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CASES DECIDED

IN
THE COURT OF CLAIMS

May 1, 1948, to September 30, 1948, and other cases not heretofore

published.

GERLACH LIVE STOCK COMPANY v. THE UNITED

STATES

No. 46009*

J. SHELDON POTTER v. THE UNITED STATES

No. 46245*

MARTIN ERRECA V. THE UNITED STATES

No. 46244*

MARTIN ERRECA; AND BERNARD F. GAVIN AND GEORGE D. COLEMAN, ADMINISTRATORS OF THE ESTATE OF THOMAS J. GAVIN, DECEASED, V. THE UNITED STATES

No. 46247*

[Decided April 5, 1948. Plaintiffs' motion for new trial in No. 46247

overruled June 1, 1948. Defendant's motions for new trial in Nos. 46009, 46245, 46244 overruled June 28, 1948.)

On the Proofs

1. Eminent domain; navigability of stream; just compensation for

taking of riparian rights in construction of Friant Dam.-In a suit to recover just compensation for the taking of water rights which plaintiffs claim they had as the owners of land riparian to the San Joaquin River or one of its sloughs, where such rights were taken by the construction of the Friant Dam on the San

•Plaintiffs' petition for writ of certiorari pending in 46247; defendant's petitions pending in 46009, 46245, 46244.

111 C. Cls. Syllabus Joaquin River upstream from plaintiffs' lands, for the purpose of diversion of the waters of the San Joaquin River; and where it is shown that when the project is completed the lands of plaintiffs will be wholly deprived of the water of the river which they now enjoy to a limited extent; and where it is shown by the proof that the purpose of the project was to irrigate certain nonriparian lands and was not in aid of navigation; it is held the defendant is not immune, by reason of the river's navigability, from liability for property taken in carrying out the project and plaintiffs in cases Nos. 46009, 46245 and 46244 are entitled to recover. Cf. Kansas v. Colorado, 206 U. S. 46, 85 et seq.; Horst

man Co. v. United States, 257 U. S. 138. 2. Same; plaintiffs' rights limited.-Where it is shown by the evi

dence that the lands of plaintiffs were riparian to the San Joaquin River or some one or more of its sloughs, subject, however, to prior appropriative and prescriptive rights of Miller & Lux, Inc., and its subsidiaries; and where it is further shown that by overflows and by seepage the lands of plaintiffs, except for a small portion of the lands of the Gerlach Live Stock Company, were moistened in times of high water and made more productive; it is held that the erection of the Friant Dam took these rights from plaintiffs. Plaintiffs' right to compensation is limited to their right to have their lands moistened and en

riched in times of high water. 3. Same; conveyances; exceptions and reservations.—Where Miller &

Lux, Inc., conveyed, or agreed to convey, to plaintiffs, respectively, the parcels of land involved in the instant suit by conveyances or agreements which excepted or reserved certain water rights; and where, thereafter Miller & Lux, Inc., and its subsidiaries conveyed to the United States all of the water rights so excepted or reserved ;

Held

(a) Since the deed to plaintiff Potter was subject only to the "existing water rights" of Miller & Lux, who did not have the right to store water at Friant Dam, plaintiff Potter is entitled to recover from the defendant the value of the water rights appurtenant to the Potter lands, of which he was deprived by the erection of the Friant Dam. (Case No. 46245).

(b) In the deed from Miller & Lux to plaintiffs Martin Erreca, et al., where the reservation went beyond the existing rights of Miller & Lux and provided that the rights reserved included the right "to store, impound, divert and use all or any part of the waters of the San Joaquin River" and should be an easement on the lands conveyed and the riparian rights thereto; the grantor intended to retain not only the rights it had already acquired but also the right, as against the grantee, to appropriate additional water in the river, and plaintiffs are not entitled to recover. (Case No. 46247).

Roporter's Statement of the Case (c) in the deeds to the Gerlach Live Stock Company and Martin Erreca, sole, which are identical in their terms, where the grantor intended to reserve its existing water rights, “including the right to contract for or to permit storage on the upper reaches of the San Joaquin River"; the quoted language related to certain pre-existing contracts for storage of water for hydroelectric power production only, and the right was not reserved to contract for or to permit diversion of the waters of the river, and plaintiffs are entitled to recover. (Cases

Nos, 46009 and 46244.) 4. Same; riparian rights under the Constitution of California.-Under

the decisions of the courts of California, it is held that plaintiffs were not deprived of all of their rights as riparian owners by the amendment to the California Constitution adopted in 1928 (Article XIV, Section 3) which preserves in an owner the right to use the waters of the stream to which his lands are riparian only to the extent that he can beneficially use them without unnecessary waste, since palintiffs had the right to demand that defendant provide such a physical solution as would permit plaintiffs to receive so much of the waters as plaintiffs could beneficially use, or in the alternative to com

pensate plaintiffs for the deprivation of their rights. Same; recognition of rights by contract entered into by defendant.

