THE STONY CREEK WATER WARS - Bill of Complaint

THE STONY CREEK WATER WARS
Glenn County - Tehama County - Colusa County , California.
(c) 2009, Mike Barkley
Bill of Complaint

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

Original complaint (of Complaint plus 3 Amendments)

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

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

IN THE NORTHERN DIVISION
OF THE
DISTRICT COURT OF THE UNITED STATES
FOR THE
NORTHERN DISTRICT OF CALIFORNIA
____________ Division

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THE UNITED STATES OF
AMERICA,

vs.

H.C. ANGLE, et al.,
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Bill of Complaint

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FILED
At ____ o'clock and ____ Min ____ M
May 28 1918
Walter B. Maling, Clerk
By Thomas J. Franklin,
Deputy Clerk - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
[end of cover]

IN THE DISTRICT COURT OF THE UNITED STATES

IN AND FOR THE NORTHERN DIVISION OF

THE NORTHERN DISTRICT OF CALIFORNIA

IN EQUITY

DOCKET NO. ________.

THE UNITED STATES OF AMERICA,

Plaintiff,

v.

H.C. ANGLE, A.M. ANDERSON, A.C. BAYLEY, L. BEDFORD, JOHN BEDFORD, M.G. BEDFORD, R.E. BLEVINS, I.L. FEIGHTNER, W.W. GATLIFF, IRA GREEN, AUG. GOLLNICK, LEONARD W. GOLLNICK, JAMES HARMON, REUBEN HARTMAN, VOLNEY HAYTON, C.A. HINELINE, CHAS. JAEGER, JOHN JOHANSEN, JOHN JOHANSEN, JR., J.E. KNIGHT, J.F. MALLON, G. W. MARKHAM, PRESTON MORRIS, WM. NIESEN, JAMES O’BRIEN, S.A. RALSTON, RAY SHIVELY, E.E. SMITH, JOHN H. SOETH, GEO. SOETH, FRED E. STRAWN, A.J. TRIPLETT, ABE L. TRIPLETT, FRANK TROXEL, F.W. TROXEL, LLOYD TROXEL, I.E. TRUE, J. VAN SCYOC, A.P. WAKEFIELD,

Defendants.

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COMPLAINT

TO THE HONORABLE JUDGES OF THE
DISTRICT COURT OF THE UNITED STATES IN AND
FOR THE NORTHERN DISTRICT OF CALIFORNIA:

The United States of America, by John W. Preston, United States Attorney for the Northern District of California, thereunto duly authorized and directed by the Attorney General of the United States, brings this its bill of complaint against the above named defendants, and complaining of said defendants, avers and show unto your Honors:

I.

That said defendants and each and every thereof are citizene and residents of the State of California, and reside and have their domicile within the Northern District thereof.

II.

That the jurisdiction of this court over this suit depends upon the fact that the United States of America is a party thereto.

III.

That under and in pursuance of the act of Congress of the United States known as the Reclamation Act (32 Stat., L. 388), and acts amendatory thereof and supplementary thareto, hereinafter sometimes referred to as the Reclamation Law, the plaintiff, through and by the Secretary of the Interior of the United States, is engaged in constructing and completing the construction of, and in operating and maintaining that certain irrigation project, known and designated as the Orland Project, situate primarily in Glenn County, but also

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as to a small portion of the lands thereunder and some of the structures and works thereof, in Tehama and Colusa Counties, in the State of California; that said project involves the eventual reclamation and irrigation of 20,500 acres of irrigable lands in townships 21 North, Ranges 2 and 3 West, 22 North, Ranges 2, 3 and 4 West, and 23 North, Ranges 3 and 4 West, Mount Diablo Base and Meridian, in the counties of Glenn and Tehama of the State of California; which said lands and all of the same are subject to reclamation and irrigation under said reclamation law; that all of said lands before their reclamation and irrigation were, and as to the unreclaimed and unirrigated portions thereof are, arid or semi-arid in character and required and require such reclamation and irrigation in order to produce paying crops; that some 17,000 acres of said lands have been reclaimed and irrigated, and are now being cultivated and irrigated through and by means of the works of said Orland project and the waters carried thereby and are thus being made to produce crops of paying value; that the said project as to the construction of the necessary diversion, storage and distributing works, canals and laterals is now completed.

