THE STONY CREEK WATER WARS - Replication to Answer of Brownells

THE STONY CREEK WATER WARS
Glenn County - Tehama County - Colusa County , California.
(c) 2009, Mike Barkley
Replication to Answer of Brownells

[A transcription of the document on file in the Angle Archives

Important because it appears from the transcripts that the Government's entire attack on riparian rights was specifically aimed at the Brownells. With defendant after defendant on cross-examination, Morton hammered at the possiblity of another 3,000 acres between their uses and the government's diversion, which would tend to fragment opposition and make outcasts of the Brownells. It was also conventient to divert attention away from the fact that the USA was irrigating 5 times as much as those riparian claims.

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

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EQUITY
No. 30 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

IN THE Northern Division
Of the District COURT
OF THE UNITED STATES
FOR THE
Northern District of California
Second Division

THE UNITED STATES OF AMERICA,

vs.

H.C. ANGLE, et al.,
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Defendants,
L.E.Brownell, I.L. (or R.L.) Brownell,
R.H. Brownell, and Mrs. R.L. BROWNELL - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
FILED
At ____ o'clock and ____ Min ____ M
May 8 1922
W.B. Maling, Clerk
By Thomas J. Franklin,
Deputy Clerk - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Service hereof acknowledged this
22 day of April 1922.
/s/ Frank Freeman
Solicitor for defendants.
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OLIVER P. MORTON
SPECIAL ASSISTANT TO THE ATTORNEY GENERAL
600 KERCKHOFF BLDG., LOS ANGELES, CALIF.
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[end of cover]

IN THE NORTHERN DIVISION OF THE DISTRICT COURT OF THE

UNITED STATES, FOR THE NORTHERN DISTRICT OF

CALIFORNIA - SECOND DIVISION
THE UNITED STATES OF AMERICA,

Plaintiff,

vs.

H.C. ANGLE, et al.,

Defendants.

IN EQUITY No. 30

REPLICATION TO THE ANSWER OF DEFENDANTS
L.E. BROWNELL, I.L. (or M.L.) BROWNELL,
R.H. BROWNELL and MRS. L.R. BROWNELL.

The United States of America, plaintiff herein, by its solicitors, makes replication to the answer of defendants L.E. Brownell, I.L. (or R.L.) Brownell, R.H. Brownell and Mrs. L.R. Brownell, as follows:

I.

As to whether said defendants or either or any of them are now the owners of, or in person or through or by predecessors in interest or otherwise have or have ever had for any time or at all any right, title or interest in or to, or poesession of - whether open notorious, uninterrupted, exclusive, or otherwise - the described 15,000 acres or any land in Townships 21 and 22, North, Ranges 5 and 6 West, M.D.B. & M., or any part or parcel thereof, plaintiff is without knowledge.

II.

Plaintiff denies that 106 acres or any or any part of said lands are now or have ever been irrigated or had water applied thereto or used thereon for irrigation or any other purpose, beneficially or otherwise, from Stony Creek, (herinafter sometimes referred to the "stream"), or from any other source; except that plaintiff is informed and believes and therefore alleges on information and belief that not more than 45 acres of said lands were attempted to be irr-

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gated from the stream more than 20 years ago, but that said attempted irrigation and such ditch as may have been partially constructed at that time was forthwith abandoned; and that none of said land has been irrigated for 20 years or more last past. Plaintiff further alleges that not more than 300 acres of said lands are physically or economically capable of irrigation from the stream. Plaintiff is without knowledge as to the extent to which said land is fertile or can be rendered productive by irrigation, but alleges as hereinafter more particularly set out that no water is available therefor from said stream. Plaintiff admits that the entire flow of the stream during the summer season would be required to irrigate said lands or any very considerable portion thereof, if indeed they were capable of or entitled to irrigation, but alleges that this would entirely deprive the lands of a large number of the defendants herein of water for irrigation and cause same to return to a desert condition and require the abandonmnent by said defendants of their homes.

III.

Plaintiff alleges that no beneficial or economical use of waters of said stream has ever been or can be made in connection with or upon said lands or in the irrigation thereof during any time of year except in the irrigation season, which for said lands is alleged to be the period from April 15th to Septemher 15th of each year, and that no flow or amount of waters in excess or 1/60 of a cubic foot per second per acre, and no more than a total of 5 acre feet per acre per annum from said flow, measured at the point of diversion from the stream and used only during the irrigation season aforesaid, has ever been or can be beneficially or economically diverted for or used, or is needed, for irrigation and other purposes, upon said lands or any part therof; and alleges that no right or claim of any character or priority to divert or use the waters of the stream upon said lands now exists in or ever can be acquired by defendants or any one in excess of the amount required to irrigate

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300 acres of said lands according to the foregoing ratio and water duty, and that no right for irrigation or otherwise has been or can be acquired for said lands or any part thereof as against plaintiff.

IV.

