Full opinion text
WHITAKER, Judge. Plaintiffs are the owners of certain tracts of land in Merced County, California, most of which are riparian to Salt Slough, which is a branch channel of the San Joaquin River. They allege that they have been deprived of their water rights by the construction and operation by the defendant of the Central Valley Project in California. They sue for just compensation. The physical characteristics of the San Joaquin River, its watershed and drainage basin, the historic development of the San Joaquin Valley, and the origin, construction, and operation of the Central Valley Project (including the operation of Friant Dam prior to integrated operation of the Central Valley Project) are fully set forth in our findings of fact. Findings and summaries of many of the same facts have been made in earlier cases before this court. Gerlach Live Stock Company v. United States, 1948, 76 F.Supp. 87, 111 Ct.Cl. 1, affirmed 339 U.S. 725, 70 S.Ct. 955, 94 L.Ed. 1231; James J. Stevinson v. United States, 1948, 76 F. Supp. 99, 111 Ct.Cl. 89; East Side Canal & Irrigation Company v. United States, 1948, 76 F.Supp. 836, 111 Ct.Cl. 124. Plaintiffs acquired their property in 1940 from one Sheppard who had acquired it from Miller & Lux in 1933. Both deeds (Miller & Lux to Sheppard and Sheppard to plaintiffs) contained reservations of water rights in the nature of covenants running with the land. The text of these reservations appears in finding 35. The reservations made the riparian rights of the land conveyed subordinate to the water rights of the grantor, whether riparian, appropriative, or prescriptive. Plaintiffs’ riparian rights were not extinguished, but the covenants were to act as an estoppel in favor of the grantor to the extent of the reservations. In prior years Miller & Lux and its subsidiary and affiliated companies had built a series of irrigation works upstream from plaintiffs’ lands. By virtue of litigation concluded before the conveyance to Sheppard, the appropriations of Miller & Lux and their affiliates had been validated by court decrees. The rights of both Sheppard and the plaintiffs were therefore subordinate to these appro-priative and prescriptive rights. The owners of the prior appropriative and prescriptive rights were entitled to use in one year a maximum of 1,428,074 acre-feet of water. Actually, their highest diversion during the years 1932-1951 was 1,027,180 acre-feet, and the average of their annual diversions during the same period was 870,834 acre-feet. While the flow of the river varied widely from year to year, it usually exceeded the volume of the possible maximum demand. Consequently, there was usually some excess over the water the prior appropriators had any right to demand, and almost always an excess over the actual use of the prior appropriators. The flow of the river in its natural state has been defined (finding 5) in terms of low, high, and flood stages. During the flood stages of winter and spring the river overflowed even the high channel banks to spread over the upland area. During the river’s high stages, but below flood stage, the water was confined to the banks of the high channel. A distinguishable sandy channel marked the flow of the river during its lowest stages. These stages of the river’s flow continued to be factors in the diversion and use of the water after the construction of canals and irrigation works by Miller & Lux and others and until the completion of Friant Dam in 1947. Prior to the construction of Friant Dam, therefore, water from the San Joaquin River reached the lands of plaintiffs in three ways: (1) through the overflow channel, when some of the lands were submerged by flood waters; (2) through the surface flow of water into the sloughs as part of the high channel of the river during its higher, but not flood stages; and (3) through the underground flow of the alluvial cone, some of which surfaced into and flowed through Salt Slough. At all times material here the only water in Salt Slough during the crucial summer months was return flow ■of irrigation water that had been distributed to lands upstream during the crop season. Plaintiffs are not now demanding compensation for loss of either the overflow or the surface flow, as above defined. 'Their lands were wholly deprived of the ■overflow in 1947, when Friant Dam was placed in operation. The surface flows were interrupted by the construction of ■the dam as early as 1944. When the dam was completed, the surface flows, although not stopped entirely until 1951, ¡became dependent upon the timing and ■quantity of releases by defendant from Friant Reservoir. Ten years elapsed between the completion of Friant Dam and the filing of this action. Plaintiffs’ claims in this action are for the alleged loss, in 1951, of rights in the return flow of irrigation water. This flow was never stopped. On the contrary, its volume and dependability were enhanced by defendant’s substitution in 1951 of the waters of the ■Sacramento River for San Joaquin waters. Up to 1951 plaintiffs continued to receive waters from the San Joaquin River. The year 1951 marked the completion of the Delta-Mendota Canal and the beginning of the integrated operation of the 'Central Valley Project. Whereas Friant Dam had been placed in operation in 1947, and was thereafter used to store waters in Friant Reservoir and to control releases of flows down the San Joaquin River, the integrated operation of the ■Central Valley Project had to await completion of the Delta-Mendota Canal and its auxiliary pumping stations, so that water from the Sacramento River could be introduced into Mendota pool to SUbstitute for water from the San Joaquin River, which was thereafter directed to other uses. As a consequence of the substitution, the return flow in Salt Slough after August 1951 consisted of water from the Sacramento River rather than water from the San Joaquin River. It is this deprivation of San Joaquin water of which plaintiffs complain. Their contention is that their riparian rights depended on San Joaquin water; that the substitution of exchange waters extinguished their riparian rights; and that without such rights, the potential use of their lands was reduced from wet (irrigated farming) to dry (native pasture), with consequent loss of value. In anticipation of the eventual substitution of waters, defendant, in 1939, had entered into an agreement with Miller & Lux and its subsidiaries providing in detail, first, for the release of water from Friant Reservoir, after the Friant Dam had been completed and until the delivery of substitute water through the Delta-Mendota Canal when that system would become operative, and for continued delivery of this substitute water thereafter. This contract granted defendant the right to continue to store, divert, dispose of and otherwise use the San Joaquin waters theretofore reserved so long as substitute water is delivered in conformity with the contract. Defendant has faithfully and fully delivered the substitute waters. In fact, the parties have by stipulation agreed that “the supply of substitute water guaranteed to Miller & Lux and its affiliated companies under the exchange contract is far better than the supply * * prior to the construction of the Central Valley Project.” The parties have further agreed by stipulation that “so long as the great area of cropland lying generally to the southeast of plaintiffs’ land continues to be irrigated, it