United States v. CENTRAL STOCKHOLDERS'CORPORATION

• Decision Date: 29 August 1931
• Docket Number: No. 6422.,6422.
• Citation: 52 F.2d 322
• Parties: UNITED STATES v. CENTRAL STOCKHOLDERS' CORPORATION OF VALLEJO et al.
• Court: U.S. Court of Appeals — Ninth Circuit

52 F.2d 322 (1931)

UNITED STATES v. CENTRAL STOCKHOLDERS' CORPORATION OF VALLEJO et al.

No. 6422.

Circuit Court of Appeals, Ninth Circuit.

August 29, 1931.

Samuel W. McNabb, U. S. Atty., and Ignatius F. Parker, Asst. U. S. Atty., both of Los Angeles, Cal., and J. F. Lawson, Sp. Asst. to U. S. Atty., of Washington, D. C., for the United States.

Milton T. Farmer, A. E. Chandler, Philip H. Angell, Orville R. Vaughn, Erwin C. Easton, and Athearn, Chandler & Farmer, and Frank R. Devlin, all of San Francisco, Cal., for appellees Central Stockholders' Corporation of Vallejo and C. S. Howard Co.

Edward F. Treadwell, of San Francisco, Cal., for appellee Southern California Edison Co.

Before WILBUR and SAWTELLE, Circuit Judges, and NETERER, District Judge.

WILBUR, Circuit Judge.

Preliminary to the statement of facts, we quote from the appellant's brief its statement of the nature and purposes of the action, without adopting that statement:

"This is a suit by the United States.

"(1) To quiet title to public lands and to the use of the waters thereof; and

"(2) To determine and enforce the right of the United States to regulate and use the waters of the San Joaquin River.

"(a) For power purposes on its riparian lands, under its constitutional power to dispose of the public domain, and

"(b) For navigation purposes on the lower part of said stream, under the authority of the commerce clause of the constitution of the United States."

Fundamentally the question presented by appellant's brief is the right of the United States and its authorized licensees to impound, during the period of high water, the water of the rivers and streams having their sources in the public domain for the purpose of developing hydroelectric power and of regulating the flow of navigable streams. Avowedly this action was instituted in the federal courts by the appellant, which will hereinafter be referred to as the government, in order to avoid the effect of the law of California with reference to water rights as established by its legislation and judicial decision. The government admits that in the Herminghaus Case (Herminghaus v. Southern California Edison Co., 200 Cal. 81, 252 P. 607) the Supreme Court of California has established as the law of California riparian rights in and to the waters of the San Joaquin river and other streams inconsistent with the claims of the government in this action. The claim of the government may be summarized as follows:

The government, by reason of its ownership of the public lands within the state of California, is entitled to the use of the water in the streams bordering on or flowing through such lands by reason of the common-law right of owners of riparian lands to such water; that this right includes the right to store water for the generation of hydroelectric power, as its permittee in this case proposes to do by virtue of governmental license; that the state of California under the Enabling Act (9 Stat. 452) is powerless to modify the proprietary right of the government in such streams by either legislation or judicial decision; that the decision of the Supreme Court of the State of California in the Herminghaus Case is inconsistent with the common-law rights of an upper riparian owner and is therefore ineffective to determine the right of the government in and to waters rising in or flowing to or along the public lands of the United States. We are thus asked by the government to re-write the water law of California as developed by its courts to the extent, at least, of holding that the large body of public land riparian to the streams of the state has rights entirely distinct from those defined and recognized by the law of the state of California. Formidable as is the task thus presented with reference to the law of California, the contention made here would be even more discordant with the laws of the other states of this circuit which have not recognized the common-law right of riparian ownership and have consistently based their law of water rights upon the appropriation of water (Arizona, Nevada, Montana, Idaho). If it be true that the government, by reason of its ownership of large tracts of public lands, has a corresponding common-law right to the water of the streams as a part and parcel of land, and that such water cannot be taken away by state legislation or judicial decision, the result of the government's contention would in such other states be even more disastrous to private ownership of water than it would be in the state of California, which has always recognized the rights of the riparian owner in and to the waters of streams. At the same time the doctrine of appropriation is also applied in appropriate cases. See Lux v. Haggin, 69 Cal. 255, 4 P. 919, 10 P. 674; 25 Cal. Jur. (Waters) §§ 3 to 7, inc.; § 58 and authorities there cited; Cal. Civil Code, §§ 1410-1422. In addition to the rights thus asserted by the government on account of its ownership of public lands, the government is also asserting its sovereign right to control the flow of the San Joaquin and other navigable rivers in aid of commerce and navigation. It is assumed by the parties that the Attorney General of the United States has power to bring this action involving, as is claimed, the title of the government to the waters rising on or flowing through public lands, and for the purposes of the decision we will make a like assumption, although it would seem that, in a matter of such far reaching importance to so many states and to such a multitude of private owners or claimants, a special act of Congress authorizing such a suit would be appropriate. In the government's brief, it is asserted that: "If the United States looks unconcernedly on, while rights which it claims to own are being litigated and adjudged to be the property of others, it would be folly to expect any trace of its title to be discovered by the courts of equity fifty years later."

