Gerlach Livestock Co. v. United States

• Decision Date: 01 June 1948
• Docket Number: 46245,No. 46009,46247.,46244,46009
• Citation: 76 F. Supp. 87
• Parties: GERLACH LIVESTOCK CO. v. UNITED STATES. POTTER v. SAME. ERRECA v. SAME. ERRECA et al. v. SAME.
• Court: U.S. Claims Court

76 F. Supp. 87

GERLACH LIVESTOCK CO. v. UNITED STATES.

POTTER v. SAME.

ERRECA v. SAME.

ERRECA et al. v. SAME.

Nos. 46009, 46245, 46244, 46247.

Court of Claims.

April 5, 1948.

As Corrected June 1, 1948.

Edward F. Treadwell, of San Francisco, Cal. (Treadwell & Laughlin, of San Francisco, Cal., on the briefs), 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 in these suits seek to recover just compensation for the taking of the water rights which they claim they had as the owners of land riparian to the San Joaquin River or one of its sloughs. This has been done, if at all, by the construction of the Friant Dam on the San Joaquin River upstream from plaintiffs' lands. The purpose of the construction of this dam is the diversion of the waters of the San Joaquin River from their present course into the Madera Canal and the Friant-Kern Canal. When the project is completed plaintiffs' lands will be wholly deprived of the water of the river which they now enjoy to a limited extent. It is for the deprivation of the use of this water that they sue.

1. Defendant defends, first, on the ground that the San Joaquin River is a navigable stream and that the erection of the Friant Dam was to improve navigation and for flood control, and, hence, that it is not liable for the taking of property resulting from its erection.

Defendant says Congress has stated that the "entire Central Valley Project * * * is declared to be for the purposes of improving navigation, regulating the flow of the San Joaquin River and the Sacramento River, controlling floods, providing for storage, and for the delivery of the stored waters thereon, for the reclamation of arid and semiarid lands, and lands of Indian reservations, and other beneficial uses, and for the generation and sale of electric energy as a means of financially aiding and assisting such undertaking, and in order to permit the full utilization of the works constructed to accomplish the aforesaid purposes." Since one of the purposes was to improve navigation, defendant says it is immune from liability for the taking of plaintiffs' water rights as a result of carrying out the plan.

By this declaration Congress did say that a part of the purpose of the Central Valley Project was to improve navigation, although it also said that it had a number of other purposes in mind in the adoption of this plan. However, even though the improvement of navigation was one of the purposes of the over-all plan, the erection of the Friant Dam, of which plaintiffs complain, was for the sole and only purpose of irrigating arid or semiarid lands, and perhaps also flood control. Instead of improving navigation on the San Joaquin River the erection of this dam destroyed any possibility of navigation on the upper reaches of the river.

The Central Valley of California is about 450 miles long. The northern two-fifths of it is known as the Sacramento Valley, and the southern three-fifths as the San Joaquin Valley. The northern part is drained by the Sacramento River and the southern part by the San Joaquin River. The project contemplated the construction of the Kennett Dam on the Sacramento River, a part of the purpose of which was the improvement of navigation on that river, but this was the only part of the entire project that could be said to have been in aid of navigation. Certainly the erection of the Friant Dam had no relation to the improvement of navigation on either the San Joaquin or the Sacramento River, but had for its purpose the irrigation of certain lands nonriparian to that river. The effect of the erection of this dam was to make the San Joaquin River throughout its course less navigable than it had been before, and for many miles on the upper reaches of the river it converted it into a dry river bed.

When the case of plaintiff, Gerlach Live Stock Co., 102 Ct.Cl. 392 was before us on demurrer we said:

"There is nothing in the Acts nor in the documents referred to that negative the allegation of plaintiff's petition that the purpose of the construction of this dam was solely to irrigate certain nonriparian lands. If this be true, and if the waters of this river have been diverted from plaintiff's lands, as alleged, there has been a taking under the Fifth Amendment."

The proof now shows without controversy that the purpose of the construction of this dam was to irrigate certain nonriparian lands, and not in aid of navigation. If this is so, defendant is not immune from liability for property taken in carrying out the project. Cf. Kansas v. Colorado, 206 U.S. 46, 85 et seq., 27 S.Ct. 655, 51 L.Ed. 956; Horstmann Co. v. United States, 257 U.S. 138, 42 S.Ct. 58, 66 L.Ed. 171.