is virtually certain that the flows in Salt Slough, [which is upstream from plaintiffs’ land] during the irrigation season, will be of the same order of magnitude * * *” as previously. Consequently, there is no foreseeable prospect of loss by plaintiffs of the physical supply of water, unless, under superior right, the return flow can be diverted or required for other uses. No such superior right has been asserted against plaintiffs. None has been established under California law. We believe none exists. We conclude, therefore, that plaintiffs are not entitled to recover. On the basis of the evidence in the case and the California cases cited, nothing of substance has been taken from plaintiffs. Plaintiffs rest their case on the thesis that, whereas they had riparian rights as long as the water came from the San Joaquin River, water from the Sacramento River was foreign water; and under California law, they say, he who discharges foreign waters into a stream may take them away with impunity. The facts in the California cases cited in support of this foreign waters doctrine are not parallel to those in the instant case. In none of them was there a complete diversion of the natural waters of a stream accompanied by a guaranteed substitution of an equal amount of other waters. In the absence of a specific ruling by a California court, we cannot accept the application of the foreign water doctrine to the exchange waters of the Sacramento flowing down the channels of the San Joaquin from Mendota pool. These waters of the Sacramento were substituted in consideration of the diversion of the San Joaquin waters. Their substitution was a part of the whole plan proposed by the Secretary of Interior and approved by the President and authorized by Congress. The diversion of San Joaquin waters was authorized only because of the commitment to substitute water from the Sacramento River. We do not believe that the United States could, with impunity, take away the substituted waters. If, on the facts of the case, the return flow of irrigation water in Salt Slough remains unimpaired in quality and undiminished in quantity and there is no-foreseeable prospect of change in that situation as long as the economy of the-region continues to obtain; and if, by contract, as well as by law, defendant is-committed to supply water to the holders-of superior rights from whom plaintiffs-derive their return flow, how can they have been damaged? The trial commissioner of this court, to> whom this case was referred for trial,, submitted a recommendation for conclusions of law with his report of the facts. In an opinion in support of his recommendation he reasoned that plaintiffs had; shown a right to recover because of impairment of the status of their riparian; rights, in that “no case has been cited (or found) in which rights in water other than the natural flow have been declared to be riparian.” While he questioned whether “plaintiffs, riparians; yesterday, are trespassers today, simply because the substitution of waters had the effect of removing one of the traditional ingredients of the legal concept of riparian,” he would have given plaintiffs the opportunity to prove, if they could, a diminution of the market value-of their lands as a result of this technical: impairment. Plaintiffs are not entitled to compensation for a legal technicality. They must first show that something of substance-has been taken from them. Plaintiffs themselves concede as much in their exceptions to the trial commissioner’s-recommendation. They decline the opportunity the commissioner’s solution; would have afforded them, to try to prove actual, as distinguished from nominal: damages as a result of the substitution, of waters. They insist (1) that their riparian rights have been extinguished,, and (2) that the measure of compensation is not the diminution in market value resulting from the substitution, but the difference in value between the lands wet and the lands dry. If they had riparian rights in the return flow, and if those rights were ex"tinguished by the substitution of waters, they have, instead, the obligation of the United States to substitute an equal amount of water from the Sacramento. Neither right is superior to the other. The conclusion follows, as suggested by ihe trial commissioner, that any impairment there may have been of plaintiffs’ rights amounted at most to a technicality. There is no actual damage as a result of the deprivation of the San Joaquin waters and the substitution of the Sacramento waters. The foregoing analysis is the intention and the obligation derived from the statutes of California and of the United States to prevent such a loss as plaintiffs now claim, through the preservation as far as possible of existing water rights in the course of executing the Central Valley Project. Before the Central Valley Project was authorized as a undertaking by the United States, a California statute (1933 CaLStat. p. 2643, c. 1042) contemplating the project as a State undertaking provided : “In the construction and operation by the authority of any project under the provisions of this act, no exchange of the waters of any watershed or area for the waters of any other watershed or area may be made by the authority unless the water requirements of the watershed or area wherein such exchange is made are first and at all times met and satisfied to the extent that such requirements would have been met were the exchange not made, and no right to the use of water shall be gained or lost by reason of any such exchange thereof.” Inasmuch as the project was ultimately executed by the Federal rather than the State Government, no occasion has arisen for interpretation of the statute by the California courts. As recently as 1955, however, the Attorney General of the State made an analysis of the statute in which he concluded that the application of the section quoted was limted to the watershed-of-origin of the exchange waters, since the section was part of an act for the protection of watersheds-of-origin. The limited application suggested by the Attorney General would not, however, detract from the manifest intention of the legislature to provide that “no right to the use of water shall be gained or lost by reason of any * * exchange thereof.” The Central Valley Project was taken over and executed by the United States under the Reclamation Act of 1902, as amended, 32 Stat. 388, 43 U.S.C.A. §§ 411, 416, 432, 434. The adoption of the project as a Federal undertaking began with approval by the President of the Feasibility Report by the Secretary of the Interior. Substantial portions of this report (submitted November 26, 1935, and approved December 2, 1935) are set forth in finding 59. Following a description of the general outlines of the project, and a specific reference to the plan to convey Sacramento water up the San Joaquin, the report said: “ * * * This water [referring to water from the Sacramento] will replace San Joaquin River water now used for irrigation in the northern San Joaquin Valley, thus permitting the entire flow of the San Joaquin River to be regulated in Friant Reservoir * * * and to be utilized in the southern San Joaquin Valley where local supplies are deficient. * * * ” [Italics supplied.] In every year from 1936 to 1949 the Congress made appropriations for carrying out the Central Valley Project. The project was specifically reauthorized by two of these appropriation acts. (The