Respondents are owners of so-called "uncontrolled grass lands"
along the San Joaquin River in California which depend for water
upon seasonal inundations resulting from overflows of the River.
The value of these lands will be impaired by the construction by
the United States of the Friant Dam and its dependent irrigation
system, as part of the Central Valley Project, a gigantic
undertaking by the Federal Government to redistribute the principal
fresh water resources of California. While the project will have
some relatively insignificant effects on navigation, its principal
economic effects pertain to values realized from storage and
redistribution of water for power, irrigation, reclamation, flood
control, and other similar purposes. Claiming under California law
riparian rights to the benefits from the annual inundations of
their lands, respondents sued in the Court of Claims for
compensation. The Government contended that the damage was
noncompensable, on the ground that the entire project was
authorized by Congress, under the commerce power, as a measure for
the control of navigation.
Held: judgments of the Court of Claims in favor of
respondents are affirmed. Pp.
339 U. S.
727-756.
1. Even if it be assumed that Friant Dam bears some relation to
control of navigation, nevertheless Congress elected to treat it as
a reclamation project, to recognize any state-created rights and to
take them under its power of eminent domain, and the provisions of
the Reclamation Act, 43 U.S.C. §§ 371
et seq., providing
for reimbursement, are applicable to these claims. Pp.
339 U. S.
731-742.
(a) In undertaking the Friant projects and implementing the work
as carried forward by the Reclamation Bureau, Congress proceeded on
the basis of full recognition of water rights having valid
existence under state law. Pp.
339 U. S.
734-736.
Page 339 U. S. 726
(b) Notwithstanding its general declaration of purpose that the
Central Valley Project as a whole is to improve navigation,
Congress did not intend to invoke its navigation servitude as to
each and every one of this group of coordinated projects, and has
not attempted to take, or authorized the taking, without
compensation, of rights valid under state law. Pp.
339 U. S.
736-739.
(c) The administrative practice with reference to this project
supports the view that it is a reclamation project involving
respect for existing water rights and compensation to owners
thereof. Pp.
339 U. S.
739-742.
2. Under California law, respondents had riparian rights to
periodic inundations of their lands by seasonal overflows of the
River; these rights are compensable under California law, and the
awards of the Court of Claims correctly applied the law of
California as made applicable to these claims by Congress. Pp.
339 U. S.
742-755.
3. This Court declines to set aside the determination of the
Court of Claims that the date from which interest is to be allowed
is October 20, 1941, the date of the first substantial impoundment
of water, even though it had not then prevented benefits from
reaching the property. P.
339 U. S.
755.
4. This Court accepts without review a finding by the Court of
Claims construing reservations in deeds of certain of the
claimants, a question governed by conveyancing and real property
law peculiar to this one case, depending on local law, and not of
general interest, and on which there is no manifest error in the
finding of the Court of Claims. P.
339 U. S.
755.
5. The Court of Claims adequately described the rights taken and
for which it made an award. P.
339 U. S.
756.
111 Ct.Cl. 1, 89, 76 F. Supp. 87, 99, affirmed.
The Court of Claims severally awarded compensation to
respondents for the taking by the United States, through the
construction of Friant Dam, of their riparian rights to annual
inundations of their lands along the San Joaquin River in
California. 111 Ct.Cl. 1, 89, 76 F. Supp. 87, 99. This Court
granted certiorari. 335 U.S. 883.
Affirmed, p.
339 U. S.
756.
Page 339 U. S. 727
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 deprivation of riparian
rights along the San Joaquin River
Page 339 U. S. 728
in California caused by construction of Friant Dam, and its
dependent irrigation system, as part of the Central Valley
Project.
This is a gigantic undertaking to redistribute 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 Sierra 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 millions, are
deficient in rainfall, and must remain generally arid and
unfruitful unless 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 consort 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 thriftlessly
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, overcome this perversity of
nature, and make water available where it would be of greatest
service, the California proposed to reengineer its natural water
distribution. 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 waters of both rivers and many of
their tributaries in their highland basins, in some
Page 339 U. S. 729
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 Sacramento. 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
semi-arid land is that, except 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 Sacramento for a
considerable distance inland, the San Joaquin practically only at
tidewater levels. The plan will have navigation consequences,
principally on the Sacramento, but the effects on navigation are
economically insignificant as compared with the values realized
from redistribution 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 concerned.
Claimants own land parcels riparian to the San Joaquin.
[
Footnote 1] These are called
"uncontrolled grass lands," to distinguish them from either crop
lands or "controlled grass lands," both of which have long been
irrigated through controlled systems supplied from the stream.
