Title: Unites States v. Gerlach Live Stock Co.
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Permanent Link: http://ufdc.ufl.edu/WL00004439/00001
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Title: Unites States v. Gerlach Live Stock Co.
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Language: English
Spatial Coverage: North America -- United States of America -- Florida
Abstract: Jake Varn Collection - Unites States v. Gerlach Live Stock Co. (JDV Box 86)
General Note: Box 22, Folder 3 ( Court Cases of Water Rights in States Other Than Florida - 1990 ), Item 2
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Full Text

Cite as 70 S.Ct. 955


[1,2] Petitioner, who is confined in a
California state prison, sought to file a
petition in forma pauperis for a writ of
injunction in the District Court below.
That court denied leave to proceed in
forma pauperis, holding that petitioner was
not entitled to the benefits of 28 U.S.C.
1915, 28 U.S.C.A. 1915, because he
was no longer a "citizen" as required by
that section. The District Court reached
that decision in reliance on California Pe-
nal Code, 2600, which provides that one
sentenced to imprisonment for a term
years is deprived of his civil rights for
the period of imprisonment. The decision
of the District Court is in error. Citizen-
ship for the purpose of in forma pauperis
proceedings in the federal courts is sole-
ly a matter of federal law. Congress has
not specified criminal convictions, except
for desertion and treason, as grounds for
loss of citizenship. 8 U.S.C. 801, 8 U.S.
C.A. 801.

[3] Petitioner thereafter filed a motion
in the Court of Appeals for the Ninth Cir-
cuit for allowance of an appeal from the
order of the District Court. The denial
by a District Judge of a motion to pro-
ceed in forma pauperis is an appealable
order. 28 U.S.C. 1291, 28 U.S.C.A.
1291; see Cohen v. Beneficial Industrial
Loan Corp., 1949, 337 U.S. 541, 69 S.Ct.
1221, 93 L.Ed. 1528. The Court of Ap-
peals, however, held that it had "no pow-
er to grant an application for allowance
of an appeal," and dismissed the petition.

[4,5] Finally, petitioner filed in this
Court a motion for leave to file a petition
for a writ of mandamus to the District
Court. Mandamus is an extraordinary
remedy, available only in rare cases. Ex
parte Collett, 1949, 337 U.S. 55, 72, 69
S.Ct. 944, 953, 93 L.Ed. 1207, 10 A.L.R.2d
921, and cases there cited. Because of the
ambiguous state of this record, and the
fact that a denial of this motion will not
prejudice petitioner in further attempts

to proceed in forma pauperis, the motion
must be denied. It is so ordered.
Motion denied.

Mr. Justice FRANKFURTER took no
part in the consideration or decision of
this case.


339 U.S. 725





Nos. 4-9.

ieargued March 29, 30, 1950.

Decided June 5, 1950.

Actions by the Gerlach Live Stock Com-
pany, by J. Sheldon Potter, by Martin Er-
reca, by James J. Stevinson (a corporation),
by Archibald J. Stevinson, and by the 3-H
Securities Company against the United
States to recover just compensation for dep-
rivation of riparian rights. Judgments of
the Court of Claims, Sam E. Whitaker, J.,
76 F.Supp. 87, 99, 111 Ct.Cl. 1, 89, in favor
of the claimants, and the United States
brought certiorari. The Supreme Court, Mr.
Justice Jackson, held that the owners of ri-
parian grass land which benefited from nat-
ural seasonal overflow of the San Joaquin
River were the owners of property rights
which survived amendment of California
Constitution in 1928, and that such owners
were entitled to compensation for depriva-
tion of rights by construction of the Friant
Dam as part of the Central Valley Project.



Mr. Justice Douglas, and Mr. Justice Black,
dissented in part.

I. Waters and water courses =-222
Congress has power to promote the
general welfare through large scale proj-
ects for reclamation, irrigation, and other
internal improvement. U.S.C.A.Const. art.
1, 8, cl. 1.

2. Eminent domain e2(10)
Congress, by its direction that recla-
mation law should govern Central Valley
Project in California, and otherwise, elect-
ed to recognize state created water rights
and to take them under its power of emi-
nent domain, rather than under its domi-
nant navigation servitude, and hence, where
owners sought compensation for depriva-
tion of riparian rights on San Joaquin Riv-
er by construction of Friant Dam, compen-
sation could not be denied on ground that
project was a navigation project, though
Congress had originally stated that purpose
of entire project was to improve naviga-
tion. Act Aug. 26, 1937, 2, 50 Stat. 850;
Act Oct. 17, 1940, 54 Stat. 1199, 1200;
Emergency Relief Appropriation Act of
1935, 4, 49 Stat. 118; Emergency Relief
Appropriation Act of 1936, 49 Stat. 1622;
Act Aug. 30, 1935, 49 Stat. 1038; Recla-
mation Act of 1902, as amended, 43 U.S.
C.A. 371 et seq.; St.Cal.1933, p. 2643.

3. Eminent domain 1al67(I)
Where project involving construction
of Friant Dam on San Joaquin River had
been regarded by highest executive author-
ities as a reclamation project, and Con-
gress, among other things, directed Secre-
tary of the Interior to proceed under the
reclamation law and made appropriations
on that basis, the Reclamation Act would be
applied by the court in determining whether
owners were entitled to compensation for
deprivation of riparian rights, and under
that Act the court would turn to laws of the
state to determine rights and liabilities of
owners, and of the United States as ap-
propriator. Reclamation Act of 1902, as
amended, 43 U.S.C.A. 371 et seq.

4. Waters and water courses <222
Under California law, riparian rights
attached only to so much of flow of the San
Joaquin River as might be put to beneficial
use, consistently with the law, and riparian
owners could enforce no use of wasteful
or unreasonable character. Const.Cal. art.
14, 3.
5. Eminent domain <=84
Inability to enforce riparian rights on
San Joaquin River by specific performance,
mandatory orders, or injunctions would
not preclude award of compensation for
deprivation of such rights by construction
of Friant Dam by the United States. Rec-
lamation Act of 1902, 8, 43 U.S.C.A.
383; Const.Cal. art. 14, 3.
6. Eminent domain ='98
Owners of riparian grass lands which
benefited from natural seasonal overflow
of San Joaquin River were owners of a
property right which survived amendment
of California Constitution in 1928, and
owners were entitled to compensation from
federal government for deprivation of such
rights by construction of Friant Dam.
Reclamation Act of 1902, as amended, 43
U.S.C.A. 371 et seq.; Const.Cal. art. 14,

7. Eminent domain <=262(2)
Where government assigned as error
the determination by Court of Claims of
date from which interest on awards of com-
pensation for deprivation of riparian rights
should be allowed, but Court of Claims had
adopted as date of taking the same date as
the government itself had adopted in con-
tracts with other parties, the determination
would not be disturbed by Supreme Court.

Mr. Ralph S. Boyd, Washington, D. C.,
for petitioner.
Mr. Edward F. Treadwell, San Fran-
cisco, Cal., for respondents.
Mr. Warner W. Gardner, Washington,
D. C., for Gill and others as amici curiae,
by special leave of Court.

Cite as 70
Mr. Justice JACKSON delivered the
opinion of the Court.
We are asked to relieve the United
States from six awards by the Court of
Claims as just compensation for depriva-
tion of riparian rights along the San Joa-
quin River
in California caused by con-
struction of Friant Dam, and its dependent
irrigation system, as part of the Central
Valley Project.
This is a gigantic undertaking to re-
distribute principal fresh-water resources
of California. Central Valley is a vast
basin, stretching over 400 miles on its
polar axis and a hundred in width, in the
heart of California. Bounded by the Sier-
ra Nevada on the east and by coastal
ranges on the west, it consists actually of
two separate river valleys which merge in
a single pass to the sea at the Golden
Gate. Its rich acres, counted in the mil-
lions, are deficient in rainfall and must
remain generally arid and unfruitful un-
less artificially watered.
Water resources there are, if they can
be captured and distributed over the land.
From the highland barricade at the north
the Sacramento River flows southerly,
while from the Yosemite region at the
southeast the San Joaquin River winds
northeasterly until the two meet and con-
sort in outlet to the sea through estuaries
that connect with San Francisco Bay.
These dominating rivers collect tribute
from many mountain currents, carry their
hoardings past parched plains and thrift-
lessly dissipate them in the Pacific tides.
When it is sought to make these streams
yield their wasting treasures to the lands
they traverse, men are confronted with a
paradox of nature; for the Sacramento,
with almost twice the water, is accessible
to the least land, whereas about three-
fifths of the valley lies in the domain of
the less affluent San Joaquin.
To harness these wasting waters, over-
come this perversity of nature and make
water available where it would be of great-

