THE STONY CREEK WATER WARS
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 ]
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IN THE NORTHERN DIVISION OF THE UNITED STATES DISTRICT COURT,
FOR THE NORTHERN DISTRICT OF CALIFORNIA
SECOND DIVISION
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THE UNITED STATES OF AMERICA,
Plaintiff,
-vs-
H.C. ANGLE, et al.,
Defendants,
In Equity No. 30.
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BRIEF AND OBJECTIONS TO PROPOSED FINDINGS AND DECREE
BY CERTAIN DEFENDANTS REPRESENTED BY R.M. RANKIN, SOLICITOR
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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.
OBJECTIONS TO PROPOSED FINDINGS AND DECREE
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.
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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:
ALEX BROWN
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.
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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
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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
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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.
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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-
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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
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right to the use of the water applies to all the defendants claiming by
appropriation.
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FRANK TROXEL
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
-8-
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.
MARGUERITA WILLIAMS WELCH
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.
L. HUFFMASTER
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
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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.
W. E. SCEARCE, ET AL.
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
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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
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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
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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.
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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
____________________________________
Solicitor.