IV.

That Stony Creek and its tributaries is the source of water supply for said Orland project, its general course and location being described as follows: Big Stony Creek with some small tributaries thereof rises in the Coast Range of Mountains and flows in an easterly and northeasterly direction to its junction with Little Stony Creek in Section 10 Township 18 North, Range 6 West, M.D.B. & M., said Little Stony Creek rising also in said Coast Range of Mountains and running in a general northerly direction to the junction aforesaid with Big Stony Creek, the stream thus formed being

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then known as Stony Creek, and running and flowing thence in a general northerly direction for about eighteen miles, thence in a general northeasterly direction for about fifteen miles and thence in a general easterly and southeasterly direction through the lands of said Orland project and beyond to the point where said Stony Creek empties into the Sacramento River; that plaintiff through its said Secretary of the Interior, by the making and completion of examinations and surveys for said Orland project, which were undertaken on or about the 25th day of August, 1906, by the withdrawal from entry, disposal, or sale under the public land laws of all public lands reclaimable and irrigable under said project and the withdrawal from entry, disposal or sale of public lends needed for construction of the works thereof, which said withdrawals occurred on and immediately after the 28th day of December, 1908, by the determination that said project was practicable and feasible, - by the location and construction of said project and the letting of contracts in that relation - and also by the giving of notice in accord with the laws of the State of California of its intention to reserve and appropriate for the purpose of said project and for beneficial use thereon all of the waters of Stony Creek and its tributaries not theretofore appropriated - has reserved and appropriated such as, and all of said waters that, can be beneficially used for the reclamation and irrigation of the above described lands within said Orland project, both natural and flood flow, and is now the owner thereof and of the usufructuary right therein for direct irrigation, and for storage in the reservoir hereinafter described for use on the lands of said project during the periods of lower flow in Stony Creek and its tribttaries, and has been such owner since the aforesaid 25th day of August, 1906; that the notices aforesaid of the plaintiff’s intention to reserve and appropriate the waters of Stony Creek and its

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tributaries were posted in the locations, bore the dates and named amounts and volumes of water as follows, which said amounts and volumes, to the full extent of the capacity of the works herein described, for the diversion and storage thereof, are necessary and essential for the proper reclamation and irrigation of the lands within said Orland project above described, to-wit:

October 10, 1906, on Stony Creek near Miller Buttes, - 500 cubic feet per second - now the site of the South Diversion Dam.

October 11, 1906, on Little Stony Creek 100,000 acre-feet annually now the site of East Park Dam.

March 23, 1910, on Stony Creek - 10,000 miners’ inches now the site of North Diversion Dam.

March 25, 1913, on Big Stony Creek - 20,000 miners’ inches - now the site of the Feed Canal Diversion Dam.

V.

That plaintiff has constructed, and now operates and maintains, a storage dam on Little Stony Creek, situate in Section 34, Township 18 North, Range 6 West, M.D.B. & M., and by that means has created a reservoir for the storage of water in a basin situate in the watershed of Little Stony Creek in Townships 17 and 18 North, Range 6 West, M.D.B. & M., in the county of Colusa, said reservoir having a capacity of 51,000 acre feet and covering an area of approximately 1,800 acres, which is known and designated as the East Park Reservoir; that plaintiff has also constructed and completed a diversion dam on Big Stony Creek in Section 25, Township 18 North, Range 7 West, M.D.B. & M., and a canal leading from said diversion dam to said East Park Reservoir, which has a capacity of 275 cubic feet per second and is seven miles in length; that the construction of the said East Park dam was began on or abou± the 11th day of June, 1909, and completed and placed in operation on or about the - 5 -

15th day of June, 1910, and that the construction of the said diversion dam from the Big Stony Creek, and of the said canal leading therefrom to the East Park Reservoir which is known and designnated as the East Park Feed Canal, was began on or about the 16th day of December, 1913, and completed and placed in operation on or about the l2th day of April, 1915, the cost of said storage dam and appurtenances, and of said diversion dam and East Park Feed Canal, being respectively more than Two Hundred Ninety Thousand ($290,000) Do1lars and One Hundred Sixty-Four Thousand Eight Hundred Twenty ($164,820) Dollars; that since the time of the construction of said East Park Dam and reservoir the same have been used and operated and maintained for the storage of the waters of Little Stony Creek during the periods of higher and greater flow therein, and also since the construction of said diversion dam and East Park Feed Canal the same have been used, operated and maintained for the diversion and conveyance to said East Park Reservoir of the Waters of Big Stony Creek and its tributaries during the period of higher and greater flow therein, and also and since said time the said East Park Reservoir has been used, operated and maintained for the storage of said last named waters; that the plaintiff has also constructed and completed at lower points on Stony Creek and above the irrigable lands within said Orland project, to-wit: about forty-one miles and forty-six miles respectively from said East Park Reservoir, two diversion dams known respectively as the South Diversion Dam and North Diversion Dam, the one being situate in Section 29, Township 23 North, Range 4 West, and the other in Section 1, Township 22 North, Range 4 West, M.B.B. & M., whereby and by means of which the waters of Stony Creek and its tributaries, as they naturally flow in said creek, and as the same are stored in the East Park Reservoir as aforesaid, have been and are diverted into the main distributing canals of the said

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Orland project and carried through said canals and laterels thereof to the lands of said project for their reclamation and irrigation; that the said South and North diversion dams and the distributing canals and laterals leading therefrom have now been completed and have been in operation since on or about the 1st day of March, 1910, and that said South and North diversion dam and distributaries leading therefrom, with the said East Park dam and reservoir, and said diversion dam fmm Big Stony Creek and East Park Feed Canal, as aforesaid have been in continuous use and operation since their construction for the purpose of diverting and storing water for the reclamation and irrigation of the lands within said Orland project, and thereby and by the means thereof, a large and increasing portion of said lands have been reclaimed and irrigated each year until there is now being irrigated from and by means of the above described works of the Orland project approximately 17,000 acres of said land, it being the intention and purpose of the plaintiff to continue this progress in the reclamation and irrigation of lands until all of the lands within said project, to-wit: 20,500 acres, are fully reclaimed and irrigated.

VI.

That there has grown up upon said project, primarily as a result of the irrigation thereof as above described, and of the intention of plaintiff to reclaim and irrigate all of the lands therein, a community of more than 3300 persons, who are dependent thereon and upon the reclamation and irrigation of said lands for a livelihood; that of these persons some 700 are land owners and water users under said project, with whom plaintiff has entered into contracts, as provided by the Reclamation Law, under which plaintiff is required to furnish water for the irrigation of their said lands and the growing of crops thereon, and under which said water users are in

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turn required to pay their proportionate part of the cost of said project and the irrigation works thereof, to the end that they shall thus acquire permanent rights to water thereunder, their lands being held for security for such payments as hereinafter described; that under such contracts the plaintiff is now obligated when requested to furnish water to more than 19,000 acres of the project lands, and as aforesaid, is actually furnishing water to 17,000 acres thereof, upon which said 17,000 acres there now exist growing crops of great value; that the prompt, timely and full diversion and use of water from the natural flow of Stony Creek and its tributaries for said lands, and of the water stored in the East Park Reservoir, is necessary and essential for the raising of said crops, and that none of said crops can be raised without the use of such water.

VII.

That the irrigation works of said project including the East Park dam and reservoir, the diversion dam on Big Stony Creek and East Park Feed Canal leading therefrom, were constructed and water has been reerved and appropriated in that connection and has been and now is being stored and carried in said structures for a public use and purpose; that such construction, reservations and appropriations, and the carriage and storage of water as aforesaid, and the said public use and purpose for which these things have been done, has been notorious and a matter of common knowledge in that section of the state, and particularly and positively well known by each and every of said defendants, who either saw or were and have always been personally aware of the building of these great concrete and permanent structures at the large cost above alleged, and of the operation thereof and diversion and storage of water thereby, and of the public uses and purposes always intended to be and now being

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served by the same, all without protest or objection or attempt directly or indirectly to restrain or prevent the same; that the cost of said project including the cost of the irrigation works herein described, as provided by the Reclamation Law, must be repaid to plaintiff by those whose lands are included within the irrigable area of said project, and that to that end and as required by said reclamation law the owners of all irrigable lands within the Onland project have obligated themselves by contract with the plaintiff to repay said cost in accord with the installment plan described by said law, and have been required to and have pledged and mortgaged their said lands as security for the payment thereof; that in this way the above described irrigation and storage works were made possible for the lands of said project, and also in this respect the plaintiff, as well as the land owners and water users under said project, will suffer irreparable injury and damage, if the wrongful and unlawful diversions of stored water by defendants, as the same are hereinafter described, are not restrained, and enjoined by the order of this court.

VIII.

That the watershed of Stony Creek and its tributaries has an area of approximately 735 square miles, upon which are precipitated the rains and occasional snows which cause and contribute to the flow of water in said creek and its tributaries; that the amount of precipitation on said watershed and consequently the flow of water in Stony Creek and its tributaries varies greatly from year to year, so that in one year the run-off may be quite large and in another so small as to require the most careful husbanding of the available supply in order to preserve and mature the crops dependent thereon, in some years being even insufficient in amount for that purpose; that

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the flow in said Stony Creek and its tributaries also varies greatly in each year, there being a period of flood in the winter or early spring, and a rapidly diminishing flow thereafter, which becomes practically nil or very small in extent, in some years by the 1st day of May, and in all years before the 1st day of July, and that therefore the natural flow of said Stony Creek and its tributaries is only available for the reclamation and irrigation of the lands of said project and of the lands of the defendants herein for but a portion of the irrigation season, which in that section of the country, when water can be made available, generally begins on or about the 1st day of March, and ends on or about the 1st day of November; that in each year as soon as the natural flow in said Stony Creek decreases to a point where sufficient water is not available for the irrigation of the lands within said Orland project, plaintiff causes the gates in the East Park dam aforesaid to be opened and in that way takes water from the East Park Reservoir, which as aforesaid has been stored for such use, and allows the same to flow down the channel of Little Stony Creek and thence down the channel of Stony Creek to the above described South and North diversion dams, whereby it is diverted into the canals of the Orland project and used for the irrigation of the lands thereof; that the waters of Little Stony Creek are stored in the East Park Reservoir and the waters of Big Stony Creek are diverted therefrom through the East Park Feed Canal and stored in said Reservoir at times in the year when the flow in said creeks is far in excess of the needs of defendants and their lands, and when the same is not being used for the irrigation thereof, and further, that the diversion and storage of said waters by plaintiff as aforesaid prevents the gutting and overflowing of the lands of defendants, and consequent great injury and damage thereto, to the extent of such storage.

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IX.

That the defendants and every of them claim to have some right, title or interest in and to the waters of said Stony Creek and its tributaries, and claim the right to divert said waters or some of them from said Creek and to use them for irrigation; that the interests of the defendants as thus claimed, and alleged are numerous and various, and they divert water from said Creek by means of eighteen or more diversion dams and ditches; that their said ditches are generally poorly constructed and of primitive character, and the dams by which the waters are diverted into the same are of very primitive and temporary character, being often made of brush or stones or of loosely placed boards; that in order to achieve an economical and proper use of water said ditches ehould be placed in much better condition, and the dams or weirs for the diversion of the waters of said creek should be of permanent nature and of better construction, and said ditches should further be provided with appropriate headgates whereby the diversions thereof and flow therein could be properly regulated and a measurement thereof at all time accomplished; that these several ditches of defendants and the waterrights thus claimed, plaintiff is informed and believes, have different priorities; that in seasons of scarcity and at times of low water as above described herein, said Stony Creek and its tributaries are insufficient to supply the claims of all of the claimants thereto or of the parties herein; that the plaintiff has no knowledge or means of knowledge of the exact nature of the claims of defendants or any of them to the use of said waters as to extent, priority or otherwise, either as against the plaintiff or as against each other; that the rights to the use of said waters as claimed by the defendants are conflicting with and adverse to the rights of the plaintiff as hereinabove set forth and with each other, and the rights claimed by

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said defendants, if exercised would, and when exercised do, diminish the volume of the water in said Stony Creek so as to deprive the plaintiff of the amount to which it is entitled; that until the several rights of the various claimants, parties hereto, including the plaintiff, to the use of the waters flowing in said Stony Creek and its tributaries have been settled, and the extent, nature and order in time of each right to divert said water from said Creek and its tributaries has been judicially determined, the plaintiff cannot properly protect its rights in and to said waters, and to protect said rights otherwise than as herein stated, if they could be so protected, would necessitate a multiplicity of suits.

X.

That the defendants herein and every of them are the owners or occupants in possession of lands situate along the channel of Stony Creek between the junction of Big Stony Creek and Little Stony Creek above described and the South diversion dam of the Orland project, and as aforesaid claim the right to irrigate their said lands from the waters of said creek and its tributaries, and have made diversions and taken out ditches from said creek for that purpose, the total acreage thus irrigated by them now approximating 530 acres; that all of said defendants divert water directly from Stony Creek, excepting defendants Wakefield and Ralston as to one of the places owned by them, the ditch in that instance now diverting direct from Little Stony Creek, although it formerly, to-wit: before the construction of the East Park Dam, lead from Big Stony Creek across the channel of Little Stony Creek which was then dry very early every summer, to the lands of said last named defendants

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XI.

That in conveying the water stored in East Park Reservoir to the South and North diversion dams of the Orland project plaintiff has the right to and does make use of the natural channels of Little Stony Creek and Stony Creek, and is therefore compelled to carry, and has the right to so carry, such stored water past and by the ditches and diversions of said defendants and each of the same; that each and every of said defendants, although repeatedly and vigilantly warned and noticed verbally and in writing, of their lack of right in that regard and of the necessity that such stored water be conserved and conveyed undiminished (save by losses from seepage and evaporation) to the Orland project for the reclamation and irrigation of the lands therein, and although the lands of said defendants are entirely outside of said Orland project and none of them or of said defendants have in any manner or amount contributed to the cost of the storage or other works of said project, each year since the construction of said works have wrongfully and without warrant of law diverted large amounts of said stored water through their ditches and upon their said lands, and by the use and excessive use of said water upon said lands, and by allowing the same to waste into sloughs and depressions and to evaporate and seep away, have wrongfully and unlawfully prevented plaintiff from conveying a large portion and amount of the water so released from storage to the diversion works of said project and to the lands thereof, causing great loss and damage to plaintiff and to the above described owners of lands and water users within said project.

XII.

That it has been the hope of plaintiff, and every possible effort has been made to that end, that the defendants would be per-

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suaded to desist from their said wrongful and unlawful diversions of such stored water, and the plaintiff has heretofore refrained from subjecting said defendants to the expense of litigation in that regard, and has attempted during the years when the irrigated area upon the Orland project was not so large as now to get along with such of said stored water as could be passed by the diversion points of de£endants, and to thus in part measure at least account for the losses which were occasioned by the illegal diversions by defendants; that the situation however became much aggravated during the last irrigation season and would have been entirely disastrous but for the fairly large precipitation within the Stony Creek watershed; that the irrigated area of the Orland project has been extended very rapidly during the last few years, increasing from 9400 acres in 1916 to 14450 acres at the end of 1917, and again increasing this year to approximately 17,000 acres; that this increased area makes a greatly magnified demand upon the water stored for said project, and unless the same can be conserved for its use and conveyed from the East Park reservoir past the ditches and diversions of defendanta to the South and North diversion dams for said project, plaintiff and those under the Orland project with whom it has contracted to supply water as aforesaid will suffer irreparable loss and damage.

XIII.