Act of August 26,1937, 50 Stat. 844,850; and the Act of October 17, 1940, 54 Stat. 1198, 1200.) It is apparent from the foregoing that the President has approved and the Congress has confirmed the commitment by the United States to the obligation to replace the waters of the San Joaquin River with waters from the Sacramento River, and with specific reference to the area of plaintiffs’ lands (the northern San Joaquin Valley), which, prior to 1951, was receiving San Joaquin water “now used for irrigation.” The United States cannot withdraw from that commitment with impunity, and neither can it, with impunity, withdraw from any users such as plaintiffs the waters now supplied in substitution for waters formerly originating in the San Joaquin watershed. Any future withdrawal of such waters would render the United States liable to respond with just compensation as fully as defendant would have been responsible to so respond, if it had taken away the natural waters without making an equivalent substitution therefor. There has been no taking of plaintiffs’ rights for which just compensation has not been made. Plaintiffs’ petition will be dismissed. It is so ordered. JONES, Chief Judge, and LARA-MORE, MADDEN and LITTLETON, Judges, concur. Findings of Fact The court, having considered the evidence, the report of Trial Commissioner W. Ney Evans, and the briefs and argument of counsel, makes findings of fact as follows: Contents Findings I. The San Joaquin River and Its Flood Plain .................................... 1-6 II. Defendant’s Plan for Utilization of the Water ................................... 7-9 III. Appropriative and Prescriptive Rights... 10-21 IV. The Return Flow of Irrigation Water.... 22-23 V. The Execution of Defendant’s Plan.....24-33 A. Purchase of the Rights of Miller & Lux and Others ...............24r~25- B. The Agreement for the Exchange of Waters ........................26-27 C. Construction of Works and Impounding of Water ..............28-33 VI. The Plaintiffs’ Land and Its Water Supply ...................................34-43 A. Reservations of Water Rights by Miller & Lux .....................34-35 B. Acquisition of Lands by Plaintiffs 36-37 C. Water Rights at the Time of Acquisition ..........................38-39 D. Water Supplies: Before and After 40-43 VII. The Uses of Plaintiffs’ Lands ............44-52 A. Physical Aspects of the Lands .... 44 B. Actual Uses ........................ 45 C. Potential Uses ......................46-52 VIII. The Plaintiffs’ Legal Rights .............53-58 IX. Miscellaneous .............................59-69 A. The Feasibility Report ............. 59 B. Appropriation Acts ................. 60 C. Details of Haines Decrees ......... 61 D. Diversions by Miller & Lux and Others .............................62-64 E. Discharges of the River ........... 65 F. Statistics of Friant Dam ......... 66 G. Miller & Lux Reservations ........ 67 H. Legal Descriptions of Plaintiffs’ Lands ............................. 68 I. Return Flows in Salt Slough...... 6S i The San Joaquin River and Its Flood Plain 1. The Central Valley of California, approximately 450 miles in length, lies between the Sierra Nevada Mountains on the east and the coastal ranges on the west. The northerly two-fifths of the valley is drained by the Sacramento River system, and the southerly three-fifths is drained by the San Joaquin River system. The Sacramento River flows southerly and the San Joaquin flows northwesterly. Both empty through the same delta into Suisun Bay, an arm of San Francisco Bay. The controversy in this case centers around rights to the use of water of the San Joaquin River. 2. The San Joaquin River is a natural watercourse, with well-defined channels and banks and with its source in the Sierra Nevada Mountains. It flows thence westerly to the plains of the San Joaquin Valley, which it enters at a point known as Friant, the site of defendant’s storage and diversion dam, whose effect upon the waters of the river is the basis of plaintiffs’ claims in these actions. From this point, the river continues westward approximately 62 river-miles to a point in the valley near the town of Mendota, where it is joined by the Fresno Slough of Kings River. It then turns abruptly toward the north and flows in a northwesterly direction until it reaches San Francisco Bay. Certain tributaries empty into the San Joaquin between Friant and the lands of the plaintiffs and contribute water in varying amounts to the river’s flow. Certain other streams empty into the San Joaquin downstream from the plaintiffs’ lands. 3. In its course through the mountains and foothills and for some distance after it reaches the valley floor, the banks of the San Joaquin are so high as to preclude overflow, but after the river reaches a point known as Gravelly Ford, about 27 miles west of Friant, the banks become relatively low. In a state of nature and during periods of high or flood water, the river flowed out of its banks at places below this point and over and upon certain of the lands on either side of the river, either directly or after flowing into sloughs or branch channels. In the area of such overflow, the river flowed through numerous side channels, branch channels, and reaches of backwater, in addition to the main channel, such extra channels being referred to generally as sloughs. Some of the sloughs form networks; some have dead ends; some receive only backwater, and some receive water from the river and return it to the river at lower points, either directly or through connecting sloughs. Some sloughs branch off other sloughs. Some carry river water whenever there is water in the main channel; others carry river water only at higher river stages. 4. The natural flow of the river has been and is variable in quantity, both over the years and in periods within the years. In the spring and summer the river is fed by the melting snow pack of the Sierra Nevada Mountains and in the winter season by rainfall, supplemented by a small amount of snow-melt in the lower reaches of the mountains. As a result there have been two periods of high water, the winter rain flood usually in December, January, and February, and the spring or summer snow-melt overflow usually in April, May, and June, with considerable variance in the times of commencement, duration, and the times of peak flow. 5. In the vicinity of plaintiffs’ lands the river, in a state of nature and at the lowest stages of flow, was confined by natural banks to a sandy channel. This channel, except during stages of higher flow, hereinafter described, contained the water flowing in the river and is referred to as the low channel. Plaintiffs’ lands are located from two to three miles from the low channel of the San Joaquin River. At higher stages of the river in every year of ordinary flow, the waters spread further, and for a time were confined to a wider channel by such natural banks. This wider channel is referred to as the high channel. In every year of ordinary flow in a state of nature the river rose still higher, so that its waters were no longer confined to the high channel. The waters so overflowing the high channel banks and into and over the upland area moved slowly in the same general direction as the flow of the river in the low and high channels. This wide overflow was confined by rising ground on each side of the general overflow basin of the river. This is referred to as the overflow channel. The flood plain (subject to overflow) extends approximately from Gravelly Ford to a point below the confluence of the San Joaquin with the Merced. 