THE STONY CREEK WATER WARS
Glenn County - Tehama County - Colusa County , California.
(c) 2009, Mike Barkley
Letter, Oliver P. Morton, Special Assistant to the Attorney General, to R.M. Rankin (soon to be Judge Rankin)

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

The result of this letter, but not the letter itself, are referenced in Transcripts vol. #27 and in the 11/07/1929 Report of the Special Master. This letter is not in the older archives with the Court. This transcription is of the attachment as Exhibit N to Doc #144 filed 01/12/1990 - Implication is that DOJ has a complete archive parallel to the Court's ]

721 Taft Bldg.
Los Angeles, Calif.
July 6, 1929

R.M. Rankin, Esq.,
Attorney at Law,
Willows, Calif.

In Re: U.S. vs. H.C. Angle et al, Equity No. 30

My Dear Rankin:

As expected, I found upon my return that other pressing Government matters required some immediate attention, and I therefore, under your permit, set over this writing until I could devote the proper amount of time to it. I was much gratified, as you know, that we were able to reach a mutually satisfactory solution of a problem which, upon its face, seemed to be a fairly difficult one. I might add that the renewal of our old and cordial friendship afforded me a lot of pleasure besides.

This letter is intended as a memorandum and confirmation of our understanding and agreement upon the various points at issue under your brief and objections to the draft of the proposed findings and decree which was submitted to the solicitors by the special master.

In the first place, your presentataion set out certain general and comprehensive objections to the form and substance of the printed draft. These had their genesis in your somewhat natural conclusion, upon your examination of the schedules in the printed volume, that the rights of diversion there stated could never be used upon any lands except certain areas therein specified, to-wit: the lands (described in the schedule) upon which water had beneficially been applied in acquiring said rights. In this regard your attention was directed to the so-called general provisions of the proposed decree which, among other things, in paragraph XV on page 174 provides "that any of the parties to whom rights to water have been decreed herein shall be entitled, in accord with applicable laws and legal

Government Exhibit N , PENGAD-Bayonne, N.J. [adhesive label on this copy, presumably from 1990]

[Second page - document was photocopied with the top folded back, so heading and page number are obscured on most pages]

principles, to change the point of diversion and the place, means, manner of purpose of the use of the waters to which they are so entitled or of any part thereof, so far as they may do so without injury to the rights of other parties as the same are defined herein." I explained the purposes I sought to accomplish in this provision, and you and I considered the question anew with some care. We came to the conclusion that the suggested decree, as thus amplified, adequately took care of the matter you had in mind.

Your questioning of the holding, according to the printed draft, that the Government had acquired rights of vested character, as of the dates of its priorities beginning in 1906, for the 21,000 acres of the Project lands, was also considered. It was your conclusion, which I think is the right one, that this item had become unimportant in light of our agreeemnt upon all other questions. Although then but of incidental interest, I explained the reason for our conviction that fundamental principle, as well as the authorities, strongly supported our position here.

As to Alexander Brown's situation, we reviewed the evidence with a good deal of care and, in light of the salutary provision of the decree above cited, came to the conclusion that the printed draft represented about what the record proof would support. The priorities in acre feet per annum and cubic feet per second set aside to him in the appropriation schedule, and the riparian right for additional areas, as well as for portions of his irrigated lands, ascribed to him in Article XXIII of the findings and Article XII <==faint on copy >
of the decree, were considered in detail. The importance of confirming Brown's prescriptive status as against unirrigated riparian lands below, as set up in the findings and decree, was also noted. As to him, then, we agreed that the printed draft should be accepted as it stands.

The same conclusion was reached in the case of Frank Troxel.

The proof originally offered for Marguerita Williams Welch did not warrant giving a riparian status to her claim of water for the 12-1/2 irrigable

[Third page]

acres within her boundaries. You announced at the unfinished February hearing, [TRANSCRIPT MISSING] as I understand it, that certain supplementary documentary proof would be secured and introduced to the end that the deraignment of her title from the Government's riparian patentee would be shown. With Mr. Weber's help we dug up some title information while I was there, and it looked as though the introduction of an instrument or two would close the gap. It was understood between us that such an offer at the next hearing (which Sepcial Master McCutchen indicates will be around September 15) would not be objected to by plaintiff, and I suppose that it is reasonable to assume that objections will not be forthcoming from the other defendants. When the 12-1/2 acres are thus tied to Big Stony as a riparian holding, we will suggest to the master that the said acreage, with the essential water right figures, be transferred to the riparian schedule on page 256 of the findings and 165 of the decree. I believe that will be done as a matter of course, if so requested.

