Full opinion text
HALL, District Judge. On September 25, 1947, the plaintiff, Rank, and eleven others filed this suit in the Superior Court of the State of California, in Fresno County. On motion of the United States Attorney the case was removed to this court on October 6, 1947. No motion for remand has ever been made. And it appears, upon examination of the complaint, that the case was properly removed and should not be remanded. Amendments to the complaint were filed September 16, 1949, September 30, 1949, and on March 8, 1950. Motions to dismiss had been filed previous to the amendments, but by agreement of the parties the motions to dismiss were deemed to be filed and to apply to the complaint as amended. They were thus treated in the briefs and in the arguments, and will be so considered in this decision. The complaint, as originally filed, alleged violation of the plaintiffs’ constitutional rights. Upon the briefs the precise constitutional questions relied upon were not clear. The matter was set down for hearing for clarification and counsel for both parties agreed that constitutional questions were raised which required a three-judge court. The three-judge court was convened and hearing set for March 8, 1950, at which time the amendment of March 8th to the complaint was filed, which specifically challenged various Acts of Congress listed therein.. After argument on the question as to whether or not it was properly a case for a three-judge court, that court held it was not, as no substantial question concerning the enforcement, operation, or execution of any Act of Congress for repugnance • to the Constitution was involved. The three-judge court then dissolved, leaving this case and the related ones pending before this court. It will be necessary, however, to consider said Acts of Congress in the determination of the questions involved herein. The material portions of the challenged acts, as well as others, are set forth in Appendix ■A. The complaint named as defendants, in their official capacity as well as individually, Julius A. Krug, the then Secretary of the Interior of the United States, and the following persons holding the following offices in the United States Bureau of Reclamation, viz.: Michael W. Straus, Commissioner; Richard Boke, Regional Director; Martin Blote, Regional Water Master; Jack Rodner, District Manager; R. K. Durant, Construction Engineer and Resident Engineer. Also named as defendants were the Madera Irrigation District and its Directors; the South San Joaquin Municipal Utility District and its directors, as well as various Doe districts and Doe directors. Service of process in this case was not made or attempted upon Krug, Straus, Boke or Blote, or any of the Doe defendants, but was made upon Rodner, Durant, the Madera Irrigation District and the South San Joaquin Municipal Utility District, all in the State of California. The United States Attorney filed motions to dismiss on behalf of the above named persons who are officials of the Bureau of Reclamation. The Madera Irrigation District, on stipulation of the plaintiffs and the consent of the court, filed an oral motion to dismiss on March 9, 1950. The South San Joaquin Municipal Utility District, after submission, filed motions to dismiss on the identical grounds designated by the United States Attorney, and, without objection by plaintiff, they are submitted on the record made at time of submission of the other motions. The plaintiffs orally joined in a motion for preliminary injunction which had been made in related cases and set and noticed for March 8, 1950, along with said motion to dismiss in this and related cases before the three-judge court which dissolved as above stated, and the matters proceeded before this single judge beginning March 9, 1950. The motions to dismiss were submitted on the briefs and the previous arguments. The motions for interlocutory injunction were argued and submitted on the briefs, arguments, files, records, and evidence taken at the hearing. Before considering the motions for interlocutory injunction in either this or the related cases, it is necessary to consider and dispose of the matters raised by the motion to dismiss in this case for the reason that, whether or not a cause of action is or can be stated, will, or may, affect the result of the motions for injunction; but more importantly for the reason that the motion to dismiss postures the basic issues raised, the determination of which will affect all of the pending cases and the whole course of the litigation. The motion to dismiss is made on the following grounds: 1. The complaint fails to state a claim upon which relief can be granted; 2. This is in fact a suit against the United States; the United States is an indispensable party and has not consented to be sued; 3. The Secretary of the Interior is an indispensable party, and this court cannot obtain jurisdiction over him; and 4. Plaintiffs have a plain, speedy and adequate remedy at law. In considering the motions to dismiss, it is axiomatic that well-pleaded and material allegations of the complaint must be taken to be true, as well as matters which may be judicially noticed, which include public facts, geographical positions, reports to Congress, proceedings thereon, public activities within the common experience of men, and the like. And the judge may resort to any means the judge deems safe to refresh his memory. Greeson v. Imperial Irrigation District, 9 Cir., 1932, 59 F.2d 529; Nev-Cal Electric Securities Co. v. Imperial Irrigation District, 9 Cir., 1936, ■85 F.2d 886. And upon a motion to dismiss under the Federal Rules of Civil Procedure, 28 U.S.C.A., the complaint should be construed in the light most favorable to the plaintiff with all doubts resolved in plaintiffs favor. Cool v. International Shoe Co., 8 Cir., 1944, 142 F.2d 318. I turn then to the allegations of the complaint as amended, which will be stated more or less in substance, and to the matters judicially noticed which will be indicated throughout this memorandum as they arise. It is alleged that: each of the twelve plaintiffs is an owner of a separate parcel or parcels of farm land, a description of each of which is attached to the complaint as part of its Exhibit “A”. They sue for themselves and all members of the same class consisting of approximately 125 other owners of farms totaling approximately 47,500 acres of land which lie along or are otherwise riparian to the San Joaquin River below Friant Dam and above Mendota Dam, and of approximately 1000 other ranchers owning approximately 600,000 acres of land likewise situated between Friant and Mendota Dams, all of which overlay underground waters, and have similar rights to those of plaintiffs, and to each other, and will suffer similar damage or taking by the acts of the defendants; that they are the owners and each of said members of said class is the owner of riparian, prescriptive and appropriative rights to the waters of said river; that all of said lands have, from time immemorial, overlaid and contained underground and percolating waters, water stratas and subterranean streams which are, and at all times prior to the acts of the defendants were, and have been, fed, supplied, sustained, supported and replenished by the waters of the San Joaquin River as it flowed, seeped