6. While the Sacramento River has an annual runoff that is approximately twice that of the San Joaquin River, about three-fifths of the land in Central Valley is accessible only to the San Joaquin. As a result, much of the water of the Sacramento River, prior to the construction of the Central Valley Project, was dissipated needlessly into San Francisco Bay while large areas of fertile land in the southern part of the San Joaquin Valley remained undeveloped for lack of water. The State of California devised a plan under which the waters of the valley would be captured and used to greater advantage, which plan, although never carried out by the State, was subsequently taken over by the United States and became what is known generally as the Central Valley Project. II Defendant’s Plan for Utilization of the Water 7. The plan as formulated by defendant involved the irrigation of a large area of privately owned land nonriparian to the river situated both to the north and south of Friant in the California counties of Madera, Merced, Fresno, Tulare, Kings, and Kern. The plan contemplated, among other things, the construction of a dam across the San Joaquin River at Friant, forming a reservoir. It contemplated the construction of two canals, one with a capacity of 1,000 cubic feet per second, referred to later as the-Madera Canal, running north from the reservoir to the county of Madera, and another with a capacity of 3,500 cubic feet per second, referred to later as the Friant-Kern Canal, reaching south from the reservoir to the counties of Fresno, Tulare, Kings, and Kern. Except for occasional spills to provide reserve storage capacity for the purpose of flood control, the reservoir and canals were planned with capacity to store and divert substantially all the water customarily flowing in the San Joaquin River at Friant. Details of the plan were set forth in a letter dated November 26, 1935, addressed to the President by the Secretary of the Interior. The President approved the plan on December 2, 1935. Substantial portions of the letter are set forth in finding 59. 8. The plan has been altered in a number of respects since it was approved by the President. Among other things, the height of the Friant Dam was increased from 250 feet to 320 feet, enlarging the storage capacity from 400,000 acre-feet to 520,000 acre-feet. The proposed pumping system, which would have conveyed Sacramento River water up the bed of the San Joaquin River by means of natural and artificial channels and works, in a series ending at the mouth of the Merced River, has been supplanted by another which pumps Sacramento River water from the delta into the Delta-Men-dota Canal, to be carried thence by gravity south to Mendota. The capacity of the Friant-Kern Canal has been increased from 3,500 to 4,000 cubic feet per second. Due primarily to the exigencies of the Second World War, substantial portions' ■of the project were not completed on .schedule, but, with some modification, defendant’s original plan has continued as "the plan of defendant, and has been carried out by the construction of Friant •and Shasta Dams, the canals known as Madera, Friant-Kern, and Delta-Mendota, and other features. Congress has appropriated large sums of money to ‘finance the work. 9. (a) Defendant’s plan, as modified contemplated among other things, ■that the United States should eventually store and divert to nonriparian use the waters of the San Joaquin River originating above Friant Dam and formerly flowing at or below Gravelly Ford, except for releases from Friant which would be for one or more of three purposes: (1) to satisfy riparian rights between Friant and Gravelly Ford; (2) to reserve vacant storage space in the reservoir in the exercise of flood control, and (3), to supply, when available, water to meet the re-qüirements of the contract for exchange of waters referred to in finding 26. The exchange waters are primarily supplied through the Delta-Mendota Canal. In normal, contemplated operation, releases for purposes (2) and (3) above would not provide an adequate or a dependable source of water to fulfill the exchange contract or for the irrigation of riparian land below Gravelly Ford. (b) The plan contemplated that defendant should acquire or provide and maintain a substitute supply for all existing rights to the use of San Joaquin water originating above Friant Dam and formerly flowing at or below Gravelly Ford. Such rights were of three classes: <1) use of the water for production of cultivated crops; (2) use of the water for irrigation of controlled grasslands under appropriative or riparian rights; and <3) the riparian right to the flow of the river for the irrigation of other riparian lands, watering of livestock, and domestic purposes. (c) Defendant’s plan contemplated that compensation for the acquisition of the right to the use of water on croplands at or below Mendota Dam to approximately the mouth of the Merced River would be made by providing a substitute supply of water from the Sacramento River through the pumping system. Pending the construction and completion of the pumping system, the plan contemplated that sufficient water would be released from the Friant Reservoir to meet the requirements of the cropland rights. The plan contemplated that the rights of the second and third classes enumerated in paragraph (b) above were to be purchased or otherwise acquired by the defendant. Ill Appropriative and Prescriptive Rights 10. Miller & Lux, Incorporated, a Nevada corporation doing business in California, and certain of its subsidiary and affiliated companies were, prior to the construction of the Central Valley Project, the owners of rights to the use of a very substantial portion of the flow of the San Joaquin River. 11. Beginning about 1870 and continuing over a course of years, Miller & Lux and certain subsidiaries or affiliated companies constructed a series of control works along portions of the San Joaquin River and its sloughs. These physically changed to some extent the state of nature, so that as operated and maintained by Miller & Lux the overflow from the river and some of the sloughs was modified as to some of the land. Prior to any of the times here involved, Miller & Lux had become the owner of large areas of land, beginning with a narrow strip at Gravelly Ford and extending in varying widths down the San Joaquin Valley to approximately the junction of the Merced River with the San Joaquin River, among which lands were those of the plaintiffs, who acquired their lands from Miller & Lux by a mesne conveyance. Large portions of the lands owned by Miller & Lux, including portions of those of the plaintiffs herein, were riparian to the San Joaquin River, or to sloughs or branch channels thereof, and in some instances to both. 12. (a) At the respective times here involved, San Joaquin & Kings River Canal & Irrigation Company (whose rights were later acquired by the Central California Irrigation District), Gravelly Ford Canal Company, Columbia Canal Company, Firebaugh Canal Company (formerly Panoche Canal Company), and San Luis Canal Company were corporations. (b) Prior to any of the times here involved, such corporations, with the consent of and under agreements with Miller & Lux constructed certain canals and works and thereby diverted and appropriated large quantities of the water of the San Joaquin River for the irrigation (1) of lands riparian to the San Joaquin River owned by Miller & Lux, and (2) of lands nonriparian to the San Joaquin River owned (i) by Miller & Lux and (ii) by other persons. (c) Also prior to any of the times here involved and in addition to the foregoing diversions, Miller & Lux constructed certain canals and works and thereby diverted and appropriated waters of the San Joaquin River for the irrigation of lands owned by it, both riparian and non-riparian to the San Joaquin River. 