Page 339 U. S. 730
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 enriched 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, however, 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 irrigation above and little of it
below them. Their claim of right is, in other words, to enjoy
natural, seasonal fluctuation unhindered, which presupposes a peak
flow largely unutilized.
The project puts an end to all this. Except 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 Joaquin inundation cannot be
replaced with Sacramento water. Claimants have been severally
awarded compensation for this taking of their annual inundations on
the theory that, as part of the natural flow, its continuance is a
right annexed to their riparian property. 111 Ct.Cl. 1, 89, 76 F.
Supp. 87, 99. The principal issues are common to the six cases in
which we granted certiorari. 335 U.S. 883.
Page 339 U. S. 731
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 control of navigation. Claimants,
on the other hand, urge that, although improvement of navigation
was one objective of the Central Valley undertaking as a whole,
nevertheless construction of the Friant Dam and the consequent
taking of San Joaquin water rights had no purpose or effect except
for irrigation and reclamation. This, it is claimed, was not only
the actual, but the avowed, purpose of Congress. On these
conflicting assumptions, the parties predicate contrary conclusions
as to the right to compensation.
In the Rivers and Harbors Act of August 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 . . . declared to be
for the purposes of improving navigation, regulating the flow of
the San Joaquin River and the Sacramento River, controlling floods,
providing for storage and for the delivery of the stored waters
thereof. . . ."
The 1937 Act also provided that "the said dam and reservoirs
shall be used first for river regulation, improvement of
navigation, and flood control. . . ."
But it also is true, as pointed out by claimants, that, in these
Acts, Congress expressly "reauthorized" [
Footnote 2] a project
Page 339 U. S. 732
already initiated by President Roosevelt, who, on September 10,
1935, made allotment of funds for construction of Friant Dam and
canals under the Federal Emergency Relief Appropriation Act, 49
Stat. 115, 118, § 4, and provided that they "shall be reimbursable
in accordance with the reclamation laws." [
Footnote 3] A finding of feasibility, as required by
law, [
Footnote 4] was made by
the Secretary of the Interior on November 26, 1935, making no
reference to navigation, and his recommendation of "the Central
Valley development as a Federal reclamation project" was approved
by the President on December 2, 1935.
When it "reauthorized" the Central Valley undertaking, Congress,
in the same Act, provided that
"the provisions
Page 339 U. S. 733
of the reclamation law, [
Footnote 5] as amended, shall govern the repayment of
expenditures and the construction, operation, and maintenance of
the dams, canals, power plants, pumping plants, transmission lines,
and incidental works deemed necessary to said entire project, and
the Secretary of the Interior may enter into repayment contracts,
and other necessary contracts, with State agencies, authorities,
associations, persons, and corporations, either public or private,
including all agencies with which contracts are authorized under
the reclamation law, and may acquire by proceedings in eminent
domain, or otherwise, all lands, rights of way, water rights, and
other property necessary for said purposes. . . ."
The Central Valley basin development envisions, in one sense, an
integrated undertaking, but also an aggregate of many subsidiary
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 transmission 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 intrusions of salt water, and for municipal and
miscellaneous purposes, including cities, towns, duck clubs, and
game refuges. These projects are not only widely separated
geographically, many of them physically independent in operation,
but they are authorized in separate acts from year to year, and are
to be constructed at different times over a considerable span of
years. A formula has been approved by the President by which
multiple purpose dams are the
Page 339 U. S. 734
responsibility of the Bureau of Reclamation, and dams and other
works only for flood control are exclusively the responsibility of
the Army Engineers. [
Footnote
6] The entire Friant and San Joaquin projects at all times have
been administered by the Bureau of Reclamation.
We cannot disagree with claimants' contention that, in
undertaking these Friant projects and implementing the work as
carried forward by the Reclamation Bureau, Congress proceeded on
the basis of full recognition of water rights having valid
existence under state law. By its command that the provisions of
the reclamation law should govern the construction, operation, and
maintenance of the several construction projects, Congress directed
the Secretary of the Interior to proceed in conformity with state
laws, giving full recognition to every right vested under those
laws. [
Footnote 7]
Cf.
