THE STONY CREEK WATER WARS - Replication to Answer of James Mills Orchard Corporation

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

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

Important because Mills Orchards were the predominant user of downstream underflow; for some unexplained reason Reclamation fought their presence in this case, through pleadings and sniping during testimony, yet even with all this, the case for downstream riparian use was made out thoroughly until for some unexplained reason the entire group disclaimed and walked away from the suit; was there a side settlement?

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 - Equity - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

IN THE DISTRICT COURT
OF THE UNITED STATES
FOR THE
Northern District of California
Second Division.

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THE UNITED STATES OF AMERICA,

vs

H.C. ANGLE, et al.,

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REPLICATION TO THE ANSWER OF
DEFENDANT JAMES MILLS ORCHARD
CORPORATION

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FILED
MAY 16 1923
Walter B. Maling, Clerk

By /s/ Thomas J. Franklin, Deputy - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Service, and receipt of copy, acknowledged of within
replication this 1st day of May, 1923
/s/ Frank Freeman
Attorney for defendant
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IN THE NORTHERN DIVISION OF THE DISTRICT COURT OF THE

UNITED STATES, FOR THE NORTHERN DISTRICT OF

CALIFORNIA - SECOND DIVISION
THE UNITED STATES OF AMERICA,

Plaintiff,

vs.

H.C. ANGLE, et al.,

Defendants.

IN EQUITY NO. 30

REPLICATION TO THE ANSWER OF DEFENDANT

JAMES MILLS ORCHARD CORPORATION.

The United States of America, plaintiff herein, by its solicitors, makes replication to the answer of defendant James Mills Orchard Corporation as follows:

I.

Plaintiff admits the allegations of paragraph I of said answer.

II.

As to whether said defendant is now the owner or in possession of, or in person or through or by predecessors in interest or otherwise, has ever had any ownership or interest in or right to, or has ever been in possession, for any time or at all, whether by right or title derived from the United States Government by continuous chain of title or otherwise, of those certain lots, pieces and parcels of land in the County of Glenn, State of California, described in said answer, to-wit:

The south half of Lots 1094 to 1097 inclusive,
The south west quarter of Lot 1112
Lots 1113 to 1117 inclusive,
The north half and the southeast quarter of Lot 1129,
Lots 1130 to 1140 inclusive,
Lots 1141 to 1150 inclusive,

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Lots 1166 to 1178 inclusive,
All said Lots being part of Division No. 2 of the Hamilton Unit of the Sacramento Valley Irrigation Project according to the Map of same filed for record in the office of the Recorder of the County of Glenn, State of California;

or any part or parcel thereof, plaintiff is without knowledge.

III.

Plaintiff admits that the course and location of Stony Creek is substantially as alleged in said answer, except that plaintiff alleges that said Stony Creek does not flow over, through, on or under said lands, but instead flows along and upon small portions of the westerly boundary thereof. As to length of time during which the flow of said Creek has been thus or otherwise related to said lands, plaintiff is without knowledge. Plaintiff admits that a small portion of said lands are bordered by Stony Creek, but is without knowledge as to the length of time that said portion has been so bordered. As to the extent to which said lands are riparian to Stony Creek, or as to the occurrence or existence of the facts and conditions upon which such riparian character depends, plaintiff is without knowledge.

IV.

As to whether in past geological ages or at all Stony Creek has built up a cone as alleged in said answer, well defined or otherwise, or as to whether said lands or any part thereof are on such or any such cone, or as to whether under the surface of said lands there can or may be found or exist any gravel strata or channels, whether at variable depths or interconnected, or connected with the present surface or underground flow of Stony Creek, or having a common source below the point or points of storage or

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diversion of plaintiff above said lands, or otherwise, plaintiff is without knowledge except as alleged in paragraph VII hereof.

V.

Plaintiff admits that there is a considerable quantity of gravel in the bed of Stony Creek, but is without knowledge as to whether said creek is, or can be said even in a general way to be, at all or any points above or adjacent to said lands, a wide shifting bed of loose gravel. Plaintiff alleges that there are some places along the course above described where the perceptible bluffs or rises on each side of said creek are as much as two or three thousand feet apart or possibly somewhat more, but alleges that the usual distance between same is but a few hundred feet; also that the ground or bed covered by the water flowing in said creek is quite narrow, generally not more than 100 feet wide, and at a much lower level than the surrounding country, including said lands, and that these things are so except at times of heavy flood peaks occurring well outside the irrigation season, and that the surface of the water even then is well below said lands and surrounding country, and such high water is of brief duration and has no appreciable effect on the water supply for said lands. Plaintiff is without knowledge as to the depth or extent of coarse material in the bed of said creek, or as to the extent to which it absorbs water, but is informed and believes, and therefore upon information and belief alleges, that such water as does sink into said streambed is lost by deep percolation or flows down the channel of said creek to the Sacramento River instead of flowing or tending to flow in or into any alleged underground channels; also that the storage and diversion for and the irrigation of the lands

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of the Orland Project by plaintiff do, and tend to, raise the flow in Stony Creek adjacent to, and the water table under, the lands between said project and the Sacramento River, including the lands claimed by defendant, and thus render the irrigation of said lands more feasible and economical and serve to annually replenish rather than deplete the water supply therefor.

Plaintiff alleges that no beneficial or economical use of water from said stream or other source has ever been or can be made in connection with or upon said lands, or in the irrigation thereof at any time of year except in the irrigation season, which for said lands is alleged to be the period from April 15th to September 15th of each year, and that no flow or amount of water in excess of 1/80 cubic foot per second per acre, and no more than a total 3.75 acre feet per annum from said flow, measured at the point of diversion from the stream or source and used during the irrigation season aforesaid, has ever been or can be beneficially or economically diverted for, or used, or needed, for irrigation (or for irrigation and other purposes) upon said lands or any part thereof.