and percolated; that none of the plaintiffs have consented to a taking of their water rights or land, and that none of the members of the class have consented to such taking; “that plaintiffs are now engaged, and plaintiffs and their predecessors in title and interest in said lands described in Exhibit ‘A’ have continuously been engaged for more than 60 years last past and long before any of the dams, diversions, works and other structures of plaintiffs hereinafter mentioned were either begun, started or conceived of, in reasonably and beneficially using all of said waters of said San Joaquin River by means of reasonable methods of use and by means of reasonable methods of diversion for domestic, poultry, cattle and animal drinking water, and in farming all of said lands of plaintiffs more particularly described in Exhibit ‘A’ (with the exception of a small amount of timber and brush land which plaintiffs are shortly intending to cut down and turn into irrigated pasture and crop lands) to crops of grapes, peaches, plums and other fruits, cotton, alfalfa, grain, corn, melons, potatoes, vegetables and to natural and irrigated pasturage (upon which pasturage plaintiffs and their predecessors in interest and title have, during all times herein mentioned, raised cattle, horses, sheep, hogs and poultry, and some of which said natural pasturage plaintiffs, within a reasonable time, intend to and will plant to irrigated pastuarge and crops), by means of pumping the waters of said San Joaquin River out of the channel and natural bed of said San Joaquin River and distributing said water through concrete pipelines, conduits, canals and ditches to and depositing said water upon said lands of plaintiffs set forth and described in said Exhibit'A’ * * * and by means of pumping from said underground and percolating waters and said waters of said subterranean streams and water stratas underlying said lands of plaintiffs more particularly described in said Exhibit ‘A’ * * * (all of which said underground and percolating waters, water stratas a'nd said subterranean streams are fed by, sustained by, supplied by, supported by, flow and percolate from and are fed by and replenished by said waters of said San Joaquin River, as aforesaid), from wells located upon said lands of plaintiffs, described in Exhibit ‘A’ * * * and distributing said pumped waters and depositing the same through concrete pipelines, conduits, canals and ditches upon said lands of plaintiffs, set forth and described in Exhibit ‘A’ * * * and by means of subirrigation, capillary attraction, percolation and like natural forces operating between said underground and percolating waters and subterranean streams and water stratas underlying said lands of plaintiffs and the roots of the trees, vines, grasses and crops so grown on said lands of plaintiffs. That all of said pumps, wells, ditches, concrete pipelines and conduits in this said paragraph referred to were and are constructed and maintained in accordance with recognized and generally accepted engineering standards and practices, and all of said waters of said San Joaquin River so deposited or used upon, under or in said lands of plaintiffs and in the subirrigation of said lands of plaintiffs were and are so deposited and used upon, under and in said lands of plaintiffs described in Exhibit ‘A’ * * * in accordance with the best recognized and accepted agricultural standards and practices, both as to time of, amounts of and methods of use of said waters. That all of the waters of said San Joaquin River are and will be needed by plaintiffs for the purposes hereinabove and in this paragraph set forth and for replenishing, sustaining, feeding, supplying and supporting, and for seeping into, percolating and flowing into said underground and percolating water, water stratas and said subterranean streams and said subirrigation of said lands.” It is also alleged that by reason of the flow of said river past the lands of plaintiffs and said class, they and the public have used and have a right to use said flow for fishing and recreation, and that said river has a salmon run of approximately 200,000 which is a major Pacific Coast salmon run and contains and is the habitat of large runs of bass, trout, catfish, shad and other edible fish which swim in, spawn upon, and are harvested in the " said river where it flows in, over or along the lands of the plaintiffs and their class, which has resulted in a large commercial, sport and recreational industry dependent upon fish; that the lands of the plaintiff which lie immediately adjacent to the natural channel of the river contain valuable deposits of rock, sand and gravel which are harvested for commercial purposes, and that the supply thereof is replenished from year to year by the river in its natural flow. That by reason of all of the foregoing rights and uses the “plaintiffs are the owners of, need, and are entitled to the use of all of the flow of the waters of the San Joaquin River flowing past, through or over said lands of plaintiffs * * * and are the owners of, need and are entitled to the use of all of said underground and percolating waters, water stratas and said waters of said subterranean streams underlying and in said * * * lands * * * for said present uses * * * and which may and will be required for reasonably prospective recognized uses on said lands of plaintiffs.” It is then alleged that the defendants purporting to act in their official capacities have built Friant Dam about eight miles upstream from plaintiffs’ lands and are building diversion works, and have diverted and are threatening to and will, unless restrained, impound and divert the entire flow of the San Joaquin River at Friant Dam so that the flow below the dam will disappear, which will ultimately destroy plaintiffs’ land for any agricultural purpose, deprive them of their domestic drinking water supply and for their-livestock, and render plaintiffs’ land unfit, for habitation, as well as take and destroy the water rights of plaintiffs and their class for commercial or public or private recreational purposes and for the annual run and as a habitat of salmon and other fish, and as a further result, that the sand and gravel pits will not be replenished and will be taken and become valueless. It is also alleged that the defendants have executed a contract'with the Madera Irrigation District and the South San Joaquin Municipal Utility District, and have and are threatening to execute other contracts to divert the entire flow of the river at Friant which are unlawful for various reasons, one of which is asserted to be that the water is to be used for other than a public use in that the water proposed to be diverted to the South San Joaquin Municipal Utility District and other areas is to be put to the identical uses to which it is now put by the plaintiffs, but on lands privately owned by others and in another watershed than that of the San Joaquin River. Plaintiffs’ assertions of rights to the flow of the river thus fall into four categories, viz.: (1) the right of use for agricultural and personal domestic purposes, whether directly from the river or for replenishment of underground streams, stratas and supplies; (2) the right of use for personal and public recreational purposes, such as boating and recreational fishing