S.Ct. 955
est service, the State of California pro-
posed to re-engineer its natural water dis-
tribution. This project was taken over by
the United States in 1935 and has since
been a federal enterprise. The plan, in
broad outline, is to capture and store wa-
ters of both rivers and many of their tribu-
taries in their highland basins, in some
cases taking advantage of the resulting
head for generation of electric energy.
Shasta Dam in the north will produce
power for use throughout much of the
State and will provide a great reservoir
to equalize seasonal flows of the Sacra-
mento. A more dramatic feature of the
plan is the water storage and irrigation
system at the other end of the valley.
There the waters of the San Joaquin will
be arrested at Friant, where they would
take leave of the mountains, and will be
diverted north and south through a system
of canals and sold to irrigate more than a
million acres of land, some as far as 160
miles away. A cost of refreshing this
great expanse of semiarid land is that, ex-
cept for occasional spills, only a dry river
bed will cross the plain below the dam.
Here, however, surplus waters from the
north are utilized, for through a 150-mile
canal Sacramento water is to be pumped
to the cultivated lands formerly dependent
on the San Joaquin.
Both rivers afford navigation-the Sac-
ramento for a considerable distance in-
land, the San Joaquin practically only at
tidewater levels. The plan will have navi-
gation consequences, principally on the
Sacramento; but the effects on naviga-
tion are economically insignificant as com-
pared with the values realized from redis-
tribution of water benefits.
Such a project inevitably unsettles many
advantages long enjoyed in reliance upon
the natural order, and it is with deprivation
of such benefits that we are here con-
Claimants own land parcels riparian to
the San Joaquin.1 These are called "un-

I. Claimants' rights are subject to certain prior appropriative and other rights which do
not affect the issues before.us.


controlled grass lands," to distinguish them
from either crop lands or "controlled grass
lands," both of which have long been ir-
rigated through controlled systems supplied
from the stream.
Neither of these latter
will be injured by the diversion, for they
are to be provided with the replacement
water from the Sacramento.
Uncontrolled grass lands involved in the
claims are parts of a large riparian area
which benefits from the natural seasonal
overflow of the stream. Each year, with
predictable regularity, the stream swells
and submerges and saturates these low-
lying lands. They are moistened and en-
riched by these inundations so that forage
and pasturage thrive, as otherwise they
cannot. The high stage of the river,
while fluctuating in height and variable
in arrival, is not a flood in the sense of an
abnormal and sudden deluge. The river
rises and falls in rhythm with the cycle
of seasons, expansion being normal for its
time as curtailment is for others, and both
are repeated with considerable constancy
over the years. It should be noted, how-
ever, that claimants' benefit comes only
from the very crest of this seasonal stage,
which crest must be elevated and borne to
their lands on the base of a full river,
none of which can be utilized for irriga-
tion above and little of it below them.
Their claim of right is, in other words,
to enjoy natural, seasonal fluctuation un-
hindered, which presupposes a peak flow
largely unutilized.
The project puts an end to all this. Ex-
cept at rare intervals, there will be no
spill over Friant Dam, the bed of the San
Joaquin along claimants' lands will be
parched, and their grass lands will be
barren. Unlike the supply utilized for
nearby crop and "controlled" lands, the
vanishing San Jbaquin inundation cannot
be replaced with Sacramento water.
Claimants have been severally awarded

2. "[T]he entire Central Valley Project,
California, heretofore authorized and es-
tablished under the provisions of the
Emergency Relief Appropriation Act of
1935 (49 Stat. 115) and the First

compensation for this taking of their an-
nual inundations, on the theory that, as
part of the natural flow, its continuance is
a right annexed to their riparian property.
76 F.Supp. 87, 99, 111 Ct.CI. 1, 89. The
principal issues are common to the six
cases in which we granted certiorari. 335
U.S. 883, 69 S.Ct. 234, 93 L.Ed. 422.
I. Navigation or. Reclamation Project?
The Solicitor General contends that
this overall project, and each part of it,
has been authorized by Congress, under
the commerce power, as a measure for con-
trol of navigation. Claimants on the other
hand urge that although improvement of
navigation was one objective of the Cen-
tral Valley undertaking as a whole, never-
theless construction of the Friant Dam
and the consequent taking of San Joa-
quin water rights had no purpose or ef-
fect except for irrigation and reclamation.
This, it is claimed, was not only the ac-
tual, but the avowed purpose of Congress.
On these conflicting assumptions the par-
ties predicate contrary conclusions as to
the right to compensation.
In the Rivers and Harbors Act of Au-
gust 26, 1937, 2, 50 Stat. 844, 850, and
again in the Rivers and Harbors Act of
October 17, 1940, 54 Stat. 1198, 1199-1200,
Congress said that "The entire Central
Valley project is de-
clared 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
thereof ." The 1937 Act also
provided that "the said dam and reservoirs
shall be used, first, for river regulation, im-
provement of navigation, and flood con-
trol ."
But it also is true, as pointed out by
claimants, that in these Acts Congress ex-
pressly "reauthorized"2 a project
initiated by President Roosevelt who, on

Deficiency Appropriation Act, fiscal year
1936 (49 Stat. 1622) is hereby reauthor-
ized ." The latter reference
is to a $6,900,000 appropriation primarily
for "Friant Reservoir and irrigation


Cite as 70
September 10, 1935, made allotment of
funds for construction of Friant Dam and
canals under the Federal Emergency Re-
lief Appropriation Act, 49 Stat. 115, 118,
4, and provided that they "shall be reim-
bursable in accordance with the reclama-
tion laws."3 A finding of feasibility, as
required by law,4 was made by the Sec-
retary of the Interior on November 26,
1935, making no reference to navigation,
and his recommendation of "the Central
Valley development as a Federal reclama-
tion project" was approved by the Presi-
dent on December 2, 1935.

When it "reauthorized" the Central Val-
ley undertaking, Congress in the same Act
provided that "the provisions
of the rec-
lamation law,5 as amended, shall govern
the repayment of expenditures and the
construction, operation, and maintenance
of the dams, canals, power plants, pump-
ing plants, transmission lines, and. inci-
dental works deemed necessary to said en-
tire project, and the Secretary of the
Interior may enter into repayment con-
tracts, and other necessary contracts, with
State agencies, authorities, associations,

facilities therefrom", as a reclamation
project reimbursablee under the Rec-
lamation Law." 49 Stat. 1597, 1622.
Development of the water resources of
Central Valley was initiated by the State
of California. Cal.Stat.1933, p. 2643.
Studies were made of the feasibility of
federal participation, and although there
was no accompanying appropriation, the
first congressional authorization in con-
nection with the project was contained in
the Act of Aug. 30, 1935, 49 Stat. 1028,
1038. In this Act, on the representa-
tion of the Chief of Engineers that, as
to the Friant Dam phase, "No benefits
would accrue to navigation from this
development," (House Doc. No. 191, 73d
Cong., 2d Sess. 3; and see Comm. on
Rivers and Harbors, H. R., Doc. No. 35)
Congress limited its approval of federal
participation to purely navigation works
in the northern part of the valley, and
authorized a federal expenditure of
$12,000,000 in the construction of Ken-
nett Dam on the Sacramento. When it
"reauthorized" the entire project Con-
gress provided that. when appropriated,

S.Ct. 955
persons, and corporations, either public or
private, including all agencies with which
contracts are authorized under the recla-
mation law, and may acquire by proceed-
ings in eminent domain, or otherwise, all
lands, rights-of-ways, water rights, and
other property necessary for said purpos-
es: ."
The Central Valley basin development en-
visions, in one sense, an integrated under-
taking, but also an aggregate of many sub-
sidiary projects, each of which is of
first magnitude. It consists of thirty-eight
major dams and reservoirs bordering the
valley floor and scores of smaller ones in
head waters. It contemplates twenty-eight
hydropower generating stations. It includes
hundreds of miles of main canals, thousands
of miles of laterals and drains, electric trans-
mission and feeder lines and substations, and
a vast network of structures for the control
and use of water on two million acres of
land already irrigated, three million acres
of land to be newly irrigated, 360,000 acres
in the delta needing protection from intru-
sions of salt water, and for municipal and
miscellaneous purposes including cities,
towns, duck clubs and game refuges. These
projects are not only widely separated geo-

this $12,000,000 should be exempt from
the reimbursement requirements of the
reclamation law. Act of Aug. 26, 1937,
2, 50 Stat. 844, 850.
3. The reference is to the Reclamation Act
of 1902, 32 Stat. 388, as amended, 43
U.S.C. 371 et seq., 43 U.S.C.A. 371
et seq.
4. Act of June 25, 1910, 4, 36 Stat. 835,
836, 43 U.S.C.A. 413, provides that no
irrigation project contemplated under
the Reclamation Act "shall be begun un-
less and until the same shall have been-
recommended by the Secretary of the
Interior and approved by the direct order
of the President of the United States."
To this was added the requirement that
the Secretary "shall have made a finding
in writing that it is feasible, that it is
adaptable for actual settlement and farm
homes, and that it will probably return
the cost thereof to the United States."
Act of Dec. 5, 1924, 4(B), 43 Stat. 672,
702, 43 U.S.C.A. 412.
5. See n. 3, supra.


graphically, many of them physically inde-
pendent in operation, but they are author-
ized in separate acts from year to year
and are to be constructed at different times
over a considerable span of years. A for-
mula has been approved by the President
by which multiple purpose dams are the
responsibility of the Bureau of Reclama-
tion, and dams and other works only for
flood control are exclusively the responsi-
bility of the Army Engineers.6 The entire
Friant and San Joaquin projects at all
times have been administered by the Bu-
reau of Reclamation.
We cannot disagree with claimants' con-
tention that in undertaking these Friant
projects and implementing the work as car-
ried forward by the Reclamation Bureau,
Congress proceeded on the basis of full
recognition of water rights having valid
existence under state law. By its com-
mand that the provisions of the reclama-
tion law should govern the construction, op-
eration, and maintenance of the several
construction projects, Congress directed the
Secretary of the Interior to proceed in con-

6. Letter of President Truman t6 Secretary
of the Interior, dated August 15, 1949,
S.Doc.No.113, 81st Cong., 1st Sess.
7. The Reclamation Act of 1902, 32 Stat.
388, as amended, 43 U.S.C. 371 et seq.,
43 U.S.C.A. 371 et seq., to which Con-
gress adverted, applies only to the seven-
teen Western States. Section 8 provides:
"That nothing in this Act shall be con-
strued as affecting or intended to affect
or to in any way interfere with the laws
of any State or Territory relating to the
control, appropriation, use, or distribu-
tion of water used in irrigation, or any
vested right acquired thereunder, and the
Secretary of the Interior, in carrying out
the provisions of this Act, shall proceed
in conformity with such laws, and nothing
herein shall in any way affect any right
of any State or of the Federal Govern-
ment or of any landowner, appropriator,
or user of water in, to, or from any inter-
state stream or the waters thereof:
." 43 U.S.C.A. 383. To the
extent that it is applicable this clearly
leaves it to the State to say what
rights of an appropriator or riparian
owner may subsist along with any fed-
eral right.

formity with state laws, giving full recog-
nition to every right vested under those
laws.' Cf. State of Nebraska v. State of
Wyoming, 295 U.S. 40, 43, 55 S.Ct 568, 569,
79 L.Ed. 1289; California Oregon Power
Co. v. Beaver Portland Cement Co., 295 U.S.
142, 164, 55 S.Ct. 725, 731, 79 L.Ed. 1356;
State of Nebraska v. State of Wyoming, 325
U.S. 589, 614, 65 S.Ct. 1332, 1348, 89 L.Ed.
1815; Mason Co. v. Tax Comm'n of State
of Washington, 302 U.S. 186, 58 S.Ct. 233,
82 L.Ed. 187. In this respect, Congress' ac-
tion parallels that in Ford & Son v. Little
Falls Fibre Co., 280 U.S. 369, 50 S.Ct. 140,
74 L.Ed. 483. The original plan called
purchase of water rights and included an
estimate of their cost.8 We are advised by
the Government that at least throughout
administration of California reclamation
projects it has been the consistent practice
of the Bureau of Reclamation to respect
such property rights. Such has specifically
been the Bureau's practice in connection
with the Friant project, and this has been
reported to Congress,9 which has responded

8. "Part of the water supply is to be ob-
tained by the purchase of water now used
for the irrigation of pasture lands and
this will result in the retirement from use
of 250,000 acres of submarginal land.
Feasibility Report, Secretary
of the Interior Ickes to President Roose-
velt, Nov. 26, 1935. Included in the
Secretary's estimated costs of the project
was an item of $8,000,000 for "rights of
way, water rights and general expenses."
Ibid. In the Act of Aug. 26, 1937, the
Secretary was authorized to acquire "by
proceedings in eminent domain, or other-
wise, all lands, rights-of-ways, water
rights, and other property necessary for
said purposes: ." 50Stat. 844,
9. In administering the Central Valley
Project, the Bureau of Reclamation sub-
mitted appropriation requests regularly
from 1938 through 1949. On each occa-
sion, excepting fiscal year 1945, Congress
was advised that San Joaquin water
rights were being purchased, and every
appropriation request but three (fiscal
years 1941, 1945, and 1946) included an
item for such water rights. Hearings,
Subcomm. of the House Comm. on Appro-


Cite as 70 S.Ct. 953

some nine times in the past
twelve years
to requests for appropriations to meet such
expenses. We think this amounts, not to
authorizations and declarations creating
causes of action against the United States,
but to awareness and approval of adminis-
trative construction. We think it clear that
throughout the conception, enactment and
subsequent administration of the plan Con-
gress has recognized the property status of
water rights vested under California law.
It is not to be doubted that the totality
of a plan so comprehensive has some legiti-
mate relation to control of inland naviga-
tion or that particular components may be
described without pretense as navigation
and flood control projects. This made it
appropriate that Congress should justify
making this undertaking a national burden
by general reference to its power over
commerce and navigation.
The Government contends that the over-
all declaration of purpose is applicable to
Friant Dam and related irrigation facilities
as an integral part of "what Congress quite
properly treated as a unit." Adverting to
United States v. Willow River Power Co.,
324 U.S. 499, 65 S.Ct. 761, 89 L.Ed. 1101;
United States v. Commodore Park, Inc.,
324 U.S. 386, 65 S.Ct. 803, 89 L.Ed. 1017;
United States v. Appalachian Electric Pow-
er Co., 311 U.S. 377, 61 S.Ct. 291, 85 L.Ed.
243; United States v. Chandler-Dunbar
Water Power Co., 229 U.S. 53, 33 S.Ct.
667, 57 L.Ed. 1063, the Government relies
on the rule that it does not have to com-
pensate for destruction of riparian interests
over which at the point of conflict it has a

priations, Interior Dept., 75th Cong., 1st
Sess. 281, 282 (except as noted, all fol-
lowing references are to hearings before
this subcommittee), and see H. R. Rep.
No. 786, 75th Cong., 1st Sess. 14; Hear-
ings, 75th Cong., 3d Sess. 349, and see
H. R. Rep. No. 1855, 75th Cong., 3d
Sess. 14; Hearings, 76th Cong., 1st
Sess. 421, 422, and see H. R. Rep. No.
161, 76th Cong., 1st Sess. 16; Hearings,
76th Cong., 3d Sess. 495, and see H. R.
Rep. No. 1709, 76th Cong., 3d Sess. 14;
Hearings, 77th Cong., 1st Sess. 741;
Hearings, 77th Cong., 2d Sess. 434-439;
70 S.Ct.-61

superior navigation easement the exercise
of which occasions the damage. And irre-
spective of divisibility of the entire Central
Valley undertaking, the Government con-
tends that Friant Dam involves a measure
Sof flood control, an end which is sensibly
related to control of navigation. Oklahoma
ex rel. Phillips v. Guy F. Atkinson Co., 313
U.S. 508, 61 S.Ct. 1050, 85 LEd. 1487.

Claimants, on the other hand, urge that
at least the Friant Dam project was wholly
unrelated to navigation ends and could not
be controlled by the general Congressional
declaration of purpose. They point out
that, although
definitions of navigation
have been expanded, United States v. Ap-
palachian Power Co., supra, in every in-
stance in which this Court has denied com-
pensation for deprivation of riparian rights
it has specifically noted that the federal un-
dertaking bore some positive relation to
control of navigation. United States v.
Willow River Power Co., supra, 324 U.S.
at page 510, 65 S.Ct. at page 767, 89 L.Ed.
1101; United States v. Commodore Park,
Inc., supra, 324 U.S. at page 391, 65 S.Ct.
at page 805, 89 L.Ed. 1017; United States
v. Appalachian Electric Power Co., supra,
311 U.S. at page 423, 61 S.Ct. at page 306,
85 L.Ed. 243; United States v. Chandler-
Dunbar Water Power Co., supra, 229 U.S.
at page 62, 33 S.Ct. at page 671, 57 L.Ed.
1063; and cases cited. And, referring to
International Paper Co. v. United States,
282 U.S. 399, 51 S.Ct. 176, 75 L.Ed. 410;
United States v. River Rouge Imp. Co., 269
U.S. 411, 46 S.Ct. 144, 70 L.Ed. 339, and
cases cited, they observe that this Court has

Hearings, Pt. 1, 78th Cong., 1st Sess.
1174; Hearings, Pt. 1, 79th Cong., 1st
Sess. 1200; Hearings, Pt. 2, 79th Cong.,
2d Sess. 315-317; Hearings, Pt. 3, 80th
Cong., 1st Sess. 749-752; Hearings, Pt.
3, 80th Cong., 2d Sess. 1214, 1279-1280,
and see Hearings, Subcomm. of the Senate
Comm. on Appropriations, Interior Dept.,
80th Cong., 2d Sess. 921-924; 50 Stat. 564,
597; 52 Stat. 291, 324; 53 Stat. 685,
719; 55 Stat. 303, 336; 56 Stat. 506, 536;
57 Stat. 451, 476; 60 Stat. 348, 367; 61
Stat. 460, 475; 62 Stat. 1112, 1129.



never permitted the Government to pervert
its navigation servitude into a right to de-
stroy riparian interests without reimburse-
ment where no navigation purpose existed.
Since we do not agree that Congress in-
tended to invoke its navigation servitude
as to each and every one of this group of
coordinated projects, we do not reach the
constitutional or other issues thus posed.
Accordingly, we need not decide whether
a general declaration of purpose is con-
trolling where interference with navigation
is neither the means, State of South Caro-
lina v. State of Georgia, 93 U.S. 4, 23
L.Ed. 782, nor the consequence, United
States v. Commodore Park, supra, of its
advancement elsewhere. Similarly, we
need not ponder whether, by virtue of a
highly fictional navigation purpose, the
Government could destroy the flow of a
navigable stream and carry away its waters
for sale to private interests without com-
pensation to those deprived of them. We
have never held that or anything like it, and
and we need not here pass on any question
of constitutional power; for we do not
find that Congress has attempted to take
or authorized the taking, without compen-
sation, of any rights valid under state law.

