United States v. Fallbrook Public Utility Dist.

• Decision Date: 22 October 1952
• Docket Number: No. 1247-SD.,1247-SD.
• Citation: 108 F. Supp. 72
• Parties: UNITED STATES v. FALLBROOK PUBLIC UTILITY DIST. et al.
• Court: U.S. District Court — Southern District of California

108 F. Supp. 72

UNITED STATES v. FALLBROOK PUBLIC UTILITY DIST. et al.

No. 1247-SD.

United States District Court S. D. California, S. D.

October 22, 1952.

COPYRIGHT MATERIAL OMITTED

David W. Agnew, Attorney for U. S. Navy Department, Sp. Asst. to Atty. Gen., Washington, D. C., and Raymond deS. Shryock, Commander U. S. Navy, Attorney for U. S. Navy Department, Philadelphia, Pa., for plaintiff.

Swing, Scharnikow & Staniforth, Phil D. Swing, San Diego, Cal., for defendant Fallbrook Public Utility Dist W. B. Dennis, Fallbrook, Cal., for defendant Santa Margarita Mut. Water Co.

Edmund G. Brown, Atty. Gen. of California, Arvin B. Shaw, Jr., Asst. Atty. Gen., for defendant in intervention, People of California.

Gavin M. Craig, Sacramento, Cal., for Division of Water Resources of California.

YANKWICH, Chief Judge.

On January 25, 1951, the Government of the United States began an action to declare its rights to the water of the Santa Margarita River, which it acquired when it purchased, in 1942, certain lands from the Rancho Santa Margarita.

The complaint in the action has been fully summarized and analyzed by the writer in a previous opinion.¹

Following pre-trial conference, a Pre-Trial Order was entered on August 25, 1952, defining the issues as they affect two of the defendants, Fallbrook Public Utilities District and Santa Margarita Mutual Water Company, public service corporations of the State of California, and the State of California, which is a defendant in intervention. We shall refer to Fallbrook Public Utilities District as "Fallbrook", and to Santa Margarita Mutual Water Company as "Santa Margarita".

The Pre-Trial Order contains the following finding:

"The Court finds that it is for the best interest of the parties hereto and for the public interest that all rights to the use of water in the Santa Margarita River system of all parties to this action be determined as against the others and the filing of cross pleadings is dispensed with as unnecessary and inconvenient. Provided that the Order setting this cause for separate trials is not affected hereby.

"The issues in this cause are hereby defined and limited in conformity with the statements contained in the Stipulation between the State of California and the United States of America, dated November 29, 1951, a copy of which is embraced in Paragraph H-1 of the attached Pre-Trial Order."

The Stipulation to which reference is made, and which was adopted by the Court, contained the following agreements:

"I

"That in Paragraphs VIII abd Ix of plaintiff's Complaint herein, and Paragraphs 2 and 3 of the Prayer of said Complaint, the word `paramount' is used in the same sense in which that word is used in the second paragraph, on page 374 of the opinion of the Supreme Court of California in the case of Peabody v. Vallejo, 2 Cal.2d 351, fourth paragraph on page 494, of 40 P. 2d 486.

"II

"That in this cause, the United States of America claims only such rights to the use of water as it acquired when it purchased the Rancho Santa Margarita, together with any rights to the use of water which it may have gained by prescription or use, or both, since its acquisition of the Rancho Santa Margarita.

"III

"That the United States of America claims by reason of its sovereign states no right to the use of a greater quantity of water than is stated in Paragraph II, hereof.

"IV

"That the rights of the United States of America to the use of water herein are to be measured in accordance with the laws of the State of California."

With the issues thus delimited, the cause is now set for trial for October 29, 1952, as to the three named defendants. The pre-trial hearings made it apparent that certain questions of law could, with great propriety, be argued and determined in advance of trial. The parties are of the view that a legal determination of these questions might be a guide to counsel in the presentation of the case and reduce the trial time materially.

These questions, propounded by the respective counsel and approved by the court, have been briefed, and the object of this opinion is to state the Court's conclusions upon them.

The following facts bearing on the legal questions involved need be adverted to.

Fee simple title resides in the United States of America to 135,000 acres of land, which is situated largely in San Diego County, California.

The lands were acquired by the United States of America in the year 1942.