and the like; (3) the right of use for replenishment of sand and gravel pits; and (4) the right of use for spawning and fishing of salmon and other fish for both general commercial purposes and the general recreational purposes of the public. It is alleged that ever since the commencement of the project in 1935, the defendants who are officials, and their predecessors, have repeatedly informed and assured plaintiffs that their water rights would not be taken or disturbed by either the building and operation of the dam or diversionary works; that plaintiffs and the members of said class in reliance upon said statements, and as a result of deceptive, coercive and threatening statements, had taken no action until they were informed for the first time on July 15, 1947, to the effect, that unless they accepted an offer by the Bureau of Reclamation for the “adjustment” of their water rights on the terms fixed by the Bureau, or filed suit for damages before October 20, 1947, their water rights would be taken without compensation. The letter was signed by the defendant Boke, “Reginal Director.” The plaintiffs allege that on July 28, 1947, they consulted counsel, which resulted in the filing of the instant suit on September 25, 1947. It is alleged in the complaint and it is judicially noticed that the San Joaquin River is a natural water course; it, together with its tributaries, arises and flows wholly within the state of California; it flows into' Suisun Bay, at a point below Stockton and ultimately empties into the Pacific Ocean through San Francisco Bay; the Sacramento River and its tributaries likewise arise and entirely flow within the state of California; the portion coursed by the Sacramento River has long been known as the Sacramento Valley and the portion coursed by the San Joaquin River has long been known as the San Joaquin Valley; together they have been called the Sacramento-San Joaquin Valley, until, in recent years, it has been known as the Central Valley; the San Joaquin in its natural state had well-defined channels and banks, and passed from the Sierra ‘Nevadas in eastern California, where it arises, on to the valley plain at a place called Friant; it flowed westerly, about forty miles to a place called Mendota, and thence, turning, flowed northerly, ultimately emptying into the Pacific Ocean through San Francisco Bay; throughout its course its waters have been the source of hydroelectric power, domestic and agricultural uses, either by direct diversion from the river or by supplying underground, percolating and stored waters for natural subirrigation or surface irrigation and domestic uses from wells. Such underground and percolating waters, water stratas and subterranean streams are alleged to extend approximately 15 miles southerly and 5 miles northerly from the bed of the river as it flowed between Friant and Mendota, which is the area wherein the lands of the plaintiffs lie and which is the area particularly concerned in this, the Rank case, No. 685-ND. That area is of the most highly developed and fertile agricultural character due to the use of the waters of the San Joaquin River, either surface flowing water or underground water; within it lie valuable vineyards, orchards and lands developed to specialized produce for human consumption as well as cotton, alfalfa and grain lands, and extensive dairy herds; not the least of the uses to which the water is put is for domestic purposes, as, for instance, the city of Fresno is within the 15 mile area south of and in the watershed of the river, and is dependent for its municipal water supply upon wells. The court can take judicial notice of the fact that the San Joaquin River is not one that is equated by nature through the year, but is seasonal in its flow; a flood stage in the spring with rains and melting snows, and a low flow between seasons arising in part by the intense evaporation from heat (120 degrees in the late summer) and also by the diversions and uses to which “men of experience and means, energetic, enterprising and resourceful” have put them. Katz v. Walkinshaw, 1903, 141 Cal. 116, at page 127, 70 P. 663, 74 P. 766, 769, 64 L.R.A. 236, 99 Am.St.Rep. 35. While the prayer is no part of the plaintiffs’ cause of action, Nester v. Western Union Tel. Co., D.C.S.D.Cal.1938, 25 F.Supp. 478, and a complaint will not be dismissed merely because a plaintiff has demanded relief to which he is not entitled, Commonwealth Trust Co. of Pittsburgh v. Reconstruction Finance Co., D.C.W.D.Pa. 1939, 28 F.Supp. 586, and a court must grant relief to which a plaintiff is entitled even if such relief has not been demanded in the pleadings, F.R.C.P. 54(c), it is well to look at the prayer of plaintiffs’ complaint, if for no other reason than to point up the contentions of the parties, and the issues raised on the motions to dismiss. It asks judgment: (1) that defendants he enjoined from impounding and storing and from making seasonal or cyclical storage of the water of the river back of Friant Dam; (2) that defendants be enjoined from diverting, transporting, selling or contracting to sell said waters for use outside the watershed of the San Joaquin River; (3) in the alternative that the court make a “physical solution” as that term is used and understood in the laws and by the courts of the State of California; (4) in the alternative that the court make a judgment of '“inverse” qr “reverse” condemnation as that term is used and understood by the courts of the State of California ; (5) that all contracts purporting to sell or carry away water in violation of plaintiffs’ rights (only two are alleged, viz.: Madera and South San Joaquin) be declared null and void and that the defendants be restrained from entering into any further or other such contracts pending the determination of this case; (6) and for such other and further relief as may seem meet and equitable in the premises. The defendants set forth four different grounds in their motions to dismiss, but a determination of the points made under the first ground, i. e., that the complaint does not state a cause of action, will either clarify or dispose of the other grounds. That ground will, therefore, be considered first, and as well, for the reason that it reaches the basic contentions upon which the parties have come to grips so seriously and so vigorously. These contentions pose the issues as to (1) whether or not the plaintiffs have any water rights; (2) if so, what those water rights are, and against whom they exist; (3) whether or not any Act of Congress has taken or authorized such rights, if any, to be taken; (4) whether or not the defendants have taken or have u been and are threatening to take such rights, if any exist; (5) whether or not the plaintiffs have a plain, speedy and adequate remedy at law. Do the plaintiffs have any water rights? To anyone with the slightest acquaintance with the history of the arid west and its conversion from barren wastes, first to the uses of mining, as illustrated in the history of the gold and silver mines in California, then to the development of some of the richest and most highly productive agricultural land known, as illustrated by the lands of the plaintiffs and numerous other conversions from barren desert to highly productive and valuable land, and then to domestic and power