Full opinion text
YANKWICH, Chief Judge. This litigation has been the subject of two prior opinions. *The first opinion dealt with the development of the law on riparian rights in California and the contentions of the parties as disclosed by the pleadings. The second one dealt with certain questions of law, which, following a pre-trial order, filed August 25, 1952, the Government and the defendants Fallbrook Public Utilities District (to be herein referred to as Fall-brook) and the Santa Margarita Mutual Water Company (to be referred to as Santa Margarita) and the State of California, as intervenor, briefed and requested the Court’s opinion thereon as a means of simplifying the issues and reducing the time for preparation for trial. Following the filing of the second opinion and the refusal of the Court to grant a continuance requested by Fallbrook, it secured an order from the Court of Appeals for the Ninth Circuit staying the proceedings as to it, until that Court heard an Order to Show Cause which questioned the right of the ¡writer to hold the separate trial as to some defendants at Los Angeles in the Central Division, ¡because the courtroom facilities in the Southern Division at San Diego were occupied with other trials. So the writer, with the acquiescence and approval of Santa Margarita and the State of California, proceeded to try the issues as to this defendant and intervenor who were not made parties to' the proceeding before the Court of Appeals. Due to the extensive pre-trial order and the cooperation of counsel, the presentation of testimony and the arguments were completed in record time. And the writer expresses publicly his thanks to counsel in the case for demonstrating that even a water case can be tried expeditiously in California, if there is cooperation between Court and counsel. The prior opinions stated in detail the Court’s attitude on the major questions of law involved in this case. So this opinion will deal chiefly with facts. A fundamental factor adverted to in the second opinion is that the Government of the United States, by reason of its acquisition of lands through purchase, after the institution of condemnation proceedings, and through actual letters of cession **, insists on absolute control of the lands so acquired against the exercise of any of the police powers of the State. Nonetheless, by stipulation between the Government and the State of California, dated November 29, 1951, and 'by the Order of this Court, embodied in the pre-trial order, the rights to the use of water which the Government seeks to determine by this lawsuit are to be measured in accordance with the law of California. The pre-trial order is attached marked Appendix A. And in assaying the facts, the criteria to be used are those applied by the higher courts of California. I The Beneficial Test Use One of the difficulties one encounters in a case of this character is that where a State has developed a body of law on a subject, the tendency is to consider it as a whole. However, the water law of California, so far as it relates to riparian rights, cannot be so considered. For, as the first opinion on the subject and as the decision of the Supreme Court of the United States dealing with the subject indicate, the people of California, in 1928, adopted an amendment to the Constitution of the State which modified the riparian rights as they had been previously declared by the courts of California. So when trying a case of this character, it is important to re-examine and reject every decision ante-dating 1928 which goes counter to the philosophy of water rights embodied in the 1928 amendment. The chief change the amendment brought into the water law of California consisted of engrafting upon every water right and every mode of diversion the doctrine of beneficial use. In one of the first cases dealing with the effect of the amendment, the Supreme Court of California summed up its effect in this language: “The limitations and prohibitions of the constitutional amendment now apply to every water right and every method of diversion. Epitomized, the amendment declares: “1. The right to the use of water is limited to such water as shall be reasonably required for the beneficial use to be served. “2. Such right does not extend to the waste of water. “3. Such right does not extend to unreasonable use or unreasonable method * * * of diversion of water. “4. Riparian rights attach to, but to no more than so much of the flow as may be required or used consistently with this section of the Constitution. “The foregoing mandates are plain, they are positive, and admit of no exception. They apply to the use of all water, under whatever right the use may be enjoyed. The problem is to apply these rules in the varying circumstances of cases as they arise.” Similar declarations have been made repeatedly since. And the doctrine has been applied to an underground stream. Subject to this limitation, the riparian, owner is entitled to the flow of the stream, as limited by the correlative rights of other owners. The riparian owner may acquire prescriptive rights in addition to his riparian rights In one of the cases already referred to, the Supreme Court of California, after analyzing the cases decided since the 1928 amendment, has stated the scope of its limitation on riparian rights and the rights to surplus and waste waters in this manner: “In the cases referred to it was established that by the changes in the law the right to use the waters of rivers and streams of the state has been limited to a reasonable beneficial use; that the riparian owner has a prior and paramount right to this use and if necessary is entitled to the full natural flow of the stream or its equivalent undiminished in quantity and unimpaired in quality. The riparian owner is safeguarded in this right by the constitutional amendment. But the amendment also provides that ‘riparian rights in a stream or water course attach to, hut to no more than so much of the flow thereof as may be required or used consistently with this section * * * ’. This provision clearly means that when the law has guaranteed to the riparian owner the use of the waters of the stream to the full extent to which he may put the same for all present and prospective useful and beneficial purposes, and has made available to him the means of protecting the rights so guaranteed, he has received the full measure of benefit and protection to which he is entitled, and can claim no more. “There are waters in the rivers and streams of the state to which the riparian right first attaches. The rights of other lawful users on the stream also rightfully attach. In addition there are in many of the rivers and streams of the state great volumes of water which pass on unused to the sea or to an inland 'drainage basin. In a real sense this excess water is a great natural resource available for the benefit of this and future generations, as the occasion for its use may arise. These excess waters constitute the public waters of the state to be used, regulated and controlled by the state or under its direction.” In the case involving the former owners of the Ranch which the Government acquired by purchase, the nature of the usufructory rights of the riparian owners is stated in this manner: “The riparian does not ‘own’ the water of a stream, he ‘owns’ a. usufructory right — the right of reasonable use of the water on 'his riparian land when he needs it. Gould v. Eaton, 117 Cal. 539, 49 P. 577, 38 L.R.A. 181. If ■ one riparian has no present need for water the others may use it all. The lower riparian cannot secure an injunction against the upper riparian unless the upper owner is using an excessive portion of the waters of the stream resulting in actual damage to the lower proprietor. * * * The same principles apply to underground waters. * * * Moreover, it is also well established that the underground and surface portions of the stream constitute one common supply.” Santa Margarita has not diverted any water. So we need not concern ourselves with the academic problem whether a lower riparian owner is entitled to enjoin an upper appropriator. Rather do we direct our attention to the problem of what the Government by riparian ownership and adverse use has shown itself to be entitled to under the cases just announced which, summed up, state the law to be that Santa Margarita as an a iriator is entitled only to any surplus or waste waters which exist in the stream. If there is no surplus water, after the Government is allowed the full measure of its riparian rights, then any diversion by 'Santa Margarita under its appropriation would, of necessity, damage the Government. For it is quite evident from the experience of the failure of the water system at the ammunition depot and the intrusion of salt water into some of the wells, that an additional diversion would harm the Government. And, while it is the rule that the injunctive process is not used to allay one’s fears, the Government is entitled, at least, to a declaration that diversion would result in injury. II The Character of the Santa Margarita and Its Basin In the pre-trial order the character of the Santa Margarita River System and its drainage areas was agreed to, and the following facts are gathered from it. A. The Santa Margarita River System and Its Drainage Area The Santa Margarita is a non-navigable intermittent stream having a drainage area of 740 square miles, 192 square miles of which are situated in San Diego County, California, and 548 square miles in Riverside County, California. The Santa Margarita watershed is semi-arid. Temecula Creek and Murrietta Creek have their junction at the head of Temecula Gorge and there form the Santa Margarita River. Rising on the eastern slope of the Coastal Range in San Diego County, near the present site of the Palomar Observatory, Temecula Creek proceeds in a northerly and westerly direction a distance of approximately fourteen miles where it enters the Pauba Grant of the Vail Estate. After entering the Pauba Grant, it flows northwesterly through a portion of the grant known as Nigger Valley, for a distance of a little more than three miles. It then enters a narrow canyon on the Pauba Grant known as Nigger Canyon. In a state of nature, Temecula Creek flowed through Nigger Canyon for a distance of approximately two miles. Situated across the channel of Temecula Creek at the upper end of Nigger Canyon on the Pauba Grant, in the Northwest Quarter of the Northwest Quarter, Section 10, Township 8 South, Range 1 West, is the Vail Dam, creating a reservoir with a capacity of approximately 50,000 acre-feet. Below the Vail Dam, the Temecula Creek traverses Pauba Grant for a distance of approximately eleven miles. Leaving the Pauba Grant of the Vail Estate, Temecula Creek continues its westerly course across the Little Temecula Grant of the Vail Estate for a distance of approximately one and a half miles. That stream then enters the Temecula Grant of the Vail Estate, flowing a distance of approximately two miles. Immediately before leaving the Temecula Grant of the Vail Estate, Temecula Creek has its confluence with Murrietta Creek and below that point is known as the Santa Margarita River. The Santa Margarita River then enters Temecula Gorge, a narrow canyon through which it flows southerly and westerly for a distance of approximately nine miles. Though Temecula Creek, prior to its junction with Murrietta Creek, flows alternately as a surface and sub-surface stream, the Santa Margarita River throughout Temecula Gorge in the state of nature is a surface stream. Shortly after leaving Temecula Gorge, the Santa Margarita River enters Camp Joseph H. Pendleton, the Marine Corps Training Base. ■ It then flows in a generally southwesterly direction through Camp Pendleton — Naval Ammunition Depot — United States Naval Hospital lands for a distance of about twenty-one miles to the Pacific Ocean. For the full twenty-one miles the course of the river lies entirely within the property of the United States of America. The Santa Margarita River within the boundaries of the above-mentioned military establishments is an intermittent stream. B. Tributaries of the Santa Margarita River There are several tributaries of the Santa Margarita River from tidewater to its head waters. De Luz Creek, an intermittent stream which rises on the Santa Rosa Grant of the Vail Estate, proceeds in a westerly and southerly direction to its confluence with the Santa Margarita River several miles within the boundary lines of Camp Pendleton. Fallbrook Creek, an intermittent stream, rises east and south of the Santa Margarita River. Most of its length is within the boundaries of Camp Pendleton and the United States Naval Ammunition Depot and it has its present terminus in Lake O’Neill, an artificial reservoir which lies within the Camp Pendleton area. In the state of nature, Fallbrook Creek flowed into the Santa Margarita River. Sandia Creek, an intermittent stream which rises on the Santa Rosa Grant of the Vail Estate, proceeds in a southerly direction to its confluence with the Santa Margarita River at a point a short distance above the easterly boundary of Camp Pendleton. Rainbow Creek is an intermittent stream which rises east and south of the main channel of the Santa Margarita River and proceeds in a northerly and westerly direction to its confluence with that river a short distance above Sandia Creek. Murrieta Creek, an intenmittent stream, has its source north of the Temecula Grant of the Vail Estate and traverses the lands of that grant before it joins Temecula Creek to form the Santa Margarita River. Junction of the streams takes place at a point about a half mile east of the westerly boundary of Temecula Grant of the Vail Estate and a short distance east of Temecula Gorge. It has several tributaries, most important of which is Cottonwood Creek, an intermittent stream which rises on the Santa Rosa Grant of the Vail Estate. Santa Gertrudis Creek, a tributary of Murietta Creek, is an intermittent stream rising on the Pauba Grant of the Vail Estate, traversing lands in other ownership before crossing a portion of the Temecula Grant prior to its confluence with Murrieta Creek. Warm Springs Creek, an intermittent stream, rises east of Murietta Creek and flows into that stream just below the town of Murrieta. Penjango Creek, an intermittent stream, is tributary to Temecula Creek, rising south of that stream and joining it a short distance upstream from the junction of the stream last mentioned with Murrieta Creek. From its source to confluence Penjango Creek traverses a portion of the Little Temecula Grant, and then flows across the Temecula Grant of the Vail Estate, the property upon which its junction with Temecula Creek takes place. Other affluents of Temecula Creek are Lancaster Creek and Arroyo Seco, both of which are intermittent in character, flowing only during periods of high precipitation and entering Temecula Creek above Nigger Canyon. C. Subterranean Basins Underlying Santa Margarita River From its head waters to the Pacific Ocean, the watershed of the Santa Margarita River System is underlaid with numerous subterranean basins. They differ greatly in size and capacity. Underlying the military establishments in question within the Santa Margarita River watershed are one or more underground basins or segments of basins, commonly known as: 1. Upper or O’Neill Basin or Segment; 2. Chappo or Home Ranch Basin or Segment; 3. Ysidora Basin or Segment. Throughout the ground-water basin or basins within the watershed of the Santa Margarita River underlying Camp Pendleton are numerous wells of varying depths in the alluvium. The surface and subsurface area and the character and type of the deposits penetrated by the wells, so far as the same are known to the United States of America, have been analyzed. D. United States Geological Survey Records The United States Geological Survey has maintained and published records of the Stream Santa Margarita River Santa Margarita River Temecula Creek Temecula Creek Murietta Creek Station Ysidora Fallbrook Temecula (Railroad) Canyon Nigger Canyon Temecula' In addition, measurements have been taken for diversions at O’Neill Ditch and at other places on the Santa Margarita River System. E. Additional Features In addition to the facts just referred to, the following additional facts are established by the evidence. Below the Vail Dam, Temecula Creek traverses a highly porous area where that stream, except during periods of high runoff, disappears into the Temecula Basin. In a state of nature, Temecula Creek customarily again becomes a surface stream at a distance of about three miles from the present site of the Vail Dam. Presently, however, due to the control of the stream arising from the mentioned dam and the draft upon Temecula Basin by the Vail Estate, Temecula Creek reappears as a surface stream at a great distance from the mouth of Nigger Canyon dependent upon the draft and the period elapsing between releases from Vail Reservoir. Within Camp Pendleton the Santa Margarita River does not flow as a continuous surface stream, but, during the dry season of the year, the stream' customarily and ordinarily sinks into the highly porous ground water basin Underlying Camp Pendleton and other military establishments. When that basin has been filled, the Santa Margarita River ordinarily comes to the surface some two or three miles from tidewater. In a state of nature it continues then to the Pacific Ocean as a stream of diminishing volume. From its head waters to the Pacific Ocean, the Santa Margarita River passes following principal gauging stations within the watershed of the Santa Margarita River; Period of record From February 19, 1923, to date “ November 25, 1924, to date “ January 30, 1923, to date “ January 30, 1923, to date “ ' October 1, 1930, to date over and through numerous ground basins. The water in those basins is contained by bedrock or other impervious material. The basins are filled with alluvial deposits of varying degrees of porosity. The basins differ greatly in size and in capacity. The waters of the Santa Margarita River, in its course through the valley, penetrate and fill the voids of the porous alluvium. When the water of the stream sinks to bedrock or the other impervious material comprising the beds of the basins, in which the detrilal material lies, it spreads out laterally filling the basins. When completely charged, the waters of the basins support the surface stream and progress slowly downstream through the permeable material. Ground water basins of the character described underlies Temecula Creek in portions of Oak Grove Valley; and Lancaster Creek in Lancaster Valley. Temecula Basin, one of the largest in the entire watershed of the Santa Margarita River, is located on the property of the Vail Estate. This large T-shaped ¿lluvial deposit area has the stem of the T along the main channel of Temecula Creek for a distance of approximately eight miles, varying in width from two-thirds of a mile to a mile and a half. That area of the Temecula Basin immediately below the present site of Vail Dam is comprised of coarse, highly porous material and is known as the “out wash”. Into that “out wash”, except in periods of extremely heavy precipitation, Temecula Creek sinks. About three miles below the “out wash”, the Temecula Basin becomes an artesian area from which Temecula Creek again emerges as a surface stream. The right arm of the T-shaped alluvial basin extends northward underlying Murrieta Creek for a short distance above that stream’s confluence with Temecula Creek. The left arm of - the T-shaped Temecula alluvial basin extends southward beneath Penjango Creek. Underlying-Murrieta Creek and separated from the Temecula Basin is another large alluvial basin known as the Murrieta Basin. That is comprised of valley-fill similar to that found in the other basins. Due to the existence of granitic rock immediately underlying the stream, from approximately the point of confluence of Temecula Creek with Murrieta Creek to the mouth of the Temecula Gorge, the Santa Margarita River in the state of nature is a surface stream. That granitic underlay of the stream continues from the point mentioned across the boundary of Camp Pendleton to a point approximately one and one-half miles below the confluence of De Luz Creek with the Santa Margarita River. At that point the stream opens out into a rather broad alluvial flood plain. That alluval area extends from the point last mentioned to tidewater, constituting a large ground-water basin. That ground-water basin is comprised of a relatively coarse and loose porous valley-fill at the upstream end comparable to the “out wash” area of the Temecula Basin above described. Approaching the ocean the character of the alluvium becomes increasingly fine and tight. The alluvial ground-water basin underlying the Santa Margarita River within Camp Pendleton and the other military establishments is geologically and hydro-logically interconnected, comprised, however, of three separate segments which lend themselves readily to arbitrary subdivisions. Their designation as three separate components already appears. Ill The Military Establishment A brief description of the military establishments may be given. This, also, is taken from the Agreed Facts in the Pretrial Order. A. Camp Joseph H. Pendleton It. is the function of Camp Joseph H. Pendleton to provide housing and training facilities for units of the Armed Forces, to conduct training of units of the Armed Forces in amphibious warfare and experimental work with landing craft, landing vehicles, tracked and affiliated equipment and the development thereof; to conduct combat training of the various units of the United States Marine Corps, including air-ground support coordination, and use of artillery, tanks and other equipment used in. the conduct of modern amphibious and land warfare. In addition to the aforementioned activities, it is the function of Camp Pendleton' to provide logistic support for units of the United States Marine Corps together with material maintenance and storage facilities, for supplies and equipment and to house and train replacements for subsequent assignment to various operating units of' the United States Marine Corps. B. United States Naval Hospital The United