in its proper place in the Appropriation Schedule.



36. Article XXII of the findings, with its conclusion of law contains an exposition of the rights and priorities of the Government as plaintiff views the testimony and evidence. With the exception of those which are attached to the 80-acre Grindstone Indian Reservation, these rights have to do with the water supply for the Orland project, which was built and is being operated and maintained under and in pursuance of the Act of Congress known as the Reclamation Act (32 Stat. 388; 9 F. S. 1363; Sec. 4700 C. S.) with its amendments and supplements. The rights for its amendments and the project, in turn, come under two main divisions, viz:
(1) The reservatons and appropriations made by plaintiff itself for said project, and

(2) Earlier appropriations for lands within the Orland project which have been acquired and perfected by plaintiff.
Article XXII, we believe, is very complete in itself and will require argument or explanatory comment only as to certain features. At the time of the advent of the Government, certain smaller irrigation enterprises occupied a portion of the field. The system of the Stony Creek Irrigation Company contemplated the irrigation of some four or five thousand acres on the south side of Stony Creek, while the Lemon Home


Water, Power & Light Company had undertaken the reclamation of some 1500 or more acres of land on the north side of that stream. The first named Company was in part occupying the site of an older ditch, and was delivering water under that early appropriation to the Hall and Scearce lands. The Government purchased these older water rights, ditches and rights of way therefore, [in ink: "and" crossed off] incorporated them into the larger irrigation system of the project, and carried forward and perfected the said appropriations by way of the diversion of water and irrigation of lands under these earlier priorities; all as described in the findings (Transcript, pp. 62 to 74 Vol. 1; 3229, 3230 Vol. 17; 4256 to 4260, 4270 to 4273 Vol. 23; 4513 to 4519 Vol. 24). Its rights in this regard, therefore, rest upon appropriations under the state laws, and the plaintiff's claims as set out in the Article have been voluntarily limited to the areas which has [sic] been reclaimed in pursuance thereof. Under the principles of law which govern appropriations and the doctrine of relation, as the same are described in the earlier pages of this brief, it is submitted that the proof in the cause clearly shows that these rights have become vested as of the several dates of their priorities in the amounts stated in the finding. The special relationships existing between plaintiff and those having a direct call upon the Hall and Scearce priority are embodied in stipulations which are set out in haec verba in the findings.

37. It will be noted that the Article accords apropriate and consistent recognition to the prescription rights which have been acquired by the upstream


defendants against the Stony Creek and Lemon Home priorities. While the principle that rights can not be acquired against the State or Federal sovereign by adverse user is so fundamental as to have the weight of a legal maxim, its irrelevancy in this instance is readily explained by the fact that plantiff's priorities are here based upon appropriations initiated by private agencies. An effective and valid application of the prescriptive principle as against certain other claims to rights in the watershed appears in Article XXIII of the findings, and the submission of such legal authority as may be appropriate has been set over to that place in this brief.

38. In the foregoing we have first directed attention to the rights itemized under item (2) of paragraph 36 in recognition of their closer relationship to the previously treated appropriation rights of defendants. The rights which were initiated by plaintiff itself, while warranting the same classification, also rest upon the broader base of the Federal reservation. As shown in Article XII, the proof in the case furnishes a generously ample basis for the holding that the plaintiff duly initiated the rights described therein under the state law, and has proceeded thereunder, and in accord with the reasonable diligence requirements thereof, in the matter of the commencement and completion of the various project structures and the diversion, conveyance and application of waters thereby to use for the irrigation of the project lands; in other words, that plaintiff has appropriated such waters in accord with the local regulatory sta-


tutes (Transcript pp. 17 to 27, 36 to 41, Vol. 1; pp. 4442 to 4451, 4456 to 4466, Vol. 24). The finding is also in accord with the allegations of the amended complaint in that respect,

[ ADMITTED ? not exactly. . . . ]

which stand as admitted by defendants.

39. The right of plaintiff to make use of the channels of Little Stony and Stony Creeks in conveying its stored supply from the East Park Reservoir to the points of diversion from the last named stream for delivery to the project lands is also set up in the Article, and established and confirmed in Article IX of the proposed decree, which provides for a continuing injunction against the assertion of rights to such stored supply or the diversion or interference therewith by defendant land owners or water users along said stream channels. It is fundamental water law doctrine that a diverter or storer of water is the owner of the corpus thereof when diverted into a carrying structure or sequestered into a reservoir, may make use of natural stream channels as conduit therefor in the course of its delivery to the place of use, and will be protected against encroachment thereon or interference therewith during such conveyance. The controlling principles were set down in the early California cases, e.g.
Huffman v, Stone, 7 Cal, 47, 49-50;
Belle C. & D. Co. v. Vaughn, 11 Cal, 143, 151-3.
They were written into the statutes of the state in 1872 (Civil Code, Sec. 1413) and referred to as establislied in 1915 (Civil Code, Sec. 1410b). Sections


35 (page 33) and 38 (page 37) of Wiel's Water Rights in the Western States, with the cases cited in the notes, may also be referred to in the same relation.