But defendant says that it was a part of defendant's purpose in the erection of this dam to control floods and that such flood control is within the power granted the Federal Government, for the exercise of which it is not liable in damages. It is true that the erection of the dam was for the purpose of conservation of the water and the prevention of its running down into the sea in times of floods or high water. However, the purpose of this flood control was not to aid navigation or control commerce, but for the sole purpose of using the water to irrigate arid lands.

The Supreme Court did not hold in United States v. Appalachian Power Co., 311 U.S. 377, 61 S.Ct. 291, 85 L.Ed. 243, that the Federal Government is immune from liability for acts done to control floods where the only purpose of such control was the irrigation of arid lands.

We are of opinion that the defendant is liable for the taking of whatever rights plaintiffs may have had to the water of this river.

2. Plaintiffs claim the rights of riparian owners. The testimony shows that their lands were riparian to the San Joaquin River or some one or more of the sloughs thereof. Defendant's exhibit 13 and plaintiffs' exhibit 55 indicate that the lands of plaintiff Potter were riparian to the San Joaquin River, Chamberlain Slough and Mariposa Slough. They also indicate that the lands of Martin Erreca et al. were riparian to the Chamberlain and Mariposa Sloughs and to the San Joaquin River itself, and that the lands of Martin Erreca, sole, were riparian to the San Joaquin River, and that the lands of the Gerlach Live Stock Company were riparian to Deep Slough and certain other unnamed sloughs. Additional evidence in the record, including the testimony of witnesses to the actual overflow of the lands by the waters of the river and these sloughs, leaves no doubt in our minds that they were riparian to the rivers and sloughs except for a small portion of the lands of the Gerlach Live Stock Company. We have found this to be a fact.

Honorable Charles C. Haines, judge of the Superior Court of the State of California, made findings of fact and conclusions of law on December 31, 1932, and on January 4, 1933, holding that plaintiffs' lands, among others, were riparian to the San Joaquin River or some one of its sloughs. These findings were in the cases of Miller & Lux, Inc., v. Madera Irrigation District; San Joaquin and Kings River Canal and Irrigation Co. v. Madera Irrigation District, Inc. and San Luis Canal Co. v. Madera Irrigation District, et al. The decrees following these findings are known in the record as the "Haines decrees." Nothing has happened, so far as the record shows, since these decrees were entered that has materially changed the situation with respect to these lands

While, of course, in the suits at bar the parties are not bound by these decrees, still they are highly persuasive.

Plaintiffs' riparian rights, however, were subject to prior appropriative and prescriptive rights of Miller & Lux, Inc., and its subsidiaries, The San Joaquin & Kings River Canal & Irrigation Company, Incorporated, Gravelly Ford Canal Company, Firebaugh Canal Company, Columbia Canal Company, San Luis Canal Company and Santa Rita Irrigation Company, and other upstream diverters. These companies had constructed certain canals through which they had diverted and appropriated large quantities of the water of the San Joaquin River for the irrigation of lands, both riparian and nonriparian, owned by Miller & Lux, Inc., and other persons. In addition, Miller & Lux, Inc., had granted to the Southern California Edison Company and San Joaquin Light & Power Corporation the right to construct dams and reservoirs above the site of Friant Dam for the production of electric power. Plaintiffs' water rights were subject to these prior rights. The result was that plaintiffs' lands benefited only from the flood waters of the river.

However, notwithstanding these superior rights, there was left in times of high water sufficient additional water to overflow the lands of the plaintiffs or, by seepage, to raise the water level underneath their lands. The result was that by overflows and by seepage the lands of the plaintiffs were moistened and enriched and made more productive. The erection of the Friant Dam took these rights from plaintiffs. Plaintiffs' right to compensation is limited to their rights to have their lands moistened and enriched in these times of high water.

The defendant contends that the overflow of these lands did not in fact enrich them, but we think the evidence is to the contrary.

3. When the defendant decided upon the erection of the Friant Dam and the extinguishment of the riparian water rights of riparian owners downstream, it entered into contracts with Miller & Lux, Inc., and its subsidiaries, who diverted water for irrigation of the lands of others, and who also owned large acreages both riparian and nonriparian to the San Joaquin and its sloughs which were suitable for the raising of crops, and also certain grasslands which were watered by controlled irrigation, and grasslands which were...