That the precipitation within the stony Creek watershed during the winter just passed has been the least and lowest known in many years, and plaintiff has therefore been unable to more than partially fill the East Park reservoir; that this condition has further caused the natural flow of Stony Creek and its tributaries to decrease so rapidly as to make it necessary for plaintiff to begin drafts from said East Park reservoir much earlier in the irrigation

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season than in previous years, to-wit: on the 3rd day of May last, again causing a serious subtraction from the already depleted water supply available for said project; that on account of the foregoing conditions and circumstances, and in order, in so far as at all feasible and possible, to conserve the available storage for later use in the hot months of the summer when water is even more vitally necessary for the preservation and maturing of crops, plaintiff has been compelled already during the present season to prorate the amount of water delivered to the lands in said project so as to furnish such lands only a partial and insufficient supply.

XIV.

That of the water which plaintiff was able, during the period of higher flow in Stony Creek and its tributaries, to divert, segregate and store in the East Park Reservoir there remains only 38000 acre feet, which three weeks hence will not amount to more than 32000 acre feet; that on the 17,000 acres of land within the Orland project which are now being irrigated from the works thereof, there are being raised and matured by means of said irrigation crops of the value of more than one million dollars, including some thousands acres of citrus and other fruits and many other thousands of acres of forage and other crops of equivalent or greater value; that the irrigation of these lands and crops must be accomplished for the balance of the irrigation season from the water that is now remaining in the East Park Reservoir as aforesaid, only fifty per cent of which, on account of necessary and legitimate losses in transmission and from evaporation from the reservoir surface, can be depended upon for application to said lands; that this water is much less than sufficient to mature all of said crops, but if it can be conveyed to said lands, from time to time as needed, from said East Park Reser-

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voir through and by the channels of Little Stony and Stony Creeks without loss or subtraction therefrom, saving usual losses by seepage and evaporation, it can by careful economies and a just prorating of the supply be made to furnish a partial irrigation supply to nearly all of said lands, and to save and bring to maturity a large portion of said crops; that the said remaining water in said reservoir belongs to plaintiff for such use and purpose, and plaintiff has the legal and equitable right to convey same from said reservoir to said South and North diversion dams for use on said lands when same is needed therefor by means of the natural channels of Little Stony and Stony Creeks past the ditches and diversion points of defendants, who in turn have no right whatsoever to any of said water or to divert or use the same.

XV.

That the natural flow of Little Stony Creek, and of such small tributaries as it has, so decreased as to become practically nothing on the last day of May, and has remained and will remain so since said date and up to the end of the present irrigation season, and that therefore no water has been flowing in said Little Stony Creek save that released from storage in East Park Reservoir; that since said last named date defendants Wakefield and Ralston as to the one of their places described in paragraph X hereof, although warned and noticed as aforesaid, have wrongfully and unlawfully and continuously diverted such stored water from said Little Stony Creek and used the same upon their said lands, and caused the same to waste, evaporate and seep away and become lost, the diversions of said defendants in this instance having averaged during said period at least 3 cubic feet per second; that all of said defendants in aggregate throughout the present irrigation season have diverted from

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LIttle Stony and Stony Creeks and used upon their said lands and allowed to waste, evaporate, seep away and to become lost as aforesaid approximately 30 cabic feet of water per second; that the natural flow in Stony Creek just above the highest diversion of defendants now amounts to about 45 cubic feet per second, but is decreasing and falling very rapidly, and within not more than three weeks hence, and very probably within a less time, will not amount to more than about 10 cubic feet per second and will either continue at that figure or grow even less during the remainder of the current irrigation season; that said defendants and every of them have in previous years diverted and do now threaten to and will in fact, unless restrained and enjoined by the order of this court, throughout the current irrigation season continue to divert from the channels of said Stony Creek and Little Stony Creek as much water as they are now diverting, irrespective of the fact that the natural flow of Stony Creek will soon decrease as aforesaid to about 10 cubic feet or less per second, that is to say, that defendants threaten to and during the irrigation season now current will in fact, unless restrained and enjoined by the order of this court, wrongfully and unlawfully divert and use and cause to waste away and become lost such amount of the stored water released from said East Park Reservoir and conveyed down the channels of Little Stony Creek and Stony Creek for the purposes aforesaid as will cause their total diversions to amount to 30 cubic feet per second, taking from such stored supply such excess over the natural flow in said creeks as will make up the difference between such natural flow and the said 30 cubic feet per second; that such wrongful and unlawful diversions by defendants from said stored supply within the next three weeks or lesser period as aforesaid will gradually increase until they are diverting and using and consuming upon their lands and causing to be wasted and wholly lost at least

