THE STONY CREEK WATER WARS
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.]
[ TABLE OF CONTENTS ]
[ Page ]
--------
1 -- [ case heading ]
1 -- OPENING BRIEF OF PLAINTIFF.
1 -- INTRODUCTORY.
7 -- [ "the avoidance of extensive argument or elaborate citation of authority upon the fundamental principles of the law of waters..." ]
9 -- EARLY CASE HISTORY. / THE PARTIES DEFENDANT.
11 - [ enlarging the suit to include all possible claimants ]
12 - DISCLAIMERS AND ORDERS PRO CONFESSO.
16 - FAILURES TO APPEAR AND MAKE PROOF UNDER ANSWERS.
17 - SETTLEMENT OF THE PLEADINGS.
20 - [ the stipulation simplifying pleadings in the Truckee River case ]
21 - [ the stipulation simplifying pleadings, carried to this case ]
22 - INSTANCES OF WHOLLY INADEQUATE PROOF UNDER ANSWERS.
23 - PHYSICAL AND HYDROGRAPHIC ASPECTS OF THE STONY CREEK WATERSHED.
26 - RIGHTS ACQUIRED BY APPROPRIATION.
30 - [ Water Commission Act ]
34 - [ rotation ]
37 - [ belated Sutliff Ranch proofs ]
39 - [ belated Stonyford Catholic Church proofs ]
40 - RIGHTS AND PRIORITIES OF PLAINTIFF.
43 - [ conveyance rights ]
46 - [ no need for Reclamation to submit Points & Authorities ]
48 - THE GRINDSTONE INDIAN RESERVATION.
49 - RIPARIAN RIGHTS OF CERTAIN DEFENDANTS.
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 ]
69 - THE GLENN-COLUSA APPROPRIATION.
70 - [ signature page ]
70 - Appendix
]
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IN THE
Northern Division
OF THE
United States District Court
FOR THE
Northern District of California
Second Division
THE UNITED STATES OF AMERICA,
Plaintiff,
VS.
H. C. ANGLE, et al.,
Defendants.
IN EQUITY
No. 30
OPENING BRIEF OF PLAINTIFF.
INTRODUCTORY.
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-
2
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
3
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
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-
5
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
6
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
7
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
8
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
9
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.
EARLY CASE HISTORY.
THE PARTIES DEFENDANT.
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-
10
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
11
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
12
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,
________
DISCLAIMERS AND
ORDERS PRO CONFESSO.
[ 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-
13
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-
14
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.
15
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 GOVERNMENT'S REPLICATIONS SUGGEST OTHERWISE --
THEY SUGGEST THE "HELP" WAS ONLY IN IDENTIFYING THE PARCELS AND USES,
AND AFTER THIS "SEDUCTION", THE GOVERNMENT VIGOROUSLY ATTACKED MOST CLAIMS. ]
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
16
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.
________
FAILURES TO APPEAR AND
MAKE PROOF UNDER ANSWERS.
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-
17
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.
________
SETTLEMENT OF THE PLEADINGS.
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-
18
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,
19
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-
20
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.
[ THE STIPULATION LIMITING MOST PLEADINGS IN THE TRUCKEE RIVER CASE ]
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
21
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,
22
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.
________
INSTANCES OF WHOLLY
INADEQUATE PROOF UNDER ANSWERS.
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
23
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.
________
PHYSICAL AND HYDROGRAPHIC ASPECTS
OF THE STONY CREEK WATERSHED.
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-
24
in. These recitals, while based upon the very complete
[ PLAINTIFF'S ]
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.
25
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
26
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:
RIGHTS ACQUIRED BY APPROPRIATION.
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
27
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
28
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
29
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;
30
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 ? ]
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
31
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
32
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,
33
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. . . . ]
34
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-
35
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
36
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
37
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-
38
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.
39
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,
[ UNDERFLOW ? ]
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-
40
sistent wth the existing contractual relations between the institution
and Mr. Kesselring) of this small right in its proper place in the
Appropriation Schedule.
________
RIGHTS AND PRIORITIES OF PLAINTIFF.
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
41
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
42
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-
43
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
44
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
45
said places of posting -- an adherence to the policy of courtesy and comity
[ COMITY DOES NOT EXTEND AS FAR AS RESPECTING RIPARIAN LAW ? ]
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
46
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.
[ CONSIDERING WHAT OTHER SURPLUSSAGE THEY RECITED HERE,
IF THE POINTS AND AUTHORITIES SUPPORTED THEIR POSITION THEY WOULD HAVE INCLUDED THEM. ]
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.
47
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-
48
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.
________
THE GRINDSTONE INDIAN RESERVATION.
43. By reason of practical considerations, we here again should be able
to avoid extensive argument or discussion of the governing legal
principles.
[ UNLESS, OF COURSE, THE PRINCIPLES SUPPORTED THEIR POSITION. ]
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-
49
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 ? ]
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.
________
RIPARIAN RIGHTS OF CERTAIN DEFENDANTS.
