The Salton Sea Cases

• Decision Date: 02 August 1909
• Docket Number: 1,584.
• Citation: 172 F. 792
• Parties: THE SALTON SEA CASES. v. NEW LIVERPOOL SALT CO. [1] CALIFORNIA DEVELOPMENT CO.
• Court: U.S. Court of Appeals — Ninth Circuit

172 F. 792

THE SALTON SEA CASES.

CALIFORNIA DEVELOPMENT CO. v. NEW LIVERPOOL SALT CO. ^[1]

No. 1,584.

United States Court of Appeals, Ninth Circuit.

August 2, 1909

John S Chapman and E. A. Meserve (Eugene S. Ives, of counsel), for appellant.

Edward J. McCutchen and Purcell Rowe (Page, McCutchen & Knight, of counsel), for appellee.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

MORROW Circuit Judge.

The Colorado river is formed in the southwestern part of Utah by the junction of the Green river from the north and the Grande river from the northeast; the former rising in the Wind River Mountains of Wyoming, and the latter in the Rocky Mountains of Colorado. The waters of the Colorado river carrying its wash of silt, sand, and earth, and, flowing south and west empties into the Gulf of California about 75 miles below the international boundary line between the United States and Mexico. It is probable that many centuries ago the Gulf of California extended in a northwesterly direction into what is now known as the Salton Basin in California, but, by reason of the discharge of silt, sand, and earth by the Colorado river into the Gulf of California near Yuma, the present delta has been gradually formed, pushing the waters of the gulf further and further south, and extending the barrier of the delta across the northwest arm of the gulf to the foothills on the southwest, thus separating the Salton Basin from the waters of the gulf. The lowest part of Salton Basin is 287 feet below the level of the sea, and is called the 'Salton Sink.' There is geological evidence that the Salton Basin was once filled with the salt waters of the gulf, which have since evaporated, leaving the basin practically dry, except when the Colorado river during high water has overflowed its banks and poured into the basin. The river in a normal condition has, however, followed its shifting channel down the delta into the Gulf of California spreading its deposit of sediment over a constantly enlarging area. The region is arid, but with the aid of irrigation the soil becomes enormously productive. The international boundary line between the United States and Mexico crosses this basin north and west of the Colorado river and its delta. There is a large area of land north and west of the river, both above and below the boundary line, capable of being brought under cultivation by the use of water diverted from the Colorado river.

The present action arises out of such a diversion through intakes for which no provision had been made for the regulation and control of the water drawn from the river into irrigation canals, and as a result the diversion grew to such proportions as to turn nearly the entire Colorado river into the irrigation canals, and through them into the Salton Sink, overflowing the land and destroying much property in that section. This suit was originally commenced by the appellee on March 8, 1905, in the superior court of the state of California in and for the county of Riverside, and later was moved, upon the petition of the appellant, to the United States Circuit Court for the Southern District of California, Southern Division. The appellant is a corporation organized under the laws of the state of New Jersey. The appellee is a corporation organized under the laws of the state of California. The action was brought to recover the damage resulting from the flooding and overflowing of complainant's lands by the defendant's diversion of water from the Colorado river and for an injunction restraining the continuance of such diversion. After the case had been removed to the United States Circuit Court, the complaint was framed as a bill in equity in accordance with the practice of federal courts. The bill of complaint alleged that complainant, the New Liverpool Salt Company, was a corporation duly organized and existing under the laws of the state of California, with its principal place of business at Los Angeles, Cal.; that it was the owner of certain tracts of land situated in township 8 south, range 10 east, San Bernardino meridian, and was engaged in the business of mining, gathering, and refining salt, owning and operating a plant for the manufacture of salt, consisting of a mill, drying sheds, and warehouses, equipped with the necessary machinery for reducing and refining salt; that this plant was situated upon the northeast quarter of section 14 in said township; that the buildings and equipment were valued at more than $50,000; that it carried on an extensive business, selling many thousands of tons of salt yearly; and that sections 15 and 23 of the lands in said township and owned by complainant were of great value because of their salt deposits; that the Colorado river is a large and navigable stream of water, carrying many thousand second feet of water, and flowing naturally from its sources in Colorado, Nevada, and Utah, to the Gulf of California, and that no part of the waters of said river flow naturally upon or near the lands of complainant above described.