As to the lands alleged to be owned by defendants plaintiff alleges as aforesaid that no beneficial or economical use of water of said stream can be made upon or in the irrigation of said lands during any other time of year than in the irrigation season, which is alleged. to be the period from April 15th to September l5th of each year; that the natural flow of said stream during said irrigation season has been fully appropriated and used by the other defendants herein on their irrigated lands, and by the plaintiff, and that it would be unjust and unlawful and an invalid invasion of the rights of said defendants and of plaintiff to permit defendants or the owner of said lands, or any one, who with their predecessors in interest have sat by and made no use of said waters upon any of said lands, (whether upon tbe ground that said lands or any portion are traversed or bordered by said stream or riparian thereto, or otherwise) to now demand or assert the right to have the waters of said stream or any thereof flow by or over said lands, or to undertake or assert the right to divert or use such waters or any part thereof upon said lands, in direct deprivation of those now using same, who are dependent thereon for their livelihood and welfare; Wherefore, and for the reasons set out elsewhere herein, no right to divert or use water upon said lands or any part thereof for irrigation or otherwise exists in or has been or can be acquired by defendants or any one as against plaintiff, and neither defendants nor any one for or on said lands is entitled to consume or divert or use the entire flow or any part of the flow of said stream during the summer season or otherwise as against plaintiff.

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V.

For a further ground of replication to the answer of defendants and as a further replication thereto, plaintiff denies that any of said lands border upon or are touched by Stony Creek or that said Creek at or for any time flows or has ever flowed over, upon or through the same; excepting only that plaintiff admits that portions of the following described lands are traversed by or border upon said Stony Creek, to-wit: S 1/2 NW 1/4, N 1/2 SW 1/4, SE 1/4 SW 1/4 of Section 13; NW 1/4 NW 1/4, SW 1/4 NW 1/4, NW 1/4 SW 14 of Section 24; S 1/2 NE 1/4, NW 1/4 SE 1/4, NE 1/4 SW 1/4, S 1/2 S 1/2, NW 1/4 SW 1/4, W 1/2 NW 1/4, NE 1/4 NW 1/4, NE 1/4 SW 1/4 of Section 23; SE 1/4 of Section 22; all, excepting the SE 1/4 NW 1/4, of Section 27; SE 1/4 SE 1/4 and W 1/2 SE 1/4 of Section 28; All of Section 33; and all of Section 32, T 22 N., R 5 W., M.D.B. & M; All of Section 5; all excepting SW 1/4 NW 1/4 of Section 6, T 21 N., R. 5 W.; and E 1/2 E 1/2, NW 1/4 SE 1/4, NW 1/4 NE 1/4, N 1/2 NW 1/4, SW 1/4 NW 1/4 of Section 1, T. 21 N., R. 6 W., M.D.B. & M, but alleges that the same, in so far as they or any part or parcels thereof are within either of the classes named below, to-wit:

(1) Not within the exterior boundaries of an original entry traversed by or bordering on the stream;
(2) If originally within the boundaries of such an entry, such tract or tracts (not being traversed or bordered by the stream) were afterward conveyed away therefrom, and became alien in title thereto and the title of the entrymen and patentee and his or their successors in interest in the remaining portion of said entry;

are not riparian to said stream, and that as to them and all thereof (excepting only such portion or portions thereof, if any, as were irrigated prior to the initiation of the rights of plaintiff as elsewhere herein set out) no right in any event exists or has or can be acquired to have any water flow by or over said lands or to divert or use water thereon for irrigation or otherwise as against plaintiff. Plaintiff is informed and believes and therefore

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upon information and belief alleges that some part or a number of parcels of said lands are within either one or the other of classes aforesaid, and are therefore not riparian to said stream, but is without knowledge as to which part or parcels thereof are within such classes and as to which part or parcel is in each class. Plaintiff alleges that it is willing to concede the right in defendants or as the case may be, the owners of said lands, as against plaintiff to make a reasonable use of the waters of said stream for the watering of stock to the extent that said lands are riparian to the said stream according to the foregoing definition and designation, but alleges that no beneficial or economical use or right as against plaintiff has occurred or has been or can be acquired in excess of the amount required to water the stock which can be pastured on said riparian lands; plaintiff being without knowledge as to such pasturage capacity.

VI.

For a further ground for replication to the answer of said defendants where claim is made for riparian rights for presently unirrigated lands, and as a further replication thereto, plaintiff alleges that the rights of plaintiff as described in its amended complaint herein, and the diversion and storage, and direct diversion, of water from Stony Creek and its tributaries under and in pursuance of said rights and by and through the project structures and system, and the application to beneficial use of the water thus diverted and stored, and directly diverted from the natural flow of said stream or its tributaries, for the irrigation of the lands of the Orland Project, all as described in said amended complaint, and certainly wherever such storage or diversion has occurred above the lands alleged to be owned by defendants, have been continuously exercised, done and accomplished against and adversely to defendants, and to the rights claimed by defendants, and in deprivation of the diversion to and use of water thereunder or

