East Side Canal & Irrigation Co. v. United States

Decision Date05 April 1948
Docket NumberNo. 46266.,46266.
Citation76 F. Supp. 836
PartiesEAST SIDE CANAL & IRRIGATION CO. et al. v. UNITED STATES.
CourtU.S. Claims Court

Edward F. Treadwell, of San Francisco, Cal. (Treadwell & Laughlin, of San Francisco, Cal., on the brief), for plaintiffs.

Ralph S. Boyd, of Washington, D. C., and A. Devitt Vanech, Asst. Atty. Gen. for defendant.

Before JONES, Chief Justice, and LITTLETON, WHITAKER, MADDEN, and HOWELL, Judges.

WHITAKER, Judge.

Plaintiffs sue for the alleged taking of their appropriative rights to certain waters of the San Joaquin River. They allege that they were deprived of these rights by the building of the Friant Dam on the San Joaquin River in California.

The East Side Canal and its water rights were acquired by plaintiff Stevinson Water District on January 19, 1938, but, by some sort of informal arrangement between it and plaintiff East Side Canal & Irrigation Company, the details of which are not shown in the record, the Canal Company continued to operate the canal until January 1, 1944, when the Water District executed a formal lease to the Canal Company of all its interests in the canal and water rights.

These corporations are interrelated. George J. Hatfield and members of his family own all the stock of the 3-H Securities Company. This company owns or controls the East Side Canal & Irrigation Company and James J. Stevinson, a corporation. The latter corporation owns all the land, with minor and unimportant exceptions, within the Stevinson Water District.

The water rights of the Canal Company and the Stevinson Water District were subordinate to the rights of Miller & Lux and certain other prior rights. With exceptions not material to this discussion, Miller & Lux had the right to all the water of the river, leaving none for plaintiffs, except in times of spring high water, which occurred ordinarily in the months of April, May and June. Plaintiffs, subject to the rights of Miller & Lux, Inc., and certain other prior rights, had the right to divert 245 7/8 cubic feet of water per second whenever there was as much as 281 cubic feet a second of water available in the river, and at other times 7/8 of all the water flowing at the head of their canal. These rights, plaintiffs say, have been taken by the erection of the Friant Dam, which appropriated all the plaintiffs' water. See Gerlach Livestock Co., et al. v. United States, Ct.Cl., 76 F.Supp. 87.

In addition to its other defenses discussed in Gerlach Livestock Company et al. v. United States, defendant interposes two additional defenses in this case. It says that prior to the taking, if any, plaintiffs had alienated their right to the water of this river, or if they had not alienated it, they had forfeited their right to it because of non-user.

1. Defendant says that the Canal Company relinquished all of its right to the waters of the San Joaquin River by virtue of a contract entered into on January 21, 1929, between James J. Stevinson, a corporation, and the Miller & Lux interests. One of the provisions of this contract required the East Side Canal & Irrigation Company to dismiss suits it had brought against the Miller & Lux interests over their respective water rights. This was done. Later, a man by the name of Crane, who had a contract with the East Side Canal & Irrigation Company for the delivery of specified quantities of water to Crane's land, brought suit against the Canal Company alleging that by the dismissal of its suits against the Miller & Lux interests it had rendered itself incapable of delivering to Crane's land the water it had contracted to deliver. The Court of Appeals of California in Crane v. East Side Canal & Irrigation Co., 6 Cal. App.2d 361, 44 P.2d 455, 458, held:

"We are of the opinion the evidence in this case shows an anticipatory breach of the contract on the part of the defendant to furnish the plaintiff with water * * * by the defendant conveying to other parties all of its title to nonriparian water rights in that vicinity, and thus rendering it practically impossible for the grantor to fulfill the agreement."

Defendant says that this is a judicial determination that the Canal Company had conveyed all of its rights to the water of this river.

Plaintiffs say that this statement of the court was in error, that the Canal Company had not conveyed all of its water rights, and they further say that the court's holding that they had done so was unnecessary to its decision and, therefore, not binding on us.

Plaintiffs are correct. Crane owned land adaptable to the cultivation of crops on his land which would require a continuous supply of water throughout the irrigating season. The East Side Canal & Irrigation Company had contracted to furnish him with this water. When the Stevinson corporation entered into its contract with the Miller & Lux interests, and the East Side Canal & Irrigation Company dismissed its suits against Miller & Lux, it did render itself incapable of fully carrying out its contract with Crane to furnish him with water throughout the irrigation season. However, the Miller & Lux interests never insisted at any time that they had the right to deprive the East Side Canal & Irrigation Company of the right to receive water of the San Joaquin River in times of spring high water, ordinarily occurring in the months of April, May, and June. At such times more water came down the river than the Miller & Lux interests could use and the Canal Company received and used a part of the excess as a matter of right. It continued to receive water from the river during the year until Miller & Lux erected in the stream what is known as the Sack Dam, at Temple Slough. This was erected whenever the Miller & Lux interests began to need all of the water of the river for the satisfaction of their prior rights. This occurred at various times in the year, but ordinarily between the first and fifteenth of July. Up to this time, however, the Canal Company received, and had a right to receive, water from the river. By the contract of January 21, 1929, it did not alienate this right, although it had rendered itself incapable of furnishing water throughout the irrigation season.

2. The question of whether or not plaintiffs have forfeited their right to the use of the water of this river by non-user is a more difficult one.

During the periods of high water on the San Joaquin River the Canal Company had available water from two sources, from the San Joaquin River and from streams and man made laterals that flowed into the canal from the east, below the points where water from the San Joaquin emptied into the canal. All these streams flowed into the canal above the lands irrigated by waters from it.

During the high water period these streams from the east get their water from the Merced Irrigation District pursuant to a contract entered into between this company and the Stevinson Corporation. Under this contract the Merced Irrigation District was required to spill into east side channels leading into the canal from the east not less than 24,000 acre-feet of water per year. It was also agreed that if the District spilled into these channels more than 24,000 acre-feet per year, the Canal Company was privileged to use this excess water, but...

To continue reading

Request your trial
5 cases
  • Gilbert v. Smith
    • United States
    • Idaho Supreme Court
    • August 5, 1976
    ...period regardless of the intent of the appropriator. 93 C.J.S. Waters § 193; Wiel, supra, § 574; East Side Canal & Irr. Co. v. U. S., 76 F.Supp. 836, 839, 111 Ct.Cl. 124 (1948); Hammond v. Johnson, 94 Utah 20, 66 P.2d 894, 899 (1937). In Idaho this concept is set forth in I.C. § 42-222(2). ......
  • St. Regis Paper Co. v. United States
    • United States
    • U.S. Claims Court
    • April 5, 1948
    ... ... actually owned a part of the water rights in the canal. The Government directed another company to take and use all of the water ... ...
  • Wolfsen v. United States
    • United States
    • U.S. Claims Court
    • May 7, 1958
    ...955, 94 L.Ed. 1231; James J. Stevinson v. United States, 1948, 76 F. Supp. 99, 111 Ct.Cl. 89; East Side Canal & Irrigation Company v. United States, 1948, 76 F.Supp. 836, 111 Ct.Cl. 124. Plaintiffs acquired their property in 1940 from one Sheppard who had acquired it from Miller & Lux in 19......
  • Solari v. United States
    • United States
    • U.S. Claims Court
    • July 10, 1950
    ...East Side Canal and Irrigation Company et al. v. United States, No. 46266, decided by this Court on April 5, 1948, reported in 76 F.Supp. 836, 111 Ct. Cl. 124, which finding is incorporated herein by reference, and in the event of any such contingency to use it for beneficial 13 to 39, incl......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT