Glenn County - Tehama County - Colusa County , California.
(c) 2009, Mike Barkley

Brief and Objection - R.M. Rankin [later, appointed Glenn County Superior Court Judge by Governor Young on 02/27/1930 ]

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

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




H.C. ANGLE, et al.,


In Equity No. 30.

- - - - - - - - - -
- - - -

As shown by the whole history of the Stony creek water shed, water rights were acquired by irrigationists along Stony Creek and its tributaries as early as 1864, and the record will show that the greater part of these water rights contended for by the various defendants in this action were acquired prior to 1906. It is also well understood that in those early days exact measurements and scientific statements of matters relative to water use were not in vogue. Therefore, the various defendants who farm the lands and make use of the water involved in this action, experience some difficulty in this case in making proof of their claims in the manner and by use of the terms used and expected by the representatives of plaintiff.

The evidence in this case is voluminous, and I find it difficult and practically impossible to properly present this matter before the Master and the Court, which is not surprising when we recall that the plaintiffs have taken more than four years' time in which to analyze the evidence and

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

[Page break]

present the law and proposed findings and decree in its opening brief served on April 5, 1928.

Defendants have been limited in their time to make a reply to that brief and objections. It will readily be understood that it requires much time and much labor to analyze all the matter contained in plaintiff's opening brief affecting the rights of a number of defendants, and that the cost of so doing, together with all the other costs imposed on defendants in this action, render it impossible to do the matter justice in a brief of this kind, and that, therefore, the judgment limiting defendants' property rights should be closely scrutinized, first by the Master, and then by the Court.


Certain of the defendants, whose names hereinafter appear when their rights are separately discussed, object to the proposed findings and decree for the reasons following, to-wit:

1. The sui generis character of the adjudications of the relative rights of the defendants in this action is entirely too general; is speculative and contrary, in many instances, to the preponderance of the evidence taken at the trial.

2. The findings and decree are framed and based upon a theory which provides one method or plan for determining the appropriation rights of plaintiff, to the material advantage of plaintiff, and another method or plan in determining the rights of the various defendants, to the detriment of defendants and to the advantage of plaintiff.

3. That the limitation of the rights of certain defendants in the waters of said stream and tributaries to the right to use the water they have appropriated upon certain specified land only, is contrary to law and is not supported by evidence in this case.


4. That the rights of these defendants are limited and curtailed almost solely upon the evidence of one witness for the government, to-wit, the engineer who surveyed what he judged to be irrigated land in the summer of 1917, contrary to the uncontradicted evidence of the various defendants and their witnesses.

It does not seem practical to point out specifically all the evidence bearing upon the particular points above mentioned, and for the sake of brevity I shall discuss the case of each of these objecting defendants separately, during which discussion the above enumerated objections will be referred to and certain facts applicable thereto cited. As most illustrative of all these points I shall first consider the case of:


The pleadings in this case, as well as most cases, are very unsatisfactory, growing, I assume, from the terms of a stipulation to the effect that certain things should be shown in the answer of the various defendants. However, it appears that at the time the answer was filed, the defendant, Brown, claimed 360 acres of land then irrigated, and that in addition to that land then irrigated he owned the further amount of 190 acres of irrigable land included in the lands described in his answer. Why this additional acreage was apparently required to be stated in the pleading, I cannot understand, as the plaintiff's plan of adjudicating the rights of this case seems to ignore altogether all claims as to that additional acreage. This defendant claims under two appropriations, one made in 1877, and the other in 1885, the claim being for 10 second-feet of water under one appropriation and 18 second-feet by the other.

It is alleged in the answer also that all of the land is riparian to Stony Creek.


Now, referring to the findings, the rights of this defendant is attempted to be limited to the irrigation of 187.1 acres of land under the 1877 appropriation, and 53.2 acres of land under the 1885 appropriation. This acreage is also segregated, a certain number of acres being allowed in certain 40-acre tracts.

I have searched the record and read all of the evidence in support of the Brown claims, and I am still unable to ascertain upon what evidence those findings are based.