Nebraska v. Wyoming, 295 U. S. 40,
295 U. S. 43;
California Oregon Power Co. v. Beaver Portland Cement Co.,
295 U. S. 142,
295 U. S. 164;
Nebraska v. Wyoming, 325 U. S. 589,
325 U. S. 614;
Mason Co. v. Tax Comm'n, 302 U. S. 186. In
this respect, Congress' action parallels that in
Ford & Son
v. Little Falls Fibre Co., 280 U. S. 369. The
original plan called
Page 339 U. S. 735
for purchase of water rights and included an estimate of their
cost. [
Footnote 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, [
Footnote 9] which
has responded some nine times in the past
Page 339 U. S. 736
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 administrative construction. We
think it clear that, throughout the conception, enactment, and
subsequent administration of the plan, Congress 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 legitimate relation to control of inland
navigation, 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 overall 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;
United States v. Commodore Park, Inc., 324 U.
S. 386;
United States v. Appalachian Electric Power
Co., 311 U. S. 377;
United States v. Chandler-Dunbar Water Power Co.,
229 U. S. 53, the
Government relies on the rule that it does not have to compensate
for destruction of riparian interests over which at the point of
conflict it has a superior navigation easement the exercise of
which occasions the damage. And, irrespective of divisibility of
the entire Central Valley undertaking, the Government contends that
Friant Dam involves a measure of flood control, an end which is
sensibly related to control of navigation.
Oklahoma v. Atkinson
Co., 313 U. S. 508.
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
Page 339 U. S. 737
definitions of navigation have been expanded,
United States
v. Appalachian Power Co., supra, in every instance in which
this Court has denied compensation for deprivation of riparian
rights, it has specifically noted that the federal undertaking bore
some positive relation to control of navigation.
United States
v. Willow River Power Co., supra, at
324 U. S. 510;
United States v. Commodore Park, Inc., supra, at
324 U. S. 391;
United States v. Appalachian Electric Power Co., supra, at
311 U. S. 423;
United States v. Chandler-Dunbar Water Power Co., supra,
at
229 U. S. 62,
and cases cited. And, referring to
International Paper Co. v.
United States, 282 U. S. 399;
United States v. River Rouge Imp. Co., 269 U.
S. 411, and cases cited, they observe that this Court
has never permitted the Government to pervert its navigation
servitude into a right to destroy riparian interests without
reimbursement where no navigation purpose existed.
Since we do not agree that Congress intended 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 controlling where interference
with navigation is neither the means,
South Carolina v.
Georgia, 93 U. S. 4, 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 compensation 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 compensation, of any rights valid
under state law.
On the contrary, Congress' general direction of purpose, we
think, was intended to help meet any objection to its
Page 339 U. S. 738
constitutional power to undertake this big bundle of big
projects. The custom of invoking the navigation power in
authorizing improvements appears to have had its origin when the
power of the Central Government 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,
declared for the first time, and without dissent on this point,
that, in conferring power upon Congress to 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 Congress has a substantive power
to tax and appropriate for the general welfare, limited only by the
requirement that it shall be exercised for the common benefit, as
distinguished from some mere local purpose. If any doubt of this
power remained, it was laid to rest the following year in
Helvering v. Davis, 301 U. S. 619,
301 U. S. 640.
Thus, the power of Congress to promote the general welfare through
large-scale projects for reclamation, irrigation, or other 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. [
Footnote 10] But, in view of this background, 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.
Page 339 U. S. 739
Even if we assume, with the Government, that Friant Dam in fact
bears some relation to control of navigation, we think nevertheless
that Congress realistically elected to treat it as a reclamation
project. It was so conceived and authorized by the President, and
it was so represented 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, appropriation, use, or distribution of
water used in irrigation, or any vested right acquired
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,
282 U. S. 407,
Congress
"proceeded on the footing of a full recognition of [riparians']
rights and of the Government's duty to pay for the taking that [it]
purported to accomplish."
We conclude that, whether required to do so or not, Congress
elected to recognize any state-created rights and to take them
under its power of eminent domain. [
Footnote 11]
We are guided to this conclusion by the interpretation placed on
Congress' Acts by the Reclamation Bureau, which, in administering
the project, has at all times pursued a course impossible to
reconcile with present contentions of the Government. From the
beginning,
Page 339 U. S. 740
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 interpretation. 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.
[
Footnote 12] It has
consistently advised the Congress that it was purchasing San
Joaquin water rights, and appropriations have been made
accordingly. [
Footnote 13]
Moreover, Congress [
Footnote
14] and the water users [
Footnote 15] have been advised that, in prosecution of
the work, existing water rights would be respected.
Page 339 U. S. 741
This administrative practice has been extended even to the lands
in question. Pursuant 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 asserted by claimants Gerlach, Erreca, and Potter, 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, grantees for such riparian grass lands, the
United States shall be reimbursed from
Page 339 U. S. 742
the 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 Government, 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 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 behalf of Miller & Lux.
