89 Reporter's Statement of the Case 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. 6. 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 the swamp and overflow lands, and for a time were confined to a wider channel by such natural banks, which were substantially the outer boundaries of the lands granted as swamp and overflow. This wider channel is referred to as the "high channel." In every year of ordinary flow in a state of nature the river rose still higher, so that its waters were no longer confined to the high channel. The waters so overflowing Reporter's Statement of the Case 111 C. Cls. the high channel banks and into and over the upland area moved slowly in the same general direction as the flow of the river in the low and high channels. This wide overflow was confined by rising ground on each side of the general overflow basin of the river. This is referred to as the "overflow channel." The flood plain described in this and the preceding finding extends approximately from Gravelly Ford to a short distance below the confluence of the San Joaquin with the Merced River. The natural flow of the river has been and is variable in quantity, both over the years and in periods within the years. In the spring and summer the river is fed by the melting snow pack of the Sierra Nevada Mountains and in the winter season by rainfall, supplemented by a small amount of snow-melt in the lower reaches of the mountains. As a result there have been two periods of high water, the winter rain flood usually in December, January, and February, and the spring and summer snow-melt overflow usually in April, May, and June, with considerable variance in the times of commencement, duration, and the times of peak flow. 7. The lands described in the petitions of the respective plaintiffs border on the main channel. PRIOR RIGHTS 8. On November 14, 1927, the Stevinson Corporation, as the second party and the East Side Canal & Irrigation Company, as the first party, entered into an agreement with Southern California Edison Company, Ltd., as the third party, which reads in part: the said party of the first part and the said party of the second part hereby convey to said party of the third part, its successors and assigns, forever, the right to take, divert, store and use the waters of the said San Joaquin River and its tributaries and branches entering said river above Herndon, Fresno County, California, at such points and places thereon above Herndon as may be desired by the party of the third part, and in such amounts and in such manner as may be desired by said party of the third part, and for use in 89 Reporter's Statement of the Case such reservoirs, tunnels, conduits, power houses and other works as said party of the third part may desire to use same for the purpose of producing hydro-electric power, and incidentally for domestic purposes necessary in connection with the construction and operation of such works; and said party of the first part and said party of the second part hereby convey to the party of the third part, its successors and assigns forever, an easement in the canals and works of the party of the first part and in the lands now owned by the party of the second part described herein, entitling said party of the third part to so take, divert, use and store said water as against the canal of the party of the first part and the land of the party of the second part and as against the party of the first part and the party of the second part as the owners thereof, or otherwise; the land so claimed by party of the second part being more particularly described in Schedule "A" attached hereto; but the easement hereby conveyed shall be in and to the said land and any other land now owned by the party of the second part, and in any right which the party of the first part or the party of the second part may now have in or to the waters of said river; the right and easement hereby granted to the party of the third part being subject to the sole condition that the waters so taken, diverted, stored and used by the party of the third part for the production of hydro-electric power shall be, after such use, returned to the San Joaquin River at some points or placed thereon above Herndon, in Fresno County, California, without further claim thereto by the party of the third part as against the parties of the first and second parts. Nothing herein contained shall be construed as an extinguishment, abandonment or waiver of the riparian rights of the party of the second part or as a conveyance of its riparian rights, or as otherwise affecting the said rights in any respect whatsoever, except as to and in favor of the party of the third part, its successors and assigns, for use as herein provided, and nothing herein contained shall be construed as interfering with or affecting the right of the party of the first part or the party of the second part to take and enjoy or use any of the water of the said river and its branches and tributaries not so taken, diverted or used by the party of the third part in pursuance of the license, privilege and easement hereby granted to the party of the third part, and noth 801932-488 Reporter's Statement of the Case 111 C. Cls. ing herein contained shall be construed to affect any right which the party of the first part or the party of the second part may have to take, divert and use any water of said river, its branches and tributaries, subject to the rights hereby granted to the party of the third part, and said party of the second part hereby expressly preserves and retains its riparian rights, and party of the first part hereby expressly preserves and retains its water rights in all respects as against all parties other than the party of the third part, its successors or assigns. The lands involved in these cases are among those described in Schedule A attached to the agreement. 9. During the period from 1895 to 1928, Southern California 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. Beginning in 1906, Miller & Lux Incorporated, a corporation, and its subsidiaries entered into numerous contracts with the two power companies, or their predecessors, by the terms of which it was agreed generally that, subject to certain limitations as to times and quantities, the two companies might store waters of the San Joaquin River System during comparatively high stages of the flow, and use the stored water for the production of power and return it to the river above the lands owned by Miller & Lux Incorporated during lower stages of the flow. 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. 10. At the respective times here involved, San Joaquin & Kings River Canal & Irrigation Company, Gravelly Ford Canal Company, Columbia Canal Company, Firebaugh Canal Company (formerly Panoche Canal Company), and San Luis Canal Company were corporations subsidiary to Miller & Lux Incorporated, which owned all or a majority 89 Reporter's Statement of the Case of the stocks of each of such subsidiaries and had the controlling interest in each of them. Prior to any of the times here involved, such subsidiary corporations, with the consent of and under agreements with Miller & Lux Incorporated, constructed certain canals and works and thereby diverted and appropriated large quantities of the water of the San Joaquin River for the irrigation of lands riparian to the San Joaquin River owned by Miller & Lux Incorporated, and also for the irrigation of lands nonriparian to the San Joaquin River owned by Miller & Lux Incorporated and by other persons. Also prior to any of the times here involved and in addition to the foregoing diversions, Miller & Lux Incorporated constructed certain canals and works and thereby diverted and appropriated waters of the San Joaquin River for the irrigation of lands owned by it, both riparian and nonriparian to the San Joaquin River. 11. Prior to January 21, 1929, there were pending certain lawsuits between Miller & Lux Incorporated and its subsidiaries, on the one hand, and the Stevinson Corporation, on the other. On that day in order to settle those lawsuits, to confirm in Miller & Lux Incorporated and its subsidiaries certain appropriative or prescriptive rights asserted by them, and to confirm in Miller & Lux Incorporated the right to use certain water released from storage by San Joaquin Light and Power Corporation and Southern California Edison Company, Ltd., Miller & Lux Incorporated and its subsidiaries and the Stevinson Corporation entered into a written agreement which reads in part: 1. First Party [Stevinson] by these presents does grant, bargain, sell, convey and confirm unto Second Party [San Joaquin & Kings River Canal & Irrigation Company] its successors and assigns forever, an easement in the said lands now owned by First Party described herein, entitling Second Party to take, use and divert above the intake of the East Side Canal & Irrigation Company in Township Nine (9) South, Range Twelve (12) East, M. D. B. & M., a continuous flow of thirteen hundred and sixty (1360) cubic feet of water per second of the San Joaquin River, to either |