Full opinion text
WILBUR, Circuit Judge. Preliminary to the statement of facts, we quote from the appellant’s brief its statement of the nature and purposes of the action, without adopting that statement: “This is a suit by the United States. “(1) To quiet title to public lands and to the use of the waters thereof; and “(2) To determine and enforce the right of the United States to regulate and use the waters of the San Joaquin River. “(a) For power purposes on its riparian lands, under its constitutional power to dispose of the public domain, and “(b) For navigation purposes on the lower part of said stream, under the authority of the commerce clause of the constitution of the United States.” Fundamentally the question presented by appellant’s brief is the right of the United States and its authorized licensees to impound, during the period of high water, the water of the rivers and streams having their sources in the public domain for the purpose of developing hydroelectric power and of regulating the flow of navigable streams. Avowedly this action was instituted in the federal courts by the appellant, which will hereinafter be referred to as the government, in order to avoid the effect of the law of California with reference to water rights as established by its legislation and judicial decision. The government admits that in the Herminghau9 Case (Herminghaus v. Southern California Edison Co., 200 Cal. 81, 252 P. 607) the Supreme Court of California has established as the law of California riparian rights in and to' the waters of the San Joaquin river and other streams inconsistent with the claims of the government in this action. The claim of the government may be summarized as follows: The government, by reason of its ownership of the public lands within the state of California, is entitled to the use of the water in the streams bordering on or flowing through such lands by reason of the common-law right of owners of riparian lands to such water; that this right includes the right to store water for the generation of hydroelectric power, as its permittee in this ease proposes to do by virtue of governmental license; that the state of California under the Enabling Act (9 Stat. 452) is powerless to modify the proprietary right of the government in such streams by either legislation or judicial decision; that the decision of the Supreme Court of the State of California in the Herminghaus Case is inconsistent with the common-law rights of an upper riparian owner and is therefore ineffective to determine the right of the government.in and to waters rising in or flowing to or along the public lands of the United States. We are thus asked by the government to re-write the water law of California as developed by its courts to the extent, at least, of holding that the large body of public land riparian to the streams of the state has right® entirely distinct from those defined and recognized by the law of the state of California. Formidable as is the task thus presented with reference to the law of California, the contention made here would be even more discordant with the laws of the other states of this circuit which have not recognized the common-law right of riparian ownership and have consistently based their laiy of_ water rights upon the appropriation of water (Arizona, Nevada, Montana, Idaho). If it be true that the government, by reason of its ownership-of large tracts of public lands, has a corresponding common-law right to the water of the streams as a part and parcel of land, and that such water cannot be taken away by state legislation or judicial decision, the result of the government’s contention would in such other states be even more disastrous to private ownership of water than it would be in the state of California, which has always recognized the rights of the riparian owner in and to the waters of streams. At the same time the doctrine of appropriation is also applied in appropriate eases. See Lux v. Haggin, 69 Cal. 255, 4 P. 919, 10 P. 674; 25 Cal. Jur. (Waters) §§ 3 to 7, inc.; § 58 and authorities there cited; Cal. Civil Code, §§ 1410-1422. In addition to the rights thus asserted by the government on account of its ownership of public lands, the government is also asserting its sovereign right to control the flow of the San Joaquin and other navigable rivers in aid of commerce and navigation. It is assumed by tbe parties that the Attorney General of the United States has power to bring this action involving, as is claimed, the title of the government to the waters rising on or flowing through public lands, and for the purposes of the decision we will make a like assumption, although it would seem that, in a matter of such far reaching importance to so many states and to such a multitude of private owners or claimants, a special act of Congress authorizing such a suit would be appropriate. In the government’s brief, it is asserted that: “If the United States looks unconcernedly on, while rights which it claims to own are being litigated and adjudged to be the property of others, it would be folly to expect any trace of its title to be discovered fay the courts of equity fifty years later.” This statement is made in support of the claim of necessity of action by the government at this time to prevent the acquisition by the appellee Central Stockholders Corporation of Vallejo of title to the waters of the San Joaquin river as recognized and declared by the Supreme Court of the State of California in the Herminghaus Case. It is equally applicable, however, to the situation presented by tbe record where litigation hás been commenced after tbe government has stood by for more than seventy-five years and allowed the courts of the state to develop its water law and water rights without objection. The rights to water in streams flowing from or on public lands have largely been the result of local custom and laws, acquiesced in by tbe government, acknowledged by tbe decisions of the Supreme Court and ratified by Congress, both by direct legislative approval and by inferences legitimately resulting from legislation dealing with public lands. Basey v. Gallagher, 20 Wall. (87 U. S.) 670, 22 L. Ed. 452; Atchison v. Peterson, 20 Wall. (87 U. S.) 507, 22 L. Ed. 414; Forbes v. Gracey, 94 U. S. 762, 24 L. Ed. 313; Jennison v. Kirk, 98 U. S. 453; 25 L. Ed. 240; Broder v. Water Co., 101 U. S. 274, 25 L. Ed. 790; Act of Congress July 26, 1866, § 9, 14 Stat. 253 (43 USCA § 661); 19 Stat. 377, § 1, as amended (43 USCA § 321); Black Pomeroy on Water Rights, § 17, p. 22. Tbe general tenor of such decisions and legislation will be indicated by an extended quotation from a comparatively recent decision (1898) by the Supreme Court in the case of United States v. Rio Grande Irrig. Co., 174 U. S. 690, 702-705, 19 S. Ct. 770, 774, 43 L. Ed. 1136: “Tbe unquestioned rule of the common law was that every riparian owner was entitled to the continued natural flow of the stream. It is enough, without other citations or quotations, to quote the language of Chancellor Kent (3 Kent, Comm. § 439): “ ‘Every proprietor of lands on the banks of a river has naturally an equal right to the use of the water which, flows in the stream adjacent to his lands, as it was wont to run (eurrere solebat) without diminution or alteration. No proprietor has a right to nse the water, to the prejudice of oilier proprietors, above or below him, unless he has a prior right to divert it, or a title to some exclusive enjoyment. He has no property in the water itself, but a simple usufruct while it passes along. “Aqua eurrit et debet eurrere ut eurrere solebat,” is the language of the law. Though he may use the water while it runs over his land as an incident to the land, he cannot unreasonably detain it, or give it another direction, and he must return it to its ordinary channel when it leaves his estate.’ “While this is undoubted, and the rule obtains in those stales in the Union which have simply adopted the common law, it is also true that as to every stream within its dominion a state may change this eommon-law rule, and permit the appropriation of the flowing waters for such purposes as it deems wise. Whether this power to change the common-law rule, and permit any specific and separate appropriation of the waters of a stream, belongs also to the legislature of a territory, we do not deem it necessary, for the purposes of this case, to inquire. We concede arguendo that it does. “Although this power of changing the common-law rule as to streams within its dominion undoubtedly belongs in each state, yet two limitations must be recognized: First, that, in the absence of specific authority from congress, a state cannot, by its legislation, destroy the right of the United States, as the owner of lands bordering on a stream, to the continued flow of its waters, so far, at least, as may bo necessary for the beneficial uses of the government property; second, that it is limited by the superior power of the general government to secure the uninterrupted navigability of' all navigable streams within the limits of the United States. In other words, the jurisdiction of the general government over interstate commerce and its natural highways vests in that government the right to take all needed measures to preserve the navigability of the navigable water courses of the country, even against any state action. It is true there have been frequent decisions recognizing the power of the state, in the absence of congressional legislation, to assume control of even navigable waters within its limits, to the extent of creating dams, booms, bridges, and other matters which operate as obstructions to navigability. The power of the state to thus legislate for the interests of its own citizens is conceded, and until in some way congress asserts its superior power, and the necessity of preserving the general interests of the people of all the states, it is assumed that state action, although involving temporarily an obstruction to the free navigability of a stream, is not subject to challenge. A long list of eases to this effect can be found in the reports of this court. See, among others, the following: Willson v. Black Bird Creek Co., 2 Pet. 245 [7 L. Ed. 412]; Gilman v. Philadelphia, 3 Wall. 713 [18 L. Ed. 96]; Escanaba Co. v. Chicago, 107 U. S. 678, 2 S. Ct. 185 [27 L. Ed. 442]; Willamette Iron Bridge Co. v. Hatch, 125 U. S. 1, 8 S. Ct. 811 [31 L. Ed. 629], “All this proceeds upon the thought that the nonaction of congress carries with it an implied assent to the action taken by the state. • “Notwithstanding the unquestioned rule of the common law in reference to the right of a lower riparian proprietor to’ insist upon the continuous flow of the stream as it was, and although there has been in all the Western states an adoption 'or recognition of the common law, it was early developed in their history that the mining industry in certain states, the reclamation of arid lands in others, compelled a departure from the eommon-law rule, and justified an appropriation of flowing waters both for mining purposes and for the reclamation of arid lands, and there has come to be recognized in those states, by custom and by state legislation, a different rule, — a rule which permits, under certain circumstances, the appropriation of' the waters of a flowing stream for other than domestic purposes. So far as those rules have only a local significance, a,nd affect only questions between citizens of the stale, nothing is presented which calls for any consideration by the federal courts. In 1866, congress passed the Act of July 26, 1866, c. 262, § 9,14 Stat. 253; Rev. Stat. § 2339: “ ‘Whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws and the decisions of courts, the possessors and owners of such vested rights shall bo maintained and protected in the same; and the right of way for the construction of ditches and canals for the purposes herein specified is acknowledged and confirmed; but whenever any person, in the construction of any diteh or canal, injures or damages the possession of any settler on the public domain, the party committing such injury or damage shall be liable to the party injured for such injury or damage.’ “The effect of this statute was to recognize, so far as the United States are concerned, the validity of the local customs, laws, and decisions of courts in respect to the appropriation of water. In respect to this, in Broder v. Water Co., 101 U. S. 274, 276 [25 L. Ed. 790] it was said: “‘It is the established doctrine of this court that rights of miners, who had taken possession of mines and worked and developed them, and the rights of persons who had constructed canals and ditches to be used in mining operations and for purposes of agricultural irrigation, in the region where such artificial use of the water was an absolute necessity, are rights which the government had, by its eondu'et, recognized and encouraged, and was hound to protect, before the passage of the act of 1866.' We are of opinion that the section of the act which we have quoted was rather a voluntary recognition of a preexisting right of possession, constituting a valid claim to its continued use, than the establishment of a new one.’ “March 3, 1877, an act, chapter 107, was passed for the sale of desert lands, which contained in its first section this proviso, 19 Stat. 377: “ ‘Provided, however, that the right to the use of water by the persons so conducting the same on or to any tract of desert land of. six hundred and forty aeres shall depend upon bona fide prior appropriation; and such right shall not exceed the amount of water actually appropriated and necessarily used for the purpose of irrigation and reclamation; and all surplus water over and above such actual appropriation and use, together with the water of all lakes] rivers, and other sources of water supply upon the public lands and not navigable, shall remain and be held free for the appropriation and use of the public for irrigation, mining, and manu-faeturing purposes subject to existing rights.’ “On March 3, 1891, an act, chapter 561, was passed repealing a prior act in respect to timber culture, the eighteenth section of which provided, 26 Stat. 1101: “ ‘That the right of way through the public lands and reservations of the United States is hereby granted to any canal or ditch company formed for the purpose of irrigation and duly organized under the laws of any state or territory which shall have filed, or may hereafter file, with the secretary of the interior a copy of its articles of incorporation, and due proofs of its organization under the same, to the extent of the ground occupied by the water of the reservoir and of the canal and its laterals, and fifty feet on each side of the marginal limits thereof; also the right to take, from the public lands adjacent to the line of the canal or diteh, material, earth and stone necessary for the construction of such canal or ditch: provided, that no such right of way shall be so located as to interfere with the proper occupation by the government of any such reservation, and all maps of location shall be subject to the approval of the department of the government having jurisdiction of such reservation, and the privilege herein granted shall not he construed to interfere with the control of water for irrigation and other purposes under authority of the respective states or territories.’ “Obviously, by these a-ats, so far as they extended, congress recognised and assented to the appropriation of water in contravention of the common-law■ rule as to continuous flow. ' To infer therefrom that congress intended to release its control over the navigable streams of the country, and to grant in aid of mining industries and the reclamation of arid lands the right to appropriate the waters on the sources of navigable streams to such an extent as to destroy their navigability, is to carry those statutes beyond what their fair import permits. This legislation must be interpreted in the light of existing facts, — that all through this mining region in the West were streams, not navigable, whose waters could safely be appropriated for mining and agricultural industries, without serious interference with the navigability of the rivers into which those waters flow. And in reference to ail these cases of purely local interest the obvious purpose of congress was to give its assent, so far as the public lands were concerned, to any system, although in contravention to the commondaw rule, which permitted the appropriation of those waters for legitimate industries. To hold that congress, by these acts, meant to confer npon any state the right to appropriate all the waters of the tributary streams which unite into a navigable water course, and so destroy the navigability of that water course in derogation of the interests of all the people of the United States, is a- construction which caymot be tolerated. It ignores the spirit of the legislation, and carries the statute to the verge of the letter, and far beyond what, under the circumstances of the case, must be held to have been the intent of congress.” (Italics ours). The Supreme Court in this case was dealing with a situation where the defendant, the Rio Grande Irrigation Company, was threatening to divert all the waters of the Rio Grande river, at a point above its navigable portion, but so as to render the stream in-navigable where it had theretofore. at all times been navigable, and it was held that by reason of later legislation (1890; 26 Stat. 454, § 10 [33 USCA § 403a]) that if the legislation of 1877 (19 Stat. 377, supra) permitted so great an appropriation, the later legislation (26 Stat. 454, § 10, supra) withdrew that consent. Whatever the relative power of the state and of the government in the absence of permissive legislation, as stated in the foregoing excerpt from U. S. v. Rio Grande Irr. Co., supra, it is clear that the legislation of Congress above referred to (1866, 14 Stat. 253; 1877, 19 Stat. 377) gave the consent of Congress, “so far as the public lands were concerned, to any system, although in contravention to the common-law rule, which permitted the appropriation of those waters for legitimate industries.” U. S. v. Rio Grande Irr. Co., supra, 174 U. S. page 706, 19 S. Ct. 770, 776, 43 L. Ed. 1136, as above quoted. We can see no reason why there should he any distinction in principle between actual possession and diversion and the constructive possession of an owner of riparian land, recognized by the state in declaring by legislation and judicial decision that the running water therein or adjacent thereto is a part and parcel thereof. However, that matter, as will presently appear, is not properly before ns, and we refrain from deciding whether the government has expressly or impliedly consented to such water rights as have been reeognized by the state, where there has been no actual appropriation or use thereof other than that arising from the irrigation, and the fertilization therefrom in the course of nature. The question of title to the beds of streams in a state which depends upon the navigability thereof is an entirely different matter, and the relative rights of the state and the federal government are dependent upon the principle of uniformity in the various states, and for that reason and also because the rights of the federal government are involved, the matter is one for determination by the federal courts which are not bound by the legislative or judicial determination of the state as to the fact of navigability. The late decisions of the Supreme Court on that subject, cited by the government (Kansas v. Colorado, 206 U. S. 46, 27 S. Ct. 655, 51 L. Ed. 956; United States v. Utah, 283 U. S. 64, 51 S. Ct. 438, 75 L. Ed. 844), have no very direct hearing upon the question of the effect of state legis • lation and decision as to water rights, not only because there is federal legislation, above referred to, expressly modifying the relative rights of the citizens of a state and of the government with reference to the rights of the government as owner of public lands to the use of water flowing therein, but also because there is no federal common law to fix the rights of the government in its capacity as proprietor thereof. Kansas v. Colorado, 206 U. S. 46, 96, 27 S. Ct. 655, 665, 51 L. Ed. 956. The decision of the Supreme Court in the controversy between Kansas and Colorado as to the waters of the Arkansas river (supra) deals with the relative rights of these states to the waters of the Arkansas river, and is an illuminating discussion of the legislative power of the government and of the state over the waters and lands within a state. A few excerpts from that opinion will perhaps sufficiently indicate the trend of the decision, although it is difficult to do so adequately without more extended quotation: “ * * * At the time of the adoption of the Constitution, within the known and conceded limits of the United States there were no large tracts of arid land, and nothing which called f,or any further action than that which might bo taken by the legislature of the state in whieh any particular traet of such land was to be found; and the Constitution, therefore, makes no provision for a national control of the arid regions or their reclamation. But, as our national territory has been enlarged, we have within our borders extensive tracts of arid