240 Syllabus discriminatory, in circumstances such as those present in this case, to pay the person, whose property happened to be requisitioned by the Government, more than his fellow, who sold his property in the market, could lawfully charge or accept. See Walker v. United States, 105 C. Cls. 553. CAMP FAR WEST IRRIGATION DISTRICT v. THE UNITED STATES [No. 46230. Decided December 2, 1946] On the Proofs Taking; removal of gravel by defendant for construction purposes so as to affect diversion dam belonging to irrigation district; prescriptive easement.-I. Plaintiff, an irrigation district organized under California laws, owns and operates a concrete storage dam across the Bear River by which water is stored during the winter and spring months and released during the summer and fall to points where it is diverted to the land of the irrigation district. In 1932 and each year thereafter plaintiff customarily constructed across Bear river, below the reservoir dam, a temporary diversion dam by scraping up the gravel on either side and placing it across the river so as to back up the water to a level where it would flow into the irrigation canals on each side of the river. Plaintiff did not own the land from which the gravel was taken. Each fall after the irrigation season, plaintiff would cut the temporary dam and allow the winter floods to wash away the gravel. When the plaintiff constructed and used the gravel diversion dam in 1932 and subsequent years it did so under a claim of right based upon the assumption that it was entitled to do so, its action was open and notorious, and it acquired a prescriptive right or easement under the laws of California. Same; no taking within meaning of the Fifth Amendment.-II. From the fall of 1942 to June 1, 1943, a considerable quantity of gravel was removed from the bed of the Bear River below plaintiff's diversion dam by the defendant and its contractors and used for construction purposes, some of the construction work being performed by contractors and some by the Army. All of the gravel taken from the area pertinent to this action was removed either from land owned by another or from land acquired by the defendant on February 29, 1944. The bed of the Bear River is composed entirely of gravel, and although none of the gravel was removed from the river bed itself but from the gravel bars on each side, nevertheless the bed of the stream was so lowered as to render useless for its purpose the customary gravel diver 107 C. Cls. Reporter's Statement of the Case sion dam and after several experiments, in which the defendant gratuitously assisted, it was necessary for plaintiff to construct a concrete diversion dam, for the cost of which it sues. Held: There was no taking within the meaning of the Fifth Amendment of the prescriptive easement acquired by plaintiff : (1) The removal of gravel by defendant could not be construed as a taking of plaintiff's natural rights, even if plaintiff were the owner of the land, which it was not. (2) There was no taking in the constitutional sense of the easement acquired by plaintiff to erect and maintain a dam upon land owned by others; and plaintiff's prescriptive easement included no right restrictive of the servient owner's right to remove gravel from its land downstream, the interference with which by defendant would constitute a taking of plaintiff's property. (3) There was no physical invasion of plaintiff's corporeal property as represented by the diversion dam, nor such alteration of the servient tenement as to render ineffective or to destroy the privilege plaintiff had acquired therein to accumulate the waters at the point of the dam site at sufficient level to divert them into its diversion canals; and hence defendant's removal of gravel from the lower stream bed did not constitute a taking of plaintiff's affirmative easement. (4) The prescriptive easement acquired by plaintiff did not include a withdrawal of the right in the servient land owners to use the gravel in the stream below the dam beyond the amount plaintiff might reasonably require to restore its gravel dam each year. The ultimate effect of removal of gravel downstream, unforeseen at the time and not intended, was at most not a destruction of plaintiff's easement but simply an injury which could be, and was, remedied at an expense. Same; basis of compensation.-III. The cost of replacing plaintiff's gravel dam with a permanent concrete structure would not be a proper basis upon which to fix just compensation even if the damage to the dam site was deemed to be a taking, since it is not shown that the removal of gravel by defendant was the sole cause of the necessity to replace the gravel dam by concrete. The Reporter's statement of the case: Mr. Marion B. Plant for the plaintiff. Messrs. Brobeck, Phleger & Harrison and J. Raymond Hoover were on the briefs. Mr. Henry Weihofen, with whom was Mr. Assistant Attorney General John F. Sonnett, for the defendant. The court made special findings of fact as follows: 1. Plaintiff is an irrigation district duly organized and existing under the laws of the State of California and com 263 Reporter's Statement of the Case prises 4,090 acres of land in Yuba and Placer Counties, California. There are seven landowner members of the District. 2. About 2,045 acres of the land in the District are irrigable and for years have been supplied by plaintiff with water from the Bear River, a nonnavigable stream. Approximately 1,200 acres of the irrigable lands are planted to orchards, hops and other perennial crops and the remainder is planted to alfalfa and such annual crops as tomatoes and beans. None of these crops could be grown without the water supplied by plaintiff, there being no other source of water available for irrigating the land. With the water furnished by plaintiff, the land within the District has a value of approximately $1,200,000. Without such irrigation water, the value of the land would be about $300,000. 