uses supporting enormous populations and industries as in the Los Angeles and San Francisco areas, by the use and development of streams and rivers, both seasonal and regular, and the development and use of the underground waters, whether flowing, stored or percolating, no compendium of legal citation is needed to demonstrate that beyond peradventure of doubt the plaintiffs in this case and the members of their class with their land lying as it is and using the waters of the river as they have been and are, have valuable water rights in and to the use of the waters of the San Joaquin River which are part and parcel of the land, which if taken or destroyed will result in the complete destruction of the value of their land for agricultural purposes, as well as for domestic uses, and if either taken or diminished will result in loss and damage. A few references will suffice: Eddy v. Simpson, 1853, 3 Cal. 249, 58 Am.Dec. 408; Irwin v. Phillips, 1855, 5 Cal. 140, 63 Am. Dec. 113; Katz v. Walkinshaw, 1902-1903, 141 Cal. 116, 70 P. 663, 74 P. 766, 64 L.R.A. 236, 99 Am. St. Rep. 35; Lux v. Haggin, 1886, 69 Cal. 255, 4 P. 919, 10 P. 674; Burr v. Maclay Rancho Water Co., 1908, 154 Cal. 428, 98 P. 260; Miller v. Bay Cities Water Co., 1910, 157 Cal. 256, 107 P. 115, 27 L.R.A.,N.S., 772; Herminghaus v. Southern California Edison Co., 1926, 200 Cal. 81, 252 P. 607; Peabody v. City of Vallejo, 1935, 2 Cal.2d 351, 40 P.2d 486 and cases there cited; Rancho Santa Margarita v. Vail, 1938, 11 Cal.2d 501, 81 P.2d 533; Atchison v. Peterson, 1874, 20 Wall 507, 22 L.Ed. 414; Jennison v. Kirk, 1878, 98 U.S. 453, 25 L.Ed. 240; Broder v. Natoma Water & Mining Company, 1879, 101 U.S. 274, 25 L.Ed. 790; State of Nebraska v. State of Wyoming, 1935, 295 U.S. 40, 55 S.Ct. 568, 79 L.Ed. 1289; California-Oregon Power Co. v. Beaver Portland Cement Co., etc., 1935, 295 U.S. 142, 55 S. Ct. 725, 79 L.Ed. 1356; Ickes v. Fox, 1937, 300 U.S. 82, 57 S.Ct. 412, 81 L.Ed. 525; State of Nebraska v. State of Wyoming, 1945, 325 U.S. 589, 65 S.Ct. 1332, 89 L.Ed. 1815; State of Wyoming v. State of Colorado, 1922, 259 U.S. 419, 42 S.Ct. 552, 66 L.Ed. 999; State of Kansas v. State of Colorado, 1907, 206 U.S. 46, 27 S.Ct. 655, 51 L.Ed. 956; State of Colorado v. State of Kansas, 1943, 320 U.S. 383, 64 S.Ct. 176, 88 L.Ed. 116; U. S. v. Humboldt, etc., Co., 9 Cir., 1938, 97 F.2d 38, certiorari denied 305 U.S. 630, 59 S.Ct. 94, 83 L.Ed. 404; U. S. v. Central Stockholders’, etc., 9 Cir., 1931, 52 F.2d 322; California Constitution, Art. XIV, and the entire Water Code of California; Act of July 26, 1866, 14 Stat. 251, at page 253, Sec. 9, 43 U.S.C.A. § 661; Act of July 9, 1870, 16 Stat. 217, at page 218, Sec. 17, 43 U.S.C.A. § 661; The Basic Reclamation Act of 1902, 32 Stat. 388, as amendéd from time to time, 43 U.S.C.A, § 372 et seq.; Act of June 25, 1910; 36 Stat. 835, Sec. 4, 43 U.S.C.A. §§ 400, 413; Act of Dec. 5, 1924, 43 Stat. 672, at page 702, Sec. 4, Sub. B, 43 U.S.C.A. § 412; Act of August 26, 1937, 50 Stat. 850, Sec. 2; Flood Control Act of December 22, 1944, 58 Stat. 887 et seq. What right's- do the plaintiffs have, and against whom do they exist? The resolution of this question also involves a determination of whether or- not any Act of Congress has taken or authorized such rights to be taken, and whether or not the defendants have taken or are threatening to take such rights. From the cases and statutes just cited it is clear that the Supreme Court and Congress have been consistent in leaving the question of property in water rights to be determined.by and under local state law except in so far as Congress may exercise its constitutional power to regulate navigable waters, or for flood control under the Commerce Clause, article 1, § 8, cl. 3. In cases where such power was exercised, where the damage has been substantial so that there was a taking, the Supreme Court has been consistent in holding that such taking was compensable under the 5th Amendment. Where no right to compensation has been allowed, it has usually been on the holding that the right taken was not property, and that damages were merely incidental, uncertain, remote, conjectural, prospective, speculative, or not a direct result of the Government’s action. Some cases, but by no means all, illustrative of a taking where the powers were exercised under the Commerce Clause, are: Kohl v. U. S., 1875, 91 U.S. 367, 23 L. Ed. 449; U. S. v. Lynah, 1903] 188 U.S. 445, 23 S.Ct. 349, 47 L.Ed. 539; Pumpelly v. Green Bay, etc. Co., 1872, 13 Wall. 166, 20 L.Ed. 557; Williams v. U. S., C.C. 1903, 104 F. 50 affirmed 188 U.S. 485, 23 S.Ct. 363, 47 L.Ed. 554; U. S. v. Cress, 1917, 243 U.S. 316, 37 S.Ct. 380, 61 L.Ed. 746; U. S. v. Dickinson, 1947, 331 U.S. 745, 67 S.Ct. 1382, 91 L.Ed. 1789; U. S. v. Chandler-Dunbar Water Power Co., 1913, 229 U.S. 53, 33 S.Ct. 667, 57 L.Ed. 1063 (where the installed improvements .were held compensable); Ford & Son v. Little Falls Fibre Co., 1930, 280 U.S. 369, 50 S.Ct. 140, 74 L.Ed. 483. In U. S. v. Causby, 1945, 328 U.S. 256, 66 S.Ct. 1062, 1068, 90 L.Ed. 1206, the Supreme Court had under consideration the power to regulate flights of airplanes under the Air Commerce Act of 1926, 44 Stat. 568, 49 U.S.C.A. § 171 et seq., as amended by the Civil Aeronautics Act of 1938, 52 Stat. 973, 49 U.S.C.A. § 401 et seq., which Act finds its constitutional vitality in the Commerce Clause. The court held that the owner of a chicken farm had a right to compensation for the loss in value of his land because the prescribed height of flights scared his chickens to death. It there affirmed the doctrine that while the meaning of property as used in the 5th Amendment was a federal question, “it will normally obtain its content by reference to local law.” The court quoted with approval the statement from U. S. v. Cress, supra, that “ * * * it iS the character of the invasion, not the amount of damage resulting from it, so long as the damage is substantial, that determines the question whether it is a táking.” [243 U.S. 316, 37 S. Ct. 385.] The right to devote land to chicken farming can be no greater than the water rights involved here. In Kimball Laundry v. U. S. 1949, 338 U.S. 1, 69 S.Ct. 1434, 7 A.L.R.2d 1280, the Supreme Court in a condemnation under the Second War Powers Act of March 27, 1942, 56 Stat. 176, 50 U.S.C.A.Appendix, § 632, of a laundry, held that the trade routes or customers list were compensable under the 5th Amendment. The property right of a customers list against the war power can be no greater than the property right in the use of water against the commerce power. Cases illustrative of the holding that there was not a taking of property (and by no means all of them) are: Bedford v. U. S., 1904, 192 U.S. 217, 24 S.Ct. 238, 48 L.Ed. 414; Jackson v. U. S., 1930, 230 U.S. 1, 33 S.Ct. 1011, 57 L.Ed. 1363; Hughes v. U. S., 1913, 230 U.S. 24, 33 S.Ct. 1019, 57 L.Ed. 1374, 46 L.R.A.,N.S., 624; Willink v. U. S., 1916, 240 U.S. 572, 36 S.Ct. 422, 60 L.Ed. 808; U. S. v. Chicago, M. St. P. & P. R. Co., 1940, 312 U.S. 592, 313 U.S. 543, 61 S.Ct. 772, 85 L.Ed. 1064; Gibson v. U. S., 1867, 166 U.S. 269, 17 S.Ct. 578, 41 L.Ed. 996; Scranton v. Wheeler, 1900, 179 U.S. 141, 21 S.Ct. 48, 45 L.Ed. 126; U. S. v. Commodore Park, Inc., 1945, 324 U.S. 386, 65 S.Ct. 803, 89 L.Ed. 1017; U. S. v. Willow River, etc., 1945, 324 