States Naval Hospital, with a capácity of approximately 1550 beds, established at Camp Joseph H. Pendleton, provides medical and hospital services to personnel of the Armed Forces, their dependents and other authorized personnel at 83 Naval shore activities located in the Southern California a,rea and provides medical and hospital care to personnel of units of the United States Fleet. C. United States Naval Ammunition Depot. The United States Naval Ammunition Depot, Fallbrook, California, provides facilities for the storage, segregation, reconditioning and issuing of ammunition for operating units of the United States Fleet and the United States Marine Corps and maintains ammunition stocks for shore establishments of the United States Navy located in the Southern California area. In addition, this Naval Ammunition Depot stores and ships ammunition for use by combat elements of the United States Navy and the United States Marine Corps. The Santa Margarita River, in its course, traverses virtually the length of Camp Pendieton — Naval Ammunition Depot — United States Naval Hospital lands from east to west for a distance of approximately 21 miles. There are no users below Camp Pendleton on the Santa Margarita River for the United States of America owns the lands on both banks of that stream from the point where the Santa Margarita River enters upon the military establishments just mentioned to the point of confluence of the river with the Pacific Ocean, except for the easement for right of way which the Atchison, Topeka and Santa Fe Railroad owns. VI Present and Prospective Water Needs This brings us to a consideration of the water supply of the Santa Margarita River. Excepting a small riparian acreage owned by Fallbrook, the two chief riparian owners on the Santa Margarita River are the Vails and the Government. As between them, the measure of their rights is the stipulated judgment dated December 27, 1940, as agreed to by stipulation entered into in this case July 8, 1952. The court in the case between the Government’s predecessor in interest and the Vails has stated that the normal flow of the river is not sufficient to supply the full needs of the riparians. As the rights between riparians are correlative, the stipulated judgment determines the division of the water between them. And if, after such division of water, there is no surplus, the appropriators, whether they are bound by the judgment or not, simply have nothing to appropriate. The evidence shows that the Vails claimed more water .than the stipulated judgment gave them. In this respect, the case follows the usual pattern in judgments of this character where the court, finding that the supply is inadequate, makes a division which curtails each side to some extent. Here, the parties, after the first judgment was reversed, agreed on the division. So the Government’s predecessor in interest benefitted by the stipulated judgment, and the Government will continue to benefit as the expanding needs of the Vails unfold. The acquisition of the lands by the Government was through two condemnation proceedings. The first acquisition in point of time was a tract of land consisting of 9147.55 acres. The decree on the declaration of taking was entered in the Southern Division of this court on January 21, 1942. This land is the place upon which the Ammunition Depot is located. The next acquisition was 122,202.72 acres. The decree in that case was dated December 31, 1942. A small parcel of 1676.58 acres was acquired in another proceeding by a decree dated December 23, 1943. Another parcel of 1574.61 acres, which was in the public domain, was transferred to the Navy on August 8, 1945. A small parcel consisting of 112.11 acres located in Orange County was acquired by deed dated February 8, 1949. The Santa Margarita River flows through the large parcel. The river enters the area at the northeasterly corner of Camp Pendleton, and from there it meets the boundary of the Naval Ammunition Depot to the south and forms the boundary of the Naval Ammunition property and Camp Pendleton property and continues to flow in a southwesterly direction along the boundary of the Naval Ammunition Depot into Camp Pendleton and from there on through the Camp into the Pacific Ocean. From the point at which it leaves the boundary of the Naval Ammunition Depot, the lands embrace the river on each bank until it reaches the ocean. The stipulated judgment states, as does the pre-trial order, that for the full twenty-one miles the course of the river lies entirely within the property of the United States of America. This land is subject to an easement to a 100-foot right of way granted by the Government’s predecessor to the Santa Fe Railroad which does not affect the riparian rights of the Government. Of this acreage, some 37,882.2 acres lie in the watershed of the Santa Margarita River and are riparian to the river, i. e., they are contiguous to the stream and have not been separated by separation of interest or change of ownership of lands lying between or upstream from the thread of the stream. Of the Government’s riparian acreage in the watershed, 18,648.3 acres can be irrigated profitably according to the standards recognized by the Soil Conservation Service of the United States Department of Agriculture. The riparian acreage of the Vails is 40,575, of which 29,410 acres can be profitably irrigated. These lands are within the watershed of the stream and drain into it. They have access to the stream and constitute one continuous piece, no part of which has ever been severed from its riparian rights. At the present time, the Vails have only 4500 acres under irrigation, but their engineers are working on plans for the development of the irrigation system. On the basis of an irrigable acreage of 29,410, it was the opinion of the expert, H. M. Hall, who had worked for the Vails over a long period of years, that the duty of water of the Vail lands would be “79,514 acre-feet which could be profitably applied to the irrigable land on the ranch if that much water were available.” On the same basis, the same and other Government experts computed that the 18,648.-3 acres of irrigable land of the Government in the watershed would call for a duty of water of 69,237 acre-feet of water per year. In this we agree. Under California law, subject to the correlative rights of other riparians, the rights of the riparian owner are paramount as to the water he puts to actual reasonable beneficial use, but his rights against appropriators are paramount also as to his prospective reasonable beneficial use. The latter envisages future uses to which the lands may be adapted. While a court might make a declaration as to such maximum use, until there has been actual use, any water which remains above the present actual use may temporarily be subject to appropriation. So it becomes important to determine the present actual use of water by the Government in its military establishment. In so doing, we repeat that a military use being considered a substitute use, the Government is entitled to the maximum actual use being made at the present time. In determining the amount, the Government would be entitled to the equivalent for present military use of the maximum, potential future agricultural use. And assuming, as it has been stated, that when the maximum population of the military establishment reaches 105,000, the Government might need 20,500 or more acre-feet per year, this