The testimony of E.T. Eriksen and his map of his surveys, sheets Nos. 10 and 11, show his conclusions that in 1917 Brown irrigated 210.3 acres all told. This survey was made during the summer of 1917, and prior to that time Mr. Eriksen had no knowledge of the irrigation of any of the land. Alexander Brown has owned all of the land involved for many years, and for years past his witnesses, C.F. Bickford and Dick Moore, or one of them, has farmed the ranch. They all testified at the hearing, and Mr. Brown says, that 400 acres of the land was irrigated. (Rep. Trans. p. 693 and 729). The testimony of Bickford and Moore, as well as the testimony of Mr. Brown, shows without contradiction that as a rule they irrigated their alfalfa lands every year while the same were in alfalfa, but at times it was necessary to plow up the alfalfa and plant the land to grain because the land became foul and it was necessary to change. They did not always irrigate the grain crop so that they did not always irrigate the same area of land, but that all the irrigable area under the ditches was irrigated at times and the water appropriated to that use.

On December 26, 1922, M.A. Russell, a surveyor, made a survey of the lands of the Brown ranch, which had been irrigated, as pointed out to him by the witnesses, Moore and


Bickford, who were with him when he made the survey, and Russell made a map showing those areas surveyed by him, which map was offered in evidence and marked "Defendant Alexander Brown's Exhibit "G"." (Rep. Trans. p. 776-781) [Brown Exhibit "G" is MISSING from the Archives] This survey shows that 449.3 acres of the Brown property had been irrigated, and there is no contradiction whatever as to this showing. I certainly contend that it is proven by the preponderance of the evidence that Brown had a right to irrigate 449.3 acres of the Ranch. That amount could be cut down as it is in those findings only upon the theory that the testimony of Mr. Eriksen is more reliable than the testimony of all the other witnesses, and if that theory is to be upheld, then it seems to me that it was useless for the defendants to bring in witnesses to prove their claims.

For example, the NE 1/4 of Section 29-18-6, referred to in the testimony as the Polley land, was one of the tracts of land the whole irrigable area of which was not irrigated every year. By reference to the testimony of Dick Moore (Rep. Trans. p. 806-7), 71 acres of that tract was actually irrigated. There is no evidence in the record as to how many acres of that irrigated area was situated in any particular 40-acre tract of the quarter section. Yet, we find by reference to the appropriation schedule made a part of the findings, that the plaintiff desires the court to find that the land for which water right was acquired on that 160-acre tract is as follows:
    		 4   acres in NE 1/4 NE 1/4 Sec. 29-18-6
    		15   acres in NW 1/4 NE 1/4 Sec. 29-18-6  <==is correct >
    		 8.9 acres in SW-1/4 NE 1/4 Sec. 29-18-6
    	  Total 27.9
And if the finding, of which that schedule is a part, means anything it means that the defendant, Brown and his successors in interest are limited in their use of said water


to using the same upon these particular acrages and nowhere else.

This finding as to acreage is certainly contrary to the evidence, and the limitation of the right to use the water is contrary to law. The same applies to the findings as to the use of the water on other parts of the land.

The thing to be determined as to the rights of the defendant, Brown, in this case is his right to the use of the water, and not the question as to what particular acreage he shall apply the same. In other words, the plan and method of determining these rights should determine and designate the amount of water which each defendant has the right to use, without an attempt to confine or limit that use to particular land. I think this principle of law is so well known that it is not necessary to cite authority, and that a more explicit and full brief on the subject than I can now write may be found in Sections 867 to 871, inclusive, in Volume 2, beginning at page 1522, of "Kinney on Irrigation and Water Rights." See also Section 1412, Civil Code of California.

- - - - - - - -

By an examination of Article VII of the proposed decree it will appear that the plaintiff has adopted a plan or method of determining the adjudication of rights of defendants, which plan or method consists of a limitation of the appropriation rights of the defendants to the acreage actually irrigated, and based mainly upon defendants' irrigation during the summer of 1917.

This plan ignores the amount of water actually appropriated and used by many of the defendants, including the defendant Brown, long prior to that date.

On the other hand, the plan or method of determining the plaintiff's rights, as disclosed by Article VIII, is en-


tirely different. In that respoect, the proposed decree finds and decrees that the plaintiff has perfected, either by reservation and appropriation or purchase, certain water rights, and then enumerates the various appropriations claimed by the plaintiff to their full extent, without regard to the use which the plaintiff has made, or can make of said waters, and without regard to the question as to whether or not the waters exist or are obtainable.

It appears to me that this is mostly inequitable and that there is no legal justification for the adoption of one method to limit the rights of defendants and another method for the purpose of decreeing to plaintiff everything that it claims.