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20 cubic feet per second of such stored water, and that defendants threaten to and will in fact unless restrained and enjoined by the order of this court continue such diversions from the stored supply in the amounts and to the extent aforesaid throughout the remainder of the present irrigation season, and by that means cause to become lost from the project supply more than 5600 acre-feet of water, which is more than 33 per cent of the supply that will be available in said season during that time for the irrigation of said project, considering necessary and legitimate losses in said reservoir and in transmission to the lands of said project, as aforesaid; that unless defendants are restrained and enjoined by the order of this court from so diverting said water as aforesaid the crops now growing and standing on some thousands of acres of the lands of said project will be entirely deprived of a water supply and become a total loss, and in light of the facts and circumstances hereinabove alleged as to the necessity for conserving and prorating the insufficient supply available in said reservoir, will cause the crops on the greater portion if not all of the balance of the irrigated area on said project to be diminished, stunted and withered, all to the irreparable damage and injury of plaintiff and of the water users and land owners under said project with whom plaintiff has contracted to deliver a water supply for the irrigation of their lands.

XVI.

That it will be practicable and feasible, when the natural flow of Stony Creek decreases as aforesaid, to accurately measure said flow, and by the closing of the gates of the East Park dam for the time being to ascertain and measure the amount of said natural flow which each and all of said defendants is at that time diverting from the natural channel of Stony Creek in accord with their claims of right as they are now being made, and that under the direction

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of this court a water Commissioner duly appointed, for that purpose can readily make the measurements aforesaid, and, if the court so direct, measure the irrigated acreage of the several defendants and apportion the natural flow thereto by rotation or otherwise, to the end that when releases from storage again occur said Water Comisssioner may then under the direction and order of this court so regulate the ditches of defendants and each of them as to prevent all wrongful and unlawful diversions of such stored water as the same reaches the diversion points and ditches of defendants, so that said stored water may be conveyed down the natural channels of Little Stony and Stony Creeks to the South and North diversion dams of the Orland project without subtraction therefrom or loss thereof, except such losses as may occur in transmission from seepage and evaporation, which in turn can be readily estimated and measured by said Commissioner.

IN CONSIDERATION WHEREOF, and forasmuch as the plaintiff is remediless in the premises and by the strict rule of common law, and is relievable only in a court of equity where matters of this nature are properly cognizable and relievable, plaintiff prays:

First - That a writ of subpoena be issued to each and all of said defendants, and that they and each of them be required to answer this complaint and set up fully their claims to the waters of said Stony Creek and its tributaries, but not under oath, an answer under oath being hereby expressly waived.

Second - That the Court by its decree determine the relative rights of the parties hereto in and to the waters of said Stony Creek and its tributaries, both natural flow and flood waters, to the end that it be known how much of said waters may be diverted from

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said river by the parties hereto and for what purposes, where, by what means of diversion, and with what priorities.

Third - That the Court decree to the plaintiff the waterrights hereinabove set forth and claimed by and for the plaintiff, and quiet its title therein and thereto, and enjoin said defendants and each of them from interfering therewith and provide such other means for the carrying out of its decree herein as may be proper.

Fourth - That the Court set a day certain not more than 10 days hence, and preferably an earlier day, upon which this complaint and petition as to the prevention of the wrongful and illegalal diversions of stored water by defendants may be heard, a copy of the order to that end with the aforesaid subpoena and copy of this complaint to be served forthwith on each of said defendants, and that when this complaint and petition shall have been heard, the Court make an order in effect and substance, and that a temporary injunction issue out of this Court and under its authority, directed to each end every of said defendants and to all persons acting under their direction or control, their agents, employees or servants, and those in privity with them, restraining them and each of them during the pendency of this suit from in any manner diverting, using or wasting any of the water flowing in the channels of Little Stony Creek or Stony Creek which may be thereafter released into said channels by plaintiff from the stored supply of water in East Park reservoir, and from in any manner impeding or preventing said water or any part thereof from being conveyed down the said channels of Little Stony and Stony Creeks by that means, to the South and North diversion dams of the Orland project, or from in any manner interfering therewith.