[1] On the contrary, Congress' general
direction of purpose we think was intended
to help meet any objection to its
tional power to undertake this big bundle
of big projects. The custom of invoking
the navigation power in authorizing im-
provements appears to have had its origin
when the power of the Central Govern-
ment to make internal improvements was
contested and in doubt. It was not until
1936 that this Court in United States v.
Butler, 297 U.S. 1, 56 S.Ct. 312, 318, 80 L.
Ed. 477, 102 A.L.R. 914, declared for the
first time, and without dissent on this point,
that, in conferring power upon Congress to

10. See Feasibility Report, Secretary of
the Interior Ickes to President Roosevelt,
Nov. 26, 1935, recommending "the ap-
proval of the Central Valley development
as a Federal reclamation project," and
pointing out that the area is served by
excellent transportation facilities, that

tax "to pay the Debts and provide for the
common Defense and general Welfare of
the United States," the Constitution, art. 1,
8, cl. 1, delegates a power separate and
distinct from those later enumerated, and
one not restricted by them, and that Con-
gress has a substantive power to tax and
appropriate for the general welfare, limited
only by the requirement that it shall be ex-
ercised for the common benefit as distin-
guished from some mere local purpose. If
any doubt of this power remained, it was
laid to rest the following year in IIelver-
ing v. Davis, 301 U.S. 619, 640, 57 S.Ct.
904, 908, 81 L.Ed. 1307, 109 A.L.R. 1319.
Thus the power of Congress to promote
the general welfare through large-scale
projects for reclamation, irrigation, or oth-
er internal improvement, is now as clear
and ample as its power to accomplish the
same results indirectly through resort to
strained interpretation of the power over
navigation.10 But in view of this back-
ground we think that reference to the
navigation power was in justification of
federal action on the whole, not for effect
on private rights at every location along
each component project.

[2] Even if we assume, with the Gov-
ernment, that Friant Dam in fact bears
some relation to control of navigation, we
think nevertheless that Congress realistical-
ly elected to treat it as a reclamation
project. It was so conceived and author-
ized by the President and it was so repre-
sented to Congress. Whether Congress
could have chosen to take claimants' rights
by the exercise of its dominant navigation
servitude is immaterial. By directing the
Secretary to proceed under the Reclamation
Act of 1902, Congress elected not "to in
any way interfere with the laws of any
State relating to the control, ap-
propriation, use, or distribution of water

much of its produce is shipped to eastern
markets, and that if decreasing productiv-
ity as a result of acute shortage of water
for irrigation needs were to continue,
"a share of the loss will be suffered by
persons not residing in the areas directly


Cite as 70 S.Ct. 955

used in irrigation, or any vested right ac-
quired thereunder." 32 Stat. 388, 390.
We cannot twist these words into an
election on the part of Congress under its
navigation power to take such water rights
without compensation. In the language of
Mr. Justice Holmes, writing for the Court
in International Paper Co. v. United States,
282 U.S. 399, 407, 51 S.Ct. 176, 177, 75 L.
Ed. 410, Congress "proceeded on the foot-
ing of a full recognition of (riparians')
rights and of the Government's duty to pay
for the taking that (it) purported to ac-
complish." We conclude that, whether re-
quired to do so or not, Congress elected to
recognize any state-created rights and to
take them under its power of eminent do-
main. "

We are guided to this conclusion by the
interpretation placed on Congress' Acts by
the Reclamation Bureau, which, in ad-
ministering the project, has at all times
pursued a course impossible to reconcile

II. This approach makes it unnecessary to
consider the relevancy of United States
v. Thayer-West Point Hotel Co., 329 U.S.
585, 67 S.Ct. 398, 91 L.Ed. 521; United
States v. Goltra, 312 U.S. 203, 61 S.Ct.
4S7, 85 L.Ed. 776; Tillson v. United
States, 100 U.S. 43, 25 L.Ed. 543, on the
question of claimants' right to interest.
Unless we choose to disturb these cases
we could not limit ourselves to saying
that by invocation of the Reclamation
Act of 1902 Congress simply assumed lia-
bility for claimants' water rights.
12. See n. 8, supra.
13. See n. 9, supra.
14. "In conducting irrigation investigations
and constructing and operating projects
throughout the West, the Bureau of Re-
clamation fully recognizes and respects
existing water rights established under
State law. Not only is this a specific
requirement of the Reclamation Act un-
der which the Bureau operates, but
such a course is the only fair and just
method of procedure. This basin report
on the Central Valley is predicated on
such a policy." Report of Regional
Director, Region II, Bureau of Reclama-
tion, Dec. 1, 1947, approved by the
Secretary of the Interior, July 29, 1948.
S.Doc.No.113, 81st Cong., 1st Sess. 39.
15. After consultation with the Commis-
sioner of Reclamation and the Secretary

with present contentions of the Govern-
ment. From the beginning,
it has acted on
the assumption that its Friant undertaking
was a reclamation project. Even a casual
inspection of its committee hearings and
reports leaves no doubt that Congress was
familiar with and approved this interpre-
tation. Although the Solicitor General
contends that, because of the navigation
purpose remotely involved deprivation of
water rights along the San Joaquin is not
compensable, we have observed that the
plan as originally adopted and as carried
out by the Bureau included replacement at
great expense of all water formerly used
for crops and "controlled grass lands" and
purchase of that used on marginal pasture
lands.12 It has consistently advised the
Congress that it was purchasing San
Joaquin water rights and appropriations
have been made accordingly.13 Moreover,
Congress14 and the water users'5 have

of the Interior, the Regional Director,
Region II, Bureau of Reclamation, re-
plied to questions concerning the Central
Valley Project submitted by the Irriga-
tion Districts Association of California:
"The Bureau of Reclamation does
recognize and respect existing water
rights which have been initiated and per-
fected or which are in the state of being
perfected under State laws. The Bureau
of Reclamation has been required to do
so by Section 8 of the Reclamation Act
of 1902 ever since the inception of the
reclamation program administered by
the Bureau of Reclamation. The Bureau
of Reclamation has never proposed modi-
fication of that requirement of Federal
law; and on the contrary, the Bureau of
Reclamation and the Secretary of the
Interior have consistently, through the 42
years since the 1902 act, been zealous in
maintaining compliance with Section 8 of
the 1902 act. They are proud of the
historic fact that the reclamation pro-
gram includes as one of its basic tenets
that the irrigation development in the
West by the Federal Government under
the Federal Reclamation Laws is carried
forward in conformity with State water
laws. Ample demonstration of the effect
of this law and policy of administration,
in action, has been given in connection
with the Central Valley Project. Water
filings made by the State have been ob-



been advised that, in prosecution of the
work, existing water rights would be re-
This administrative practice has been ex-
tended even to the lands in question. Pur-
suant to its plan, the Bureau offered to
purchase the rights of claimants in Nos.
7, 8 and 9, but the parties could not agree
on the price. In addition, it entered into
a written contract with Miller & Lux, Inc.,
purchasing for $2,450,000 riparian rights
which included some identical with those
the Government now denies to exist. In
fact it includes the very rights now assert-
ed by claimants Gerlach, Erreca and Pot-
ter, who obtained title to their riparian
properties from Miller & Lux. Because
of certain reservations in their grants, it
was possible that Miller & Lux retained the
rights riparian to these properties. The
Government therefore agreed with Miller
& Lux that the sum of $511,350 should be
deposited with an escrow agent. If final
judgments obligate the United States to
make compensation to Miller & Lux, gran-
tees for such riparian.grass lands, the Unit-
ed States shall be reimbursed from
escrow fund in an amount not exceeding
$9 per acre. However, if final judgments
dismiss the claims, the escrowed funds go
to Miller & Lux. The substance of this
strange transaction is that the Govern-
ment, which now asks us to hold that there
are no such riparian rights, has already
bought and paid for them at the price
which the Court of Claims has allowed.
The results of the Government's bargain
are that, if we hold there are no rights,
Miller & Lux will be paid for them and,
if we hold there are such rights, they
will be paid from what otherwise goes

tainted by the Bureau of Reclamation by
assignment, and vested water rights have
been acquired by the United States by
purchase, the considerations amounting
to millions of dollars and being agreeable
to the vendors-all in conformity with
State laws. Further, other water rights
of landowners which will or may be affect-
ed by the operations of the project are
being analyzed and appropriate adjust-
ments, giving full recognition of the

to Miller & Lux. As to these three cases,
the Government is defending against the
claims, not as the real party in interest,
but because it undertook to do so on be-
half of Miller & Lux.