3. Plaintiff owns and operates a reinforced concrete storage dam across the Bear River and a seasonal storage reservoir lying immediately above the dam with a capacity of storing 5,000 acre feet of water. The storage dam is located approximately two miles upstream from and east of the eastern boundary of the lands of the District. The site for the dam and reservoir was acquired by plaintiff in 1927 at a cost of $15,388.50 and during the same year the dam was constructed at a cost of about $163,000. By means of the storage dam and reservoir, plaintiff impounds and stores the water of the river during the winter and spring months, and during the irrigating season each year discharges the water downstream to points where it is diverted upon the irrigable land in the District. 4. During each year prior to 1932, the landowner members of the District diverted the water released from plaintiff's reservoir by constructing small, temporary, diversion dams of brush and gravel on the Bear River about 114 miles below the storage dam. To reach the small dams, it was necessary for the diversion canals to traverse several hundred feet of the gravel bed of the river, and so much water was lost through seepage that this method of diversion was abandoned. 5. In 1932 plaintiff extended the diversion canals upstream about one-quarter mile where the river was much narrower. At that point, plaintiff constructed a gravel diversion dam. Reporter's Statement of the Case 107 C. Cls. It was three or four feet high and was built by scraping up gravel from the bed of the river on either side of the site through the use of teams of horses and scrapers. The dam raised the level of the water sufficiently high that it would flow by gravity into the canals on either side of the river. Each fall, after the irrigating season was over, plaintiff cut the dam and allowed the winter floods to wash it away, and each summer another dam was constructed by plaintiff in the same way for use during the ensuing irrigation season. 6. The title to the lands on either side of the river at the site of the gravel diversion dam ran to the center of the Bear River. Plaintiff did not own Plaintiff did not own any portion of this land and neither of the adjoining owners has ever conveyed any easement or other interest therein to plaintiff which would authorize it to construct the dam at that point. The site was not within the boundaries of the District, the eastern boundary of which was about 1,600 feet downstream from and west of the gravel diversion dam. The land on the north side of the river at, and for a considerable distance above and below, the dam site was owned in 1942 and 1943 by R. C. and A. N. Catlett, who conveyed it to the United States Government on February 29, 1944. Sometime prior to this conveyance, at a date not shown in the record, the Government began negotiations for the purchase of the Catlett tract. The land on the south side of the dam was owned by the Lincoln Packing Company, one of the members of the plaintiff District. When plaintiff purchased the land upon which its concrete storage dam and reservoir are located, it also acquired an easement to construct and maintain an aqueduct for conveying water from the storage reservoir to the boundaries of the District, but this aqueduct was never constructed. The E. Clements Horst Company, through whose chain of title the Catletts acquired the tract sold to the defendant, retained an easement therein for the construction and maintenance of such levees, ditches, dams, weirs, and dykes as were necessary for the use of certain water rights which it also reserved when the land was conveyed. The E. Clements Horst Company was one of the members of the plaintiff District, but it did not convey any interest in the easement or other rights it had reserved to plaintiff. 263 Reporter's Statement of the Case 7. When plaintiff constructed and used the gravel diversion dam at the site above described during 1932 and subsequent years, it did so under a claim of right, upon the assumption that it was entitled to so construct and use said dam. Plaintiff's action in this respect was open and notorious and no attempt was made to obtain permission or authority from the adjoining landowners for the construction and operation of the diversion dam. Plaintiff claimed that by the annual construction, maintenance and use of the gravel diversion dam in the manner described from 1932 to 1943, it had acquired a prescriptive right or easement for such purposes under the laws of California. There was no proof of the record of such right or easement in the land records of Yuba or Placer Counties. As an irrigation district, plaintiff was not taxable under the laws of the State and no taxes were paid on the easement claimed. The defendant was not formally notified of the asserted easement, but representatives of defendant who removed gravel from the bed of the Bear River, as hereinafter shown, knew of the existence and location of plaintiff's diversion dam. During the years 1932 to 1943, the owners of the lands on either side of the Bear River at the site of the diversion dam did not object to plaintiff's maintenance and use of the dam, and there is no proof that they took any action to prevent such use. Attorneys for the Lincoln Packing Company, which owned the land on the south side of the river at the site of the diversion dam, had some correspondence with the Attorney General after this suit was filed regarding the easement claimed by plaintiff. In a letter of March 2, 1945, the attorneys for the Company wrote the Attorney General in part as follows: In both of your letters you make certain statements which in effect require us to pass upon the so-called "prescriptive easement" claimed by plaintiff. If the plaintiff claimed a prescriptive easement over the portion of the bed of the Bear River lying within the boundaries of the land of Lincoln Packing Company, the Company of course contends and would expect to prove that no such prescriptive easement existed. 8. Plaintiff's action is based on the claim that the defendant, by removing gravel from the river bed immediately below the diversion dam, had by June 1, 1943, lowered the stream bed |