U.S. 499, 65 S.Ct. 761, 89 L.Ed. 1101, and annotation following 89 L.Ed. 1101, at page 1114, et seq. Considering first the plaintiffs’ contention that they are entitled to the flow of the river for agricultural and domestic uses. Water rights in California are both riparian and appropriative, and prescriptive. Such water rights are “usufructuary, and consist not so much of the fluid itself as the advantage of its uses,” and have been so regarded since the earliest day. Eddy v. Simpson, supra, as to the flow in visible streams; Katz v. Walkinshaw, supra, as to underground waters. Rights to the use of underground waters, whether flowing, stored or percolating, by the overlaying owner or appropriator are analogous and equal to riparian rights, against subsequent claimants, and are part and parcel of the land, and as such are real property. Hill v. Newman, 1855, 5 Cal. 445, 63 Am. Dec. 140; South Tule Independent Ditch Co. v. King, 1904, 144 Cal. 450, 77 P. 1032; Katz v. Walkinshaw, supra; Lux v. Haggin, supra; Miller v. Bay Cities Water Co., 1910, 157 Cal. 256, 107 P. 115, 27 L.R.A..N.S., 772; Herminghaus v. Southern California Edison Co., 1926, 200 Cal. 81, 252 P. 607; Peabody v. City of Vallejo, supra; Tulare Irr. Dist. v. Lindsay-Strathmore etc., 1935, 3 Cal.2d 489, 45 P.2d 972; Rancho Santa Margarita v. Vail, 1938, 11 Cal.2d 501, 557, 81 P.2d 533; Meridian, Ltd., v. City and County of San Francisco, 1939, 13 Cal.2d 424, 90 P.2d 537, 91 P.2d 105; U. S. v. Central Stockholders’ Corp., 9 Cir., 1931, 52 F.2d 322, 327; Calif. Civil Code, Sec. 658. Prior to the addition of Sec. 3 to Article XIV of the California Constitution by amendment in 1928 (Appendix B), the owners of riparian or overlaying land were entitled to the full flow of the river. Miller and Lux v. Madera Canal & Irrigation Co, 1909, 155 Cal. 59, 99 P. 502, 22 L.R.A.,N.S. 391 Herminghaus v. Southern California Edison Co, supra and cases there reviewed. That amendment, in effect, enlarged the previous constitutional provision of 1879, Sec. 1, Art. XIV, California Constitution that the “sale, rental, or distribution” of water in the State of California was a public use and in effect said that the use of all water in the State of California was a public use. It did not change the law relating to acquisition or ownership of water rights, but superimposed on those rights the requirement that all water must be put to a reasonable and beneficial use and none may be wasted. The effect of the 1928 Amendment to the California Constitution has been considered several times by the Supreme Court of California. Peabody v. City of Vallejo, 1935, supra; City of Lodi v. East Bay, etc, 1936, 7 Cal .2d 316, 60 P.2d 439; Tulare Irrigation District v. Lindsay-Strathmore etc, 1935, 3 Cal.2d 489, 45 P.2d 972; Hillside Water Co. v. City of Los Angeles, 1938, 10 Cal.2d 677, 76 P.2d 681; Meridian, Limited, v. City and County of San Francisco, 1939, 13 Cal .2d 424, 90 P.2d 537, 91 P.2d 105; and Wright v. Best, 1942, 19 Cal.2d 368, 121 P.2d 702. In each of them the riparian, prescriptive and appropriative rights theretofore recognized were affirmed and held to be on an equal footing with each other against subsequent claimants, and part and parcel of the land, and paramount to subsequent appropriators or users, and entitled to protection by injunction in equity, subject only to the requirement that the water be put to reasonable and beneficial uses. It was stated in Meridian, Limited, v. City and County of San Francisco, supra, 13 Cal.2d page 445, 90 P.2d page 547: ^ * * 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 and 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, but 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.” In Tulare Irrigation District v. Lindsay-Strathmore, etc., supra, 3 Cal.2d at page 525, 45 P.2d at page 986, it was said: “The new doctrine not only protects the actual reasonable beneficial uses of the riparian, but also the prospective reasonable beneficial uses of the riparian.” And it was held that pending the time the riparian needed the water for such prospective beneficial uses, an appropriator could use it until demand was made by the previous riparian owner. The court, in Meridian, Limited, v. City and County of San Francisco, supra, quoted with approval the statement in Peabody v. City of Vallejo, supra, 2 Cal.2d page 375, 40 P.2d page 495, as follows: “The problem in any case is to ascertain what portion of the product of the stream is subject to appropriation after all reasonable beneficial uses on the part of those having paramount rights have been enjoyed or safeguarded.” In 1943 the State of California, in a revision and codification of its laws, enacted the Water Code. In addition to implementing the Constitutional Amendment of 1928, it also provided, in Sec. 103, that “In the enactment of this code the Legislature does not intend thereby to effect any change in the law relating to water rights.” Section 101 specifically preserved all riparian and appropriative rights to the owners of land for reasonable and beneficial uses. It also provided that the use of water for domestic purposes is the highest use of water and the next highest use is for irrigation. Sec. 106. The plaintiffs claim in their complaint that they and their class have put the entire flow of the river to “reasonable and beneficial uses” and are' entitled to have, and that it is necessary for those reasonable and beneficial uses, present and prospective, to have the entire flow of the San Joaquin River continued without any impoundment or diversion at Friant Dam. On the original argument, and subsequent arguments and hearings the plaintiffs have asserted by statement of counsel that, while they are entitled to have, they do not want all the water to continue to flow past their lands in its natural state, and that what they seek is only to have the amount of water released from Friant Dam which will not either damage or destroy their land by taking away their natural surface and underground waters, or as plaintiffs’ counsel put it: they want a “reasonable supply of water.” It does not appear from the complaint and no contention is made by defendants that the impounded waters at Friant are being, or will be used for domestic purposes by any impoundment or diversion. Therefore, it is not, under the Water Code of California, a higher use than that to which the plaintiffs put it. It must be said from the allegations of the complaint, which must be accepted as true, that the plaintiff and the members of their class have been and are presently and prospectively putting all of the flow of the river heretofore available to them to reasonable and beneficial uses and to the highest and best use. Whether or not it is such a reasonable and beneficial use, to the fullest extent to which the waters are capable so that there is no waste under the California Constitution and laws, is not before this court on the motion to dismiss. In summary, the rights of the plaintiffs to the use of the waters of the San Joaquin River may be said to be that amount of its flow ás has been and is reasonably and beneficially used presently and prospectively under reasonable methods of use and diversion. It is admitted by defendants’ counsel that such rights exist as against others of similar right, but it is contended