40. A reference to the amended complaint will show that it also stands admitted that plaintiff, through its surveys and withdrawals of public lands and its determination of the project's practicability and adoption thereof, and through the construction of the project works -- all in accord with the provisions of the reclamation law -- has reserved from appropriation by others and for the purposes of said project, as of priority dates therein named, the waters of Stony Creek and its tributaries to the extent required to reclaim and irrigate the 21,000 acres of the project lands; such requirement, as based upon the unquestioned proof in the proceeding, being coincident with the amounts of water in acre-feet and cubic-feet per second stated in said finding in terms of diversion from the stream for direct irrigation, and of storage and directions for storage (Transcript, pp. 45, 46, Vol. 1; pp. 3108 to 3128, Vol. 17, 4466-4470, Vol. 24). The notices which plaintiff caused to be posted at the points of proposed diversion and storage, and recorded in the appropriate offices, not only served as appropriation notices under the state law but were employed to advise the state and its people of the fact that the Government, under the Reclamation Act, had reserved the waters of Stony Creek and its tributaries from approppriation by others for the purposes of the project, and proposed to divert or store such waters at


said places of posting -- an adherence to the policy of courtesy and comity


as between nation and state, which was provided for in Sec. 8 of the Reclamation Act. Under governing legal principles, such reservations consititute vested rights in water as of the date of the first withdrawals or surveys, as the case may be, when they are followed up by the adoption of the project and the construction of its works. This rule, in the case at bar, very probably would have warranted the naming of an August, 1906, date of priority for all diversions and storage under the reservation. However, as a matter of convenient placement in the priority schedule of the stream system, these rights of diversion and storage under the reservation have been accorded priorities identical with those which are ascribed to the paralleling appropriations by the Government under the state law. The allegations of plaintiff, in the amended complaint, and its proof, were consistent with this policy, which has the added merit of a liberal simplicity. In its description of the organization and development of projects under the reclamation law as applied to the Orland enterprise, the finding sets down those facts which show the trusteeship of plaintiff, and the obligations assumed by it to the water users under the project in consideration of the binding of themselves and lands to the payment of its construction cost and operation and maintenance charges (as illustrated by the testimony on pp. 14 to 17, Vol. 1; 4448 to 4450, Vol. 24 of the Transcript); all going to the point that plaintiff is required to provide a water supply for the project


area which shall be available upon demand -- a status of affairs under which the large investment of the Government could be justified only in the acquirement of vested and adequate priorities for the area which is depended upon for the return of said investment. In this practical light, the intention of Congress in adopting its policy of the Federal reclamation of the arid lands of the West and in providing for water supply in that relation, is made clear.

41. A complete presentation of the points and authorities upon which reservations of water supplies for Government enterprises rest would be an interesting and attractive task. An extensive review of the development of the law of waters in its relation to the Federal sovereignty is involved, and practical considerations, as well as the desirability of curtailing this brief wherever feasible, argue against the use of the necessary space, at this time.


The fact is in point that defendants in their pleadings have not questioned

[ NO QUESTIONING? except in the filings that were suppressed. . . . ]

the extent or character of the rights initiated by plaintiff although properly showing (by the naming of dates of initiation for their own rights or by occasional general allegations) that a considerable number thereof are entitled to priorities over plaintiff. Furthermore there could seem to be little opportunity or any controversy as between plaintiff and defendants in this regard, even if such were permissible under the pleadings,

[ which were discouraged ]

in that plaintiff's rights by appropriation, as stated in the finding and in our view clearly shown by the proof, are so supported by beneficial uses as to be commensurate with its said reserved rights.


42. We shall content ourselves, then, with such discussion of this feature as will serve to identify the principles involved. The Congress, from early times, as an incident of the ownership of the public lands by the United States, has assumed, and provided for the administration of, a like ownership in the waters thereon, and for their disposal with or apart from said lands, e.g., in the
Act of July 26, 1866 (14 Stat. 253);
Act of July 9, 1870 (16 Stat. 218);
Act of March 3, 1877 (19 Stat. 377).
Acts of Congress which provide for the conveyance, or reservation for use by the Government, of undisposed of [undisposed-of] water balances, obviously are valid and appropriate. The Supreme Court of the United States, and its subordinate Federal tribunals, in confirmation of this ownership and right of disposal, hold that the Govenment, by setting aside an Indian reservation in the arid region (where livelihood by agriculture means irrigation) by necessary implication reserved the needed water;
Winters v. U. S., 207 U. S. 564, 577;
Skeem v. U. S., 273 Fed. 93, 95 (9th Circ't).
Under the same principle, as put into effect by the decree in U. S. v. Truckee River General Electric Co. (following judicial approval of the Special Master's report which adopted the rule), withdrawals and surveys for the Newland's project in Nevada, followed by its adoption and construction (all under the Reclamation Act), constituted a reservation of the neces-