[3] Of course, this Court is not bound
by administrative mistakes. If the Gov-
ernment had contracted to pay for rights
which are nonexistent, it would not pre-
clude us from upholding later and better
advised contentions. But when a project
has been regarded by the highest Execu-
tive authorities as a reclamation project,
and has been carried as such from its
initiation to final payment for these rights,
and Congress, knowing its history, has giv-
en the approvals that it has, we think there
is no ground for asking us to hold that
the provisions of the Reclamation Act do
not apply. We hold that they do apply and
therefore turn, as that Act bids us, to the
laws of the State to determine the rights
and liabilities of landowner and appropri-

II. Claimants' Riparian Rights Under
California Law.
The adversaries in this case invoke rival
doctrines of water law which have been
in competition throughout California legal
history. The claims are expressly based
on common-law riparian-rights doctrines
as declared by California courts. The
United States on the other hand,
by virtue
of the Reclamation Act, stands in the pos-
ition of an upstream appropriator for a
beneficial use.
The governing water law of California
must now be derived from a 1928 Amend-
ment to its Constitution 16 which compress-
es into a single paragraph a reconciliation

rights of the landowners, are in the proc-
ess of being worked out."
16. That amendment added art. XIV, 3 of
the State Constitution, which provides:
"It is hereby declared that because of
the conditions prevailing in this State
the general welfare requires that the wa-
ter resources of the State be put to
beneficial use to the fullest extent of
which they are capable, and that the
waste or unreasonable use or unreason-

Cite as 70 S.Ct. 955

and modification of doctrines evolved in
litigations that have vexed its judiciary for
a century. Its text leaves many questions
to be answered, and neither it nor any
legislation or judicial decision provides a
direct and explicit determination of the
present state law on issues before us. But
since the federal law adopts that of the
State as the test of federal liability, we
must venture a conclusion as to peculiarly
local law. We can do so only in the
of a long history of strife and doctrinal
conflict, which California says must be
known by every judge of these matters,
Conger v. Weaver, 6 Cal. 548, 65 Am.Dec.
528, and in continuity with which both the
cryptic text of the Amendment and the
policy of federal statutes become more
Upon acquiring statehood in 1850, Cal-
ifornia adopted the common law of Eng-
land as the rule of decision in its courts
when not inconsistent with the Federal
or State Constitutions or State legislation.
In the middle of the Eighteenth Century,
English common law included a body of
water doctrine known as riparian rights.
able method of use of water be prevented,
and that the conservation of such waters
is to be exercised with a view to the rea-
sonable and beneficial use thereof in the
interest of the people and for the public
-welfare. The right to water or to the
use or flow of water in or from any nat-
ural stream or water course in this State
is and shall be limited to such water as
shall be reasonably required for the bene-
ficial use to be served, and such right
does not and shall not extend to the
waste or unreasonable use or unreason-
able method of use or unreasonable
method of diversion of water. Riparian
rights in a stream or water course at-
tach to, but to no more than so much of
the flow thereof 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;
provided, however, that nothing herein
contained shall be construed as depriving
any riparian owner of the reasonable use
of water of the stream to which his land
is riparian under reasonable methods of
diversion and use, or of. depriving any
appropriator of water to which he is
lawfully entitled. This section shall be

That also was the general Mexican law,
if it had any lingering authority there,
but see Boquillas Cattle Co. v. Curtis, 213
U.S. 339, 343, 29 S.Ct. 493, 53 L.Ed. 822;
Gutierres v. Albuquerque Land Co., 188 U.S.
545, 556, 23 S.Ct. 338, 342, 47 L.Ed. 588,
except for a peculiar concession to "pueb-
los." Indeed, riparian-rights doctrines pre-
vailed throughout Western civilization.
As long ago as the Institutes of Justin-
ian, running waters, like the air and the
sea, were res communes-things common
to all and property of none. Such was
the doctrine spread by civil-law commen-
tators and embodied
in the Napoleonic
Code and in Spanish law. This concep-
tion passed into the common law. 'From
these sources, but largely from civil-law
sources, the inquisitive and powerful minds
of Chancellor Kent and Mr. Justice Story
drew in generating the basic doctrines of
American water law.
Riparian rights developed where lands
were amply watered by rainfall. The pri-
mary natural asset was land, and the run-
off in streams or rivers was incidental.
Since access to flowing waters was pos-
self-executing, and the Legislature may
also enact laws in the furtherance of the
policy in this section contained."
17. The historical background of both ripa-
rian and appropriative rights, the rele-
vant local history and the legislative
history of the Act of 1866 are compre-
hensibly set forth in 1 Wiel, Water
Rights in the Western States, 66 to
264 (3d Ed., 1911), and in the following
articles by the same author: Public Policy
in Water Decisions, 1 Cal.L.Rev. 11;
Comparative Water Law, 6 Cal.L.Rev.
245, 342; Political Water Rights, 10
Cal.L.Rev. 111; Theories of Water Law,
27 Harv.L.Rev. 530. See also Pomeroy
on Water Rights, cc. 2, 3 (1893); 3
Farnham, Waters and Water Rights, c.
22; Toelle, Prospective Effect on West-
ern Water Law of Proposed Federal Mis-
souri Valley and Columbia Valley Author-
ities, 20 Temple L. Q. 425; .Walton,
Origin and Growth of Western Irrigation
Law, 21 Ill.L.Rev. 126; Bannister, Fed-
eral Disposition of Waters in the Prior-
ity States, 28 Harv.L.Rev. 270; Lasky,
From Prior Appropriation to Economic
Distribution of Water by the State-
Via Irrigation Administration, 1 Rocky
Mt.L.Rev. 161.


sible only over private lands, access became
a right annexed to the shore. The law
followed the principle of equality which
requires that the corpus of flowing water
become no one's property and that, aside
from rather limited use for domestic and
agricultural purposes by those above, each
riparian owner has the right to have the
water flow down to him in its natural
volume and channels unimpaired in qual-
ity. The riparian system does not permit
water to be reduced to possession so as
to become property which may be carried
away from the stream for commercial or
nonriparian purposes. In working out de-
tails of this egalitarian concept, the sev-
eral states made many variations, each
seeking to provide incentives for develop-
ment of its natural advantages. These are
set forth in Shively v. Bowlby, 152 U.S.
1, 14 S.Ct. 548, 38 L.Ed. 331. But it may
be said that when California adopted it
the general philosophy of the riparian-
rights system had become common law
throughout what was then the United

Then in the mountains of California
there developed a combination of circum-
stances unprecedented in the long and lit-
igious history of running water. Its effects
on water laws were also unprecedented.
Almost at the time when Mexico ceded
California, with other territories, to the
United States, gold was discovered there
and a rush of hardy, aggressive and ven-
turesome pioneers began. If the high lands
were to yield their treasure to
water was essential to separate the precious
from the dross. The miner's need was
more than a convenience-it was a neces-
sity; and necessity knows no law. But
conditions were favorable for necessity
to make law, and it did-law unlike any
that had been known in any part of the
Western world.
The adventurers were in a little-inhab-
ited, unsurveyed, unowned and almost un-
governed country, theretofore thought to

have little value. It had become public do-
main of the United States and miners re-
garded waters as well as lands subject to
preemption. To be first in possession was to
be best in title. Priority-of discovery, lo-
cation and appropriation-was the primary
source of rights. Fortuitously, along lower
reaches of the streams there were no ripari-
an owners to be injured and none to chal-
lenge customs of the miners.
In September, 1850, California was ad-
mitted to the Union as a State. In 1851,
its first Legislature enacted a Civil Prac-
tice Act which contained a provision that
"in actions respecting Mining Claims,
customs, usages, or regulations,
when not in conflict with the Constitution
and Laws of this State, shall govern the
decision of the action."18 The custom
of appropriating water thus acquired some
authority, notwithstanding its contradiction
of the common law. A practice that was
law in the mountains was contrary to the
law on the books. Here were provocations
to controversy that soon came to the new-
ly established state courts.
In California, as everywhere, the law of
flowing streams has been the product of
contentions between upper and lower lev-
els. Thus when Matthew Irwin built a
dam and canal on the upper San Joaquin
for appropriating water to supply miners,
downstream settler Robert Phillips tore
it down and asserted his own riparian right
to have the water descend to him in its
natural volume. Faced with this issue be-
tween custom and doctrine, the California
Supreme Court escaped by observing that
both claims were located on public domain,
and that neither party could show pro-
prietorship. Accordingly, as between two
mere squatters, priority of appropriation
established the better right. But the court
gave warning that this appropriative right
might not prevail against a downstream
riparian who claimed by virtue of pro-
prietorship. Irwin v. Phillips, 1855, 5 Cal.
140, 63 Am.Dec. 113.

18. Civil Practice Act of April 29 ,1851, 621. In substance now 748, Code Civil Pro-

Cite as 70 S.Ct. 955

The United States, as owner of the
whole public domain, was such a propri-
etor, and the decision made appropriations
vulnerable to its challenge. It also left
the pioneers in position of trespassers.
They were taught that the tenure of their
preemptions and appropriations was pre-
carious when, in 1858, the Attorney Gen-
eral of the United States intervened in
private litigation to contend in federal
court that the land in dispute was public,
and asserted generally a right to restrain
all mining operations upon public land.
His intervention was successful, an injunc-
tion forbade working the mine in question,
and a writ issued under the hand of Pres-
ident Lincoln directing military author-
ities to remove the miners. United States
v. Parrott, C.C., Fed.Cas.No.15,998, 1 Mc-
All. 271.
Demands of mining and water interests
that the Federal Government relieve their
uncertain status were loud, but went un-
heeded amidst the problems that came with
civil war. But after the war closed, the
issue was again precipitated by a bill in-
troduced at the request of the Secretary of
the Treasury to have the United States
withdraw all mines from the miners, ap-
praise and sell them, reserving a royalty
after sale. This the Secretary believed
would yield a large revenue and the pub-
lic lands would help pay the public war
debt. However, the private interests pre-
vailed. The Act of July 26, 1866, 14
251, R.S. 2339, declared the mining lands
free and open to preemption and included
the following: "That whenever, by pri-
ority of possession, rights to the use of
water for mining, agricultural, manufac-
turing, or other purposes, have vested and
accrued, and the same are recognized and
acknowledged by the local customs, laws,
and the decisions of courts, the possessors
and owners of such vested rights shall
be maintained and protected in the same;
and the right of way for the construction
of ditches and canals for the purposes
aforesaid is hereby acknowledged and con-
firmed: Provided, however, That when-
ever, after the passage of this act, any

person, or persons shall, in the construction
of any ditch or canal, injure or damage the
possession of any settler on the public do-
main, the party committing such injury or
damage shall be liable to the party in-
jured for such injury or damage." 14 Stat
251, 253, 43 U.S.C. 661, 43 U.S.C.A.