that under no circumstances do the plaintiffs have any water rights against the impounding and diversion of the entire flow of the San Joaquin River if such is done by the United States for the “improvement of navigation” or flood control, and that the Friant Dam and diversionary works are erected for the "improvement” of navigation and flood control. In short, the position of counsel for defendants in this court is this: that the San Joaquin River is navigable in part (it is navigable to Stockton (150 miles below Mendota) as a matter of judicial notice, and has been navigable to Hills Ferry (80 miles below Mendota), according to reports of Army engineers, but has never been navigable as far as Mendota, much less along the strip between Mendota and Friant); and that being so, no one can have any rights as against any action of the United States in building obstructions in the San Joaquin River, or the defendants in diverting its entire flow if Congress has declared that the appropriation for the building of such obstruction (dams) or diversionary works (canals) are for the improvement of navigation or flood control, regardless of the fact that Congress has also said in the same statute that such works were for irrigation and other purposes and regardless of the fact that Congress required all such works to be done, under the requirement of the Reclamation laws and that such work has been done under the Reclamation laws. Or, stated another way, the defendants’ position is this: The San Joaquin River is navigable in part in its lower reaches; the Sacramento River is likewise navigable in part in its lower reaches; both rivers are within the state so far as their basins are concerned and their drainage; there have been floods in the past on the lower San Joaquin River, and, inasmuch as both rivers are navigable in part and there has been flood damage at times, and Congress has, and has exercised, plenary power over them and the flow of their waters, in lumping them together for appropriation purposes, the entire flow of the San Joaquin River, or any of its tributaries may be diverted and taken in total disregard of all rights and all uses, without compensation, below such point of diversion. This is true, say Government counsel, because under the Commerce Clause the control of Congress is complete and plenary over navigable rivers and their tributaries. Defendants’ counsel conceded that under their theory the owners of “fast” lands must have their property condemned or be compensated in damages. They define “fast land” in this instance as land above the ordinary high water mark of the San Joaquin River, above Friant Dam. Putting it another way, they say that the owners of ■land above Friant, whose lands and rights to their use are destroyed by flooding as a result of the impounding of water are entitled to be compensated even though the impounding is in aid of navigation or flood control; but that those whose lands are below the dam and whose land is destroyed for any useful purpose as a result of the total taking and diversion of water, are not entitled to compensation because the dam was built as a part of a scheme tO’ aid navigation or to control floods. There is a vast difference between impounding water and merely delaying or regulating the flow in aid of navigation or flood control or power purposes where it re-enters the river system below the point of impoundment, and the situation complained of here, where it is asserted that after the impoundment at Friant, the entire flow of the river is threatened to be diverted so that it does not again re-enter the river system of the San Joaquin, and will as effectively and completely destroy the farms and lands of the plaintiffs and their usefulness as if they were permanently flooded. To concede that a person is entitled to compensation whose land is above the dam and is destroyed by flooding, but to deny compensation for those whose land is below, and is dried up completely, and made useless and thus destroyed by the same dam, makes it difficult to follow the logic of the defendants. But, in view of the importance of the matter, their contentions make it necessary to examine the various Acts of Congress (Appendix A) dealing with the Central Valley Project and appropriations therefor, as well as the Reports to Congress at the time of the passage of those statutes. Both the State of California and the United States have, for a very long time, been engaged in investigation and planning for the maximum use of the waters in the streams of the Central Valley. The Central Valley Project as a whole had its inception with the enactment by the State of California, upon vote of the people, of the Central Valley Project Act of 1933, Cal. Stats.1933, p. 2643, now, California Water Code, Secs. 11100 to 11855. The Act called for the construction of various works, including a dam at Friant, to be constructed by the State with federal aid. The State was not successful, however, in obtaining a grant from the Federal Public Works Administration, and in May, 1935, the Bureau of Reclamation applied for an allotment for a federal project under the Emergency Relief Appropriation Act of April 8, 1935 (Appendix A-8), which was made in September, 1935. Meanwhile Congress passed the Act of August 30, 1935 (App. A-9) authorizing certain work not involved here and not including a dam at Friant, to be done under the direction of the Secretary of War by the Chief of Army Engineers. Also in the meanwhile the Supreme Court, on April 29, 1935, had decided U. S. v. State of Arizona, 1935, 295 U.S. 174, 55 S.Ct. 666, 79 L.Ed. 1371, which held that Parker Dam on the Colorado River then being constructed under an allotment by -the Federal Emergency Relief Administration to the Reclamation Bureau, was not authorized by Congress, because there had been no compliance with Section 4 of the Act of June 25, 1910 (App. A-4) requiring a feasibility report and the approval of President. That section requires that for any money to be spent which is put to the credit of the reclamation fund, there must be a report recommending it to the President, and the President’s approval filed with Congress. Thus, on November 26, 1935, pursuant to Sec. 4 of said Act of June 25, 1910, and said Amendatory Act of December 5, 1924, (App. A-5), the then Secretary of the Interior made such a report (referred to by the parties and hereinafter as the feasibility report), which the President approved and sent to Congress. Because of its importance in the instant matter it is set forth in full as Appendix “C” The first tim.e Congress acted after the feasibility report was on June 22, 1936, when, by Act of that date, Congress made an appropriation of six million dollars to the Bureau of Reclamation for the building of Friant Dam. No mention is made in that Act, however, of the feasibility report. On August 9, 1937 (App. A-ll), Congress passed the Interior Department Appropriation Bill, making $12,500,000 available to the Bureau of Reclamation for the Central Valley Project. This Act did not mention the feasibility report. The next Act of Congress relating to this matter is regarded by the parties as the most important one. It is the Act of August 26, 1937 (App. A-12). This act was amended on October 17, 1940 (App. A-20) in particulars not involved here. The