13. (a) A large part of the water so diverted and appropriated by Miller & Lux and by the companies named in finding 12 (a) was appropriated and diverted and was used for the irrigation of croplands. A large part also was diverted and appropriated and was used for the purpose of irrigating grass or pasture-lands through the medium and under the control of canals, ditches, levees, and other works. Such grasslands were re-' ferred to as controlled grasslands. Some of these lands, including portions of the lands of plaintiffs, were riparian to the San Joaquin River or to sloughs or branch channels thereof. Miller & Lux applied water to those controlled grasslands only during periods when flows, were in excess of the amounts that could be used beneficially on croplands. (b) In addition to the croplands and controlled grasslands so irrigated, Miller & Lux owned lands of another character riparian to the San Joaquin River, its branches and sloughs. During the periods of spring and winter high water or floods, at times of normal or greater than normal flow, the waters of the San Joaquin River flowed by and over and upon such grasslands by means of the main channel, and branch channels and sloughs, and moistened such lands and provided water for cattle and other livestock. Lands so watered were referred to as uncontrolled grasslands. 14. In the early 1920’s, Miller & Lux and two of its affiliated companies commenced three actions in the Superior Court of the State of California in and for the County of Fresno. In one of the-actions, No. 25729, Miller & Lux Incorporated was plaintiff, and Madera Irrigation District and certain individuals-, were defendants. A decision, consisting-of findings of fact and conclusions of law,, was rendered in that case on January 4,. 1933, and a decree was entered in accordance with such decision on January 26,. 1933. In the second action, No. 25730,. the San Joaquin & Kings River Canal &. Irrigation Company, Incorporated (successor to San Joaquin & Kings River Canal & Irrigation Company) was plaintiff,, and Madera Irrigation District and certain individuals were defendants. A decision was rendered in such action on January 4, 1933, consisting of findings of fact and conclusions of law, and a decree was thereafter entered in accordance with such decision. In the third action, No. 25731, San Luis Canal Company, a corporation, was plaintiff, and Madera Irrigation District and certain individuals were defendants. A decision in this case was rendered December 31, 1932, and a decree was thereafter entered in accordance with such decision. These decisions and the decrees entered upon them are referred to herein as the Haines decrees, so called because they were rendered by Honorable Charles C. Haines, Judge of the Superior Court. 15. (a) The Haines decrees adjudicated that Miller & Lux and its affiliated companies had appropriated certain quantities of water for the irrigation of the land there involved, including cropland and controlled pastureland; that such diversion, appropriation, and use had continued adversely to all the world for more than five years; that Miller & Lux and its subsidiaries had acquired thereby a prescriptive right to the use of the water so appropriated; and that Miller & Lux and its subsidiaries were the owners by prescription and appropriation of the rights so defined in the decrees. These rights were expressed in terms of cubic feet per second, but, except in two instances, with a limitation as to the total diversion in terms of acre-feet per year. (b) For a long time prior to the construction of the Central Valley Project there existed a number of appropriative and prescriptive rights which were entitled to be satisfied out of the waters of the San Joaquin River flowing past Fri-ant. Some of these (1) were so entitled apart from agreement or covenants or reservations and conditions in deeds (including those hereinafter mentioned) and (2) were adjudged by the Haines decrees to be owned by Miller & Lux and certain other corporations; and some were owned by other diverters. (c) All of the appropriations described in this finding were upstream from the lands of plaintiffs. The rights thereto were valid and subsisting as of the date of the Haines decrees. There has been no change in their number or magnitude between the date of the Haines decrees and the present, except that certain of them have been acquired by the United States in whole, in part, or on condition, with consequent changes in points of diversion and place of use. The appropri-ative and prescriptive rights described in this finding were entitled to receive, in the aggregate, a maximum annual flow of 1,428,074 acre-feet. 16. (a) Prior to the construction of the Central Valley Project there were also lands irrigated by water taken from the San Joaquin River between the head of the Gravelly Ford Slough and Friant Dam. These rights were riparian rather than appropriative or prescriptive rights and amounted in the aggregate to 30,-464 acre-feet per year. (b) In the Haines decree the Madera Irrigation District was held to be entitled to appropriate water from the San Joaquin River when the flow at Friant exceeded 20,000 second-feet or the yearly runoff exceeded 3,000,000 acre-feet. No water was ever diverted from the San Joaquin River by the Madera Irrigation District under such right. 17. During the period from 1895 to 1928, Southern California Edison Corn-pany and San Joaquin Light and Power Corporation, or their predecessors, constructed dams and reservoirs, in the San Joaquin River Basin above Friant and stored water in the reservoirs and released and regulated the flow of the waters through a series of power plants. Beginning in 1906, Miller & Lux and its subsidiaries entered into numerous contracts with the two power companies or their predecessors, by the terms of which it was agreed generally that, subject to certain limitations as to times and quantities, the two companies might store waters of the San Joaquin River system during comparatively high stages of the flow, and use the stored water for the production of power and return it to the river above the lands owned by Miller & Lux during lower stages of the flow. The effect of such operations was to reduce the amount of the flow in periods of high water and to increase the amount of the flow during periods of low water. As new reservoirs were put into operation during these years, the regimen of the river below Friant was materially and progressively altered. The relative rights of the plaintiffs to the use of the waters of the San Joaquin River are limited to the flow of the river as altered by operations of the power companies under the agreements above mentioned. 