would still be less than the maximum potential of its irrigable lands, and as to that quantity of water, its rights are paramount, although the unused portion may, in the meantime, be subject to appropriation if it can be captured and impounded. Nevertheless, as of today, the Government is only entitled to the undisturbed flow of the water which it can use for the present population of its military establishments. V The Government’s Use We consider the evidence in the record relating to the extent of the basic water supply and the use of the water by the military establishment at Camp Pendleton. A. “Normal” Flow Attention has been called to the fact that the Supreme Court in the litigation between the Government’s predecessor in interest and the Vails had stated that the normal flow of the river is not adequate for the two main riparian owners. I think the word “normal”, in cases of this character, is used in its dictionary sense implying the usual, the ordinary, as distinguished from the extraordinary. It is defined in the dictionary as “The ordinary, usual condition, degree, quantity or the like; average, mean.” When you are dealing with elements which operate periodically, normality implies an average over a particular number of years. Thus, the dictionary defines “normal” from a “meteorological” point of view in this manner: “Of a meteorological element average over many years at a particular place and for a definite time, a certain day or some other specified period.” The legal definitions accord with these. Thus, where the court had before it a contract which related to the “normal high water line”, it held that the word was used in the dictionary sense as meaning the normal or average height the water reached at the highest stage during the year. The Court said: “The use of the word normal may not be ignored and applying it to the word ‘high’, we must conclude the contract did not mean the highest level to which water naturally raised prior to 1924 for a sufficient length of time to make a mark, but the normal or average height the water reached at the highest stages during the years. The evidence merely as to the highest line the water may have reached, did not thus establish the ‘normal high line.’ ” This accords with the ordinary speech habits of men, and also with the pattern in arid states. When we speak of “normal” rainfall, we speak of the average usual rainfall established by meteorological data over a course of years. In actual practice we all know that, at times, the normal is not reached for a period of years, and, on the contrary, periodically, we have high precipitation. And as we are dealing with a stream in a dry country, and a channel through which the flow varies from dry years to flood years, and varies greatly during what is known as the rainy season from the normally dry season, it must be quite evident that when the court spoke of normal flow, it referred to the ordinary flow in the channel over a period of years, considering the fact that the Santa Margarita River is a flash flood stream, without a control structure. B. The Water Used Accurate measurements exist to show the actual use of water by the Government’s establishment from the year 1943 to date. The yearly use is shown in the following chart: Quantities of Water from the Santa Margarita River Historically Utilized Both Within and Without the Watershed by the United States of America This gives an average ¡ per year of 9,934 acre-feet. The needed average, on a present-day basis, is 11,000 acre-feet per year. The testimony in the record warrants the conclusion that the use is reasonable; that, in fact, it is, in some respects, below what military authorities believe to be the actual needs of the three military establishments. One of the witnesses, a high ranking Marine Officer, testified that, in his opinion, the equipment and machinery at Pendleton is “filthy”, because of lack of adequate water supply. It is a fair inference that the average use of military personnel in an establishment of this character should be at least 150 gallons per man per day. This minimum is not used, and the average at Pendleton is lower than the experts have declared to be reasonable for well-built suburban areas. We are satisfied that the military authorities have husbanded the water resources well. They have limited strictly the use of water on their agricultural land. They have treated sewage and the affluent from the sewage treatments has been discharged into a lake where, after its being temporarily used for recreational purposes, it is released into the river basin in order to recharge it and thus increase the underground supply. No water is taken by the Government from the stream itself. All the water is from underground pumping through various wells located in the area. Of the water used by the Government, some has historically been used on irrigated lands lying outside the watershed.. The maximum demand upon the Santa Margarita River which the Government is asserting as to them is indicated by the following table: . . The pre-trial opinion discussed fully the question of acquisition of prescriptive rights by a non-riparian diversion such as one outside the watershed. Wé refer in the margin to some of the most recent cases asserting this doctrine. The undisputed record is that the use of water outside the basin began in 1938 by the Government’s predecessor in interest, after a finding in the case which later resulted in a stipulated judgment, that there was not water enough at normal flow to satisfy both riparian owners. In the circumstances, it matters not whether the use is by the lower' riparian owner or an upper riparian owner. For the, lower riparian owner, having put some, of the water to non-riparian use, he has put the water to a hostile use against anyone, including appropriators who might have been entitled to it as surplus water. C. The Water Available The geological and hydrographic description of the Santa Margarita River and the basin has already been given. And reference has also -been made to geological and other data available in Government and other official publications. Having -set forth the use of water and the possible use by the two chief riparian owners, it becomes necessary to consider the supply available. The Government’s experts have presented charts and computations showing the water available in the basin from 1923 to 1952. In referring to quantities, the measure used is acre-foot. And an acre foot is defined by water and soil experts as that amount of water which would cover one acre-one foot deep. The amount is 43,560 cubic feet or 326,000 gallons. A cubic foot per second is a cubic foot each second. That amounts to a flow of two acre-feet in a twenty-four hour period. The acre-foot is volume, and the second foot is rate. In attempting to reconstruct the flow of the stream, the Government experts have measured diversion through pumping and surface diversion. This for the reason that a subterranean basin as well defined as this basin is a part of a stream and an integral part of the water supply. The exhibits which embody the conclusion are rather lengthy. But a summary of them may be given by paraphrasing the language of one of the Government’s experts, Paul F. Henderson. In the first year, 192-1-1925, the month of June shows that the reconstructed stream flow was approximately 1,000 a-cre-feet. In the water-supply year 1925-1926, there was a fairly large