124 Reporter's Statement of the Case (d) Owens Creek is a natural stream which rises in the foothills of the Sierra Nevada Mountains and flows westerly until it is intersected by the East Side Canal. Part of the water flows into the canal, and part of it flows under the canal by means of a siphon and eventually empties into Deep Slough. In a state of nature its principal source of supply was the rains in winter and early spring, but in later years during the irrigation season its flow is comprised principally of waste water from the Merced Irrigation District. Its natural flow does not occur in quantities or at times material to this case. (e) Bear Creek is a natural stream which rises in the foothills of the Sierra Nevada Mountains and flows westerly. In a state of nature it was fed principally by rainfall in the winter and early spring, but in later years during the irrigation season its flow has been comprised principally of waste water spilled from the Merced Irrigation District. Its natural flow does not occur in quantities or at times material to this case. A short distance away from the canal, Bear Creek divides into two channels. At the points where these channels are intersected by the canal, structures with gates similar to those above mentioned, known as the South Branch of Bear Creek Spillway and Bear Creek Spillway, have been maintained for the control of the Bear Creek and canal waters. Approximately 134 miles farther down the canal is a similar spillway known as the North Branch Spillway. (f) Bloss Lake.-Commencing about a half mile below North Branch Spillway, the canal ceases to have a well defined right bank and for a distance of approximately two miles the water spreads eastward into a low area and forms a reservoir known as Bloss Lake. On the left bank of the canal opposite the lake are three spillways with control gates known respectively as Crane Spillway, Modesto Properties South Pipe Headgate, and Modesto Properties North Pipe Headgate. (g) Arena Lateral, which joins the canal from the east about a mile beyond Bloss Lake, is an artificial channel which, during the irrigation season, empties into the canal Reporter's Statement of the Case 111 C. Cls. waste water spilled from the Merced Irrigation District. There is no spillway on the left bank of the canal at this junction. (h) McCoy Lateral is another artificial channel, which joins the canal about a half mile below the Arena Lateral and, during the irrigation season, empties into the canal waste water spilled from the Merced Irrigation District. There is no spillway on the left bank of the canal at this junction. 8. Below the McCoy Lateral a distribution channel known as the Highline Canal branches from the East Side Canal to the left. About a quarter of a mile below this, another distribution channel known as the Adams Ditch branches from the canal to the right. A short distance beyond the head of the Adams Ditch there is a weir in the East Side Canal known as Bloss Weir, which is used to control the level of the water in the East Side Canal. The distribution of East Side Canal water into the service area is capable of measurement and is measured through headgates at the heads of Highline Canal and Adams Ditch and through Bloss Weir. PRIOR APPROPRIATIVE AND PRESCRIPTIVE RIGHTS 9. During the period from 1895 to 1928, Southern Cali fornia Edison Company, Ltd. and San Joaquin Light and Power Corporation, or their predecessors, constructed dams and reservoirs in the San Joaquin River basin above Friant and stored water in the reservoirs and released and regulated the flow of the waters through a series of power plants. The effect of such operations has been to reduce the amount of the flow in periods of high water and to increase the amount of the flow during periods of low water. As new reservoirs were put into operation during these years, the regimen of the river below Friant was materially and progressively altered. The relative rights of the parties in this case to the use of the waters of the San Joaquin River are limited to the flow of the water as altered by the operations of the power companies. 124 Reporter's Statement of the Case 10. Plaintiffs concede that there are certain appropriative and prescriptive rights to the use of the water of the San Joaquin River prior and superior to that claimed by plaintiffs herein. The descriptions by which such appropriative and prescriptive rights are known with the maximum rates of flow and maximum quantities of water are as follows: Maximum Name Miller & Lux, Incorporated, and certain of its subsidiaries: Lone Willow Slough, Aliso Slough, Brown Slough (diverted cubic feet per second Yearly maximum acre-feet San Joaquin Canal (diverted by Miller & Lux through canals James and Tranquillity Irrigation Districts. Pick Anderson Slough (diverted by canals taking out of Pick Anderson Slough and by dams and levees in and along said slough and its branches). Orestimba Grant (diverted through Poso, Temple, Santa Rita, San Joaquin & Kings River Canal & Irrigation Company, San Luis Canal Company right (Helm Canal). Firebaugh Canal Company. Blythe Canal.. Edison Securities Companies.. Other lands irrigated from waters taken from the San Joaquin I Estimated. THE WATER SUPPLY AND THE SURPLUS AVAILABLE TO PLAINTIFFS 11. Among other factors, the extent and value of the appropriative right claimed by plaintiffs herein depend upon the quantity of water which reasonably may be expected to become available for use under such right in times subsequent to the time of such valuation. Because of the substantial variation from year to year and from month to month in the quantity of water discharged by the river, the amount of water which may be discharged in any future month, year, decade, or score of years cannot be predicted with any assurance of approximate accuracy. It is, however, customary, Reporter's Statement of the Case 111 C. Cls. to use the record of past discharges for the purpose of making estimates of the future discharge of streams. 12. In the 57 water years of the 68 water years between 1879 to 1926, both inclusive, in which the discharge of water is computed from measurements, the average yearly discharge was 1,811,082 acre-feet. 13. In any year here involved owners of appropriative and prescriptive rights below Friant Dam and upstream from plaintiffs were and are entitled to the use of a maximum of 1,458,538 acre-feet of water. Deducting the amount of the prior appropriative or prescriptive rights from the average yearly discharge of 1,811,082 acre-feet would give an average yearly surplus of 352,544 acre-feet available to the appropriative rights of plaintiffs. Actually, there were few years when the discharge was approximately that of the yearly average. In many years the excess over the yearly average ran high and in many years the deficiency dropped low. In some of the low years, the discharge was less than the aggregate of maximum diversion to which prior appropriators were entitled. 14. Yearly discharges varied in volume from a high of 5,211,000 acre-feet in 1886 to a low of 507,000 acre-feet for the year 1924. By ten-year periods, the average yearly discharge was as follows: During each of such ten-year periods, the discharges for separate years varied widely. 15. As the flows actually occurred there were times of the year when, as a matter of right, the owners of the appropriative and prescriptive rights described in finding 10, without reaching or exceeding their maximum limits in cubic feet per 124 Reporter's Statement of the Case second, diverted substantially all of the water of the stream, leaving no surplus for downstream owners. At other times, the discharge exceeded the capacity of the diversion works of such appropriators and their requirements for use, as well as exceeding the maximum limit in cubic feet per second under their rights. At such times a surplus flowed down the river to become available for diversion by plaintiffs. The discharge is not uniform throughout a year, nor do the relative discharges for the months within the year remain constant. The highest monthly discharge during the year usually occurs in May or June, although occasionally it occurs in April or August. The yearly cycle, with its variability, is illustrated by the following table showing the percentage of the yearly total discharged each month: 16. During the irrigating season each year, when the discharge has dropped below the amount required to satisfy the appropriative or prescriptive rights described in finding 10, and such prior rights take all the water of the river, the final downstream diversion under such rights is made at the head of Temple Slough, where a temporary dam, referred to as "Sack Dam," is placed across the river. A chart showing the dates when the dam was put into operation each year for the period 1926–1945 is in evidence. The times the dam was put into operation corresponded with the times following the peak of the spring flood, when the discharge decreased to a point where it became necessary to take the whole flow for the use of the prior appropriative and prescriptive rights. |