18. The records of water actually diverted show that Miller & Lux and its affiliated companies did not divert and put to use in any one year as much water as the 1,428,074 acre-feet authorized by the appropriative and prescriptive rights described in finding IS. The maximum yearly diversion during this period was 1,027,180 acre-feet in the year 1932, and the average diversion over the 20-year period 1932-1951 was 870,834 acre-feet. 19. (a). Yearly discharges of the San Joaquin River at Friant varied widely in volume from the highest year, 1886, to the lowest, 1924. By ten-year periods (from 1897 to 1955), the average yearly discharge varied from a high of 2,210,-044 acre-feet to a low of 1,286,200 acre-feet, with a mean for the six decades of 1,712,867 acre-feet. During each of such ten-year periods, the discharges for separate years varied widely. Actually, there were few years when the discharge was approximately that of the yearly average. In many years the excess over the yearly average was quite high while in many years there was a deficiency. In some of the low years the discharge was less than the aggregate of maximum diversions to which all appropriators were entitled. (b) The discharge is not uniform throughout a year, nor do the relative discharges for the months within the year remain constant. The highest monthly discharge during the year usually occurs in May or June, although occasionally it occurs in April. An average of monthly percentages based on 39 years (1905-1943) shows discharges of 21 percent in May, a like amount in June, and 13 percent in April, thereby accounting for 55 percent of the yearly discharge in these three months. For the crucial irrigation months of July, August, and September, the total shown by these averages was 18 percent (11 percent in July; 4.4 percent in August; and 2.6 percent in September). 20. (a) As the flows actually occurred, there were times of the year when, as a matter of right, the owners of appro-priative and prescriptive rights, without reaching or exceeding their maximum limits in cubic feet per second, diverted all of the water of the stream. At other times, the discharge exceeded the capacity of the diversion works of such appropriators and their requirements for use, as well as exceeding the maximum limit in cubic feet per second under their rights. The records of diversions show that there was a period in most years, usually commencing in October, November, or December, and ending the next summer, when there was an excess of water over the requirements of all appropriative and prescriptive rights. Generally, this period commenced just after the beginning of the winter rains, when the discharge of the river was relatively low, but the demand for water was even lower. The excess of supply over demand continued through the rising volume of discharge caused by the winter and spring floods. It continued through the peak of the spring floods and was cut off when the high discharges from the spring floods began to subside. (b) In order to achieve the most beneficial use of the water throughout the irrigation season agreements were reached between the owners of several of the appropriative rights under which diversion or flow schedules were set up allocating the water in the river during each month by reference to the river stage at Friant. The principal agreement was executed on July 18, 1933, between Miller & Lux, the San Joaquin & Kings River Canal & Irrigation Company, the Edison Securities Company, and the Columbia, San Luis, and Firebaugh Canal Companies. The flow schedule contained in that agreement was approved by the State Railroad Commission and has been in use since that time. This flow schedule was later expanded to include the several grassland rights as determined and limited by the Haines decree. Grassland rights is the term generally used to describe the appropria-tive and prescriptive rights owned by Miller & Lux and its subsidiary companies and used by them for the irrigation of controlled grasslands as distinguished from croplands. The expanded schedule is included as Table 3 of Report No. 3 of the Water Project Authority of the State of California. 21. (a) The diversions by Miller & Lux and its affiliated companies mentioned above were all upstream from the lands of plaintiffs. The greater part of the water so diverted was (and continues to be) diverted by means of two dams across the San Joaquin River. (b) Mendota Dam was originally built in 1871 by the San Joaquin & Kings River Canal & Irrigation Company, under contract with Miller & Lux, for the purpose of diverting San Joaquin water into several large canals heading immediately above the dam, and has been progressively maintained, improved, and replaced by the San Joaquin & Kings River Canal & Irrigation Company for that purpose ever since. It was not built for and is not used for storage purposes. As an incident to raising the level of the water for the purpose of diversion, a certain amount of channel storage resulted. The amount of water thus stored was never more than a relatively negligible amount, and it was not utilized as stored water, or for any purpose other than maintaining the level necessary for diversion. Diversions were also made by Miller & Lux through other canals and sloughs. (c) Sack dam, located about 19 miles downstream from Mendota, was not a permanent structure. It was reconstructed each year, most often in mid-July, sometimes earlier and sometimes later, whenever the flow of the river dropped below an amount equal to or less than the requirements of the croplands irrigated by the canal companies. The dam remained in place until the major portion of the irrigation season had passed, at which time it was removed, usually in October, November, or December. During the period when the dam was installed there was virtually no direct flow in the river below the place of installation. IV The Return Flow of Irrigation Water 22. Water used in the irrigation of croplands is not wholly consumed in the irrigation process. The portion not consumed, except for a small amount lost in evaporation, reappears in the sloughs and in the river, downstream from the irrigated land and is known as return flow. This return flow derives principally from three sources: (1) Of the water that is actually applied to the land to be irrigated, a small portion is lost in evaporation, and another part seeps through the soil and is con-sumptively used by the crops. It is not possible, however, to apply exactly the amount of water needed to thoroughly wet the earth down to the bottom of the root zone and no further. In order to insure that the crops have enough water, more than is needed for plant consumption and evaporation allowance must be applied, and the excess percolates down until it reaches the top of the ground water table. The ground water table in this area is very close to the surface, in some cases as little as two feet. The ground water table slopes generally in the same direction as the river, and the movement of the ground water is in the same general direction. When the ground water encounters sloughs or drains that are below the top of the water table, the water drains into these channels, thereby reappearing as surface water and as one element of the return flow. (2) A second element of the return flow consists of what is sometimes referred to as tail water drainage of the irrigated cropland. Apart from the fact that more water must be allowed to percolate through the soil than is needed for the consumptive use of crops, it is also not possible to divert onto the higher end of the field that is to