Of course, this Court is not bound by administrative mistakes.
If the Government had contracted to pay for rights which are
nonexistent, it would not preclude us from upholding later and
better advised contentions. But when a project has been regarded by
the highest Executive 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 given 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 appropriator.
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,
Page 339 U. S. 743
by virtue of the Reclamation Act, stands in the position of an
upstream appropriator for a beneficial use.
The governing water law of California must now be derived from a
1928 Amendment to its Constitution [
Footnote 16] which compresses into a single paragraph a
reconciliation 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
Page 339 U. S. 744
light 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, and in continuity with which
both the cryptic text of the Amendment and the policy of federal
statutes become more intelligible. [
Footnote 17]
Upon acquiring statehood in 1850, California adopted the common
law of England 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. 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,
213 U. S. 343;
Gutierres v. Albuquerque Land Co., 188 U.
S. 545,
188 U. S. 556,
except for a peculiar concession to "pueblos." Indeed, riparian
rights doctrines prevailed throughout Western civilization.
As long ago as the Institutes of Justinian, 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
commentators and embodied
Page 339 U. S. 745
in the Napoleonic Code and in Spanish law. This conception
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 primary natural asset was land, and the run-off in
streams or rivers was incidental. Since access to flowing waters
was possible 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 quality. 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 details of this egalitarian concept, the
several states made many variations, each seeking to provide
incentives for development of its natural advantages. These are set
forth in
Shively v. Bowlby, 152 U. S.
1. 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 States.
Then, in the mountains of California, there developed a
combination of circumstances unprecedented in the long and
litigious 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 venturesome
pioneers began. If the high lands were to yield their treasure
to
Page 339 U. S. 746
prospectors, water was essential to separate the precious from
the dross. The miner's need was more than a convenience -- it was a
necessity, 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-inhabited, unsurveyed, unowned,
and almost ungoverned country, theretofore thought to have little
value. It had become public domain of the United States, and miners
regarded waters, as well as lands, subject to preemption. To be
first in possession was to be best in title. Priority -- of
discovery, location and appropriation -- was the primary source of
rights. Fortuitously, along lower reaches of the streams there were
no riparian owners to be injured, and none to challenge customs of
the miners.
In September, 1850, California was admitted to the Union as a
State. In 1851, its first Legislature enacted a Civil Practice 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. [
Footnote 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 newly
established state courts.
In California, as everywhere, the law of flowing streams has
been the product of contentions between upper and lower levels.
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
Page 339 U. S. 747
it down and asserted his own riparian right to have the water
descend to him in its natural volume. Faced with this issue between
custom and doctrine, the California Supreme Court escaped by
observing that both claims were located on public domain, and that
neither party could show proprietorship. 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 proprietorship.
Irwin v. Phillips, 5 Cal. 140
(1855).
The United States, as owner of the whole public domain, was such
a proprietor, 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 precarious when, in 1858, the Attorney
General 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 injunction forbade
working the mine in question, and a writ issued under the hand of
President Lincoln directing military authorities to remove the
miners.
United States v. Parrott, Fed.Cas.No.15,998, 1
McAll. 271.
Demands of mining and water interests that the Federal
Government relieve their uncertain status were loud, but went
unheeded amidst the problems that came with civil war. But, after
the war closed, the issue was again precipitated by a bill
introduced at the request of the Secretary of the Treasury to have
the United States withdraw all mines from the miners, appraise and
sell them, reserving a royalty after sale. This the Secretary
believed would yield a large revenue and the public lands would
help pay the public war debt. However, the private interests
prevailed. The Act of July 26, 1866, 14
Page 339 U. S. 748
Stat. 251, R.S. § 2339, declared the mining lands free and open
to preemption and included the following:
"That whenever, by priority of possession, rights to the use of
water for mining, agricultural, manufacturing, 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 confirmed:
Provided, however, That
whenever, 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 domain, the party
committing such injury or damage shall be liable to the party
injured for such injury or damage."
14 Stat. 251, 253, 43 U.S.C. § 661.
This section was expounded by Mr. Justice Field in
Jennison
v. Kirk, 98 U. S. 453, as
foreclosing further proprietary objection by the United States to
appropriations which rested upon local custom. This Court regarded
the Act as "an unequivocal grant" for existing diversions of water
on the public lands.
Broder v. Natoma Water Co.,
101 U. S. 274.
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 adversaries 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 protection that the
common law would give to their natural flow.