I submit that in the case of this defendant, Alexander Brown, as well as all the other defendants claiming under an appropriation right, the decree should specify the amount of water actually appropriated, and that the defendants' right to the use of the water should be based upon the amount of water appropriated and used and not confined to certain acreages as measured by Mr. Eriksen. One defendant may desire to spread the amount of water he is entitled to use over a greater area of land than some other man might desire. I think that the evidence in this case shows that these defendants have used the water as they saw fit upon the lands for which the water was appropriated, and that it should be an inequitable and unlawful limitation upon their rights to require them to use a certain amount of water on certain described lands or forfeit their use of the same.

In other words, if the defendant, Brown, desires to use 1274 acre-feet of water during the season on 600 acres of land, rather than confine the same to 240 acres, then he certainly has the right to do so, and the same principle of the


right to the use of the water applies to all the defendants claiming by appropriation.

- - - - - - - -

In this case, the defendant, Frank Troxel, claims in his answer to have under irrigation at the time it was filed 22.1 acres and that 90 acres additional land belonging to him is irrigable under his water appropriation.

By the findings and decree his right is limited to the irrigation of 22.1 acres particularly designated according [garbled] to the survey, I assume, of Mr. Eriksen, and no allowance is made whatever for his use of the water he has appropriated for use thereon, on the additional 90 acres. This 90 acres, or a substantial part thereof, is irrigable, as shown by the testimony of Mr. Troxel. (Rep. Trans. p. 114 to 126).

The defendant, Troxel, also testified as to the manner of his diversion of the water from the creek, and proved an appropriation of the water many years ago. Mr. Eriksen testified (Rep. Trans. p. 131) that the amount of water which went down to Mr. Troxel's place through the flume was 1-1/2 second-feet when he is irrigating, and that amount is about what the flume would carry. This testimony established the extent of the actual use of the water. One and one-half second-feet is the amount of water used by the defendant, Troxel, and as to this question there is no contradiction at all. A reference to the appropriation schedule, page 123, shows an allowance for the season to be used upon certain particular lands covering an acreage of 22.1 acres, of 104 acre-feet, and he is permitted to use the full flow of his appropriation, amounting to 1-1/2 second-feet only for the month of maximum use. A simple calculation will show that his right to that flow of 1-1/2 second-acre feet [sic] will amount to much more


than 104 acre-feet per season, which is the limit of water he may use under the findings and decree.

This defendant, Frank Troxel, should have decreed to him 1-1/2 second-feet of water from the stream, and I submit that the findings in this case are contrary to the evidence and constitute an inequitable and unlawful limitation of the defendant's rights.


This defendant claims a riparian right, and based upon this right shows that 12-1/2 acres of her land are susceptible of irrigation from the waters of Stony Creek flowing through the tract of land owned by her. She submitted her proof at the hearing, but apparently, through some oversight, her chain of title was incomplete by reason of the omission to offer the record of one deed. The undersigned, having since receiving the proposed findings and decree discovered this fact, notice of motion for permission to complete that record is served herewith.


The defendant, Huffmaster, by his answer sets up the claim that his land is riparian to Indian Creek, and that he further asserts a prescriptive right to the waters of Indian Creek running through his land, for the purpose of watering his livestock, and claims the right to continue to do so as against plaintiff and all the defendants.

This right is based upon riparian rights as well as a prescriptive right. However, it may be contended that the pre-scriptive right so mentioned is not well pleaded, in which case we would have to depend upon the riparian right.

The evidence of said defendant shows the use of the water for stock watering purposes and he offered record evidence of his title. As the record will show, this chain of


title is based on a large number of instruments, and the undesigned has not before him all the evidence taken on that question and is at a loss to determine just what instrument was missing in that chain of title, but it appears from the findings that there is no proof in this case. (p. 141, Findings). There must be some claim of a defective chain of title, and for that reason, notice of motion is served herein, giving notice of a motion for permission to supply the missing record, if such shall be found to be missing. I submit, however, that the claim of usage of this water and the proof of the use of the same for stock watering perposes is sufficient to support a finding in favor of the defedndant, Huffmaster, to the extent of the claim he makes by his pleading.

One other point I desire to mention and to which I desire to call the attention of the Master is, that the answer in this case concedes to defendant Huffmaster the right to the access and use of the water of Indian Creek flowing through his land, for the purpose of watering stock, and I submit that that right should be decreed to the defendant, regardless of whether or not he has technically established a chain of title.