This section was expounded by Mr. Jus-
tice Field in Jennison v. Kirk, 98 U.S. 453,
25 L.Ed. 240, as foreclosing further pro-
prietary objection by the United States
to appropriations which rested upon local
custom. This Court regarded the Act
as "an unequivocal grant" for existing di-
versions of water on the public lands.
Broder v. Natoma Water Co., 101 U.S. 274,
25 L.Ed. 790. Thus Congress made good
appropriations in being as against a later
patent to riparian parcels of the public
domain, and removed the cloud cast by
adverse federal claims.
While this was being accomplished,
changed conditions brought new adver-
saries to contend against the appropriators.
The Homestead Act of 1862 had opened
agricultural lands to preemption and set
up a method of acquiring formal title.
12 Stat. 392. Farms and ranches appeared
along the streams and wanted the protec-
tion that the common law would give to
their natural flow.
The Act of 1866, as
we have noted, made appropriators liable
for damage to settlers with whose pos-
session they interfered. The Supreme
Court of California decided that "a ri-
parian owner came into certain rights
which he could assert against a subsequent
appropriator of the waters of the stream,
even though he could not as against a prior
appropriation." Crandall v. Woods, 8 Cal.
In 1886 came the decisive .battle of Lux
v. Haggin, 69 Cal. 255, 4 P. 919, 10 P.
674. Haggin organized an irrigation com-
pany and claimed the right to appropriate
the entire flow of the Kern River for ir-
rigation and to destroy any benefits for
riparian owners downstream. The court
held that the doctrine of riparian rights


still prevailed in California, that such
right attached to riparian land as soon as
it became private property and, while
subject to appropriations made prior to that
time, it is free from all hostile appropria-
tions thereafter. Thus California set it-
self apart by its effort to reconcile the
system of riparian rights with the system
of appropriation, whereas other arid states
rejected the doctrine of riparian rights
forthrightly and completely.
The Twentieth Century inducted new
parties into the old struggle. Gigantic
electric power and irrigation projects suc-
ceeded smaller operations, and municipal-
ities sought to by-pass intervening agricul-
tural lands and go into the mountains to
appropriate the streams for city supply.
Increasing dependence of all branches of
the State's economy, both rural and urban,
upon water centered attention upon its
conservation and maximum utilization.
This objective seemed frustrated by the
riparian-rights doctrine, when, in 1926, the
Supreme Court decided Herminghaus v.
Southern California Edison Co., 200 Cal.
81, 252 P. 607, and this Court, after argu-
ment, dismissed certiorari for want of a
federal question. 1927, 275 U.S. 486, 48 S.
Ct. 27, 72 L.Ed. 387. That case involved
just such questions as we have here.
Southern California Edison projected
large storage of San Joaquin waters in the
mountains primarily for power generation.
Plaintiffs' ranch, like lands of claimants,
had always been naturally irrigated by ov-
erflow and thus naturally was productive
property. Appropriation by the power
company threatened to impair this over-
flow and destroy the value of the ranch.

19. Court opinions indicate that all the
waters of the South Platte River have
been appropriated and the entire nor-
mal flow of the river is inadequate to
supply the priorities for irrigation pur-
poses already decreed from it. Comstock
v. Ramsay, 55 Colo. 244, 133 P. 1107.
The entire Boise River in Idaho has
been appropriated. United States v.
Burley, C.C., 172 F. 615. Many Colorado
streams are already overappropriated.

The company was unwilling to compensate
the damage. The court held that common
law of riparian rights must prevail against
the proposed utilization and, notwithstand-
ing the economic waste involved in plain-
tiffs' benefit, enjoined the power project.
This ruling precipitated a movement for
amendment of the State Constitution and
thus brought to a focus a contest that had
grown in bitterness and intensity through-
out the arid regions as both populations and
property values mounted. The doctrine of
riparian rights was characterized as social-
istic. Weil, Theories of Water Law, 27
Harv.L.Rev. 530 (1914). The Supreme
Court said the law of appropriation would
result in monopoly. Lux v. Haggin, supra,
69 Cal. at page 309, 4 P. 919, 10 P. 674, at
page 703. If the uneconomic consequences
of unlimited riparianism were revealed by
court decisions, so the effects of unre-
strained appropriation became apparent
where the flow of rivers became completely
appropriated, leaving no water for new-
comers or new industry.19
A Joint Committee of the California Leg-
islature gave extended study to the water
problems of that State and careful con-
sideration of many remedies. Among other
proposals, one relevant to our question was
to revoke or nullify all common-law pro-
tection to riparian rights and do it retroac-
tively as of the year 1850.20 The Commit-
tee rejected all dispossession proposals as
confiscatory. It reported an amendment to
the Constitution which attempted to serve
the general welfare of the State by pre-
serving and limiting both riparian and ap-
propriative rights while curbing either
from being exercised unreasonably or
wastefully. The Amendment was submit-

Humphreys Tunnel & Mining Co. v.
Frank, 46 Colo. 524, 105 P. 1093. See
Wiel, Theories of Water Law, 27 Harv.
L.Rev. 530.
20. The legislative history of the Amend-
ment is set forth in Wiel, The Pending
Water Amendment, 16 Cal.L.Rev. 169
and 257, and see Wiel, Europeanizing the
State Constitution-The Water and Pow-
er Amendment, 12 Cal.L.Rev. 454; Note,
I Stanford L.Rev. 172.


Cite as 70
ted to and adopted by the electors in No-
vember 1928 and now constitutes Califor-
nia's basic water law, to which the Federal
Reclamation Act defers.
We cannot assume that this Amendment
was without impact upon claims to water
rights such as we have here, for, as we have
seen, it was provoked by their assertion.
Neither can we assume that its effect is to
deprive riparian owners of benefits it de-
clares to continue or unintentionally to
strike down values there was a studied pur-
pose to preserve. We are only concerned
with whether it continued in claimants such
a right as to be compensable if taken. But
what it took away is some measure of what
it left.

[4] Riparianism, pressed to the limits
of its logic, enabled one to play dog-in-the-
manger. The shore proprietor could en-
force by injunction his bare technical right
to have the natural flow of the stream, even
if he was getting no substantial benefit
from it. This canine element in the doc-
trine is abolished. "The right to water or
to the use or flow of water in or from any
natural stream or water course in this State
is and shall be limited to such water as shall
be reasonably required for the beneficial
use to be served,. *." This limita-
tion is not transgressed
by the awards in
question which only compensate for the
loss of actual beneficial use. Any hazard to
claimants' rights lurks in the following
clause: "and such right does not and shall
not extend to the waste or unreasonable
use or unreasonable method of use or unrea-
sonable method of diversion of water."
Since riparian rights attach to, and only to,
so much of the flow of the San Joaquin as
may be put to beneficial use consistently

21. The Feasibility Report of Secretary
Ickes, supra, n. 8, referring to Friant
Dam, Friant-Kern Canal and Madera
Canal, among others included, says, "The
next declaration required is that the cost
of construction will probably be returned
to the Federal Government. This is in-
terpreted to mean that it will be returned
within forty years from the time the Sec-
retary issues public notice that water is
70 S.Ct.-61%

S.Ct 955
with this clause, claimants can enforce no
use of wasteful or unreasonable character.

[5] We assume for purposes of this de-
cision that the prodigal use, inseparable
from claimants' benefits, is such that the
rights here asserted might not be enforced
by injunction. But withholding equitable
remedies, such as specific performance,
mandatory orders or injunctions, does not
mean that no right exists. There may still
be a right invasion of which would call for
indemnification. In fact, adequacy of the
latter remedy is usually grounds for denial
of the former.