be irrigated so precise an amount of water as to leave no surplus available at the lower end of the checks over and above the water that percolates into the soil. This surplus must be drained off if the crops at the lower end of the field are not to be damaged. It is carried off through the drains and ultimately finds it way into the sloughs and into the river downstream of the irrigated land. (3) Finally, in the operation of a large distribution system it is not possible to schedule the deliveries of water to the various owners of irrigated land that are served by the canal with such precision that the entire amount diverted from the stream is always fully used; or, stated another way, so that there is never flowing in the canal, at or about the downstream end of its service area, an amount of water sufficient to supply only those lands in that area and no more. There must always be some surplus. These surplus waters are referred to as the operational spill of the canal system. They are allowed to drain off and constitute the third element in the return flow. 23. The ratio between the amount of water actually used by the crop and the amount of water that is applied to the lands to be irrigated is known as the irrigation efficiency. An excellent irrigation efficiency would be of the order of 70 percent. In the area of the San Joaquin Valley with which this case is concerned the irrigation efficiency is something less than 70 percent; possibly as low as 50 percent. Thus, between 30 and 50 percent of the water that is applied to the land is not consumed by the crops to which it is applied. Not only is a 100 percent irrigation efficiency impossible of fulfillment as a practical matter, but it would, if achieved, constitute a destructive irrigation practice. All of the water used for irrigation purposes contains a certain percentage of salts. It is desirable, if not necessary, to maintain what is termed the salt balance of the area. This means that the total amount of salt being brought into an area that is being irrigated must be compensated by the amount of salts taken out of the area. If it were possible to reuse and recirculate irrigation waters so that there was practically no return flow, this would necessarily result in a gradual build-up of the salts in the area which would ultimately decrease production and possibly even destroy the land. In the San Joaquin Valley, and particularly in the area near Los Banos, there is a wide awareness of this problem and of the necessity that drainage water be allowed to flow out of the area that is being irrigated. V The Execution of Defendant’s Plan A. Purchase of the Rights of Miller & Lux and Others 24. (a) Promptly after the approval of its plan (in December 1935: finding 7), defendant proceeded to ascertain the extent of the water rights to be purchased and the compensation to be paid therefor, and for that purpose an appraisal board was appointed. Attorneys for the United States Reclamation Bureau instructed the board as to the extent of such water rights. The board appraised the controlled grassland rights and the riparian rights of Miller & Lux and its subsidiaries, and on July 27, 1939, the defendant and Miller & Lux and its subsidiaries entered into a written contract whereby Miller & Lux and its subsidiaries agreed to relinquish or convey to defendant all their rights to the use of the water of the San Joaquin River, except and in excess of specified rates of flow deemed to be equivalent in quantity to their existing water supply under rights for the irrigation of croplands. In consideration, the defendant agreed to pay to Miller & Lux and its subsidiaries the sum of $2,450,000 for the water rights so to be conveyed. (b) On September 14, 1939, Miller & Lux and Gravelly Ford Canal Company made, executed, and delivered to defendant a conveyance of the rights described in the agreement dated July 27, 1939, being rights appropriative and riparian in origin for water not used for the irrigation of croplands. (c) The volume of water, in terms of yearly aggregate, reserved by Miller & Lüx in the contract of July 27, 1939, has been computed to be 1,056,340 acre-feet. 25. Defendant also negotiated with other owners of appropriative and riparian rights in the San Joaquin Valley to acquire the water that those owners had the right to use. In some cases these negotiations resulted in settlements by which a supply of substitute Sacramento water was made available to the owners of these rights. Other owners filed suit in the Court of Claims and were awarded damages for the loss of their rights to the use of water occasioned by the construction of the Central Valley Project. B. The Agreement for the Exchange of Waters 26. (a) On the same day that Miller & Lux and its subsidiaries and the defendant made the agreement for the sale and purchase of the controlled grassland and riparian rights, they entered into a further agreement, referred to as the contract for exchange of waters. This agreement provided in detail for the release of water from Friant Reservoir and for the delivery of substitute water through the Delta-Mendota Canal when that system would become operative. (b) Under date of June 1, 1955, the exchange contract was superseded by an amended contract for exchange of waters, which states that since approximately July 16, 1951, the United States has been storing and diverting the waters of the San Joaquin River reserved by Miller & Lux and its affiliated companies in the purchase contract (referred to in finding 24) in order to enable other parties to use them within and without the watershed of the San Joaquin River and that the United States has been and is supplying Miller & Lux, in lieu of such waters, with substitute water from the Sacramento River through the Delta-Mendota Canal. The contract goes on to grant to the United States the right to continue to “store, divert, dispose of and otherwise use, within and without the watershed of the San Joaquin River, the aforesaid reserved waters” so long as substitute water is delivered in conformity with the contract (Article 12). The amount of substitute water required to be delivered is fixed by reference to the computed natural inflow to Shasta Lake (Articles 15 and 16). 27. The supply of substitute water guaranteed to Miller & Lux and its affiliated companies under the exchange contract is far better than the supply which they enjoyed prior to the construction of the Central Valley Project. Prior to the construction of the project the yield of the water rights of the four affiliated companies in the month of August, one of the critical months of the irrigation season, varied from 11,400 acre-feet in the driest year of record to 118,500 acre-feet in the wettest year of record. The median amount was about 69,000 acre-feet. The original exchange contract guaranteed delivery of such quantity of water as the canal companies would have had in the absence of the operation of the Central Valley Project but with provision for a minimum amount of 93,000 acre-feet of water. Under the provisions of the amended contract the minimum supply guaranteed in the month of August was increased to 126,000 acre-feet except in the case of very dry years. C. Construction of Works and Impounding of Water 28. Friant Dam is a straight gravity concrete dam. Its total length at the top is 3,430 feet, and the maximum height is 320 feet. Across the top of the dam is a roadway whose elevation above