lands which ought to be reclaimed, and it may well bo that no power is adequate for their reclamation other than that of the national government. But, if no such power has been granted, none can be exercised. “It does not follow from this that the national government is entirely powerless in respect to this matter. These arid lands are largely within the territories, and over them, by virtue of the second paragraph of § 3 of article 4, heretofore quoted, or by virtue of the power vested in the national government to acquire territory by treaties, congress has full power of legislation, subject to no restrictions other than those expressly named in the Constitution, and, therefore, it may legislate in respect to all arid lands within their limits. As to those lands within the limits of the states, at least of the Western states, the national government is the most considerable owner and has power to dispose of and make all needful rules and regulations -respecting its property. We do not mean that its legislation can override state laws in respect to the general subject of reclamation. While arid lands are to be found mainly, if not only, in the Western and newer states, yet the powers of the national government within the limits of those states are the same (no greater and no less) than those within the limits of the original thirteen; and it would be strange if, in the absence of a definite grant of power, the national government could enter the territory of the states along the Atlantic and legislate in respect to improving, by irrigation or otherwise, the lands within their borders. Nor do we understand that hitherto Congress has acted in disregard to this limitation. As said by Mr. Justice White, delivering the opinion of the court in Gutierres v. Albuquerque Land Co., 188 U. S. 545, 554, 23 S. Ct. 338, 341, 47 L. Ed. 588, 593, after referring to previous legislation : “ ‘It may be observed that the purport of the previous acts is reflexively illustrated by the Act of June 17, 1902, 32 Stat. 388. That act appropriated the receipts from the sale and disposal of the public lands in certain states and territories to the construction of irrigation works for the reclamation of arid lands. The 8th section of the act [43 USCA §§ 372, 383] is as follows: “ ‘ “See. 8. That nothing in this act.shall be construed as affecting or intending to affect or to in any way interfere with the laws of any state or territory relating to the control, appropriation, use, or distribution of water used in irrigation, or any vested right acquired thereunder, and the Secretary of the Interior, in carrying out the provisions of this act, shall proceed in conformity with such laws, and nothing herein shall in any way affect any right of any state, or of the Federal government, or of any landowner, appropriator, or user of water in, to, or from any interstate stream or the waters thereof: Provided, That the right to the use of the water acquired under, the provisions of this act shall be appurtenant to the land irrigated, and beneficial use shall be the basis, the measure, and the limit of the right.” ’ “But it is useless to pursue the inquiry further in this direction. It is enough for the purposes of this case that each state has full jurisdiction over the lands within its borders, including the beds of streams and other waters. Martin v. Waddell, 16 Pet. 367, 10 L. Ed. 997; Pollard v. Hagan, 3 How. 212, 11 L. Ed. 565; Goodtitle v. Kibbe, 9 How. 471, 13 L. Ed. 220; Barney v. Keokuk, 94 U. S. 324, 24 L. Ed. 224; St. Louis v. Myers, 113 U. S. 566, 5 S. Ct. 640, 28 L. Ed. 1131; Packer v. Bird, 137 U. S. 661, 11 S. Ct. 210, 34 L. Ed. 819; Hardin v. Jordan, 140 U. S. 371, 11 S. Ct. 808, 838, 35 L. Ed. 428; Kaukauna Water Pr. Co. v. Green Bay & Miss. Canal Co., 142 U. S. 254, 12 S. Ct. 173, 35 L. Ed. 1004; Shively v. Bowlby, 152 U. S. 1, 14 S. Ct. 548, 38 L. Ed. 331; Water Power Co. v. Water Comm., 168 U. S. 349, 18 S. Ct. 157, 42 L. Ed. 497; Kean v. Calumet Canal Co., 190 U. S. 452, 23 S. Ct. 651, 47 L. Ed. 1134. * * * “It may determine for itself whether the common-law rule in respect to riparian rights or that doctrine which obtains in the arid regions of the West of the appropriation of waters for the purposes of irrigation shall control. Congress cannot enforce either rule upon any state. It is undoubtedly true that the early settlers brought to this country the common law of England, and that that common law throws light on the meaning and scope of the Constitution of the United .States, and is also in many states expressly recognized as of controlling force in the absence of express statute. * * * “In the argument on the demurrer counsel for plaintiff endeavored to show that Congress had- expressly imposed the common law on all this territory prior to its formation into states. See also the opinion of the Supreme Court of Kansas in Clark v. Allaman, 71 Kan. 206 [80 P. 571, 70 L. R. A. 971], But when the states of Kansas and Colorado were admitted into the Union they were admitted with the full powers of local sovereignty which belonged to other states (Pollard v. Hagan, supra; Shively v. Bowlby, supra; Hardin v. Shedd, 190 U. S. 508, 519, 23 S. Ct. 685, 47 L. Ed. 1156); and Colorado, by its legislation, has recognized the right of appropriating the flowing waters to the purposes of irrigation. Now the question arises between two states, one recognizing generally the common-law rule of riparian rights and the other prescribing the doctrine of the public ownership of flowing water. Neither state can legislate for, or impose its own policy upon the other. A stream flows through the two and a- controversy is presented as to the flow of that stream. * * * “It has been said that there is no common law of the United States as distinguished from the common law of the several states. This contention was made in Western Union Teleg. Co. v. Call Pub. Co., 181 U. S. 92, 21 S. Ct. 561, 45 L. Ed. 765', in which it was asserted that, as Congress, having sole jurisdiction over interstate commerce, had prescribed no rates for interstate telegraphic communications, there was no limit on the power of a telegraph company in respeet thereto. After referring to the general contention, we said (pages 101, 102 of 181 U. S., 21 S: Ct. 561): “ ‘Properly understood, no exceptions can bo taken to declarations of this kind. There is no body of Federal common law separate and distinct from the common law existing in the several states in the sense that there is a body of statute law enacted by Congress separate and distinct from the body of statute law enacted by the several states. But it is an entirely different thing to hold that there is no common law in force generally throughout tho United States, and that the countless multitude of interstate commercial transactions are subject to no rules and burdened by no restrictions other than those expressed in the statutes of Congress. '* * * Can it be that tho groat multitude of interstate commercial transactions are freed from the burdens created by the common law, as so defined, and are subject to no rule except that to he found in the statutes of Congress ? We are clearly of opinion that this cannot be so, and that the principles of the common law are operative upon all interstate commercial transactions, except so far as they are modified by congressional enactment.’ “What is the common law? Kent says (vol. 1, p. 471): “ ‘The common law includes those principios, usages, and rules of action applicable to the government and security of persons and property, which do not rest for their authority upon any express and positive declaration of the will of the legislature.’ “As it does not rest on any statute or other written declaration of the sovereign, there must, as to each principle thereof, he a first statement. Those statements are found in the decisions of courts, and the first statement presents the principle as certainly as the last. Multiplication of declarations merely adds certainty. For after all, the common law is but the accumulated expressions of tho various judicial tribunals in their efforts to ascertain what is right and just between individu als in respect to private disputes.” In view of tho long acquiescence of the federal government in the use of waters arising on or flowing through public lands it would seem that special legislation was to bo reasonably expected as a basis for the litigation of its rights thereto. Without again citing specific statutes or decisions, a general view of the decisions, and of the federal legislation, leads to the conclusion that it has been the consistent policy of the government of the United States to allow the citizens of the various states to work out their own system of law with relation to water rights without intervention or adverse legislation by the federal government. Not only has this been the policy of the government, but appellees contend it is settled law that the government of tho United States in its proprietary relationship growing out of the ownership of public lands is subordinate to and controlled by state legislation and decision upon that subject. No authority to the contrary is cited by the government, if wo except the dictum above quoted from the opinion by Justice Brewer in U. S. v. Rio Grande Irr. Co., supra, 174 U. S. page 703, 19 S. Ct. 770, 43 L. Ed. 1136, to the effect that in the absence of specific authority from Congress a state cannot by its legislation destroy the right of tho United States as the owner of lands bordering on a stream to the continued flow of its waters, so far at least as may be necessary for the beneficial uses of the government property. Appellee Central Stockholders Corporation of Talle jo contends that the questions raised by the government as hereinbefore stated, and many others involved in the decision of the District Court, are not properly before tho court for consideration, that the right of tho government to* control navigable streams is not involved, that the proprietary right of tho government in and to the waters flowing in and across the public domain is not involved, and that tho sole question presented by the record is as to* the obligation of the permittee, or licensee, to* make compensation to private owners whose rights, as recognized by the state, are interfered with by the permittee in the carrying out of the project covered by the permit. In short, tho appellee Central Stockholders Corporation of Talle jo contends that the effect of the permit from the Federal Water Power Act (16 USCA §§ 791-823) is merely to allow the permittee to occupy public lands of the United States by its dams and reservoirs, and that as against private owners of waters affected by the project the permittee is required to compensate all owners of water rights affected by the work done and the use of water contemplated by the licensee or permittee. Having thus stated in very general terms the contention of the parties, we will state more in detail the situation presented by the record- and will then return to a consideration of the legal questions involved in the appeal. The appellee Southern California Edison Company was granted a permit by the Federal Water Power Commission for the construction of power plants and dams on and across lands riparian to some of the streams tributary to the San Joaquin river. The Central Stockholders’ Corporation of Vallejo, owning lands riparian to the San Joaquin river where said river is declared by the statutes of California to be navigable, brought an action in the superior court of Stanislaus county to enjoin the permittee from interfering with its riparian rights in and to the waters of said river as declared and determined by the Supreme Court of California in the Herminghaus Case. The permittee, Southern California Edison Company, appellee, filed a cross-complaint in that action for the condemnation of the rights thus asserted by the Central Stockholders’ Corporation of Vallejo. It is conceded by the government that if this case proceeds to judgment it would result in a verdiet for damages due to the condemnation of such rights. The government, powerless to intervene in the pending action in the state court, claims in its complaint herein, that any judgment so rendered in the condemnation proceedings, although first paid by the permittee, will subsequently fall upon the government at the expiration of the permit, for the reason that at that time the federal government is authorized to take over the project of the permittee upon payment of a reasonable value thereof which will probably include expenditures made by the permittee in the acquisition of the alleged rights of the Central Stockholders’ Corporation of Vallejo. The government, therefore, seeks to enjoin the further prosecution of this ease in the state court. The right to an injunction is thus based upon the proprietary rights of the government in and to its public lands, and waters. The government’s contention 'is predicated upon the theory that, although the permittee now would be -required to pay the amount determined in the state court to be the value of the rights of the Central Stockholders’ Corporation taken over by the permittee, the permit-tee is in effect an agent of the federal government to carry out its project and as such is vested with the right of the government not only in and to the lands occupied by its ;dam and reservoir site, but also in and to the waters thus impounded, and that the rights o-f the government in and to such waters include the very right being exercised by the permittee, that is, the right to impound the water for the generation of hydroelectric power to- be held whenever and^until such water is reasonably necessary for the generation of such power, and thereafter to release such water into the stream. The question as to whether or not the permittee is thus vested with the alleged right of the government to impound water as against a lower riparian owner is a comparatively simple one and must be determined from a consideration of the Federal Water Power Act which, as we have noted, expressly reserves to private owners of water their rights as fixed by the state law. If the action, however, can be regarded not only as one to enjoin further prosecution of litigation in the