Page 339 U. S. 749
The Act of 1866, as we have noted, made appropriators liable for
damage to settlers with whose possession they interfered. The
Supreme Court of California decided that
"a riparian 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. 136.
In 1886 came the decisive battle of
Lux v. Haggin, 69
Cal. 255, 4 P. 919, 10 P. 674. Haggin organized an irrigation
company and claimed the right to appropriate the entire flow of the
Kern River for irrigation 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 appropriations thereafter. Thus, California set itself
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 succeeded
smaller operations, and municipalities sought to bypass intervening
agricultural 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 argument, dismissed certiorari for want of a
federal question. 275 U.S. 486 (1927). That case involved just such
questions as we have here. Southern California Edison projected
Page 339 U. S. 750
a 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 overflow, and thus naturally
was productive property. Appropriation by the power company
threatened to impair this overflow and destroy the value of the
ranch. The company was unwilling to compensate the damage. The
court held that common law of riparian rights must prevail against
the proposed utilization, and, notwithstanding the economic waste
involved in plaintiffs' 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 throughout the arid regions as both
populations and property values mounted. The doctrine of riparian
rights was characterized as socialistic. 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 309, 4 P. 919, 10 P. 674 at 703. If the
uneconomic consequences of unlimited riparianism were revealed by
court decisions, so the effects of unrestrained appropriation
became apparent where the flow of rivers became completely
appropriated, leaving no water for newcomers or new industry.
[
Footnote 19]
A Joint Committee of the California Legislature gave extended
study to the water problems of that State and careful consideration
of many remedies. Among other
Page 339 U. S. 751
proposals, one relevant to our question was to revoke or nullify
all common law protection to riparian rights and do it
retroactively as of the year 1850. [
Footnote 20] The Committee rejected all dispossession
proposals as confiscatory. It reported an amendment to the
Constitution which attempted to serve the general welfare of the
State by preserving and limiting both riparian and appropriative
rights while curbing either from being exercised unreasonably or
wastefully. The Amendment was submitted to and adopted by the
electors in November, 1928, and now constitutes California'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 declares to
continue or unintentionally to strike down values there was a
studied purpose 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.
Riparianism, pressed to the limits of its logic, enabled one to
play "dog in the manger." The shore proprietor could enforce 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 doctrine 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 limitation is not transgressed
Page 339 U. S. 752
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 unreasonable
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 with this clause, claimants can enforce no use of
wasteful or unreasonable character.
We assume for purposes of this decision 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.
But the public welfare, which requires 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 surrendered 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 located in a different watershed. Thereby private
lands will be made more fruitful, more valuable, and their
operation more profitable. The reclamation laws contemplate 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. [
Footnote 21] No reason
Page 339 U. S. 753
appears why those who get the waters should be spared from
making whole those from whom they are taken. Public interest
requires 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 it remains compensable, although no longer
enforceable by injunction. The right of claimants at least to
compensation prior to the Amendment was entirely clear. Insofar as
any California court has passed on the exact question, the right
appears to survive. [
Footnote
22] Five years after the Amendment, the Superior Court of
California [
Footnote 23]
specifically sustained identical rights. The Madera Irrigation
District had been organized 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
Page 339 U. S. 754
claimants. It adjudged 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
applications to appropriate San Joaquin water under state law.
These judgments had become final, and were outstanding
adjudications of the issues here involved against a grantor of the
United States. Without considering the claim that the 1933
judgments 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 issues, especially in
Peabody v. City of Vallejo, 2 Cal. 2d
351, 40 P.2d 486;
City of Lodi v. East Bay Municipal
Utility District, 7 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
Barbara, 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 P.2d 289, we conclude that claimants' right to compensation has
a sound basis in California law. The reclamation authorities were
apparently of that view, as the Miller & Lux contract would
indicate.
We recognize that the right to inundation 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
damage. But, as we have pointed out, uncommon 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 California
Page 339 U. S. 755
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 California as made applicable to these claims by
Congress.
III
. OTHER ISSUES
The Government also assigns as error 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 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 Government
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 absence of such
an administrative determination, 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 question,
which seems to be in the nature of a private controversy between
claimants and Miller & Lux. 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 general
interest, nor is there any manifest error, and we accept, without
review, the finding of the Court of Claims thereon.
Page 339 U. S. 756
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 character 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 description.
The judgments are
Affirmed.
MR. JUSTICE BLACK concurs in the judgment and opinion except
that he agrees with MR. JUSTICE DOUGLAS that interest should not be
allowed.
* Together with No. 5,
United States v. Potter; No. 6,
United States v. Erreca; No. 7,
United States v. James
J. Stevinson ( a Corporation); No. 8,
United States v.