sary unappropriated waters. It happens that California itself is the site of one of the rare instances in which state tribunals have touched upon the question:
Silver Lake Power and Irrig. Co. v. City of Los Angeles, 176 Cal. 96, 97, 103 to 104; 167 Pac. 697, 698, 700.
The decision (by a unanimous court) is to the effect that a withdrawal order, under the Reclamation Act, of lands (for reservoir sites and works, etc., as for the Orland project) on which notices of appropriation were previously posted by private parties and much work done in carrying forward said appropriations, extinguished the appropriators' rights, and that (although such withdrawal proved to be temporary and the Government project was not carried out) an Act of Congress conveying the same waters to the City, passed before the restoration of the lands, would be valid and effective as against such original appropriators and all others coming after said withdrawal.



43. By reason of practical considerations, we here again should be able to avoid extensive argument or discussion of the governing legal principles.


The proof of the occupancy and use by the tribe of the lands of the reservations and of the waters traversing same, since an even earlier time than the year 1881, is quite clear (Transcript, pp. 4421 to 4426, 4502, 4503, Vol. 24). The formal establishment and setting aside of the reservation by the Government for the use of the Indians thereon and their successors is evi-


denced by documents and testimony (Transcript, pp. 4491 to 4495, Vol. 24). Proof was further made of the peculiar physical conditions as to stream flow, availability of water, and the unrelated character of its use as to other defendants in the cause (Transcript, pp. 4545 to 4546). The amounts of water necessary for stock and domestic purposes and for irrigation (expressed in maximum figures which


obviously are conservative as an estimate of the early uses) are also available in the record (Transcript, pp. 4504 to 4508, and 4545 to 4547, Vol. 24). These matters, as set down in the finding, come to us in the record as uncontroverted facts. In addition to the right acquired by occupancy and use, as of April 15, 1881, which the Government holds as guardian of the Indians under well known laws, there is its reservation of the same waters as of the date of the creation of the land reserve (see Winters v. U. S., and Skeem v. U. S., cited in paragraph 42). It will be noted that these priorities with that founded on the later pump diversions for the irrigation of the 15 acres are inclusive one of the other so as to limit the total to 1 cubic foot per second. We are venturing to assume that the inconsiderable maximum figures for the right, and reasonable marking of priority dates in that relation, will be approved by the Master and the court, and generally assented to by defendants.



44. A glance at plaintiff's Exhibit 2 will show that Stony Creek, with its many tributaries, traverses a


very great number of private holdings, and that the aggregate area of riparian lands in the watershed is quite large. However, the riparian claims which were urged and had any measure of effective support


in this proceeding cover but a very small proportion of the lands thus shown. This curtailment was in part accomplished by way of disclaimers and orders pro confesso, upon which an appropriate decree will be made herein, as exemplified by Articles XI to XV of the findings. Failures to make

[ Uh, whether or not they made them, the government drafted the Findings and the Decree, so all such "make proof" in the transcripts got ignored. ]

proof under answers setting up such claims, and a decision by a very considerable number of the defendants (although presumptive owners of riparian lands) to limit their claims

And the conflicts of interest by the local bar requiring them to protect the appropriators and abandon the riparians took care of whatever other legitimate riparian claims there were. ]

to those founded upon appropriations accounted for another group. A further subtraction was due to failures in proof in a number of instances in which riparian claims were actively urged and endeavored to be supported by testimony and evidence. It is also a notable circumstance that such riparian claims as are left for adjudication in the proceeding have assumed the form of requests for sufficient water to irrigate stated areas of land. A so-called Riparian Schedule is made part of Article XXIII of the findings, and contains the names, and the descriptions of the irrigable lands, of such of these defendants as succeeded in making proof of their ownership of riparian areas. The showing which had to be made in order to accomplish this is aptly illustrated by the text of the first paragraph of said Article XXIII. It was essential that each of said defendants show that his ownership of each parcel of the land claimed to be riparian came


to him directly or through mesne conveyances from the sovereign, and that the other conditions named in said paragraph had been fulfilled. The principle might be embodied in the brief statement that riparian land in any given tract is limited to the smallest parcel (of the original riparian entry or preemption) touching the stream in the history of the title while in the hands of the present owner. Purchase of contiguous land does not make it riparian, whether of new land never before owned or of land formerly part of the same parcel but severed by sale and then brought back. See the following and cases cited therein:
Boehmer v. Big Rock Irr. Dist., 117 Cal. 19, 26-7; 48 Pac. 908, 910;
Anaheim Union Water Co. v. Fuller, 150 Cal. 327, 331; 88 Pac. 978, 980;
Any record of surrender, or conveyance, away from, the land, of a riparian right also would be material in the same relation.
Dockworth v. Watsonville W. & L. Co., 158 Cal. 206, 214, 217; 110 Pac. 927, 930, 932.
45. In recognition of these principles each of said defendants necessarily endeavored to make proof of the ownership of his riparian tract (or tracts) by introducing certified copies, or the record itself, of all conveyances in the title chain beginning generally with the patent from the United States and ending with the deed to him. Therefore, the lands described in the Riparian Schedule under the name of each defendant