The water rights in connection with the Scearce lands are included in the appropriation schedule, page 121. Please note that the right is limited to 100 acres of land there described as situate in four different 40-acre tracts, and that the limit of water to be used each irrigation season is 470 acre-feet.

As against the plaintiff, the vested right of Scearce did not rest upon appropriation at all, but is a vested right based upon a written, recorded contract, dated May 16, 1904, between the Stony Creek Irrigation Company, a coporation, and the Scearce heirs, which contract was offered in evidence


and copied into the record in full at pages 2649 to 2664 of the reporter's transcript.

Note: On page 2651, it appears that certain words constituting one line from that contract have been omitted between lines 4 and 6. This is apparent from the context as it is clear from other records that the Scearce lands were to receive 125 inches of water, (measured under a 4 inch pressure) from the beginning of the irrigation season to the 16th day of July, and 75 inches thereafter during the irrigation season.

On the 21st day of May, 1909, this contract was assigned or transferred by the Stony Creek Irrigation Company to the United States of America, the plaintiff in this action. (See page 2662 to 2664 of the Reporter's Trancript).

As against the United States, under this contract, the Scearce rights were settled and fixed, and they were entitled to receive the amount of water therein specified for the irrigation of their lands and for stock water.

The witness, W.E. Scearce, testified in this case that 250 acres of their lands can be irrigated from the point of delivery of water, pursuant to that contract; that they have irrigated at least 100 acres of that land and intend in the future to water the remainder thereof.

The land which can be irrigated and which has been irrigated, lies in the NW 1/4 of Section 3 and the NE 1/4 <== is correct. >
of section 4, Township 22 North, Range 4 West, and the SW 1/4 of SE 1/4 of Section 34, in Township 23 North, Range 4 West. (Rep. Trns. p. 2672).

After the evidence was submitted in this case, and at the request of plaintiff's solicitor, and for the purpose of facilitating the cleaning of ditches and the handling of the plaintiff's irrigation works, Scearce consented to enter


into a stipulation which is inserted in the proposed decree beginning at page 149. This stipulation recognizes the right of the defendant, Scearce et al., to the 125 miner's inches and 75 inches of water (under 4 inch pressure), being equivalent respectively to 2-1/2 and 1-1/2 cubic feet per second. Now, under the terms of this contract and stipulation, the Scearce water right consists of the vested right to receive from the plaintiff's canal system the amount of water therein specified for use upon their lands, and it is wholly immaterial, so far as the plaintiff is concerned, on what lands the same may be used. They certainly have the right, limited only to the application of the same to a beneficial use, to appply that water upon any lands they see fit. They have the right, under the law, to use that water upon the 100 acres which they have heretofore irrigated, or to spread it over and partially irrigate 250 acres, or any other amount of land to which the water can be applied. The proposed limitation of that right to a particular 100 acres of land and to the application of only 470 acre-feet to the irrigation of their lands is a clear evasion of the contract above referred to and the terms of the stipulation.

They are entitled to the flow of 2-1/2 cubic feet per second from March 16 to July 15th, a period of four months, as long as they apply the same to a beneficial use upon their lands, and are entitled to a flow of 1-1/2 cubic feet for the next three months. This right is limited by the stipulation only with respect to the handling of the canal system and the delivery of same in the usual practice of the project.

There appears to be no reason why this right should not be decreed in accordance with the contract and the stipulation, which do not justify any limitation upon the use of the water in the full volume to which they are entitled, so


long as they put the same to a beneficial use.

I cannot conceive how the court will permit the direct evasion of said contract and stipulation which is attempted in said proposed findings and decree, and respectfully submit that a material injury to the property rights of these defendants, as established by the contract, will result if the proposed decree is adopted; and further, that the findings and decree are contrary to the evidence in the case.

- - - - - - - -

In conclusion, I desire to reserve on behalf of all the defendants whom I represent, the general objections as stated herein to the method and plan of said proposed findings and decree and the limitations of the use of the waters appropriated by the various defendants upon certain designated acreage of land in each 40-acre tract.

It is, of course, impossible, during the time permitted for this brief, for these defendants to prepare and propose findings and decree. All I desire in the case is to have the findings and decree follow the evidence as to the vested rights of each of the defendants, which I contend the findings and decree proposed by plaintiff does not do.

Dated: January 1,1929

Respectfully submitted,

[typewritten signature] R. M. RANKIN


- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Return to Stony Creek Water Wars.

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