Stevinson, and No. 9,
United States v. 3-H Securities
Co., also on certiorari to the same court.
[
Footnote 1]
Claimants' rights are subject to certain prior appropriative and
other rights which do not affect the issues before us.
[
Footnote 2]
"[T]he entire Central Valley Project, California, heretofore
authorized and established under the provisions of the Emergency
Relief Appropriation Act of 1935 (49 Stat. 115) and the First
Deficiency Appropriation Act, fiscal year 1936 (49 Stat. 1622), is
hereby reauthorized. . . ."
The latter reference is to a $6,900,000 appropriation primarily
for "Friant Reservoir and irrigation facilities therefrom," as a
reclamation project "reimbursable under the Reclamation 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 connection with the project was
contained in the Act of Aug. 30, 1935, 49 Stat. 1028, 1038. In this
Act, on the representation of the Chief of Engineers that, as to
the Friant Dam phase, "[n]o benefits would accrue to navigation
from this development," (House Doc. No.191, 73d Cong., 2d Sess. 3,
and see Comm'n 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 Kennett
Dam on the Sacramento. When it "reauthorized" the entire project,
Congress provided that, when appropriated, 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.
[
Footnote 3]
The reference is to the Reclamation Act of 1902, 32 Stat. 388,
as amended, 43 U.S.C. § 371
et seq.
[
Footnote 4]
Act of June 25, 1910, § 4, 36 Stat. 835, 836, provides that no
irrigation project contemplated under the Reclamation Act
"shall be begun unless 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.
[
Footnote 5]
See n 3,
supra.
[
Footnote 6]
Letter of President Truman to Secretary of the Interior, dated
August 15, 1949, S.Doc.No.113, 81st Cong., 1st Sess.
[
Footnote 7]
The Reclamation Act of 1902, 32 Stat. 388, as amended, 43 U.S.C.
§ 371
et seq., to which Congress adverted, applies only to
the seventeen Western States. 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, appropriation, use, or
distribution 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 Government or of any landowner,
appropriator, or user of water in, to, or from any interstate
stream or the waters thereof. . . ."
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 federal right.
[
Footnote 8]
"Part of the water supply is to be obtained 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
Roosevelt, 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 otherwise, all lands,
rights of way, water rights, and other property necessary for said
purposes. . . ."
50 Stat. 844, 850.
[
Footnote 9]
In administering the Central Valley Project, the Bureau of
Reclamation submitted appropriation requests regularly from 1938
through 1949. On each occasion, 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'n on Appropriations, Interior
Dept., 75th Cong., 1st Sess. 281, 282 (except as noted, all
following references are to hearings before this subcommittee),
and see H.R. Rep. No. 786, 75th Cong., 1st Sess. 14;
Hearings, 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; 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'n 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.
[
Footnote 10]
See Feasibility Report, Secretary of the Interior Ickes
to President Roosevelt, Nov. 26, 1935, recommending "the approval
of the Central Valley development as a Federal reclamation
project," and pointing out that the area is served by excellent
transportation facilities, that much of its produce is shipped to
eastern markets, and that, if decreasing productivity 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 affected."
[
Footnote 11]
This approach makes it unnecessary to consider the relevancy of
United States v. Thayer-West Point Hotel Co., 329 U.
S. 585;
United States v. Goltra, 312 U.
S. 203;
Tillson v. United States, 100 U. S.
43, 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 liability for claimants' water
rights.
[
Footnote 12]
See n 8,
supra.
[
Footnote 13]
See n 9,
supra.
[
Footnote 14]
"In conducting irrigation investigations and constructing and
operating projects throughout the West, the Bureau of Reclamation
fully recognizes and respects existing water rights established
under State law. Not only is this a specific requirement of the
Reclamation Act under 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 Reclamation,
Dec. 1, 1947, approved by the Secretary of the Interior, July 29,
1948. S.Doc.No.113, 81st Cong., 1st Sess. 39.
[
Footnote 15]
After consultation with the Commissioner of Reclamation and the
Secretary of the Interior, the Regional Director, Region II, Bureau
of Reclamation, replied to questions concerning the Central Valley
Project submitted by the Irrigation Districts Association of
California:
"The Bureau of Reclamation does recognize and respect existing
water rights which have been initiated and perfected 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 modification 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 program 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 obtained 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 affected by the operations of the project are being
analyzed and appropriate adjustments, giving full recognition of
the rights of the landowners, are in the process of being worked
out."