Where defendant entered into a contract with Miller & Lux,
former owner of plaintiffs' lands, under which defendant agreed
to pay $9 per acre for the taking of the water rights involved
in the instant cases; and where defendant placed in escrow
a sum to be disbursed upon the determination of the respective
claims herein; it is held that this was recognition on the part
of defendant that plaintiffs' rights were worth at least that

amount. 5. Same; determination of time of taking; intention. Under the

decisions of the courts, it is held that the time of taking, as in the erection of a dam, comes whenever the Government's intention to take has been definitely asserted and begins to carry

out that intent. Same; defendant's intention in instant case. In the case at bar

there can be no doubt that the Government intended to deprive plaintiffs of whatever water rights they had in their lands, and upon the facts and circumstances of the case it is held that the taking occurred not later than October 20, 1941.

The Reporter's statement of the case :

On March 1, 1948, findings of fact in each of these cases were filed with conclusion of law and opinion. On April 5, 1948, an order was entered withdrawing the former findings of

111 C. Cls. Reporter's Statement of the Case fact, conclusion of law and opinion and filing new findings of fact, conclusion of law and opinion by Judge Whitaker as shown hereinafter.

Mr. Edward F. Treadwell for the plaintiffs. Messrs. Treadwell & Laughlin were on the briefs.

Mr. Ralph S. Boyd, with whom was Mr. Assistant Attorney General A. Devitt Vanech, for the defendant.

The court made special findings of fact as follows:

1. The Central Valley of California, approximately 450 miles in length, lies between the Sierra Nevada Mountains on the east and the fringe of indistinct mountain chains along the ocean on the west. The northerly two-fifths of the valley, known as the Sacramento Valley, is drained by the Sacramento River system, and the southerly three-fifths, known as the San Joaquin Valley, is drained by the San Joaquin River system. The Sacramento River flows south and the San Joaquin flows northwest. Both empty through the same large delta into Suisan Bay, an arm of San Francisco Bay. The controversies in these cases center around the right to the use of water of the San Joaquin River.

THE SAN JOAQUIN RIVER AND Its Flood PLAIN

2. The San Joaquin River is a natural watercourse, with well-defined channels and banks and with its source in the Sierra Nevada Mountains. It flows thence westerly to the plains of the San Joaquin Valley, which it enters at a point known as “Friant," the site of defendant's storage and diversion dam, whose effect upon the waters of the river is the basis of plaintiffs' claims in these actions. From this point, the river continues westward approximately 40 miles to a point in the valley near the town of Mendota, where it is joined by the Fresno Slough of Kings River. It then turns abruptly toward the north and flows in a northwesterly direction until it reaches San Francisco Bay. Certain tributaries empty into the San Joaquin between Friant and the lands of the respective plaintiffs and contribute water in varying amounts to the river's flow..

1

Reporter', Statement of the Case

3. In its course through the mountains and foothills and for some distance after it reaches the valley floor, the banks of the San Joaquin are so high as to preclude overflow, but after the river reaches a point known as Gravelly Ford, about 27 miles west of Friant, the banks become relatively low. In a state of nature and during periods of high or flood water, the river flowed out of its banks at places below this point and over and upon certain of the land on either side of the river, either directly or after flowing into sloughs or branch channels. Certain of the lands so overflowed were moistened, enriched, and fertilized by the overflow and, as a result, produced increased amounts of beneficial vegetation, except in the case of infrequent floods of unusual extent.

In the area of such overflow, the river flowed through numerous side channels, branch channels, reaches of backwater, and sloughs, in addition to the main channel, such extra channels being referred to generally as “sloughs.” Some of the sloughs form networks; some have dead ends; some receive only backwater, and some receive water from the river and return it to the river at lower points, either directly or through connecting sloughs. Some sloughs branch off other sloughs. Some carry river water whenever there is water in the main channel; others carry river water only at higher river stages.

4. In the vicinity of the lands described in plaintiffs' petitions, the San Joaquin River, in a state of nature and at the lowest stages of flow, was confined by natural banks to a sandy channel between lands which were granted to the State of California as swamp and overflow lands under the Swamp Land Act of September 28, 1850, ch. 84, 9 Stat. 519. This channel, except during stages of higher flow, hereinafter described, contained the water flowing in the river and is referred to as the "low channel."

Within a few years after the passage of that act, the lines segregating such swamp and overflow lands from the adjoining higher lands were surveyed and platted by the United States. In substance, the surveyed line of segregation marked certain natural banks at various distances from the low channel banks of the river. At higher stages of the river in every year of ordinary flow, the waters spread over

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