state courts upon the theory indicated, but also- one brought by the government of the United States to quiet its .title, that is, to define its right to waters rising upon or flowing through the publie lands of the United States, the problem involved is more complicated and fundamental. We will first consider the question as to whether or not the Southern California Edison Company is required by the Federal Water Power Act (41 Stat. 1063 [16 USCA c. 12, §§ 791 — 823) to pay f.or damages resulting from impounding the water of the stream in violation of the rights of riparian owners as defined by the state law, and will first determine whether or not an injunction against the further prosecution of this suit involving the rights of such private owners is proper, and will then consider whether or not the action at bar is an action to quiet title to the waters of the United States appurtenant to or a parcel of its public lands, and if so what those rights may be. With reference to the effect of the Federal Water Power Act we are not without authority for our guidance as to the proper interpretation of that law. In Ford & Son v. Little Falls Co., 280 U. S. 369, 50 S. Ct. 140, 74 L. Ed. 483, a private business corporation, licensed by the Federal Water Power Commission to use, for development of electrie power, the surplus water from a dam in the Hudson river, constructed under acts of Congress, placed dashboards on tho crest of the dam, as the license permitted but did not require it to do, and thus raised the level of the water pool to such an extent as to diminish the head and impair the value of a dam and water power belonging to riparian proprietors above on the Mohawk river, a navigable tributary of the Hudson., It was contended by tho permittee that the permit to erect the lower dam was in furtherance of navigation, that tho federal government had plenary power over that subject, and that, having by the permit authorized tho construction of the dam in question, the dam in legal effect was constructed by the federal government in aid of navigation. The Supreme Court in that case said, at page 378 of 280 U. S., 50 S. Ct. 140, 141: “Section 10 (c) (16 USCA § 803 (e) ) provides that licensees ‘shall be liable for all damages occasioned to the property of others by the construction, maintenance, or operation’ of the licensed project, and by section 27 (16 USCA § 821) it is provided: ‘Nothing contained in this chapter shall be construed as affecting or intending to affect or in any way to interfere with the laws of the respective States relating to the control, appropriation, * * * or distribution of water used in irrigation or for municipal or other uses, or any vested right acquired therein.’ By section 21 (16 USCA § 814), licensees are given the power of eminent domain and authorized to conduct condemnation proceedings in district or state courts for the acquisition ‘or the right to use or damage the lands or property of others necessary to the construction, maintenance, or operation of any dam * * * [or] * * * diversion structure * * * ’ in connection with an authorized project which they are unable to acquire by contract. By section 6 (16 USCA § 799), all licenses are required to bo ‘conditioned upon acceptance by the licensee of all the terms and conditions of this Act.’ “While these sections are consistent with the recognition that state laws affecting the distribution or use of water in navigable waters and the rights derived from those laws may be subordinate to the power of the national government to regulate commerce upon them, they nevertheless so restrict the operation of the entire act that the powers conferred by it on the Commission do not extend to the impairment of the operation of those laws or to the extinguishment of rights acquired under them without remuneration. We think the interest here asserted by the respondents, so far as tho laws of the state are concerned, is a vested right acquired under those laws, and so is one expressly saved by section 27 from destruction or appropriation by licensees without compensation, and that it is one which petitioner, by acceptance of the license under the provisions of section 6, must be deemed to have agreed to recognize and protect.” The Supreme Court found it unnecessary to determine whether or not the dam thus situated, erected by the federal government in aid of navigation, in furtherance of its sovereign power over navigable water courses, would leave the owner of the upper power plant without recourse for the injuries suffered, because of the fact that the Federal Water Power Act expressly required its permittees to make compensation for private rights. The section of the act, section 10(e), 16 USCA § 803(c), with relation to such private rights is as follows: “(e) That the licensee shall maintain the project works in a condition of repair adequate for the purposes of navigation and for the efficient operation of said works in the development and transmission of power, shall make all necessary renewals and replacements, shall establish and maintain adequate depreciation reserves for such purposes, shall so maintain and operate said works as not to impair navigation, and shall conform to such rules and regulations as the commission may from time to time prescribe for the protection of life, health, and property. Each licensee hereunder shall be liable for all damages occasioned to the property of others by the construction, maintenance, or operation of the project works or of the works appurtenant or accessory thereto, constructed under the license, and in no event shall the United States bo liable therefor.” Tho analogy of the Ford Case to the present one is too obvious to require extended discussion. That case involved, as does this, interference by a permittee with a private right recognized by state law, in relation to the waters of a stream across which a dam had been constructed. In that case the permittee was required to compensate the owner for the damage caused by the addition by the permittee of dashboards on tho crest of a federal dam and in this case, where the dam has been constructed entirely by the permittee the same result would follow. Indeed, appellant admits that under the Ford Case its permittee would be required to pay the damage fixed by the state court in eonde'mnation proceedings, and bases its prayer for injunction against the further prosecution of the ease pending in the state court upon the ground that the result of such an action will be to fix such damages. In the Ford Case, however, the government was not a party, and the question there determined was the relation of the permittee to other riparian owners on the stream. Here the government has instituted this action upon the theory that the result of the private litigation now pending would be to place upon the federal government the burden of paying the judgment at the expiration of- the permit. Broadly stated, the contention of the government is that this case is distinguishable from the Ford Case for the reason that in the case at bar a question as to the rights of the government, through its permittee, to