comprise "riparian" tracts within his holdings which are shown by his proof to have come to him (from the original Government grant of the traversed tract) without break in the title chain. As the testimony and evidence in this regard can be readily identified in the transcript under the names of the defendants involved, we have avoided the use of space at this point for the numerous references to page and volume. Plaintiff's engineering check of the tracts in the properties (conveniently arranged into 40-acre subdivisions)


which are touched or traversed by the stream, will be found in testimony of Mr. Eriksen at pp. 4262 to 4266; 4273 to 4310, and 4332 to 4388, Vol. 23; pp. 4519 to 4522, Vol. 24 of the Transcript. Court and counsel, at best, are confronted with a difficult task when asked to accomplish or aid in the determination of relative rights to the waters of a stream system in any state which is


saddled, like California, with the incongruous and unhappy union of appropriation and riparian claims and uses. The fact that defendants in the case at bar, in their pleadings and proof as aforesaid, have themselves


placed very definite limitations upon their riparian claims should simplify the problem. The area shown in the Riparian Schedule as irrigable, and to which riparian rights as therein defined and limited attach, are in accord with the evidence in the case as we interpret it, and we believe it is reasonable to assume that no radical changes will be made therein. A showing that the title proof would justify the addition of another tract in an occasional instance, or that a de-


fendant not named in the Schedule has actually made such proof for some tract, apparently marks the limit the changes which could occur. We believe even these to be unlikely, and in any event that we may properly set down the following postulates without elaborate argument or discussion:
(a) Each of the defendant riparian owners named in said Schedule is on a parity with the others, and priorities of use do not exist as between them under their riparian rights. Each is required, however, so to use the waters of the stream as to make it a reasonable use as related to similar uses by the others. With ample water available during the irrigation season, such use obviously would be measured by the maximum requirements of the irrigable acreages shown in the Schedule, but with the actually much depleted flow during the hotter summer months, the matter of determining reasonable use as between said owners (even when disregarding all superior calls upon the supply) at first glance would involve large proportionate reductions in scheduled areas. The problems involved in the determination of reasonable use as between riparian irrigators are discussed in Charnock v. Higuerra, 111 Cal. 473, 481; 44 Pac. 171, 173. It is obvious from the very nature of the rights that such a determination, if definitely made, would have to be changed with changing title conditions on the stream, for example, as the number of holdings and homes were increased by subdivisions of large tracts.

(b) In contrast with the more usual claim (under so-called fundamental principle) that the rights of riparan owners, as against appropriators and non-riparian uses, are exclusive, call for


an undiminished and continuous flow, and are subject to no requirements as to reasonable use, beneficial application or otherwise, the right of each of the defendants named in the Riparian Schedule, as against all non-riparian rights of the parties herein, is definitely limited at the outset to the amount of water necessary to irrigate the irrigable land described under his name in the Riparian Schedule. This necessary amount, in term of acre feet per acre per season and cubic feet per second per acre, as based upon the

[ UNCONTROVERTED? Nonsense. See the transcripts.]

uncontroverted Harding figures, is set down in said Schedule under the heading "Requirement at Diversion."
46. Under the law, and the proven facts in our cause


Darned shame the watershed didn't have a judge that understood California water law. ]

the riparian rights are further and definitely subject to and limited or qualified by certain prior appropriations, prescriptive uses, estoppels and statutory provisions. Article XXIII of the findings and Article XIII of the proposed decree contain the essential pronouncements in this relation. As summarized in the conclusion of law for the aforesaid Article of the findings, each of said rights is held to be subsequent in point of time, as to its call upon the waters of the stream, and subject and inferior, to the rights of the parties plaintiff and defendant herein which are listed under subdivisions (1), (2) and (3) of said conclusion. Attention is first directed to subdivision (1). It is there held that, such of said riparian rights to attach to tracts which were acquired from the United States after the date of priority of any right of plaintiff or appropriation right of defendants, are subject and inferior to that right. This is in accord