flow occurring during the month of April, the reconstructed flow being approximately 14,500 acre-feet. The next year 1926-1927 was one of the very heavy run-off years. The flood occurred in February, the total reconstructed flow being 81,700 acre-feet. The years 1927-1928, 1928-1929, 1929-1930, 1930-1931 are all what might be termed minimum flow years with the average monthly flows in the river varying between 1,000 and 2,500 acre-feet per month. In 1931-1932, in the month of February a small flood occurred with the reconstructed flow amounting to 31,680 acre-feet. The years 1932-1933, 1933-1934, 1934— 1935 were again low run-off years. For the year 1935-1936, the reconstructed run-off would be approximately 7,500 acre-feet. One of the largest run-off years occurred in 1936-1937, with a reconstructed flow of 56,030 acre-feet in February and 36,000 acre-feet in March. This was followed by one of the largest single month run-offs, which occurred in March of the water supply year of 1937— 1938, with a recorded or reconstructed flow of 106,400 acre-feet. The years 1938-1939 and 1939-1940 had comparatively low flood flows in February. The 1940-1941 year was another year of heavy flood flows. It showed a reconstructed flow of 53,570 acre-feet in March and 37,750 acre-feet in April. The year 1941-1942 was a low flow. There was another full water supply year in 1942-1943, with floods occurring in the month of January, fairly heavy flow in February, and another heavy flow in March. The drought period then became progressively worse with average flows during the year running from 1,000 to 1500 acre-feet. From this study of the recorded diversions for a period of twenty-eight years, the conclusion is reached that Even that figure could not be safely relied upon without the construction of a small equalizing reservoir at the DeLuz site. Such reservoir would not be used for storage, 'but would be installed to spread the flood flows out for such a period of time as the water could be introduced into the subterranean basin underlying the Camp Pendleton site. “the safe annual water supply at Camp Pendleton from the Santa Margarita River, with full usage of the subterranean basin, is 12,500 acre-feet annually.” During the period of extreme flow, there would be considerable spill from an equalizing reservoir allowing the water to spread out over the pumping area. There is no such structure on the basin at the present time. The only dam structure is the Vail dam. The stipulated judgment between the Vails and the Government’s predecessor in interest insures a minimum quantity of three second feet at the Temecula Gorge, which, flowing for twenty-four hours, would amount to six acre-feet per day. It was the opinion of the expert that, but for the requirement for this minimum flow at Temecula Gorge, very little, if any, water would reach Camp Pendleton during the summer season, with the exception of the heavy flood flows. In order to prevent damage to the basin through intrusion of sea water, it is necessary to maintain a fresh-water barrier at the lower end of the pumping basin, which is estimated as 8000 acre-feet. A glaring fact which stands out in the history of the water supply in this basin is that, at high flood time, large quantities of water run off in a very short period of time. Thus, in the year 1926-1927, of the 81,600 acre-feet for the month of February, 67.000 went through in one day. This type of flood occurred during the measured period some six or seven times. Thus, in 1932 and 1933, of the total run-off of 40,600 acre-feet, 31,200 was in the month of February. And of this amount, 12,000 acre-feet in one day, — February 16th. In 1936 and 1937, there was a run-off of 117,200 acre-feet, of which 92,000 ran off in two months, February and March. On February 7th, 22,000 ran off in one day. Of the 36.000 feet in March of that year, 10,000 occurred in one day, — March 16th. The water year of 1942-1943 showed a run-off of 74,270 acre-feet of which there were 32,700 acre-feet in January, with 19,000 acre-feet in one day, — January 23rd. These facts are very significant. For the defendant’s water expert has included these extraordinary run-offs in order to formulate the indefensible conclusion that they can be considered a part of the “normal” flow so as to show a greater water supply than testified to by the experts of the Government. This expert, Mr. Harold Colliding, by including the uncontrolled flood waters and making them a part of the available supply, and by postulating two reservoirs not yet built, in addition to the Vail reservoir, and by assuming their existence and function over the entire twenty-eight year period,, reached the conclusion that, after deducting all the diversions of the riparians, there would have been brought up in the underground a surplus of some 9620 acre-feet. In summing up this conclusion, the expert makes the following observations in one of his exhibits: “This is the discharge into the ocean that would occur in a period of average precipitation with Camp Pendleton using water as in 1952 and after Vail and Fallbrook Reservoirs were fully operating. “a. This diversion assumes Fall-brook Reservoir retains all water arriving at any time of year up to its capacity so that the only water passing are the spills when the supply exceeds capacity. If, however, the summer flows which would surely percolate in the Pendleton basins if not dissipated enroute were padded through the Fallbrook Reservoir, the average annual diversion would be about 10,-500 acre-feet instead of 12,460 and safe yield of Fallbrook Reservoir would be about 7000 acre-feet instead of 10,000. Discharge past Ysidora would be about 2000 acre-feet more, giving an annual average of about 11,600 instead of 9620. “b. Diversion minus sewage return to basins.” I-believe the conclusion is fanciful. It postulates the possibility that the court under its power to indicate an alternative solution could order the riparians to spend millions of dollars in constructing dams. There is no warrant in law for such action. The value of the opinion is further vitiated by the fact that the construction of these dams would not, of themselves, assure an increase in present water supply. They are a water expert’s speculations as to what might have happened if, during a period of twenty-eight years, the flood waters had been stored and been used to replenish the underground. But as both Santa Margarita and the State contend that ¡both cyclical and seasonal storage of riparian water is illegal, this clearly represents a, .case , of wishful thinking. For the court, in seeking another solution of the problem, cannot suggest a solution which is impossible because incompatible with the water law of the State, which we are bound to apply. The Government’s experts have rejected as impractical a dam of the type envisaged by Mr. Conkling. The only type of dam or reservoir that they consider feasible on this stream which would assure a more uniform supply is an equalizing reservoir that would not be used for storage, but merely for the purpose of spreading the flood flows out for such period of time as the water could be introduced into the subterranean basin underlying the Camp Pendleton area. In this we agree. And, assuming that appropriatqrs might construct such dam, we should not jeopardize the rights of the riparians in the vain hope that a generous appropriator. might, after many years, ' achieve an adequate supply from an unnamed source. 