The case of L. Huffmaster is of special character. There was a failure of title proof in the matter of supporting his riparian claim, and a cure of the very considerable omissions in that regard would involve a disproportionate expense and very possibly some technical difficulty. It happens that his claim is limited to the use of drinking water for stock and applies (according to his testimony) to a small tributary (or one or two small feeders) of Indian Creek, which drains into the East Park Reservoir. The fact that the water in said sources fails to get down to the reservoir in the warmer portion of the year, is also in point. As compared with irrigation uses, drafts upon the stream by way of the drinking of cattle and sheep are unappreciable unless great herds are involved. The pasturage capacity of Mr. Huffmaster's property under any conditions would not be large. In our consideration of the matter it was conceived that the location of his holding, and the physical conditions affecting it, would furnish fair insurance, as a practical matter, against any objections by parties to the suit to drafts for stock watering purposes, and that a formal assent thereto by the Government should fill the bill, as the saying goes. It seemed to me that we should accomodate you in this particular, and I so agreed.

[Fourth page]

In considering the lay-out for our stipulations, I have reviewed those pages of the transcript which relate to the Huffmaster claims. At the bottom of page 1278 and top of 1279, and again from the bottom of page 1262 to 1287 -- all in volume 7 -- there are some quite explicit references to creeks, lands owned and traversed, number of stock or sheep pastured and watered thereon, etc. These were not looked over when we were together. Although outside your 'riparian' pleading, they reveal some evidence of an appropriation of stockwater which you might want to analyze. I am strongly inclined to think that your planned stipulation is clearly preferable to the more complicated and precarious course of attempting amendment of your pleadings and supplementation of the appropriation schedule, but want to make sure that you know about this material. In any event, we can get together easily on what is to be done, and need have nothing unfinished when we appear at the hearing. As stock figures, land descriptions, and locations of water courses are given on the above mentioned pages, I suggest that you and Weber might check up these things together and send me the result for use in drafting the stipulation or otherwise. I am sending him word to the same effect.

We also gave some attention to the rights of the Scearces as set out in the findings and decree. It developed that the adverse comment in your brief was accounted for by the fact that you had not been directed to all of the provisions affecting these rights. This was done when we met. They relate to the early right established by the Scearce predecessors as against all others in the watershed (shown in the appropriation schedule), and second, to the contractual obligations assumed by the Government as to deliveries for the Scearce lands. These latter were embodied in a satisfactory stipulation which is written verbatim into the findings and decree. The inclusion of the full Scearce acreage in the area for which Project rights are established also was pointed out. And further, the result of my conference with Mr. McCoy at Red Bluff was reported to you. He, as representing the Halls (owners of exactly similar rights), after we had discussed the matter with some care, indicated his approval of the findings and decree as written. It was your purpose, at my suggestion, to mention the matter to Mr. McCoy at the first incidental opportunity that offered, but knowing his views, I am certain we may say that we are in

[Fifth page]
7/6/29

agreement upon the point that the printed draft adequately takes care of the Scearce water right interests.

In talking over the matter of procedure in the premises, we came to the conclusion, as I recall it, that our wisest course would be to have an understanding that your brief and objections would be formally withdrawn at the September hearing. I have given some further consideration to this feature, and am convinced that it is by far the preferable plan. With our Huffmaster stipulation arranged for, and plaintiff agreeing, as it does herein, to interpose no objection to the closing of the Marguerita Welch title chain, the printed draft obviously completes our full understanding about the issues. You still join me, I know, in the conviction that a handling of the matter by the retention of your brief in the cause, and the making and filing of a stipulation covering and disposing of every controversial point therein, not only would unnecessarily encumber the record, but also might have a tendency to disturb the nicely balanced situation which we both want to preserve. I am sending along an additional copy of this letter or memorandum, which you might return to me with an endorsement of assent, if you think it does our job. On the other hand, you of course will not hesitate to let me have any suggestions that may occur to you.

There was another small item which I believe I mentioned, but which we did not have an opportunity to discuss in any detail. It is of minor importance, but, as explained in my brief on page 39, I have a sense of obligation in the premises. I am planning to ask that the order pro confesso be set aside as to the 1.6 acres there described, and that a right therefor, as set out in the 6th item of the tabulated appendix to the brief, be named in its appropriate place in the appropriation schedule. The water served to this small piece of land comes through the Kesselring ditch, which I think you now represent by transfer from Brown and Albery. I hardly believe that the ditch owner will regard it as of any moment either way, but it is obvious in any event under the decree that delivery of water for this land could be called for only under an arrangement for its carriage which would be regarded

[Sixth page]
R.M. Rankin -- [??]
7/6/29

as reasonable for both parties. You will note that paragraph XV of the decree, on page 173, contains a general provision to the effect that when water is diverted by and through any ditch by the owner thereof for another party, the terms of the contractual relations existing between them are not intended to be determined in said decree, etc. I think you will agree that this takes care of the matter in good shape.

With the hope that you will find the foregoing in order, and with cordial personal regards, I am,

Yours sincerely,

/s/ (sd) Oliver P. Morton <==not his sig. >

Special Assistant to the
Attorney General - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Return to Stony Creek Water Wars.

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