with fundamental principle as enunciated in numerous decisions, of which the following is an apt example:
Haight v. Costanich, 184 Cal. 426, 431, 433, etc.; 194 Pac. 26, 28-30.
47. Subdivision (2) of the conclusion of law first defines, in (a), the rights by prescription through adverse user which obtain in favor of plaintiff and certain of the defendants, as against said riparian owners or certain thereof. The necessary elements or conditions which go to make up such adverse user as will ripen into a prescriptive title are written into the text of the finding of fact, and in our view are in full accord with the proof in the cause. A reference to Section 318 of the California Code of Civil Procedure, and to Sections 582 et seq. (pages 628 to 638) of Wiel on Water Rights in the Western States (3d Ed.) will define the statutory period and furnish ample and authoritative statement and citation of the controlling principles and authorities. Plaintiff's beneficial diversions and storage operations on the stream system have been upon a large scale from the beginning, were in pursuance of reservations and appropriations under the law as heretofore shown, and in the very circumstances of their accomplishment involved every one of the essential prescriptive elements.


This proof also finds its basis in the amended complaint of plaintiff, and, for good measure, in each of its replies to those answers of defendants which sought to establish riparian claims for unirrigated areas; the prescriptive rights as against such lower


riparian proprietors being particularly pleaded in each instance.


These allegations in the pleadings and the proof thereunder stand

[ ADMITTED ? - not exactly. . . .]

admitted and uncontroverted. It would seem to be just as apparent (though smaller adverse subtractions are involved) that the adequate proof of defendants' perfected appropriations -- to the extent and as of the dates of priority set out in the Appropriation Schedule -- will carry the same actualities and unescapable intendments in the matter of their adverse user as against riparian proprietors below. Such appropriations are for a beneficial purpose, necessarily open and hostile, involve a claim of right, are exclusive, unwarlike, and


of course, any protest would require finding a judge who gave a hoot. ]

invasive to the extent of the perfected usufruct and as basis for their priority, must have shown continuity, or uninterrupted application from the time of their inception. The California rule is to the effect that a use of the water when needed:
Hesperia, etc., Co. v. Rogers, 83 Cal. 10, 11; 23 Pac. 196;
Northern Cal. Power Co. v. Flood, 186 Cal. 301, 306; 199 Pac. 315, 317,
or its use again and when available after several dry years:
Huffner v. Sawday, 153 Cal. 86, 92; 94 Pac. 424, 426,
will be regarded in law as a continuous use. That the

[ not exactly. . . . ]

pleadings on the part of these defendants will be deemed to be adequate basis for the proof and decree


herein as to their prescriptive rights against riparian proprietors follows from the terms of the general stipulation set out in Article XVIII of the findings.

48. Such rights of plaintiff, then, and such appropriation rights of defendants, as (according to the findings) antedate by five years or more the commencement of this suit as between them and any lower proprietor of unirrigated riparian land, are superior in time and call upon the stream to the riparian right for said land. It is unnecessary, we believe, to cite authority in support of the point that, as between an appropriator and lower riparian proprietor, their involvement in any suit proposing to define their rights will stop the running of the prescriptive period. It is the settled law of this state that the right to take water from a stream, as against riparian owners, may be acquired by prescription; and this is so even if the riparian owner during the period had no actual need for and made no attempt to use the water;
Stanford v. Felt, 71 Cal. 249, 250; 16 Pac. 900;
Anahiem Union Water Co. v. Fuller, 150 Cal. 327, 333; 88 Pac. 978, 981;
E. Clemens Horst Co. v. Tarr Mining Co., 174 Cal. 430, 436-7; 163 Pac. 492, 494-5.
49. The conclusion of law for Article XXIII of the findings under item (b) of subdivision (2) also holds that the riparian rights of defendants which are defined in said Article as appurtenant to unreclaimed irrigable area are subject and inferior to certain of the rights of plaintiff. These rights are identified as


those which the plaintiff itself reserved and appropriated for the public use and purpose of irrigating the lands of the Orland project, to-wit: those described in subdivisions (1) to (4) inclusive of the conclusion of law for Article XXII of the findings and in corresponding subdivisions of Article VIII of the proposed decree. This holding is founded on estoppels which are obviously in force as against said riparian proprietors by reason of the facts and circumstances set out in the finding of fact in said Article XXIII. These facts were alleged with great clearness in the amended complaint and, for good measure, in the replies to the answers of the defendant proprietors of the lands in question, and stand

[ ADMITTED ? - not exactly. . . . ]

admitted in the record. By way of confirmation, and as an aid to the court, plaintiff nevertheless saw to it that they were supported by evidence, which in turn comes to us

[ WITHOUT CONTRAVENTION ? - not exactly, some filings were suppressed. . . .]

without contravention. The proof that those defendants and their predecessors were charged with notice as to the plans and purposes of the Government, knew of the building of the extensive works, of their great cost, and of the public use to which the large amounts of water to be diverted and stored thereby were to be and were thereafter put, but that they none the less sat by without opposing act or protest, is recorded in part on pages 4430 to 4435, 4452 to 4456, 4478 to 4481 and 4509 to 4513, Volume 24 of the Transcript.