This statement is made in support of the claim of necessity of action by the government at this time to prevent the acquisition by the appellee Central Stockholders Corporation of Vallejo of title to the waters of the San Joaquin river as recognized and declared by the Supreme Court of the State of California in the Herminghaus Case. It is equally applicable, however, to the situation presented by the record where litigation has been commenced after the government has stood by for more than seventy-five years and allowed the courts of the state to develop its water law and water rights without objection. The rights to water in streams flowing from or on public lands have largely been the result of local custom and laws, acquiesced in by the government, acknowledged by the decisions of the Supreme Court and ratified by Congress, both by direct legislative approval and by inferences legitimately resulting from legislation dealing with public lands. Basey v. Gallagher, 20 Wall. (87 U. S.) 670, 22 L. Ed. 452; Atchison v. Peterson, 20 Wall. (87 U. S.) 507, 22 L. Ed. 414; Forbes v. Gracey, 94 U. S. 762, 24 L. Ed. 313; Jennison v. Kirk, 98 U. S. 453, 25 L. Ed. 240; Broder v. Water Co., 101 U. S. 274, 25 L. Ed. 790; Act of Congress July 26, 1866, § 9, 14 Stat. 253 (43 USCA § 661); 19 Stat. 377, § 1, as amended (43 USCA § 321); Black Pomeroy on Water Rights, § 17, p. 22. The general tenor of such decisions and legislation will be indicated by an extended quotation from a comparatively recent decision (1898) by the Supreme Court in the case of United States v. Rio Grande Irrig. Co., 174 U. S. 690, 702-705, 19 S. Ct. 770, 774, 43 L. Ed. 1136:

"The unquestioned rule of the common law was that every riparian owner was entitled to the continued natural flow of the stream. It is enough, without other citations or quotations, to quote the language of Chancellor Kent (3 Kent, Comm. § 439):

"`Every proprietor of lands on the banks of a river has naturally an equal right to the use of the water which flows in the stream adjacent to his lands, as it was wont to run (currere solebat) without diminution or alteration. No proprietor has a right to use the water, to the prejudice of other proprietors, above or below him, unless he has a prior right to divert it, or a title to some exclusive enjoyment. He has no property in the water itself, but a simple usufruct while it passes along. "Aqua currit et debet currere ut currere solebat," is the language of the law. Though he may use the water while it runs over his land as an incident to the land, he cannot unreasonably detain it, or give it another direction, and he must return it to its ordinary channel when it leaves his estate.'

"While this is undoubted, and the rule obtains in those states in the Union which have simply adopted the common law, it is also true that as to every stream within its dominion a state may change this common-law rule, and permit the appropriation of the flowing waters for such purposes as it deems wise. Whether this power to change the common-law rule, and permit any specific and separate appropriation of the waters of a stream, belongs also to the legislature of a territory, we do not deem it necessary, for the purposes of this case, to inquire. We concede arguendo that it does.

"Although this power of changing the common-law rule as to streams within its dominion undoubtedly belongs in each state, yet two limitations must be recognized: First, that, in the absence of specific authority from congress, a state cannot, by its legislation, destroy the right of the United States, as the owner of lands bordering on a stream, to the continued flow of its waters, so far, at least, as may be necessary for the beneficial uses of the government property; second, that it is limited by the superior power of the general government to secure the uninterrupted navigability of all navigable streams within the limits of the United States. In other words, the jurisdiction of the general government over interstate commerce...