[6] But the public welfare, which re-
quires claimants to sacrifice their benefits
to broader ones from a higher utilization,
does not necessarily require that their loss
be uncompensated any more than in other
takings where private rights are surrend-
ered in the public interest. The waters of
which claimants are deprived are taken for
resale largely to other private land owners
not riparian to the river and to some lo-
cated in a different water shed. Thereby
private lands will be made more fruitful,
more valuable, and their operation more
profitable. The reclamation laws contem-
plate that those who share these advantages
shall, through water charges, reimburse the
Government for its outlay. This project
anticipates recoupment of its cost over a
forty-year period.21 No' reason
why those who get the waters should be
spared from making whole those from
whom they are taken.. Public interest re-
quires appropriation; it does not require
expropriation. We must conclude that by
the Amendment California unintentionally
destroyed and confiscated a recognized and
adjudicated private property right, or that

available from the project works. The
estimated cost of construction is $170,-
000,000 and the annual cost, including
repayment of all other charges is $7,-
500,000. It is estimated that annual
revenues from the sale of water and of
electric power will be sufficient to cover
these charges. The favorable conditions
heretofore recited justify the belief that
the project will return its cost."


it remains compensable although no longer
enforcible by injunction. The right of
claimants at least to compensation prior to
the Amendment was entirely clear. Inso-
far as any California court has passed on
the exact question, the right appears to sur-
vive.22 Five years after the Amendment,
the Superior Court of California 23 specif-
ically sustained identical rights.. The
Madera Irrigation District had been organ-
ized to build a dam at the Friant site and
to divert San Joaquin waters to irrigate
about 170,000 acres. It was sued by Miller
'& Lux, Inc., and two of its subsidiaries,
and decrees in their favor were entered in
1933. In general, the court sustained the
Miller & Lux riparian rights to the annual
overflow of uncontrolled grass lands, some
of which now belong to
claimants. It ad-
judged the proposed appropriation invalid
and ineffective as against those rights. In
July of 1940 the United States acquired all
of Madera's rights, including pending ap-
plications to appropriate San Joaquin water
under state law. These judgments had be-
come final and were outstanding adjudica-
tions of the issues here involved against a
grantor of the United States. Without
considering the claim that the 1933 judg-
ments may be res judicata, they are at least
persuasive that claimants' rights to the
benefit had, in the opinion of California
courts, survived the Amendment and must
be retired by condemnation or acquisition
before the Friant diversion could be valid.

The Supreme Court of California has
given no answer to this specific problem.
But in the light of its precedents and its
conclusions and discussions of collateral is-
sues, especially in Peabody v. City of Val-
lejo, 2 Cal.2d 351, 40 P.2d 486; City of Lodi
v. East Bay Municipal Utility District, 7

22. United States District Court, Southern
District of California rendered a deci-
sion on April 12, 1950, in Rank v. Krug,
90 F.Supp. 773, consistent with the
views we take of the issues here involved.
23. Sacramento & San Joaquin Drainage
District Co. v. Superior Court in and
for Colusa County, 196 Cal. 414, 432, 238
P. 687, 694. This is not a local court but

Cal.2d 316, 60 P.2d 439; Hillside Water Co.
v. City of Los Angeles, 10 Cal.2d 677, 76 P.
2d 681; Gin S. Chow v. City of Santa Bar-
bara, 217 CaL 673, 22 P.2d 5; Meridian,
Ltd. v. City and County of San Francisco,
13 Cal.2d 424, 90 P.2d 537, 91 P.2d 105;
City of Los Angeles v. City of Glendale, 23
Cal.2d 68, 142 P2d 289, we conclude that
claimants' right to compensation has a
sound basis in California law. The recla-
mation authorities were apparently of that
view as the Miller & Lux contract would
We recognize that the right to inunda-
tion asserted here is unique in the history
of riparian claims. Where the thirst of
the land is supplied by rainfall, floods are
detriments if not disasters, and to abate
overflows could rarely if ever cause dam-
age. But, as we have pointed out, uncom-
mon local conditions have given rise to the
singular 'rule of California. The same
scarcity which makes it advantageous to
take these waters gives them value in the
extraordinary circumstances in which the
courts have recognized a private
right to have no interception of their flow
except upon compensation.
We think the awards of the Court of
Claims correctly applied the law of Califor-
nia as made applicable to these claims by
III. Other Issues.
[7] The Government also assigns as er-
ror determination of the date from which
interest is to be allowed. The Court of
Claims adopted as the date of taking the
first substantial impoundment of water
which occurred on October 20, 1941, even
though it had not then prevented benefits
from reaching the property. The contract

a part of a system of state courts. It
seems to fall within the rule of Fidelity
Union Trust Co. v. Field, 311 U.S. 169,
61 S.Ct. 176, 85 L.Ed. 109, as a court
whose decrees are regarded as determin-
ation of state law rather than within the
rule of King v. Order of United Com-
mercial Travelers of America, 333 U.S.
153, 68 S.Ct. 488, 92 L.Ed. 608.


Cite as 70
between the Government and Miller & Lux
contemplated this as the date of taking, for
it puts the $511,350 in escrow to protect the
Government against suits "initiated prior
to the sixth anniversary after the initial
storage or diversion." Since the Govern-
ment itself has adopted this date for the
expiration of its protection by contract, we
see no reason why it should challenge the
Court of Claims for use of the same date
for accrual of the claims. Regardless of
how this might have been fixed in the ab-
sence of such an administrative determina-
tion, we decline to set aside the finding on
this subject.

Second, the Government claims that the
court below misconstrued reservations in
the deeds between the three claimants and
Miller &'Lux. It is not apparent from the
facts we have recited that the Government
is the real party in interest as to this ques-
tion, which seems to be in the nature of a
private controversy between claimants and
Miller & Lix.' In any event; it presents a
question of -conveyancing'and real property
law peculiar to this one case, and depending
on local law. It is not a question of gen-
eral interest, nor is there any manifest er-
ror, and we accept, without review, the
finding of the Court of Claims thereon.
Finally, the Government protests that the
court below failed adequately to describe
the rights taken for which it has made an
award. We think in view of the simple
nature of the claims, the exhaustive charac-
ter of the findings and the understanding
the Government must have acquired in
seven years of the litigations, there is little
prospect that it will be grievously misled
by deficiencies, if any, that may exist in the
The judgments are affirmed.

Mr. Justice BLACK concurs in the judg-
ment and opinion except that he agrees
with Mr. Justice DOUGLAS that interest
should not be allowed.

S.Ct. 955
Mr. Justice DOUGLAS, concurring in
part and dissenting in part.
I think it is clear under our decisions
that respondents are not entitled to com-
pensation as a matter of constitutional
right. For we have repeatedly held that
there are no private property rights in the
waters of a navigable river. See United
States v. Appalachian Electric Power Co.,
311 U.S. 377, 424, 61 S.Ct. 291, 307, 85
L.Ed. 243; United States v. Commodore
Park, Inc., 324 U.S. 386, 390-391, 65 S.
Ct. 803, 805, 89 L.Ed. 1017; United States
v. Willow River Power Co., 324 U.S. 499,
510, 65 S.Ct. 761, 767, 89 L.Ed. 1101.
That is true whether the rights of riparian
owners or the rights of appropriators are
involved. See Gibson v. United States,
166 U.S. 269, 17 S.Ct. 578, 41 L.Ed. 996;
United States v. Rio Grande Dam & Irri-
gation Co., 174 U.S. 690, 19 S.Ct. 770, 43
L.Ed. 1136. As the Appalachian Power
case makes plain, 311 U.S. 424, 427, 61
S.Ct. 307, 308, 85 L.Ed. 243; the existence
of property rights in the waters of a
navigable stream are not dependent upon
whether the United States is changing the
flow of the river in aid of navigation or
for some other purpose.
Nor -can respondents' rights to recover
be founded on the Acts which appropriat-
ed money for the Central Valley project.
They created no independent right in any
claimant against the United States. That
is the teaching of Justice Brandeis' opin-
ion for the Court in Mitchell v. Unit-
ed States, 267 U.S. 341, 345-346, 45 S.Ct.
293, 294, 69 L.Ed. 644. The appropriation
in that case was for, inter alia, "losses
to persons, firms and corporations, result-
ing from the procurement of land." In
denying a claim for the loss of a busi-
ness resulting from a taking of land, the
Court said: "By including in the appro-
priation clause the words 'losses to persons,
firms, and corporations, resulting from the
procurement of the land for this purpose,'
Congress doubtless authorized the Secre-
tary of War to take into consideration
losses due to the destruction of the busL-

_ _____ _^I_____ __~_~ ~_____11__~_1_;_1



ness, where he purchased land upon agree-
ment with the' owners. But it does not
follow that, in the absence of an agree-
ment, the plaintiffs can compel payment
for such losses. To recover, they must
show some statutory right conferred."
The same is true in this case. For ex-
ample, 2 of the Rivers and Harbors
Act of August 26, 1937, 50 Stat. 844, 850,
provided that the Secretary of Interior
"may acquire by proceedings in eminent
domain, or otherwise, all lands, rights-of-
way, water rights, and other property
necessary for said purposes." Authority
to pay for water rights is, of course, not
to be construed to mean an assumption of
liability to pay.
Congress, to be sure, has full power to
relinquish its immunity from suit for the
taking. See Ford & Son v. Little Falls
Fibre Co., 280 U.S. 369, 377, 50 S.Ct.
140, 141, 74 L.Ed. 483; United States v.
Realty Co., 163 U.S. 427, 440, 16 S.Ct.
1120, 1125, 41 L.Ed. 215. And I think
it has done so-not by the Acts appro-
priating funds for the project but by the
Reclamation Act of 1902. 32 Stat. 388,
43 U.S.C. 371 et seq., 43 U.S.C.A.
371 et seq.
The Act applies solely to the 17 west-
ern States. It deals with reclamation proj-
ects as its title indicates. The Central
Valley project is such a project.
Section 7 of the Act authorizes the Sec-
retary of the Interior to purchase any
rights necessary to the carrying out of the
Act.' Section 8 provides: "That nothing
in this Act shall be construed as affecting
or intended to affect or to in any way
interfere with the laws of any State or
Territory relating to the control, appro-
priation, use, or distribution of water used