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Fifth - That when this complaint and petition shall have been heard as aforesaid, the Court further make an order in effect and substance that a Water Commissioner be appointed by the Court, and that the Court forthwith appoint such a Commissioner at a compensation to be fixed by the Court and paid by the plaintiff, and that such Commissioner be directed, ordered, authorized and empowered to give notice to the plaintiff that he is ready to act and that the gates of the East Park dam should be closed to enable him to measure the flow of water in each of the ditches of the defendants as the same is taken from the natural flow of said Stony Creek, and that said Commissioner thereupon forthwith proceed to measure the natural flow in Stony Creek above the highest diversion of defendants and to measure the flow of water in each of the ditches of defendants, and if the Court so direct, the land being irrigated by each of the several defendants, and that when said measurements are completed, he give notice to plaintiff that stored water may again be released from said East Park Reservoir, and that when such stored water is so released that he shall cause no more or no less water to flow into any of said ditches while said stored water is passing the intake thereof than was diverted from the natural flow of said Stony Creek and was flowing in said ditches at the time of said measurement, or if the Court so direct, that he apportion said natural flow to said defendants by rotation or otherwise, and that said Commissioner be directed, ordered, empowered, and authorized to thereafter regulate said ditches so that the diversions thereof from the natural flow of Stony Creek shall keep pace with such natural flow as the same may decrease or continue throughout the current irrigation season, to the end that at all times during said current irrigation season he shall cause said ditches and each of them to divert only from the natural flow of said Stony Creek and not to divert any of the stored water

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which is passing the intakes thereof, and that the stored water released from said reservoir be carried down the channels of Little Stony and Stony Creeks to said South and North Diversion Dams of the Orland Project without subtraction therefrom or loss thereof except losses from seepage and evaporation which said commissioner shall measure and estimate and take into proper account; that said coinmissioner be further directed, ordered and empowered to so regulate in similar manner and to the same effect and purpose the said diversions of defendants and uses of water by them during ensuing irrigation seasons while this suit is pending; that said commissioner report his actions to the Court in the premises as the Court may direct, and that defendants and every of them be restrained and enjoined from interfering with the headgates, diversion works, dams or weirs or ditches of any of said defendants or with the amount of water flowing therein as the same shall be thus regulated by said Water Commissioner while such stored water is passing the intake thereof.

Sixth - That the orders of court prayed for above be without prejudice to any right which any party hereto may hereafter establish, and that the plaintiff recover its costs herein and have such other, further and different relief as to the Court may seem just.

/s/ Jno. N. [?] Preston
-------------------------------
United States Attorney for the
Northern District of California.

/s/ Ed. F. Jared, Asst. U.S. Atty.

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STATE OP CALIFORNIA, )

County of Glenn. ) SS

I, A.N. BURCH, on oath depose and say that I am an officer and employee of the United States Reclamation Service, and am now and for sevenyears last past have been the Project Manager of the Orland Project, constructed and being operated and maintained by the United States under and in pursuance of the Act of Congress of June 17, 1902, known as the Reclamation Act, and acts supplementary thereto or amendatory thereof; tbat I have read the foregoing bill of complaint and that the facts and things therein alleged and the documents upon which same is based, are known by and available to me; that I make this verification because of my own knowledge and the knowledge thus gained, and upon the part of plaintiff as an officer thereof thereunto authorized, and verily believe that said complaint and the whole thereof is true.

/s/ A.N. Burch
-------------------------
Subscribed and sworn to before me this 28th day of May, A.D. 1918.
My Commission expires March 11, 1922___

/s/ Florence M. Baldwin
-------------------------
Notary Public in and for the County
of Glenn, State of California.

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