50. The governing principles of law are clear, and have been announced by learned judges in plain terms:
Peurhyn etc. Co. v. Granville Elec. Light etc. Co., 181 N, Y. 80, 90; 2 Am. Cas. 782, 785.


This was a suit by a riparian owner for an injunction against the diversion of water by means of a dam built by the city. It was held that plaintiff was estopped by his failure to take action at an appropriate time, citing the interesting case of New York v. Pine, 185 U. S. 93, and quoting from Mr. Justice Brewer's opinion in substance as follows:
"If plaintiffs had intended to insist upon their strict legal rights (assuming that they have them as riparian owners, for the purpose of this case) they should have commenced at once to restrain any work by the city before it had gone to the expense (of building a dam for municipal supply)."
Judge Bartlett of the New York Court states in his opinion that the principle so clearly stated by the learned Justice (Brewer) is supported by abundant authority; citing cases.
In Borton v. Riverside Water Co., 155 Cal. 509, 515; 101 Pac. 790, 792:
A case is presented in which plaintiffs stood by, knowing that the development was made for a public use, and suffered the Water Company to proceed at large expense to successful operation, knowing or having reasonable cause to believe that it would affect their own supply, and without any objection or protest on their part prior to their suit for an injunction. It is held that they were estopped from maintaining a suit to enjoin the use, and that the injunction applied for had to be refused on that ground.

See, also:
Miller & Lux v. Enterprise Canal etc. Co., 169 Cal. 415, 424-430; 147 Pac. 567, 571-3, and cases cited;
Holmes v. Snow Mountain Water & Power Co., 36 Cal. App. Rep. 394, 397; 172 Pac. 178, 180;
51. In subdivision (3) under the conclusion of law for Article XXIII, the rights listed in the Riparian Schedule are made subject to that salutary provision of the Water Commission Act which is written into Section 11 (Henning's General Laws of California, part 2, page 3520 -- Act 5489). The provision in question reads as follows:
"If any portion of the waters of any stream shall not be put to a useful or beneficial purpose to or upon lands riparian to such stream for any continuous period of ten consecutive years after the passage of this act such nonapplication shall be deemed to be conclusive presumption that the use of such portions of the waters of such stream is not needed upon said riparian lands for any useful or beneficial purpose; and such portion of any stream so nonapplied, unless otherwise appropriated for a useful and beneficial purpose is hereby declared to be in the use of the state and subject to appropriation in accordance with the provisions of this act; provided, however that where there is pending any action or proceeding to condemn any lands riparian to the stream or any rights, powers or privileges to use the waters of any stream upon lands riparian to such stream or to condemn rights essential to use the waters of any stream which action or proceeding was commenced prior to the sixteenth day of June, 1913, said period of ten


consecutive years shall be exclusive of the period of time during which such action or proceeding is pending."
That portion of the text which relates to condemnation suits filed prior to June 16, 1913, was embodied in the amendment which was passed in 1919. The proceedings there referred to, of course, have no application to the present discussion. It will noted, however, that the text of our subdivision (3) takes account of the pendency of the case at bar. It seemed the sounder and more logical course, and in keeping with adjective principles of law, to assume that the running of the statute has been temporarily interrupted by a proceeding in which it is proposed to define and delimit rights which come within the scope of the act.

Lawyers who are, as the saying goes, "sold" upon the so-called fundamental riparian theories as expounded by the alleged present weight of authority in California, have been prone to the offhand and fixed conviction that this legislation is invalid under the Constitution upon the alleged ground that it constitutes an invasion or destruction of vested interests.


The opinion in the recent case of Herminghaus v. So. Cal. Ed. Co., 73 Cal. Dec. 1; 252 Pac. 607, is cited in support of their conclusion. A reading of this opinion (pages 22 to 24) will show that the court refuses to pass upon the validity of the section; stating that it has no application to the facts in the instant case, and holding that the Heminghaus uses


are in accord with the terms "useful or beneficial" as there employed.

52. As will appear later herein, the history of the California decisions concerning riparian rights is a peculiar one in that the Supreme Court has seldom hesitated to overturn prior judicial pronouncements when the facts, in their view, warranted it. We are convinced that this holding as to beneficial application will not stand the test of future judicial scrutiny in the state,

[ WRONG!! ]

but it is obvious, in any event, that the case as it stands does not foreclose this court (if indeed it would consider itself bound in the premises, to which we do not subscribe) in its consideration of the validity of the legislation. It would seem that the animadversions of Judge Richards are directed rather against Section 42 of the Statute, which prescribes the top limits of benificial uses upon uncropped areas by way of the declaration of an annual maximum duty of 2-1/2 acre-feet per acre at the land. It certainly furnishes no comfort for the protagonists of the theory that the use of a whole river on a few hundreds or thousands of acres comes within the beneficial classification. It happens that our conclusion as to the force of the opinion in the Herminghaus case is not without judicial support. In Falls [sic, should be "Fall" ] River Valley Irri. Dist. v. Mt. Shasta Power Corp., 74 Cal. 275, 282-3; 259 Pac 444, 447, Judge Preston states in effect that it is a misconception of the Herminghaus case to say that it was there held that the aforesaid section of the Water Comniission Act


was in complete conflict with the State or Federal constitution in any particular.