[
Footnote 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
water 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 unreasonable method of use of water be
prevented, and that the conservation of such waters is to be
exercised with a view to the reasonable 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 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, and such right does not and shall not extend to the
waste or unreasonable use or unreasonable method of use or
unreasonable method of diversion of water. Riparian rights in a
stream or watercourse attach 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
self-executing, and the Legislature may also enact laws in the
furtherance of the policy in this section contained."
[
Footnote 17]
The historical background of both riparian and appropriative
rights, the relevant local history and the legislative history of
the Act of 1866 are comprehensibly 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 Western Water Law of Proposed Federal
Missouri Valley and Columbia Valley Authorities, 20 Temple L.Q.
425; Walton, Origin and Growth of Western Irrigation Law, 21
Ill.L.Rev. 126; Bannister, Federal Disposition of Waters in the
Priority 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.
[
Footnote 18]
Civil Practice Act of April 29, 1851, § 621. In substance, now §
748, Code Civil Procedure.
[
Footnote 19]
Court opinions indicate that all the waters of the South Platte
River have been appropriated and the entire normal flow of the
river is inadequate to supply the priorities for irrigation
purposes 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, 172 F. 615. Many
Colorado streams are already overappropriated.
Humphreys Tunnel
& Mining Co. v. Frank, 46 Colo. 524, 105 P. 1093.
See Wiel, Theories of Water Law, 27 Harv.L.Rev. 530.
[
Footnote 20]
The legislative history of the Amendment 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 Power Amendment, 12 Cal.L.Rev. 454; Note, 1 Stanford L.Rev.
172.
[
Footnote 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
interpreted to mean that it will be returned within forty years
from the time the Secretary issues public notice that water is
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."
[
Footnote 22]
United States District Court, Southern District of California
rendered a decision on April 12, 1950, in
Rank v.
Krug, 90 F.
Supp. 773, consistent with the views we take of the issues here
involved.
[
Footnote 23]
Sacramento & San Joaquin Drainage District Co. v.
Superior Court, 196 Cal. 414, 432, 238 P. 687, 694. This is
not a local court, but 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, as
a court whose decrees are regarded as determination of state law,
rather than within the rule of
King v. Order of Travelers,
333 U. S. 153.
MR. JUSTICE DOUGLAS, concurring in part and dissenting in
part.
I think it is clear under our decisions that respondents are not
entitled to compensation 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,
311 U. S. 424;
United States v. Commodore Park, Inc., 324 U.
S. 386,
324 U. S.
390-391;
United States v. Willow River Power
Co., 324 U. S. 499,
324 U. S. 510.
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;
United States v. Rio Grande Dam & Irrigation Co.,
174 U. S. 690. As
the
Appalachian Power case makes plain (
311 U. S. 311
U.S. 424), 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 appropriated money for the Central Valley project. They
created no independent right in any
Page 339 U. S. 757
claimant against the United States. That is the teaching of
Justice Brandeis' opinion for the Court in
Mitchell v. United
States, 267 U. S. 341,
267 U. S.
345-346. The appropriation in that case was for,
inter alia, "losses to persons, firms and corporations,
resulting from the procurement of land." In denying a claim for the
loss of a business resulting from a taking of land, the Court
said:
"By including in the appropriation clause the words 'losses to
persons, firms, and corporations, resulting from the procurement of
the land for this purpose,' Congress doubtless authorized the
Secretary of War to take into consideration losses due to the
destruction of the business, where he purchased land upon agreement
with the owners. But it does not follow that, in the absence of an
agreement, 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 example, § 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,
280 U. S. 377;
United States v. Realty Co., 163 U.
S. 427,
163 U. S. 440.
And I think it has done so -- not by the Acts appropriating funds
for the project, but by the Reclamation Act of 1902. 32 Stat. 388,
43 U.S.C. § 371
et seq.
The Act applies solely to the 17 western States. It deals with
reclamation projects, as its title indicates. The Central Valley
project is such a project.
Page 339 U. S. 758
Section 7 of the Act authorizes the Secretary of the Interior to
purchase any rights necessary to the carrying out of the Act.
[
Footnote 2/1] 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, appropriation, use, or
distribution 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 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
appurtenant to the land irrigated, and beneficial use shall be the
basis, the measure, and the limit of the right."
Section 8 thus respects "any vested right" acquired under state
water laws relating to irrigation, in "any interstate stream or the
waters thereof." When such rights will be destroyed or interfered
with by a proposed reclamation project, authority is found to
acquire them under § 7. The customary method of acquiring the water
rights is to file a notice of appropriation pursuant to state
law.