Acts of April 8, 1935 (App. A-8) and of August 26, 1937 (App. A-12) seem to have been regarded by Congress as the Acts which authorize the construction of the project, as evidenced by the fact that, in the Acts of July 30, 1941 (App. A-22) and July 8, 1942 (App. A-24), reference is made to the Central Valley Project as “authorized” by those Acts. While State of Arizona v. State of California, infra, may have cast doubt upon the validity of the appropriations made by said Act of April 8, 1935, because there was no prior feasibility report in accordance with Sec. 4 of said Act of June 25, 1910 and said Act of December 5, 1924, that ground of invalidity was removed by the making of such report on November 26, 1935 (App.C), bringing the project and the appropriations within the Reclamation laws, and more particularly by said Act of August 26, 1937, specifically re-authorizing the project and works, after such report, and making all the works authorized in their construction and operation subject to the Reclamation laws, and by the above mentioned Acts of July 30, 1941 and July S, 1942. Turning, then, to the text of the Acts of Congress dealing with Central Valley, there cannot be found therein any language which requires or suggests any intention by any Act of Congress to take the water rights of these plaintiffs and their class without compensation, or to take them at all, for that matter. It would be supererogation to repeat the text of them here. As before stated, they are set forth in Appendix A in the applicable portions. Nor is there anything mentioned in any of the reports to Congress, as set forth in the Acts of Congress, or to which the attention of this court has been called, whether mentioned in any Act of Congress or not, which says in language or by inference that the water rights of the plaintiffs and their class between Friant and Mendota are to be taken without compensation, or are to be taken at all. Just the contrary is true, not only as to the Acts of Congress, but as to the reports made to Congress. Nor is there anything in any Act of Congress which specifically mentions Friant Dam and its diversionary works as being in aid of navigation or flood control. Much is said by counsel for both parties concerning the “Feasibility Report” of November 26, 1935. (App.C.) The Court of Claims in the Gerlach cases, (Gerlach Livestock Co. v. U. S.), 1948, 76 F.Supp. 87, 111 Ct.Cl. 1, read that report as a declaration that the “entire flow of the San Joaquin River” would be diverted at Friant Dam. But this court cannot so read that report, nor conclude that Congress adopted that view. The portion of the report which apparently gave rise to that conclusion, and to some of the contentions of the plaintiffs here, is as follows: “This water 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 — the second storage unit of the project — and to be utilized in the Southern San Joaauin Valiev where local supplies are deficient.” It is noted that in the first place, the report does not say that the water will be taken at Friant, but will be regulated; and, in the second place, any water to be diverted and taken from Friant was to be replaced with “this water ” which from the immediately preceding portions of the report is clearly meant to be the water intended to be taken into the lower San Joaquin Valley from the Sacramento River but not to any of the lands of plaintiffs and their class. The language is “the supply for the San Joaquin Valley will be conveyed up the San Joaquin River through a series' of pumping plants and intervening natural and artificial channels, a distance of 150 miles, lifting the water to an elevation of 160 feet above sea level.” The distance of 150 miles referred to is in the vicinity of Mendota, where a dam has been constructed and where the present plans show what is referred to as the Mendota Pool as the southern terminus of the Delta-Mendota canal to be used to bring Sacramento River water to that portion of San Joaquin Valley laying only below Mendota, and not to any of the lands above Mendota, and below Friant, where are located the lands of the plaintiffs and their class. The conclusion may be justified that the report ■ indicated an intention to take all the water below Mendota, and replace it with other water. This court can see no justification for the conclusion that Congress, in making appropriations on the basis of the feasibility report indicated an intention to take the water rights of the plaintiffs’ lands above Mendota. This conclusion is further borne out by the statement in the report “that the works of the project will provide an adequate water supply for all purposes,” and “this project is not designated for bringing new lands into cultivation, but for maintenance of existing agricultural development and existing civilization of a high type,” and “the project will not bring into production new agricultural areas, but will maintain present vahies and civilization.” Obviously, if "existing agricultural development” and ’'present values” were to be maintained by an “adequate” water supply, an intention cannot be read into the report to take away the water rights of the plaintiffs, and their class whose lands are below Friant and above Mendota. Moreover, the report specifically points out that the project is “to be constructed under the Act of June 17, 1902 (The Reclamation Act, App. A-3), and Acts amendatory thereof and supplementary thereto.” It was also pointed out that the reason for making the report was the Act of June 25, 1910, and the Act of December 5, 1924, which required such a report on any “irrigation project contemplated” by the Reclamation Act. By said Act of August 26, 1937 (App. A-12), the entire Central Valley Project was transferred from the Secretary of War to the Secretary of the Interior. This Act is vigorously urged as supporting the position of the defendants that the plaintiffs have no water rights because of the provisions therein that the dams and reservoirs provided in the Central Valley Project (Friant Dam being one) “shall be used, first, for river regulation, improvement of navigation, and flood control; second, for irrigation and domestic uses; and, third, for power.” The defendants in support of their contentions rely upon the line of cases illustrated by U. S. v. Chandler-Dunbar Water Power Co., 1913, 229 U.S. 53, 33 S.Ct. 667, 57 L.Ed. 1063; U. S. v. Appalachian Electric Power Co., 1940, 311 U.S. 377; 61 S.Ct. 291, 85 L.Ed. 243; and State of Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 1941, 313 U.S. 508, 61 S.Ct. 1050, 85 L.Ed. 1487. But these cases do not apply here as will hereinafter appear.' In each of them there was involved water power development or flood control, or both, as distinguished from diversion and taking of the water out of its natural course below the dam involved. The construction and works involved in none of them were being done by specific direction of Congress under the Reclamation laws, as is the case here. In all of them the water was impounded and not diverted and taken, but ultimately found its way, under control, to the lower reaches of the river for its uses there. In no case brought to the attention of the court, or found on research, has there been a complete diversion and taking of the water to the extent or similar .to