53. The questions involved here are so vitally important that we are venturing to assume, in the event that the Master or court should be in doubt as to the validity of the statute, that counsel on either side will be called upon for a further and most careful presentation of the matter.


From every practical angle, and in any way in which the development of the water resources of the state may be viewed, the legislation is based upon a sound philosophy, and it occurs to us that this court may not hesitate to decide that it must be given its intended effect. If it be desired, however, that the matter be presented at greater length than in the current text, a separate briefing of the question, we believe, would be the expedient course.

54. The writing of Section 11 into the Water Commission Act was obviously inspired by the hope that the legislature itself, through a proper exercise of its police or regulatory powers in the administration of the water resources of the state, might achieve a solution of the problem. The signal failure of the judicial arm in the premises was not because many of the learned judges of the state had not seriously, and with great sincerity, made the attempt. They, with the members of the bar and thoughtful publicists of the state, long have been seeking a practical and effective method of dispelling


the menacing shadow of the unused riparian blanket which lowers over the stream systems of California. It was but "like a


man's hand" in the earlier days, when developments were limited to the narrow bottom-lands of the small valleys or to the borders of the larger streams, but began to assume a threatening aspect as soon as the normal summer flows had been employed in the irrigation of neighboring lands, and large investments everywhere in high-line canals or storage works were contemplated for the utilization of the greater runoffs of the spring and winter months. These developments have and have had to do, primarily, if not exclusively, with the reclamation of non-riparian areas, and their importances can not be exaggerated in relation to the development of our greatest resource.

55. One has but to read the text of Sections 820 to 832, inclusive, of Mr. Wiel's able book on Water Rights in the Western States, and the so-called opposing authorities therin cited, in order to get this message in its full intensity. It is there apparent that the learned judges of our highest tribunal, although hedged on every side by the recurring and


reactionary adherence of the same court to so-called fundamental doctrine, have courageously refused to regard that doctrine as sacrosanct and have endeavored to carve out a working rule under which


the throttling influence of the archaic riparian conception might at least be mitigated. The same effort is apparent in Judge Shenk's able dissenting opinion in the Herminghaus case (cited above), and in his supplement to the opinion in the Falls [sic] River proceeding (also referred to on a previous page). We can select other instances,


almost at random, to illustrate the point. In Holmes v. Snow Mountain Water & Power Co., 36 Cal. App. Rep. 394; 172 Pac. 178, the court, speaking through Justice Beasley, with the concurrence of Justices Lemon and Kerrigan,


not only holds, as stated upon an earlier page, that the riparian owner is estopped in the matter of preventing non-riparian diversion for a public use, but (at page 396) that the 2 sec. ft. which is allowed to run by the dam -- being a fair measure of beneficial use on the riparian land -- will in turn prevent such owner from the collection of damages for the diversion of the reimainder! In Mentone Irri. Co. v. Redlands, etc., Co., 155 Cal. 323, 328; 100 Pac. 1082, 1084, the court says:
"We have little doubt that plaintiff (a nonriparian user) would be entitled to some relief" (against a wasting riparian owner) * * * The parentheses are ours.
56. The trouble is that the Supreme Court of California, in its earlier day, overlooked that splendid opportunity which was seized for example, by the supreme tribunals of Oregon and South Dakota. They, as well as the California courts, subscribe to the principle that the Federal grant in the Act of 1866 is the origin of private rights to water, but, unlike California they give the doctrine its full value in its relation to subsequent legislation by Congress. The so-called "Desert Land Act" of March 3, 1877, which has been cited on an earlier page, after providing for the entry of such desert lands and the appropriation


of water therefor, contains the following additional provision:
"And all surplus water over and above such appropriation and use, together with the water of all lakes, rivers and other sources of water supply upon public lands and not navigable, shall remain and be held free for the appropriation and use of the public for irrigation, mining and manufacturing purposes, subject to existing rights."
The cases hold that Congress by this legislation provided that the Federal grant of water rights thereafter would rest alone upon appropriation in accord with the local regulatory statutes;
Huff v. Porter, 51 Ore. 318, 391; 95 Pac. 732; 98 Pac. 1083, 1092; 102 Pac. 728;
Cook v. Evans, 45 S. D. 31, 38; 185 N. W. 262, 264;
The South Dakota case adopts the doctrine of the Oregon decision, and the effect of these pronouncements has been to rid these states of