44. A glance at plaintiff's Exhibit 2 will show that Stony Creek, with
its many tributaries, traverses a
50
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
[ THEY HIT SUCH CLAIMS WITH AN AGGRESSIVE HEAD-ON ATTACK, BOTH IN THEIR REPLICATIONS AND IN THE TRANSCRIPTS. ]
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
[ THEY HAD NO CHOICE. APPROPRIATION WAS ACCEPTED, RIPARIAN ATTACKED.
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
51
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
52
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)
[ 40-ACRE DESIGNATIONS SEVER RIPARIAN RIGHTS BEYOND 40 ACRES ? ]
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
[ FEDERAL PREJUDICE AGAINST STATE RIPARIAN LAW ]
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
[ BADGERED INTO? ]
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-
53
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
54
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
[ HERE IT COMES, THE ATTACK ON RIPARIAN RIGHTS,
PRESCRIPTION TRUMPS UPSTREAM RIPARIAN,
LEAVING ONLY APPROPRIATIONS VALID.
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
55
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.
[ INCLUDING KNOWLEDGE AT THE TIME OF APPROPRIATION
THAT THERE WAS INSUFFICIENT FLOW TO SATISFY THE TAKING ITSELF
LET ALONE THE EXISTING RIGHTS OF ALL OTHERS
AS EXPRESSED IN THE PROJECT APPROVAL DOCUMENTS ? ]
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
56
riparian proprietors being particularly pleaded in each instance.
[ PRESCRIPTION, vs. CONDEMNATION AND COMPENSATION ?
AT THE TIME THIS DECREE WAS ISSUED, CONDEMNATION WAS REQUIRED UNDER CALIFORNIA SUPREME COURT RULINGS. ]
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
[ VIOLATIVE OF THE FIFTH AMENDMENT
"TAKEN FOR PUBLIC USE, WITHOUT JUST COMPENSATION" CLAUSE ?
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
57
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
58
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.
59
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.
60
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
61
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.
[ OFFHAND? THE CALIFORNIA SUPREME COURT IS OFFHAND ? ]
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
62
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
63
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.
[ WHEN? WHERE? ]
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 ? ]
the menacing shadow of the unused
riparian blanket which lowers over the stream systems of California. It
was but "like a
64
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 TO RIPARIAN LAW ? ]
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 ? ]
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,
65
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,
[ JUSTICE KERRIGAN, WHO WENT ON TO THE FEDERAL BENCH AND ISSUED THE ANGLE DECREE ]
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
66
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 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
67
whole field is so obvious as to be
[ BEYOND CAVIL ? ]
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.
[ BUT RECLAMATION WAS NOT "THE FIRST IN TIME".
THEY DREW FROM A FLOW THEY ALREADY SAID DID NOT EXIST . ]
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
68
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
[ THE SINISTER CAST OF UPHOLDING RIPARIAN RIGHTS. ]
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-
69
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.
________
THE GLENN-COLUSA APPROPRIATION.
59. Article XXIV of the findings is referred to. As there stated,
the mutual rights and obligations of plaintiff and the defendant District,
[ DIVIDING THE SPOILS ]
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
70
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
[ STACK THE DECK IN A WAY NO OTHER DEFENDANT COULD MATCH ? ]
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
B. M. PARMENTER,
Assistant Attorney General,
/s/ G. A. Iverson
G. A. IVERSON,
/s/ Oliver P. Morton
OLIVER P. MORTON,
Special Assistants to the
Attorney General.
Solicitors for Plaintiff.
Of Counsel:
/s/ Richard J. Coffey
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.]
[TO SUMMARIZE,
RECLAMATION KNEW HOW LIMITED THE NATURAL FLOW WAS,
THEY KNEW IT WAS ALREADY FULLY APPROPRIATED,
THEY APPROPRIATED MANY TIMES AS MUCH WATER AS WAS IN THE NATURAL FLOW,
THEY BUILT A RESERVOIR IN THE WRONG PLACE BASED ON FAULTY RAINFALL DATA,
THEY EXPANDED THEIR SERVICE AREA IN WET YEARS WITHOUT REGARD TO DRY YEAR FLOW,
THEY INSISTED ON THEIR RIGHT TO COMINGLE THEIR STORED FLOW WITH THE NATURAL FLOW,
AND THEN THEY USED THE COMINGLING AS AN EXCUSE
TO STRIP WATER RIGHTS FROM EVERYONE THEY COULD,
DESTROYING ALL RIPARIAN RIGHTS UNDER CALIFORNIA LAW IN THE PROCESS.
AND THEY HAD THE GALL TO BOAST THAT THEY WERE PERFORMING A PUBLIC SERVICE.
AND TO TOP IT OFF, THEY SUCKERED JUDGE KERRIGAN WITH A PATTERN OF DECEPTION THAT MADE SURE THEY GOT WHAT THEY WANTED,
SEE THE DECLARATIONS ON "FRAUD ON THE COURT" ON THIS WEB SITE. ]
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
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Return to Stony Creek Water Wars.
--Mike Barkley, 161 N. Sheridan Ave. #1, Manteca, CA 95336 (H) 209/823-4817
mjbarkl@inreach.com