1 Reporter's Statement of the Case Miller & Lux Incorporated, for the purpose of diverting San Joaquin water into several large canals heading immediately above the dam, and has been progressively maintained, improved, and replaced by Miller & Lux Incorporated for that purpose ever since. It was not built for and is not used for storage purposes. As an incident to raising the level of the water for the purpose of diversion, a certain amount of channel storage resulted. It does not appear that the amount of water thus stored was more than a relatively negligible amount, or that it was utilized as stored water, or for any purpose other than maintaining the level necessary for diversion. The second principal point of diversion is at "Sack Dam," so named because it was rebuilt yearly for many years with brush and sacks of earth, at the head of Temple Slough, which branches off the west side of the river about 19 miles downstream from the Mendota Dam. More recently the dam has been rebuilt with loose earth thrown up by bulldozers. It was originally built by Miller & Lux Incorporated about 1873, and is rebuilt annually for the purpose of diverting San Joaquin River water to irrigate land west of the river. Each year when the flow of the river drops to a point where it is necessary to take all the flow at Temple Slough to satisfy the prior appropriative and prescriptive rights, Sack Dam is rebuilt. This occurs most frequently in June and July. Usually, the dam is maintained in place until October, November, or December. During the time it is so maintained, except for immaterial interruptions, all the water remaining in the river at that point is diverted and plaintiffs do not receive and are not entitled to receive any material amount of water from the river. (b) Uncontested Alteration of River Regimen by Power Companies 14. 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 Reporter's Statement of the Case 111 C. Cls. Dam 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 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. The parties do not dispute that the relative rights of the plaintiffs in these four cases to the use of the waters of the San Joaquin River are limited to the flow of the river as altered by operations of the power companies under the agreements above-mentioned. 15. There is no controversy in these actions between the Southern California Edison Company Ltd. and the San Joaquin Light and Power Corporation, or between either of the two power companies and any other party to these actions, concerning the storage and use or the right to store and use the waters of the San Joaquin River by either of the two power companies, as above described. Neither of the two power companies has any interest in the matters in controversy between other parties to these actions and neither claims any part of the compensation sought to be recovered by any of the plaintiffs. All parties in the case of J. Sheldon Potter v. United States, No. 46245, and Martin Erreca v. United States, No. 46244, in which cases the two power companies were joined as parties by order of the Court, have stipulated that these actions may Reporter's Statement of the Case be dismissed as to the two power companies, without prejudice. (c) Rights adjudicated by the Haines decrees and other prior rights 16. Commencing about the year 1916, certain individuals, organizers of Madera Irrigation District, formulated a plan for the establishment of an irrigation district for the irrigation of certain land north and east of the San Joaquin River. This plan contemplated the construction of a dam on the San Joaquin River at the same place where the United States has since constructed Friant Dam, hereinafter mentioned, and the storage and diversion of San Joaquin River water to irrigate land in the District. The District, when organized, comprised 170,000 acres of land. The District obtained title to lands necessary for the construction of the dam, and it and its predecessors filed applications with the Division of Water Resources of the Department of Public Works of the State of California, pursuant to the laws of that state, to appropriate certain of the unappropriated waters of the San Joaquin River for the irrigation of land within the District. Thereafter, by an instrument in writing dated January 29, 1940, the Madera Irrigation District conveyed to the United States the lands so acquired, together with: All right, title, and interest of the District in and to all water rights, and all of its rights to the use of water of whatsoever kind or nature, whether rights by appropriation, prescription, or by virtue of said District's ownership of riparian lands, in, to, or upon, and from the San Joaquin River, its tributaries, channels, and sloughs, including the ordinary and extraordinary flows thereof and including the right to store any of said water together with the right as against said District, and as against said District only, its successors and assigns, to impound, store, and divert all of said water for use within or without the watershed of said rivers. It is the intention of the District by this deed to grant, bargain, sell, convey, and confirm unto Grantee all of the District's right, title, and interest of every kind and 801932-48 Reporter's Statement of the Case 111 C. Cls. character in and to any of the waters of, and its right to store, divert, and use, and as against said District, and against said District only, the right to store, divert, and use within or without the watershed of said river, any of the waters of the San Joaquin River, including its tributaries, channels, and sloughs, but excluding those tributaries which drain into said river below Mendota Dam, located in Section 19, Township 13 South, Range 15 East, M. D. B. & M. Said rights herein granted include but are not limited. to the rights acquired by virtue of the following applications of the District to appropriate water from the San Joaquin River, on file with the Division of Water Resources of the State of California, pursuant to the provisions of the Water Commission Act (Chap. 586, Statutes 1913, as amended): Plaintiffs contend that under the doctrine of res judicata, the defendant, as the successor in interest to Madera Irrigation District, is bound by determinations of fact and law in three cases hereinafter mentioned in which Madera Irrigation District was party defendant and Miller & Lux Incorporated and certain of its subsidiaries were parties plaintiff. 17. Prior to the execution and delivery of the deed described in finding 16, Miller & Lux Incorporated and two of its subsidiary companies commenced three actions in the Superior Court of the State of California, in and for the County of Fresno. In one of the actions, No. 25729, Miller & Lux Incorporated was plaintiff and Madera Irrigation District and certain individuals were defendants. A decision, consisting of findings of fact and conclusions of law, was rendered in that case on January 4, 1933, and a decree was entered in accordance with such decision on January 26, 1933. In the second action, No. 25730, the San Joaquin & Kings River Canal & Irrigation Company, Incorporated 1 Reporter's Statement of the Case (successor to San Joaquin & Kings River Canal & Irrigation Company) was plaintiff, and Madera Irrigation District and certain individuals were defendants. A decision was rendered in such action on January 4, 1933, consisting of findings of fact and conclusions of law, and a decree was thereafter entered in accordance with such decision. In the third action, No. 25731, San Luis Canal Company, a Corporation, was plaintiff and Madera Irrigation District and certain individuals were defendants. A decision in this case was rendered December 31, 1932, and a decree was thereafter entered in accordance with such decision. These decisions and the decrees entered upon them are referred to in the evidence herein as the "Haines decrees," so called because they were rendered by Honorable Charles C. Haines, Judge of the Superior Court. 18. In the decisions mentioned above the following adjudications were made: (a) That certain land of Miller & Lux Incorporated was riparian to the San Joaquin River and to its branches and channels, and that Miller & Lux Incorporated was entitled to all the rights of a riparian owner with respect thereto. Such land included all the land described in the petitions of the four plaintiffs herein. (b) That all land which was within the flood plain of the river and in a state of nature was customarily overflowed by the water of the river, including all land returned as swamp and overflow land, was riparian to said river, and was entitled to the rights of a riparian owner with respect thereto. Such land included all lands described in the petitions of the four plaintiffs herein. (c) That all sectional parcels of land made fractional by the segregational line between the swamp and overflow land and the upland which bordered upon and were touched by waters of the San Joaquin River customarily flowing over the swamp and overflow land within the flood plain were riparian to the San Joaquin River and were entitled to all the rights of a riparian owner with respect to the water of said river. |