the riparian incubus; the opinion in Huff v. Porter, as we recall it, giving its sanction to the riparian principle only to the extent of legitimate domestic demands. The Supreme Court of the United States, in Boquillas Cattle Co. v. Curtis, 213 U. S. 339, 344, has stated that the decision in Huff v. Porter as to this matter was upon plausible grounds. It is certainly difficult to understand how our California judges can say that the above provision of the Act of 1877 applies only to entries made thereunder. The intent to cover the


whole field is so obvious as to be


beyond cavil, and, although the Oregon and South Dakota decisions came many years after the passage of the Act of 1877, and destroyed the riparian doctrine in said states at a single stroke, it is not of record that either of the commonwealths was precipitated into any maelstrom of confusion or turmoil by such an invasion of "vested interests". We understand that they are a part of the organic law of these states to-day, and that their salutary influence in aid of the development of their water resources can not be exaggerated.

57. As one reads the grist of conflicting decisions in California upon this subject, it is possible to detect certain definite tendencies which would make for at least partial salvation if they were given their full head. Conflicts, otherwise irreconcilable, are solved by liberal applications of estoppels and prescriptions, and the summary curtailment of riparian claims to rational limits. These holdings, in their effect, approach the only logical rule that the first in time is the first in right.


It is the rule that fits the Western conditions, and is in force in a big majority of the Western States (where rights are acquired from the sovereign only by appropriation). Again, in California, we find that explicit judicial sanction and establishment of riparian claims as against appropriators generally has to do with those instances in which the riparian proprietor has beneficially applied the water to his lands, and that decisions which amount to a confiscation of the non-riparian enterprises in


favor of the unreclaimed riparian areas are scarce indeed. It would be entirely safe, we are convinced, to issue a general challenge to the proponents of this 'sacrosanct' [in ink: quotes added] doctrine, and ask that they point to a single case or decision in which an appellate court of this or any other state has held that an idle riparian proprietor -- who himself and through his predecessors has sat upon a riparian holding for many years and watched the growth and irrigation of a great community of ranches and homes -- can then insist (whether he is above or below that cultivated area) that he has the right and power, by virtue of his riparian position, to demand this water for his theretofore idle estate, and thus turn a flourishing community back to the desert. This is what the doctrine means in its last analysis, and its complaisant approval in lesser cases assuredly has a


sinister cast. The illustration so closely approximates the situation on the Stony Creek as to offer a true parallel. The situation is set up in Article XX of the findings, and appropriate comment on and references to the proof in that relation will be found in paragraph 25 of this brief.

58. A full confirmation of the prescriptive rights of the apropriators in accord with item (a) under subdivision (2) of the conclusion of law for Article XXIII would of course, help this grave situation, but it is aparent that much more than this is needed in achieving an effective remedy.

[ ALL THIS IS RECLAMATION'S POLITICAL TRACT. Darned shame there wasn't a judge sitting who understood California water law. ]

It is a worthy cause, and we are at the point where forward-looking people must face and solve it. It is pertinent that the reac-


tionary character of the Herminghaus decision has inspired a real movement in the state to this end. If the court now tells us that there is no hope for a holding like that in Oregon or South Dakota, there is indeed an unescapable practical reason for a courageous and positive pronouncement that Section 11 of the Water Commission Act is a valid exercise of the legislative power.



59. Article XXIV of the findings is referred to. As there stated, the mutual rights and obligations of plaintiff and the defendant District,


as between themselves, are recorded with clearness in the duly approved stipulation which is made part of the finding, and presumably will be embodied in the decree. Therefore, issues between them may be regarded as settled and out of the way. The same will be true to a great extent as between that public corporation and the other defendants, if the prescriptive rights of the latter, as set out in the finding, are written into the decree. The writer understands that the District's solicitor is in accord with this feature. The proof, in plaintiff's view, adequately supports the priority. The position of defendant in the watershed is a unique one, and obviously must be taken into account in setting down the maximum figures for the right. The circumstances argued for a submission to the Master, and opposing solicitors in such form as


to permit of a first proposal of these figures by the defendant District. Plaintiff's suggestion of the general form and substance of the finding of fact and conclusion of law was prompted by a desire to


furnish at least a small measure of aid to the Master and the parties, and to make its general presentation as complete as was possible.

Respectfully submitted,

/s/ B. M. Parmenter
Assistant Attorney General,

/s/ G. A. Iverson

/s/ Oliver P. Morton
Special Assistants to the
Attorney General.

Solicitors for Plaintiff.

Of Counsel:

/s/ Richard J. Coffey
District Counsel,
U. S. Bureau of Reclamatiom.

[PDF EXHIBIT:] APPENDIX: [This Appendix is bound in the Decree Book at the end of the Brief, and is referenced in paragraph 35 on p. 38 of the Brief.]




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Return to Stony Creek Water Wars.

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