Page 339 U. S. 759
Petitioner seeks to avoid the force of these Sections by
asserting that they are not applicable to lands riparian to
navigable streams.
The legislative history of the Act is not particularly
instructive. The House Committee 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 evidence, however, that the
framers thought the scope of the bill so narrow. When the Act was
recommended in 1901, President Theodore Roosevelt was careful to
suggest that there should be protection for "vested rights" and
respect for state laws. 35 Cong.Rec. 6677, 6775-6776. There are
statements to the same effect by Representative 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 water rights riparian to
navigable waters has not been authoritatively determined by the
courts. [
Footnote 2/2] This Court
has recognized, however, that administration of the Act is to be in
conformity to state laws.
See California Oregon Power Co. v.
Beaver Portland Cement Co., 295 U. S. 142,
295 U. S. 164;
Nebraska v. Wyoming, 325 U. S. 589,
325 U. S. 614.
That was the assumption in
Mason Co. v. Tax Commission,
302 U. S. 186, a
case involving the navigable waters of the Columbia River.
Whatever doubts there may be are for me dispelled by the
administrative practice under the Act, as summarized
Page 339 U. S. 760
by the Commissioner of Reclamation in a memorandum dated April
19, 1950. Reports from the seven regional counsel and a review of
the files in the Bureau of Reclamation formed the basis for the
memorandum.
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 whether the stream involved was
navigable or nonnavigable. [
Footnote
2/3] Such filings were made pursuant to state law
Page 339 U. S. 761
on water rights riparian to at least 13 navigable or probably
navigable rivers. This administrative practice is too clear to be
contradicted by the Bureau of Reclamation documents cited by
petitioner. [
Footnote 2/4]
Moreover, the Commissioner of Reclamation has drawn our attention
to recent public statements by Department of Interior officers
confirming 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 Assns.,
310 U. S. 534,
310 U. S. 549;
Labor Board v. Hearst Publications, 322 U.
S. 111,
322 U. S. 130.
This long course of practice by the Bureau of Reclamation resolves
any doubts and ambiguities that arise from the history and wording
of the statute.
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 streams. As the Court holds, respondents, under
California law, have a
Page 339 U. S. 762
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 assumes a liability by statute, interest is not
allowable unless specific provision is made for it.
United
States v. Goltra, 312 U. S. 203,
312 U. S. 207;
United States v. Thayer-West Point Hotel Co., 329 U.
S. 585,
329 U. S. 588.
A different rule obtains when the United States takes property
protected by the Fifth Amendment.
Seaboard Air Line R. Co. v.
United States, 261 U. S. 299,
261 U. S. 306.
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 Reclamation 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 ascertain the
measure of damages for the taking.
[
Footnote 2/1]
Section 7 provides:
"That where, in carrying 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 purpose, and it shall be the duty of the Attorney
General of the United States upon every application of the
Secretary of the Interior, under this Act, to cause proceedings to
be commenced for condemnation within thirty days from the receipt
of the application at the Department of Justice."
[
Footnote 2/2]
A United States District Court for the Southern District of
California has recently 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.
[
Footnote 2/3]
The memorandum records the following data: Region 1 (Washington,
Idaho, northern Oregon, western Montana) reported the filing of
appropriations under state law in 12 projects involving navigable
rivers. In Region 2 (northern California, Oregon), § 8 has been
construed to include rights in navigable as well as nonnavigable
waters, although the exact 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 administrative practice. In Region 4 (northern
Nevada, Utah, western Wyoming, western Colorado), water rights on
at least two navigable rivers have been acquired pursuant 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 instance in Region 6
(eastern Montana, northern Wyoming, North and South Dakota) where a
federal project interfered 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 Region 7 (eastern Colorado,
southern Wyoming, 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 explain the
single exception. The Act authorizing Hoover Dam required that it
be used first for "river regulation, improvement of navigation, and
flood control," and only thereafter for irrigation. 45 Stat. 1061.
Moreover, the Colorado River Compact assures an adequate 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 connection with any of its
projects, failed or refused to recognize or make compensation for
water rights validly established under state law."
Another possible exception is the decision 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 appropriations on that
river also.
[
Footnote 2/4]
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 editions, and to a lesser extent in its
1938 edition. A new manual is now in preparation. 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 provides some support for the petitioner's position. The
Commissioner of Reclamation, however, has explained that, "despite
the statement in earlier manuals based upon the California Land
Development opinion. . . ." the Bureau's practice has been to make
no distinction between navigable and nonnavigable waters.