'Judgment and declaration quieting the title' of the Government will be entered, in accordance with 'the views here expressed and the order embodying specific findings filed with this opinion. Order as to Findings The above-entitled cause, heretofore ■ tried, argued and submitted, is now decided as; follows: Upon the grounds stated in the Opinion filed herewith, Judgment and Declaration quieting Title of the 'Government will be entered. Such Judgment and Declaration to contain the following specific Findings. 1. Of the Government’s acreage involved in this litigation, 37,882.2 acres lie in the watershed of the Santa Margarita River and are riparian to it. 2. Of this acreage in the watershed, 18,-648.3 acres can be irrigated profitably according to the standards recognized by the Soil Conservation Service of the Department of Agriculture. 3. The riparian acreage of the Vails is 40,575 acres, of which 29,410 acres can be profitably irrigated. These lands are within the watershed of the stream and drain into it. They have access to the stream and constitute one continuous piece, no part of which has ever been severed from its riparian rights. 4. The Vails have, at the present time, 4500 acres under irrigation. 5. On the basis of an irrigable acreage of 29,410 acres, 79,514 acre-feet of water could be applied profitably to the irrigable Vail lands., 6. The 18,648.3 acres of irrigable land of the Government in the watershed would call for a duty of water of 69,237 acre-feet of water per year. 7. As to such prospective use, the Government is entitled to a declaration that its right to such water is paramount to those claimed by Santa Margarita under its applications dated October 4, 1946 and November 12, 1947. 8. As between the Government and the Vails,, their correlative rights are to be determined according to the stipulated judgment entered in the case entitled Rancho Santa Margarita v. Vail, et al., No. 43850, Superior Court, San Diego County, on December .27, 1940, as agreed to by stipulation entered between the Government and the Vails on July 8, 1952. 9. The military use is a riparian use and the Government’s paramount -rights extend to the full measure of the. capable riparian agricultural use to which the lands can be put. The Government has put to beneficial use water to the extent of an average of 9934 acre-feet per year. The present needed average is 11,000 acre-feet per year. This use is reasonable and beneficial. Included in this amount is 4806 acre-feet used on irrigated lands outside the watershed which the Government has acquired the right to use by prescription, unaffected by any administrative action by the Department of Water Resources of the State of California. 10. A study of the water supply leads to the conclusion that not more than 12,-500 acre-feet annually, under the most favorable circumstances, are available as a water supply at Camp Pendleton. 11. If the correlative rights of-the two chief riparian owners are considered, there was not at the time of the filing of the appropriation notices by Santa Margarita in 1946 and in 1947, any surplus water supply to appropriate. 12. There is no surplus 'water supply at the present time subject to appropriation. 13. As Santa Margarita has not made any diversion and no permits for diversion or for construction of a dam have been issued by the State of California, injunction against further prosecution of the applications is not necessary. A declaration of rights will suffice. The Court is certain that, in acting on any application, the State authorities will take into consideration the terms of this decision. 14. Findings and Judgments to be prepared by counsel for the Government declaring the rights and quieting title. 15. The adjudication here made and the Findings and Judgment shall be considered a partial adjudication of the claim herein under Rule 54(b) of Federal Rules of Civil Procedure, 28 U.S.C.A., be subject to revision, and not become ■ final until' the claims of Santa Margarita and Fallbrook are finally determined. See, Reeves v. Beardall, 1942, 316 U.S. 283, 62 S.Ct. 1085, 86 L.Ed. 1478. ¡APPENDIX A' Order on Pre-Trial Hearing Separate trials in the above-entitled action having been ordered March 31, 1952 by this Court as between the United States of America and Fallbrook Public Utility District, Defendant; Santa Margarita Mutual Water Company, Defendant and the State of California, Defendant in Intervention, having been made a party to the separate trials on July 11, 1952; a pre-trial conference having been duly held by-this Court July 8, 1952 through July 11, 1952, the parties being represented by their respective counsel, who after extended conferences have approved as among themselves in regard to this, cause the' agreed facts and having severally 'set out certain contentions of the parties and disputed facts; all as evidenced by the attached document designated “Pre-Trial-Order” signed by the respective counsel and which is incorporated herein; questions of law -for determination in advance of trial having been separately tendered by the respective parties ; this Court finds that it has jurisdiction of the proceedings and that there is in existence an actual controversy between the parties. The Court finds that it is for the best interest of the parties hereto and for the public interest that all rights to the 'use of 'water in the Santa Margarita River system of all parties to this action be determined as against the others and the filing of cross-pleadings is dispensed with as unnecessary and inconvenient. Provided that the Order setting this" cause for separate trials is not affected hereby. The issues in this cause are hereby defined and limited in conformity with the statements contained in the Stipulation between the State of California and the United States of America, dated November 29, 1951, a copy of which is embraced in Paragraph H 1 of the attached Pre-Trial; Order. It Is Therefore Ordered that the attached Pre-Trial Order is adopted by this Court; that the Court reserves the right to amend it by consent of the parties or in the furtherance of justice; that upon trial of this cause no proof shall be required as to matters of fact specifically agreed upon in the Pre-Trial Order. Pre-Trial Order A pre-trial conference having been held commencing on July 8, 1952, at San Diego, California, Honorable Chief Judge LEON R. YANKWICH presiding, the United States of America, Plaintiff, appearing by its counsel Wiliam H. Veeder, Esquire, Special Assistant to the Attorney General, Department of Justice, and David W. Agnew, Esquire, Attorney, Department of the Navy; Fallbrook Public Utility District, Defendant, appearing by its counsel Phil D. Swing, Esquire; Santa Margarita Mutual Water Company, Defendant, appearing by its counsel W. B. Dennis, Esquire; the State of California, Defendant in Intervention, appearing by its counsel Arvin B. Shaw, Jr., Esquire, Assistant Attorney General of California: The Court Makes the Following Order on Pre-Trial: Jurisdiction: , This Court has jurisdiction of the above-entitled action by reason of the express declaration by Congress that the United States District Court “ * * * shall have original jurisdiction of all civil actions, suits or proceedings commenced by the United States, * * Existence of Controversy : This Court finds that an actual controversy exists over the respective claims of rights to the use of