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otherwise on the lands alleged to be owned by defendants, ever since the construction of said works and for a period of more than five years prior to the commencement of this suit -- in the case of the East Park Feed Canal and diversion works therefor ever since the construction thereof -- and during all of said period plaintiff has been in actual possession, occupation, use and enjoyment of said water and its said rights aforesaid openly, notoriously and peaceably and not clandestinely, and adversely and in hostility to the rights claimed by defendants, and in deprivation of the use thereof on said lands by defendants or any one, and that such diversions and storage and application of water to beneficial use has been under claim of right and title exclusive of any other right and as plaintiff’s own and with notice to and knowledge of the defendants and the grantors and predecessors in interest thereof, and uninterruptedly and continuously as a part of the operation of the Orland Project, and of the diversion and storage of waters from Stony Creek and its tributaries in connection therewith; and that by reason of the matters and things aforesaid defendants can have no recovery against plaintiff and no rights or priority as against plaintiff to divert or use the waters of Stony Creek or its tributaries for irrigation or otherwise, upon any of said lands, or any part thereof, and. that any future attempt to divert, use, or appropriate water on or for said lands or to assert or acquire rights in that relation, will be subsequent in time and inferior in right to the rights of plaintiff as set out in the amended oomplaint.

VII.

For a further ground for replication to the answer of defendants, and as a further replication thereto, plaintiff alleges that the irrigation works of the Orland Project as described in the amended complaint, including the East Park dam and reservoir, the diversion dam on Big Stony Creek and East Park feed canal leading therefrom, and the north and south diversion dams and canals leading

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therefrom, were constructed, and water has been reserved and approriated, in that connection and has been and is now being stored and carried in said structures, for a public use and purpose ( as more fully set out in the amended complaint herein); that such construction, reservations and appropriations, and the diversion, carriage and storage of water therender through and by means of said structure, and the said public use and purpose for which these things have been done, have been notorious and matter of common knowledge in the section of the State where they have occurred and in the entire Stony Creek watershed, and particularly and positively well known to each and every of the defendants in this suit (including the defendants to whose answer this replication applies) and their predecessors in interest, who either saw, or were and have always been personally aware of, the building of these great concrete and permanent structures, including the East Park dam and reservoir, East Park feed canal and diversion works therefor, and the diversion works for and the north and south main canals of the Orland Project, and of the high cost thereof and vast expense incurred in that connection and as alleged in the amended complaint, and the operation thereof and the diversion and storage and beneficial use of water thereby, and of the public uses and purposes always intended to be and heretofore and now being served by the same; all without protest or objection, or attempt directly or indirectly to restrain or prevent the same; said defendants fully and freely acquiescing thereto and therein and recognizing the necessity therefor and the advantages thereof, as well as the validity of the rights of the United States in that relation; that said defendants by reason of these facts and the matters and things herein alleged not only irrevocably acquiesced therein and consented thereto, but are estopped in law and equity from denying the rights of the plaintiff in the premises and from in any manner or wise objecting to or attacking same in this proceeding or otherwise, and particularly are

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estopped from asserting or claiming any right to divert, and from diverting or using, from Stony Creek or its tributaries as against plainitiff any water for use upon any of the lands alleged to he owned by them or any part thereof which were not irrigated prior to the initiation of plaintiff’s rights and to the beginning of the construction of said works, and are further estopped from asserting claiming any right to divert or use, and from diverting or using, upon any of said lands previously irrigated aforesaid more than such amount as can be beneficially applied thereto for the irrigation thereof as alleged elsewhere in this replication

IX.

For a further ground of replication to the answer of defendants where claim is made for riparian rights for presently unirrigated lands, and as a further replication thereto, plaintiff alleges that, in any event as against the plaintiff or any of the other defendants herein, the defendants in this suit and every thereof, including defendants to whose answer this replication applies, can not have nor can they or any of them acquire any right to divert or use the waters of Stony Creek or its tributaries for irrigation or for any other purpose upon any of said lands, unless such diversion and use and the application of said water to beneficial purpose upon said lands shall occur and be accomplished on or before the 11th day of August, l923 in accord with the provisions of Section 11, Chapter 586, Statutes of California, 1913, that is to say that no right as against or priority over plaintiff, and no share in the waters of the stream as againat the other defendants herein can be acquired by defendants under any claim that they have riparian rights in such stream or lands which are riparian thereto, unless such lands have an actual riparian status under the limitations set out in another paragraph hereof and unless water from said Stony Creek or a tributary or tributaries be applied under said claim to beneficial and economical use on said lands on or prior to said 11th

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day of August, 1923 and then only to the extent of such application, and only also as against plaintiff if the riparian lands thus irrigated were entered and acquired from the United States by defendants or their predecessors in interest prior to the initiation of plaintiff's rights as described in the amended complaint.

WHEREFORE plaintiff prays that its rights as set out in its amended complaint herein be decreed, confirmed and established as therein asked, and that the alleged rights and claims of right of defendants, if any, be ascertained and determined, as herein limited and defined; that it be decreed and adjudged that the same and every thereof are subsequent in time and inferior in right to the rights of plaintiff, exceptiug only as herein alleged, and that defendant, according thereto, be forever and permanently enjoined and restrained from interfering with said rights of plaintiff and from in any manner invading or injuring same.

Of Counsel:

/s/ Henry A. Cox
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District Counsel, U.S.
Reclamation Service.

/s/ John T. Williams
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United States Attorney

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

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