construct the contemplated dam and reservoir is here presented for the first time. This right of the government, it is contended, is based upon its sovereign power to regulate and control navigable waters (that being the purpose of the dam constructed by the government in the Ford Case), and also upon the proprietary right of the government in and to the waters impounded by the dam. These contentions involve a consideration of the purpose of Congress in the passage-of the Federal Water Power Act. The Supreme Court held in the Ford Case, in effect, that it was not the intention of Congress to vest any portion of its sovereign power in the permittee, and, assuming that the government might have exercised its control over navigable streams by and through a permittee under the Federal Water Power Act, that it was not the intention of the government so to do. On the contrary, the general purpose of the act was to permit what would otherwise be an infringement of the rights of the federal government and an interference with navigation, that is, to permit a purpresture, requiring the permittee, however, to make due compensation where the project involved the taking of private property. To put it in another way, the law expressly recognizes all private rights established and determined by the law of the state and expressly requires the permittee, where it interferes with such rights to compensate the owners therefor. If we assume, as is contended, that the government in this case might, in the aid of navigation of the San Joaquin river, impound the waters of the tributary streams and feed them into the river in a manner best suited to navigation without regard to the rights of other riparian owners to the waters of the stream for purposes of irrigation, etc., and without compensation therefor, such assumption cannot avail the government because the Ford Case holds that in the exercise of such powers through a permittee under the Federal Water Power Act such- permittee must make compensation for private rights so taken. It seems absurd to say that although Congress has expressly required its permittee to compensate for damages due to its interference with private rights, the fact that the government is required by its lease to reimburse the permittee at the expiration of the permit, authorizes the government to prevent the ascertainment and payment by the permittee of the damages Congress has required it to pay. We conclude, therefore, that in so far as the permittee is acting by or for the government, any right conferred upon the permittee so to do is by act of Congress subordinated to the right of private owners interfered with or affected by the authorized project, and that in so far as the project of the permittee is in aid of navigation it is not clothed with any of the sovereign rights of the United States to control the navigation of the stream which may be in conflict with the riparian rights of the property owners to recover damages for losses of property due to such dam. While the question of the right of the permittee to exercise the riparian rights of the government due to its ownership of public land by impounding the waters of a stream rising on and flowing through government land is not expressly determined in the Ford Case, that case definitely determines that the permittee is by express provision of the Federal Water Power Act required to pay all damages inflicted by it upon private property rights. This conclusion is wholly inconsistent with the proposition that it was the intention of Congress that the permittee should be able to set off the rights of the government, whatever they -might be, as against the rights of other owners of the water. In short, it is obviously not the intention of Congress to vest in the permittee any of its rights in and to the waters of the stream which are inconsistent with the rights of other owners, except in so far as th-e authority of the federal government to carry out the project authorizes the taking of private property with just compensation to private owners. We may, therefore, dismiss the contentions of the government based upon a right to enjoin the further prosecution of tho suits in the state court. The decision of the trial court upon that subject was correct. The ease was decided in the trial court upon a motion to dismiss the complaint so that tho facts stated in the complaint were admitted in the trial court and for the purpose of the appeal must be assumed to be correct. See however, as to judicial notice, Arizona v. California, 283 U. S. 423, 452, 51 S. Ct. 522, 75 L. Ed. 1154; Jackson v. U. S., 230 U. S. 2, 33 S. Ct. 1011, 57 L. Ed. 1363; U. S. v. Utah, 283 U. S. 64, 51 S. Ct. 438, 75 L. Ed. 844, supra. Assuming, as we have decided, that the action must fail in so far as it is predicated upon a right to enjoin the state court from proceeding in tho pending action, it remains to consider whether or not there are sufficient allegations in the complaint to require a consideration of the fundamental rights of the government, in and to the waters of the San Joaquin river by reason of its ownership of public lands or its poweT over navigable waters to require a determination of those rights. The right to control navigable waters may be readily dismissed from consideration so far as a suit to quiet title is concerned because it is not a right of property but of sovereign power vested in the federal government and not to be determined in such a suit. Such political i-ights are not a subject of litigation. New Jersey v. Sargent, 269 U. S. 328, 46 S. Ct. 122, 70 L. Ed. 289. A judgment affecting such rights would be at best a declaratory judgment which is not permitted in federal procedure. New Jersey v. Sargent, supra; Texas v. Interstate Commerce Comm., 258 U. S. 158, 42 S. Ct. 261, 66 L. Ed. 531; Liberty Warehouse v. Grannis, 273 U. S. 70, 47 S. Ct. 282, 71 L. Ed. 541; Willing v. Chicago Auditorium, 277 U. S. 274, 289, 48 S. Ct. 507, 72 L. Ed. 880. We will now consider the proposition advanced by the government that this action is one to quiet title to its water rights considered as a part and parcel of the public domain. The bill of complaint of the plaintiff occupies 39 pages of the transcript, and in dealing with tho question now under consideration we will summarize as far as possible to do so, and for that reason will not quote at length from the bill. It is alleged that the government owns certain large bodies of land known as the Sierra National Forest in the counties of Fresno and Madera in the state of California; and more particularly owns lands in townships 6, 7, 8, 9; and 10 South, ranges 24, 25, 26, 27, 28, Mt. Diablo Base Meridian, shown on map attached to, the complaint; that these lands contain forests of great extent; that said lands have been set apart by Acts of Congress (26 Stat. 650 [16 USCA §§ 44, 45, 55, 61]; 33 Stat. 702 [16 USCA §§ 46, 49]; 34 Stat. 831 [16 USCA §§ 47-50]; 27 Stat. 1059; 26 Stat. 1103 [16 USCA § 471]; 30 Stat. 34 [16 USCA § 475]) to secure favorable conditions of the water flow, and for other purposes. It is alleged that: “Many streams of water have their