VI.

Plaintiff admits that a large portion of said lands are fertile, but as to the exact extent or character of such fertility is without knowledge. Plaintiff denies that any more water than the amount stated in the next preceding paragraph hereof is needed in any event for the proper irrigation of said lands, whether underground water, surface flow or otherwise. As to whether, or to what extent, water should be supplied to said lands to make same productive, plaintiff is without knowledge. Plaintiff denies

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that any of said lands, or any amount thereof in excess of 1190 acres are now or have ever been irrigated, improved or planted to crops, and is without knowledge as to when such irrigation, improvements or plantings first occurred, or as to the extent of same in previous years; its best information being, however, that the irrigation of a portion of said lands began about the year 1912. Plaintiff admits that four wells and pumps and some power lines have been sunk and installed on said lands, but is without knowledge as to the expenditures therefor. Plaintiff denies that any of said lands are irrigated by any other means than pumping from wells, and alleges that same derive their supply from a source other than Stony Creek, as hereinafter alleged and described. As to whether, or to what extent, irrigation has increased or will increase crop yields, or the value thereof, on said lands, plaintiff is without knowledge.

VII

Plaintiff is informed and believes and upon information and belief alleges that the wells bored on said land are not supplied with water from any surface or underground channels, or at all dependent thereon, but instead, if supplied at all with water secure same from a general reservoir of underground water or watertable fed from various sources over a wide area by imperceptible percolation and capillary processes, and that the storage and diversion of water from Stony Creek and application of same to irrigation of the lands in the Orland Projeot by plaintiff, instead of working a deprivation of water available for irrigation of the lands claimed by defendant, does and will, and does and will tend to, raise the level of said water table during the irrigation season and render same

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more convenient and available as a water supply for said lands. However, plaintiff denies that defendant or any one for said lands as against plaintiff has any right to command said waters so to appear. Plaintiff further alleges that no part or any of said lands have been irrigated from Stony Creek, and that no appropriation of the waters of Stony Creek have ever been made by defendant or any one for irrigation or other use on said lands or any part thereof; and that the alleged use of water on, said lands pumping from wells, in any event, can not and does not come under, is not and cannot be based upon, nor does it in any manner involve, any riparian right or claim, for said lands, to the waters of Stony Creek or any part thereof; and that the right to take water from said wells, if such has been acquired, in no way constitutes any right or claim to the waters of Stony Creek.

VIII.

Plaintiff denies that defendant or any one for said lands has any right to any use of the waters of Stony Creek, whether surface or underflow, reasonable or otherwise, or right to have same flow on, over, by, across, or under said lands, whether for irrigation or other purposes, as against plaintiff.

IX.

Plaintiff further denies that defendant or any one for said lands, by virtue of ownerehip therein or otherwise has any primary or other right to the surface or underground flow of Stony Creek as against plaintiff for the purposes alleged in said answer or otherwise.

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X.

Plaintiff denies that the rights of plaintiff or any thereof, as same are described in the amended complaint herein, are subsequent or subordinate to any rights or claims of defendant, whether same are based on the alleged ownership of riparian lands or alleged ownership of land claimed to have an underground water bearing gravel stratum supplied directly or indirectly from Stony Creek. Plaintiff alleges that its rights, as same are described in the amended complaint herein, and with the priorities therein alleged, are prior in time and superior in right to all claims and rights of defendant.

XI.

For a further ground for replication to the answer of said defendant where claim is made for riparian rights, 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 defendant, have been continuously exercised, done and accomplished against and adversely to defendant, and to the rights claimed by defendant, and in deprivation of the diversion to and use of water thereunder or otherwise on the lands alleged

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to be owned by defendant, ever since the construction of said works and for a period of more then five years priox 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 possesion, 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 defendant, and in deprivation of the use thereof on said lands by defendant 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 plaintiffs own, and with notice to and knowledge of the defendant 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 diversionx and storage of waters from Stony Creek and its tributaries in connection therewith; and that by reason of the matters and things aforesaid defendant 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 ammended complaint.

XII.

For a further ground for replication to the answer of defendant, and as a further replication thereto, plaintiff alleges that the irrigation works of the Orland Project as

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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 therefrom, were constructed, and water has been reserved and appropriated, in that connection and has been and is 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 thereunder through and by means of said structures, and the said public use and purpose for which these things have been done, have been notorious and a 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 defendant 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 ac-

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quiescing 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 irrvocably 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 further estopped from asserting or claiming any right to divert, and from diverting or using, from Stony Creek or its tributaries as against plaintiff any water for use upon any of the lands alleged to be 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 or claiming any right to divert or use, and from diverting or using, upon any of said lands previously irrigated, if any, more than such amount as can be beneficially applied thereto for the irrigation thereof as alleged elsewhere in this replication.

XIII.

For a further ground of replication to the answer of defendant 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 defendaat 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

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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, 1923, in accord with the provisions of Section 11, Chapter 586, Statutes of California, 1913; that is to say that no rights as against or priority over plaintiff, and no share in the waters of the stream as against the other defendants herein, can be acquired by defendant under any claim that it has 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 bereficial and economical use on said lands on or prior to said 11th 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 acquired from the United States by defendant or its 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 defendant, if any, be ascertained and determined as herein limited and defined; that it be decreed and adjudged that the same and every

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thereof are subsequent in time and inferior in right to the rights of plaintiff, excepting 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.

/s/ John T. Williams
_____________________________
United States Attorney

Of Counsel:

/s/ P.W. Dent
_____________________________
District Counsel, U.S.
Reclamation service.

/s/ Oliver P. Morton
_____________________________
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