the claimed right of the defendants here. U. S. v. Chandler-Dunbar Water Power Co., supra, involved condemnation proceedings under a special Act of Congress, which contained no reservation of vested private water rights as is found in Sec. 8 of the Reclamation laws (App. A-3). Even so, in that case the private owner’s award for actual taking of and damage to existing improvements was affirmed. Only prospective rights to the future flow of the river, which would have required more structures to be built by the claimant, were held not to be compensable property. In State of Arizona v. State of California, 1931, 283 U.S. 423, 51 S.Ct. 522, 75 L. Ed. 1154, also relied on by defendants, there was not under consideration the matter of taking any private rights of landowners, but only a police regulation of the State of Arizona relating to the building of dams as against a special Act of Congress authorizing the particular dam in question. The court held that the dam involved had a reasonable relation to the improvement of navigation. In U. S. v. Appalachian Electric Co., supra, the court had under consideration the question as to whether or not the New River was navigable so as to bring a proposed Power Dam upon which construction had been started under the provisions of the Federal Water Power Act of 1920, 41 Stat. 1063, 49 Stat. 838, 16 U.S.C.A. § 791a et seq. There was no question of taking any water rights which had been put to beneficial use under state laws, nor of any diversion of the waters of the river out of their natural channel below the dam. The court held that, as a matter of fact, the river was navigable and subject to the Federal Water Power Act, thus again reserving as a judicial function the question of navigability in fact. Moreover, as pointed out in Ford & Son v. Little Falls Fibre Co., supra, the Federal Water Power Act contained a provision which required recognition of such private rights, so there was no question of taking water rights, as here. The defendants rely most heavily upon State of Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., supra. No complaint was made in that case of the loss of use of the water for agricultural purposes downstream after it was impounded. The complaint of Oklahoma was only that power would be sold in Texas which would be the product of the water run through turbines for that purpose. And, specifically, the court in that case pointed out, 313 U.S. on page 534, 61 S.Ct. on page 1064, “There is no complaint that any property owner will not receive just compensation for the land taken.” Moreover, in that case the court 'held that the dam involved did have a reasonable relation to navigation, thus reserving that as a judicial question. The Red River, sixth in length in the United States, draining portions of five states and emptying into the Mississippi in its lower reaches-, cannot, in its contribution to the recurring and devastating floods in the lower Mississippi Valley, be compared to the flood control which is, at this state of the record, involved here, where the San Joaquin in the area between Friant and Mendota, has caused damaging floods at the rate of one every 200 years, and in the lower reaches only once in 25 years. H. Doc.- 191, 73rd Congress, pages 58-59. For those reasons and others pointed out, the case is not applicable. But in justification of the claims of the defendants as to the extent of their power to take the entire flow of the river, and the lack of any rights in plaintiffs and their class, it is well to further look at that case and its attempted application here. Without repeating in full the arguments made in the briefs of the defendants, their position, with relation to that case, appears to depend upon the following statements in that opinion, 313 U.S. page 523, 61 S.Ct. page 1058: “The fact that portions of a river are no longer used for commerce does not dilute the power of Congress over them. * * * And it is clear that Congress may exercise its control over the non-navigable stretches of a river in order to preserve or promote commerce on the navigable portions. * * * ” 313 U.S. page 525, 61 S.Ct. page 1059: “There is no constitutional reason why Congress cannot under the commerce power treat the watersheds as a key to flood control on navigable streams and their tributaries. Nor is there a constitutional necessity for viewing each reservoir project in isolation from a comprehensive plan covering the entire basin of a particular river. * * * We have recently recognized that ‘Flood protection, watershed development, recovery of the cost of improvements through utilization of power are * * * parts of commerce control’ * * * And we now add that the power of flood control extends to the tributaries of navigable streams.” In the effort to apply these statements to the instant situation the defendants’ contention amounts to this: that the San Joaquin River is, or has been in some of its stretches, navigable; that it is all part of a comprehensive plan to control the watershed of all the rivers in the Central Valley, called the Central Válley Project, by Congress; that the particular portion of the San Joaquin River involved in this case has contributed to water of the whole system, which caused floods; that such floods have interfered with and obstructed interstate commerce by washing out bridges and roads or depositing debris on highways over which interstate commerce is carried; and that, even though the contribution of the San Joaquin River to such floods might be small, nevertheless, it is tributary to them and thus any obstruction authorized by Congress which may impound the waters of such tributary can be used by the defendants to divert the entire flow of such tributary, regardless of the use to which such diversion is put, and regardless of any rights which Congress has said shall be recognized below such point of diversion under state law. The court cannot read that case, or any others, as supporting any such extreme extension of its doctrine as the defendants contend. The application and legal approval of this contention, if. carried to its logical extreme, would give the defendants the power to divert every stream in the west — from mountain freshet to flowing rivers — to other uses than those to which they have been reasonably and beneficially put under applicable state law or even by adjudications in adversary proceedings merely because a flood that may occur in the incidence of once in 25 years may wash out a railroad culvert or a highway over which interstate commerce is carried, and thus obstruct the flow of interstate commerce. The extension of such doctrine would put every water right in California, if not the United States, in non-compensable jeopardy if somewhere some portion of the river system upon which that right depended, was navigable or caused floods. The application of such a doctrine, carried to its logical extreme, would, for instance, leave the city of Los Angeles and 28 other cities in Southern California, with a population of more than five million, depending on water from the Colorado secured through the state established Metropolitan Water District, subservient to some impoundment and diversion above Parker Dam which might be constructed under an appropriation made by Congress in aid of navigation or flood control of