Lands riparian to the Santa Margarita River are owned in fee simple by the United States of America and comprise part of the military establishment in question.

Lands riparian to the Santa Margarita River are owned by the defendant Vail Estate.

By a stipulated judgment, Exhibit A of the Complaint, the respective rights in the Santa Margarita River of the United States of America and the Vail Estate, insofar as this litigation is concerned, have been established.

It is contended by the United States that approximately 38,000 acres of the 135,000 acres owned by the United States of America, are riparian to the stream in question. Of that total riparian acreage, approximately 18,700 acres, it is contended, are susceptible of practicable and profitable irrigation. At variance with that figure is the assertion by the defendants that less than 12,000 acres of the lands of the United States within the watershed of the Santa Margarita River are susceptible of practical irrigation.

Fallbrook has been a public utility district since 1922, and has engaged in supplying irrigation and domestic water to the lands within its boundaries and to the people living thereon.

It has installed in the channel of the Santa Margarita River a dam impounding water to which the United States claims to be entitled. It has also installed a pump in the channel of that stream. With that pump the defendant Fallbrook is now, and has been for the past two years, pumping and extracting approximately 1,800 acre-feet of water from the Santa Margarita River to which the United States claims to be entitled.

The diversion by Fallbrook is made pursuant to Permit No. 7033, issued by the Department of Public Works, Division of Water Resources, State Engineer, State of California.

Fallbrook, pursuant to Permit No. 8511, issued by the Department of Public Works, Division of Water Resources, State Engineer, State of California, asserts a right to construct a dam on the Santa Margarita River with a capacity of 32,000 acre-feet, and to divert from the Santa Margarita River 10,000 acre-feet of water annually.

On October 4, 1946, there was filed an application with the State of California Department of Public Works, Division of Water Resources, on behalf of Santa Margarita.

Pursuant to this application, Santa Margarita claims to have the right to divert not to exceed 60 cubic feet per second from the stream flow of the Santa Margarita River and its tributaries, and to store 5,000 acre-feet of the waters of the Santa Margarita River under and pursuant to any permit which may hereafter be issued by the State of California pursuant to the application mentioned. On the 12th day of November, 1947, Santa Margarita filed its application with the Division of Water Resources of the State of California for permission to store 60,000 acre-feet of the waters of the Santa Margarita River under and pursuant to any permit which may be issued by said Division of Water Resources.

On the 30th day of June, 1948, the plaintiff, the United States of America, filed its application with the Division of Water Resources of the State of California, wherein the plaintiff requested the issuance of a permit authorizing it to store 165,000 feet of water of the Santa Margarita River. All said applications are still pending before the Division of Water Resources. And no diversion of water has been made by Santa Margarita.

I Riparian Rights and Appropriation

So far as the defendants Fallbrook and Santa Margarita are concerned, the issue turns upon the familiar one which has always characterized water litigation in California, — that is, the rights of riparian owners against appropriators. The State of California is interested merely in seeing that the integrity of its law be respected.

In the prior opinion, the history of the development of riparian rights in California and their modification by constitutional revision was gone into.² We need not review that history. But it is well to begin this discussion by referring to the constitutional amendment of November 6, 1928, which limits the rights of both riparian owners and appropriators of water in California to beneficial use.³

The Water Code, which carried into effect this constitutional provision, reasserts the principle that it is the policy of the State to insure the fullest beneficial use of its water resources.⁴ The rights of riparian owners are recognized in both the constitutional amendment and in the Code. But the amendment limits them to so much of the flow of a stream as may be

"required or used consistently with this section, for the purposes for which such lands are, or may be made adaptable, in view of such reasonable and beneficial uses".⁵

The Water Code redefines the right in identical language.⁶ It also declares all water within the State to be

"the property of the people of the State,"

subject to the right to use of water by appropriation, and with full recognition of riparian rights.⁷

The Supreme Court of California has stated that the object of the Water Commission Act, later codified in the Water Code, was

"to provide an orderly method for the appropriation of the unappropriated waters of the state and, to that end, a state water commission was created and was vested with certain powers. We find nothing in the act which purported to enlarge the rights of riparian owners as such or to curtail the rights of appropriators. On the contrary, the language employed in the act shows an intention to declare the waters of the state to be

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