water of the Santa Margarita River System among the United States of America, Plaintiff; Fallbrook Public Utility District, Defendant; Santa Margarita Mutual Water Company, Defendant; and the State of California, Defendant in Intervention and other defendants. Request for Action: At the request of the Department of the Navy this action was instituted by the Attorney General of the United States of America. Separate Trials: This Court on March 31, 1952, entered an order granting separate trials against the named defendants. That order is as follows : “The plaintiff haying moved the Court for an order directing a separate trial of the issues herein as to each of the defendants Santa Margarita Mutual Water Company and Fallbrook Public Utility District, and “It appearing that because of the large number of defendants involved in this action it will not be practicable to try the issues as to all of the defendants in one trial, and “It' further appearing that each of the defendants above named claims an appropriative right to divert large quantities of water from the watershed of the Santa Margarita River, and that the plaintiff contends that proof of its rights and those of defendants Mary Vail'Wilkinson, Mahlon Vail, Edward N. Vail, Margaret Vail Wise and Nita M. Vail, trustees, will show that no water of said river is surplus for appropriation by defendants Santa Margarita’ Mutual Water Company and Fallbrook Public Utility District, and “It further appearing that the issues presented with reference to each of the defendants Santa Margarita Mutual Water Company and Fallbrook Public Utility District may be tried in separate trials without prejudice to the rights of such defendants and without prejudice to the rights of any. other defendant, and “It further appearing that a separate trial as to each of said last named defendants will facilitate the disposition of the issues,as to many of the other defendants, and good cause appearing therefor, “It Is Ordered that a separate trial be had as to the issues with reference to the defendant Santa Margarita Mutual Water Company and .that a separate trial be had as to the issues with reference to the defendant Fallbrook Public Utility District.”’ On July 11, 1952, the scope of the separate trials was broadened to include the State of California, Defendant in Intervention. Agreed Facts A. Description of the Santa Margarita River System and Its Drainage Area 1. The Santa Margarita River is a non-navigable intermittent stream having a drainage area of 740 square miles, 192 square miles of which are situated in San Diego County, California, and 548 square miles in Riverside County, California. The Santa Margarita River watershed is semi-arid. 2. Temecula .Creek and Murrieta Creek have, their junction at the head of Temecula Gorge and there form the Santa Margarita River. 3. Rising on the eastern slope of the Coastal Range in San Diego County, near the present site of the Palomar Observatory, Temecula Creek proceeds in a northerly and westerly direction a distance of approximately fourteen miles where it enters the Pauba Grant of the Vail Estate. After entering the Pauba Grant it flows northwesterly through a portion of the grant known as Nigger Valley, for a distance of a little more than three miles. It then enters a narrow canyon on the Pauba Grant known as Nigger Canyon. In a state of nature Temecula Creek flowed through Nigger Canyon for a distance of approximately two miles. Situated across the channel of Temecula Creek at the upper end of Nigger Canyon on the Pauba Grant, in the Northwest Quarter of the Northwest Quarter, Section 10, Township 8 South, Range 1 West, is the Vail Dam, creating a reservoir with a capacity of approximately 50,000 acre-feet. 4. Below the Vail Dam, Temecula Creek traverses Pauba Grant for a distance of approximately eleven miles. 5. Leaving the Pauba Grant of the Vail Estate, Temecula Creek continues its westerly course across the Little Temecula Grant of the Vail Estate for a distance of approximately one and a half miles. That stream then enters the Temecula Grant of the Vail Estate, flowing a distance of approximately two miles 6. Immediately before leaving the Temecula Grant of the Vail Estate, Temecula Creek has its confluence with Murrieta Creek and below that point is known as the Santa Margarita River.. 7. The.Santa Margarita River then enters Temecula Gorge, a narrow canyon through which it 'flows southerly and westerly for a distance of approximately nine miles. Though Temecula Creek, prior to its junction with Murrieta Creek, flows alternately as a surface and subsurface stream, the Santa Margarita River throughout Temecula Gorge in the state of nature is ,a surface stream. 8; -Shortly after leaving Temecula Gorge, the Santa Margarita River enters Camp Joseph H. Pendleton, the Marine Corps Training Base. It then flows in a generally southwesterly direction through Camp Pendleton — Naval Ammunition Depot — United States Naval Hospital lands for a distance of about twenty-one miles to-the Pacific-Ocean. For the full twenty-one miles the course of the river lies entirely' within the property of the United States of America. * 9. The' Santa Margarita River within the boundaries of the above-mentioned military establishments is an intermittent stream. B. Tributaries of the Santa Margarita River There are several tributaries of the Santa Margarita River from tidewater to its head waters: 1. DeLuz Creek, an intermittent stream which rises on the Santa Rosa Grant of the Vail Estate, proceeds in a westerly and southerly direction' to its confluence with the Santa Margarita River several miles within the boundary lines of Camp Pendleton. 2. Fallbrook 'Creek, an intermittent stream, rises east and south of the Santa Margarita River. Most of its length is within the 'boundaries of Camp Pendleton and the United States Naval Ammunition Depot and it has its present terminus in Lake O’Neill, an artificial reservoir which lies within the Camp Pendleton area. In the state of nature, Fallbrook Creek flowed into the Santa Margarita River. 3. Sandia Creek, an intermittent stream which rises on the Santa Rosa Grant of the Vail Estate, proceeds in a southerly direction to its confluence with the Santa Margarita River at a point a short distance above the easterly boundary of Camp Pendleton. 4. Rainbow Creek is an intermittent stream which rises east and south of the main channel of the Santa Margarita River and proceeds in a northerly and westerly direction to its confluence with that river a short distance above Sandia Creek. 5. Murrieta Creek, an intermittent stream, has its source north of the Temecula Grant of the Vail Estate and traverses the lands of that grant before it joins Temecula Creek to form the Santa Margarita River.- Junction of the streams takes place at a point about a half mile east of the westerly 'boundary of Temecula -Grant of the Vail Estate and a short distance east of Temecula Gorge. It has several tributaries, most important of which is Cottonwood Creek, an intermittent stream which rises on the Santa .Rosa Grant of the Vail Estate. Santa Gertrudis Creek, a tributary of Murrieta 'Creek, is. an intermittent stream rising on the Pauba Grant of the Vail Estate, traversing lands in other ownership before crossing a portion of the Temecula Grant prior to its confluence with Murrieta Creek. Warm .Springs Creek, an intermittent stream, rises east of Murrieta Creek and flows into that stream