It is alleged that defendant had carried on the business of diverting the waters of the Colorado river by means of three intakes constructed for that purpose, carrying the water of the river to Calexico, Cal., distributing it for irrigation purposes by means of various canals; that defendant by means of said intakes and canal had been for many months, and then was, diverting from the Colorado river a stream of water varying in amount of flow from 800 to 3,000 cubic feet per second, which flow of water, after entering said canal, was carried therein and thereby to various points, passing into the New river, the Alamo river, and various waste and distributing canals. It is alleged that the lands of the complainant were about 280 feet below sea level; that, by reason of the contour and slope of the land from the points to which the water is carried by the defendant, the water except such as was absorbed and evaporated found its way through the various waste and distributing canals and water courses to the Salton Sink and to the lands of the complainant; that, for a period of more than six months, defendant had been diverting a large amount of water, and that a flow of between 300 and 500 cubic feet per second passed through this canal in excess of the amount absorbed, evaporated, or used for irrigation purposes; that such an amount of water had been for three months continually wasting from the canal system of defendant and pouring into Salton Sink, making a lake over 20 miles in length and several miles in width, overflowing and covering completely certain sections of complainant's lands, and had reached within 200 feet of its mill, compelling complainant to erect and maintain dykes; that the water was continuing to increase, and, if not checked, would overflow the dykes and flood the ground about the buildings, and destroy many thousand tons of salt which belonged to complainant and was piled upon the ground; that this water carried large quantities of sand and silt which was being deposited upon the lands covered by the salt, thereby covering up the salt deposits, and making it impure and more difficult to mine; that the railroad which complainant owned and operated had been entirely covered by the overflow of waste water and the sand and silt deposits; that this waste water was still running into the lake in large quantities, increasing its size because no provision had been made by defendant at its intakes for the regulation and control of the waters; and, that if this flow was not stopped, complainant would suffer irreparable loss, and eventually its property and business would be destroyed, to its damage in a sum exceeding $200,000.

It was alleged that the complainant had no speedy or adequate remedy at law. The principal facts stated in the bill are supported by affidavits attached to the original complaint. A temporary injunction was issued as prayed for in the complaint.

As the waters increased and the damage became greater, complainant on January 29, 1906, filed a supplemental bill containing the same allegations, and alleging that, by the continuance and increase in the amount of the flood, additional damage had been done its lands and salt deposits in the sum of $180,000 and that its plant had been utterly destroyed, whereby complainant had sustained a further loss of $30,000. On December 19, 1907, complainant filed an amendment to this supplemental bill, substituting $325,000 for $180,000 as additional damage to its lands and salt deposits, and substituting $75,000 in place of $30,000 as the damage to its sheds, mill, and machinery. This amended and supplemental bill was filed after the complete destruction of complainant's plant, when damage was asked for in the above amounts, and a writ of injunction prayed for enjoining defendant from diverting said waters unless suitable headgates were provided to control the water, so that the flow would not be in excess of the amount used for irrigation purposes. To the bill the defendant demurred upon the ground that it appeared upon the face of the bill that complainant was not entitled to the relief prayed for; that the bill was multifarious because it united two different suits, one for legal, and the other for equitable, relief, and that the same could not be united; that the causes set forth in the bill were not within the jurisdiction of the court sitting as a court of equity. The demurrer was overruled, and thereupon the defendant answered the bill, and subsequently filed an amended answer to the bill and supplemental bill. The defendant in its answer denied generally the allegations of the complaint; admitted that complainant's land was below the level of the sea, and in what was known as Salton Sink, and...