I. Section 7 provides: "That where in car-
rying out the provisions of this Act
it becomes necessary to acquire any rights
or property, the Secretary of the Interior
Is hereby authorized to acquire the same
,for the United States by purchase or by
..condemnation under judicial process, and
to pay from the reclamation fund the
sums which may be needed for that pur-

in irrigation, or any vested right acquired
thereunder, and the Secretary of the In-
terior, in carrying out the provisions of
this Act, shall proceed in conformity with
such laws, and nothing herein shall in
any way affect any right of any State or
of the Federal Government or of any
landowner, appropriator, or user of water
in, to, or from any interstate stream or
the waters thereof: Provided, That the
right to the use of water acquired under
the provisions of this Act shall be ap-
purtenant to the land irrigated, and bene-
ficial use shall be the basis, the measure,
and the limit of the right." 43 U.S.C.A.
Section 8 thus respects "any vested
right" acquired under state water laws re-
lating to irrigation, in "any interstate
stream or the waters thereof." When such
rights will be destroyed or interfered with
by a proposed reclamation project, au-
thority is found to acquire them under
7. The customary method of acquiring
the water rights is to file a notice of ap-
propriation pursuant to state law.
Petitioner seeks to avoid the force of
these Sections by asserting that they are
not applicable to lands riparian to naviga-
ble streams.
The legislative history of the Act is not
particularly instructive. The House Com-
mittee reporting the bill said that "Section
8 recognizes State control over waters of
non-navigable streams such as are used in
irrigation." H.R.Rep.No.1468, 57th Cong.
1st Sess., p. 6. There is no other evi-
dence, however, that the framers thought
the scope of the bill so narrow. When
the Act was recommended in 1901, Presi-
dent Theodore Roosevelt was careful to
suggest that there should be protection for

pose, and it shall be the duty of the At-
torney-General of the United States upon
every application of the Secretary of the
Interior, under this Act, to cause pro-
ceedings to be commenced for condemna-
tion within thirty days from the receipt
of the application at the Department of
Justice." 43 U.S.C.A. 421.

-- I I II __ rr -C-a

Cite as 70
"vested rights" and respect for state laws.
35 Cong.Rec. 6677, 6775-6776. There are
statements to the same effect by Repre-
sentative Mondell, who was in charge of
the Bill in the House (35 Cong.Rec. 6678-
6679) and by Senator Clark of Wyoming
(35 Cong.Rec. 2222). The clause in 8
according protection to "any vested right
acquired" under state laws was added to
the Bill by Committee amendment on the
floor of the House. 35 Cong.Rec. 6762.

Whether 8 authorizes payment for wa-
ter rights riparian to navigable waters has
not been authoritatively determined by the
courts.2 This Court has recognized, how-
ever, that administration of the Act is to
be in conformity to state laws. See Cali-
fornia Oregon Power Co. v. Beaver Port-
land Cement Co., 295 U.S. 142, 164, 55
S.Ct. 725, 731, 79 L.Ed. 1356; State of Ne-
braska v. State of Wyoming, 325 U.S. 589,
614, 65 S.Ct. 1332, 1348, 89 L.Ed. 1815.

2. A United States District Court for the
Southern District of California has re-
cently held, however, that 8 of the Act
provides for the purchase of water rights
taken in connection with the Central
Valley Project. Rank et al. v. Krug, 90
F.Supp. 773.
3. The memorandum records the following
data: Region 1 (Washington, Idaho,
northern Oregon, western Montana) re-
ported the filing of appropriations under
state law in 12 projects involving navi-
gable rivers. In Region 2 (northern Cal-
ifornia, Oregon), I 8 has been construed
to include rights in navigable as well
as nonnavigable waters, although the ex-
act number of filings was not revealed.
Although some filings for appropriation
under state law have been made in
Region 3 (southern California, Arizona,
southern Nevada), the lower Colorado
River projects are the single exception
to the otherwise consistent administra-
tive practice. In Region 4 (northern
Nevada, Utah, western Wyoming, western
Colorado), water rights on at least two
navigable rivers have been acquired pur-
suant to state law. No occasion has yet
arisen in Region 5 (Texas, New Mexico,
Oklahoma, southern Colorado) making
necessary the acquisition of water rights
on navigable streams. In the only in-
stance in Region 6 (eastern Montana,
northern Wyoming, North and South
Dakota) where a federal project inter-

S.Ct. 955
That was the assumption in Mason Co.
v. Tax Commission of State of Washing-
ton, 302 U.S. 186, 58 S.Ct. 223, 82 L.Ed.
187, a case involving the navigable wa-
ters of the Columbia River.

Whatever doubts there may be are for
me dispelled by the administrative prac-
tice under the Act, as summarized
by the
Commissioner of Reclamation in a memo-
randum dated April 19, 1950. Reports
from the seven regional counsel and a re-
view of the files in the Bureau of Recla-
mation formed the basis for the memoran-

The Commissioner concluded that it has
been the almost invariable practice of the
Bureau to file notices of appropriations
under state law without regard to wheth-
er the stream involved was navigable or
nonnavigable.3 Such filings were made

fered with private water rights on a
navigable river, the rights were paid for
by the United States. Water rights on
three apparently navigable rivers in Re-
gion 7 (eastern Colorado, southern Wyo-
ming, Nebraska, Kansas) were acquired
by the United States in accordance with
state laws.
The Commissioner notes that there are
special circumstances concerning the
lower Colorado River projects which ex-
plain the single exception. The Act au-
thorizing Hoover Dam required that it be
used first for "river regulation, improve-
ment of navigation, and flood control," and
only thereafter for irrigation. 45 Stat.
1061,43 U.S.C.A. 617e. Moreover, the
Colorado River Compact assures an ade-
quate supply of water for the project. The
Commissioner points out that while no
rights have been acquired on the lower
Colorado under 7, "a search of Bureau
records fails to disclose any instance on
that River in which the Bureau in connec-
tion with any of its projects failed or re-
fused to recognize or make compensation
for water rights validly established under
state law."
Another possible exception is the deci-
sion of the Department of Interior not to
purchase a power right on the Spokane
River on the ground among others, that
the right affected navigable waters. Yet
in the past, the Bureau instituted ap-
propriations on that river also.

_.1~.~.1.-,, ---;~;;-~;;I~-;;~-,---~;;-~.~s~,: ;----i;;;;;-.;;;`;;I~;ru;ah;rrj;

sk -


pursuant to state law
on water rights ri-
parian to at least 13 navigable or prob-
ably navigable rivers. This administra-
tive practice is too clear to be contradict-
ed by the Bureau of Reclamation docu-
ments cited by petitioner.4 Moreover, the
Commissioner of Reclamation has drawn
our attention to recent public statements
by Department of Interior officers con-
firming this practice.
This Court has often emphasized that
weight is to be given to the interpretation
of a statute made by the administering
agency. See United States v. American
Trucking Ass'ns, 310 U.S. 534, 549, 60 S.
Ct. 1059, 1067, 84 L.Ed. 1345; National
Labor Relations Board v. Hearst Publica-
tions, 322 U.S. 111, 130, 64 S.Ct. 851,
860, 88 L.Ed. 1170. This long course of
practice by the Bureau of Reclamation re-
solves any doubts and ambiguities that
arise from the history and wording of the
I conclude that Congress by 8 of the
Reclamation Act agreed to pay (though
not required to do so by the Constitution)
for water rights acquired under state law
in navigable as well as nonnavigable

4. The unpublished Manual of the Bureau
of Reclamation, printed for the guidance
of its employees, supports petitioner's
position in its 1913, 1917, and 1927 edi-
tions, and to a lesser extent in its 1938
edition. A new manual is now in prep-
aration. These statements may have
been based on an early decision of the
Secretary of the Interior (California
Development Co. 33 L.D. 391), which also

streams. As the Court holds, respondents
under California law have a
water right.
Section 8 therefore recognizes it as the
basis for payment in connection with this
federal project.

I do not think the claimants are entitled
to interest. When the Government as-
sumes a liability by statute, interest is not
allowable unless specific provision is made
for it. United States v. Goltra, 312 U.S.
203, 207, 61 S.Ct. 487, 490, 85 L.Ed. 776;
United States v. Thayer-West Point Hotel
Co., 329 U.S. 585, 588, 67 S.Ct. 398, 399,
91 L.Ed. 521. A different rule obtains
when the United States takes property pro,
tected by the Fifth Amendment. Seaboard
Air Line R. Co. v. United States, 261 U.
S. 299, 306, 43 S.Ct. 354, 356, 67 L.Ed.
664. The present water rights, though not
protected by the Fifth Amendment, are
ones which the United States has agreed
to pay for under 7 and 8 of the Rec-
lamation Act. Sections 7 and 8 contain
no provision for the payment of interest.
The Act refers to state law to determine
whether a water right exists not to ascer-
tain the measure of damages for the tak-

provides some support for the peti-
tioner's position. The Commissioner of
Reclamation, however, has explained that
"despite the statement in earlier manuals
based upon the California Land Develop-
ment opinion *," the Bureau's
practice has been to make no distinction
between navigable and nonnavigable wa-

I' I I

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