mean sea level is 583 feet. The only openings extending entirely through the dam are those hereinafter mentioned. The first is the spillway at the top of the dam which is controlled by three drum gates. These drum gates are large steel cylinders, each 100 feet long and 18 feet in diameter, which float up and down in a chamber at the bottom of the spillway opening and are raised and lowered by the water let into and released from the chamber. By increasing the amount of water in a chamber each gate floats up, closing, to the extent desired, the opening which the particular gate is to control. By reversing the process the gate goes down. It can be adjusted and held to any point. When the gates are raised to the designed maximum elevation, the maximum water surface is at elevation 578. When the gates are completely lowered, the maximum water surface is at elevation 560, except for the head required to flow the water over the spillway. The drumgates were intended to be installed in 1942, but due to the advent of war in 1941, progress in that connection was halted. They were installed on October 31, 1947. The next lower opening is the outlet to the Friant-Kern Canal at the south side of the dam. The center line of the outlet is at elevation 464. The next lower opening is the outlet to the Madera Canal at the north side of the dam. The center line of the outlet is at elevation 446. Next are four openings referred to as the permanent river outlets, all on the same level. The inverts, the lowest points in the cross sections of the openings, are at elevation 375.42. The next were three temporary openings, used during construction to permit the water of the river to pass, but which were later filled with concrete. The floors ■of those openings were at elevation 316. The normal low-water surface of the river prior to the construction of the dam was at elevation 305.6. 29. The contract for the construction of the dam was awarded on October 9, 1939, and construction was commenced ■on November 3,1939. In the early stages ■of construction, and prior to March 6, 1941, the water of the river was carried ■over the foundation of the dam in a wooden flume. The floor of the flume was 4.4 feet above the normal low-water surface •of the river. The amount of water impounded by reason of this difference is not disclosed. At one time while the flume was being used to pass the water, some high water exceeded the capacity ■of the flume, backed up behind the dam, and flooded the works. This flooding was not an intended consequence of the work, although a calculated risk. 30. The concrete work of the dam was divided into sections, referred to as blocks, numbered consecutively from one end of the dam to the other. As the concrete work progressed, three temporary openings, each 14 feet square, were left in the base of the dam through blocks 37, 39, and 41. The elevation of the floors of these openings at the upstream face was 10.4 feet above the normal low-water surface of the river. When use of the wooden flume was discontinued and the river was diverted through these temporary openings, there was a permanent impounding of water immediately behind the dam to a depth of not less than 10.4 feet. The number of acre-feet impounded is not known, but was negligible. During the late summer or early fall of 1941, the water was cut off from the temporary opening in block 41 and was carried through the temporary openings in blocks 37 and 39. Steel gates, in the nature of a headworks structure, then were firmly installed at the upstream end of the temporary outlet through block 41. Next, steel gates were similarly installed in the temporary outlet through block 39. After the gates were installed and in good operating condition, all the water was passed through the gate-controlled openings through blocks 39 and 41, and the outlet through block 37 was completely filled with concrete and permanently sealed off against further passage of water. As the natural flow decreased with the season, the outlet through block 39 was cut off, all the water was passed through the gate-controlled temporary opening through block 41, and the opening through block 39 was filled with concrete and permanently sealed. That left only the temporary opening through block 41 open and in operation. 31. Prior to October 20,1941, the concrete work in the dam had been completed to a point above elevation 400, but not as high as the elevation of the designed outlet into the Madera Canal. On or about that day, the gates in the temporary outlet through block 41 were partially closed for the purpose of impounding water and at the same time allowing the passage of approximately the amount of water required to be released under the agreement of July 27, 1939, with Miller & Lux and its subsidiaries. This operation raised the surface of the water in the reservoir until, on November 11,1941, the water reached elevation 375.42 and commenced to spill through the permanent river outlets. The water was then cut off from the temporary outlet through block 41, and the work of permanently sealing that outlet was begun. The sealing was completed in about five months. Except for the amount approximately equaling the quantities reserved by Miller & Lux and its subsidiaries, no water passed the dam between October 20 and November 11, 1941. When the water was cut off from the last temporary opening and the opening was sealed, the water below the inverts of the permanent river openings was permanently impounded, with no means left for its release. The amount so impounded was approximately 17,400 acre-feet. 32. The permanent river outlets were designed to be controlled by needle valves. Defendant had been taking steps preliminary to the purchase of the valves when the international situation became so bad, and demands for materials for defense purposes became so great in the fall of 1941, that the valves could not be obtained. Except for the emergency and for the ensuing war, the valves to control the permanent river outlets would have been installed in the year 1942. In the fall of 1941 the Madera Canal had been constructed to the extent of about 7 miles, but had not yet been completed. Construction of the Friant-Kern Canal had not been commenced. For a short time in the winter of 1942, a high flow in the river caused more water to enter the reservoir than could be drained by the uncontrolled permanent river outlets, and water was temporarily impounded to elevation 415. As the flow of the river dropped, the water impounded above the elevation of the permanent outlets drained through the uncontrolled permanent outlets into the river below the dam. In 1943 needle valves for two of the four permanent river outlets and for the Madera Canal outlet were borrowed from Boulder Dam and were installed. The first storage of water in the reservoir by means of closing or partially closing one of these valves was started on February 21, 1944. 33. The Madera Canal was at least partially completed in 1944. The surface level of the water in the reservoir was then raised sufficiently to divert a large quantity thereof through the Madera Canal, from which it was used to raise the general water table in the area served by the canal. Approximately 302,500 acre-feet of water was stored behind the dam at this stage of the operation. The flow of water through the dam was never completely stopped. For the six months after the needle valves were installed, the quantity of water r