sources in springs and melting snows upon said lands and flow through and across the said lands and are tributary to the San Joaquin River. Said streams, until they reach the said river, and the said river, until it reaches Herndon, are innavigable.” That plaintiff has expended largo sums of money for the improvement of the San Joaquin river, and the maintenance of a navigable channel therein. “6. Said lands of the plaintiff are high and mountainous and are subject at certain seasons to deep falls of snow and to heavy rain storms. By reason of the mountainous character of said lands and the sudden changes of temperature which characterize the climate of that part of the state of California, the rains and melting snows often cause great and disastrous floods to pass down the said streams. As such flood waters collect in the tributaries and join in great volume in the San Joaquin River, they carry great quantities of silt, depositing the same in the navigable channels, changing tho courses thereof, greatly damaging and impeding the navigation of said river, and causing great expense to plaintiff in the protection and improvement of navigation. The largest part of tho precipitation upon the areas contributing to the flow of the said San Joaquin River falls in the winter and spring months and passes quickly down the streams, flooding and damaging adjacent lands, interfering with navigation of its proper channels, and finally wasting into the ocean. The rainfall in the summer and autumn is ordinarily inadequate on tho said areas to maintain the flow of said stream during these seasons and the beneficial uses of the waters thereof are limited by this fact. If the flood waters of said river may be impounded in reservoirs and the flow equalized from season to season, useful navigation could bo carried on in’ all of the navigable parts of the said stream; and the flood waters thereof, now wasting into the sea, could be made to serve many additional beneficial uses on the lands of the plaintiff and others.” It is also alleged that there are many suitable reservoir sites upo.n the government lands, and that by the construction and operation of suitable works thereon “the floods of said river can and will be largely controlled and prevented and the silting and shifting of the navigable channels thereof will be diminished. By the construction and regulation of such storage reservoirs the excess waters in times of flood can and will be held back to be released in times of low water, thereby saving waters otherwise wasted, removing silt from the waters, stabilizing the navigable channels of said river, increasing the depth of water during low-water seasons, and greatly extending and improving the navigability thereof.” It is further alleged that there are many suitable sites for the development of hydroelectric power which can be transmitted to the cities and communities in the state of California at a profitable price, that the government derives revenue from such hydro-electric plants under the Water Power Act. “The economic development of power on said lands of the plaintiff is dependent upon the regulation of the stream flow by means of reservoirs whereby the flood waters may be retained to be used in times of scarcity.” It is alleged that the government has from time to time executed and delivered to the Southern California Edison Company permits for reservoir sites and power plants; one reservoir known as Huntington Lake having approximate capacity of 88,834 acre feet; that this plant is already paying a revenue to the government of over $26,000 per annum, and that the revenue can be increased by additions to the plant; that it issued a permit to the same corporation for an hydroelectric power plant which will develop 175,-600 horse power; that the government will receive about $30,000 per year from revenues derived by the company on such operation; that a license for another project having a capacity of 55,000 horse power has been issued; that the government will receive license fees of about $19,000 per annum from this project; that the total amount of storage provided by the permits issued to the Southern California Edison Company amount’s to 434,470 acre feet, and the total power developed or to be developed amounts to 852,500 horse power. It is alleged that the authorities of the state of California are cooperating with the government for the regulation and control of the flood Waters of the San Joaquin river and the Sacramento river and conserving waters of said streams for beneficial uses (27 Stat. 507 [33 USCA § 661 et seq.]; 39 Stat. 949, § 2 [33 USCA § 703]; 26 Stat. 1095; 36 Stat. 847 ; 41 Stat. 1063; Stats. of Calif. 1911 [Ex. Sess.] p. 117; Stats. of Calif. 1925, c. 176, p. 325; Stats. of Calif. 1886 [Ex. Sess.] p. vi; Stats. of Calif. 1891, p. 520; Stats. of Calif. 1927, pp. 2376, 2400). That: “In furtherance of a comprehensive scheme of development of said streams the State Department of Public Works of California has proposed to the Legislature of said state a plan set forth in Bulletins No. 9 and 12 of the said Department of Public Works for storing all the flood waters thereof in reservoirs to be constructed for power purposes on the headwaters and tributaries and in reservoirs to be constructed for irrigation, navigation and flood control purposes on suitable sites where said streams and tributaries emerge from the foothills, and elsewhere on said rivers. By act of the Legislature of'said state of April 29, 1927, the administrative authorities of said state were directed to withdraw from private appropriation all the waters of said streams not theretofore used in order to make the same available in development of said coordinated comprehensive plan.” In pursuance of said comprehensive plan of the state and federal authorities, it is alleged that the state authorities have filed appropriation notices upon the flood waters of said rivers, that the federal government has withdrawn from private entry certain reservoir sites and particularly reservoir sites on the lands of the plaintiff on the San Joaquin river known as the Friant Reservoir site. “Plaintiff anticipates and alleges that in due course some duly authorized agency of said state will be given authority from plaintiff to construct and operate said Friant reservoir. Plaintiff alleges that the construction and operation of said reservoir and of the reservoirs permitted and licensed to its said licensee, Southern California Edison Company, for flood control, irrigation, and power purposes are consistent with and constitute a part of the most comprehensive scheme of development of said San Joaquin River for navigation and other purposes and of the water resources of said region as considered and adopted by the Federal Power Commission and by the Legislature of said state, and axe desirable and justified in the public interest for the purpose of protecting, improving and developing the said San Joaquin River for the use and benefit of interstate and foreign commerce.” It is alleged that: “If the construction and operation of the reservoirs referred to in paragraph 10 hereof shall be prevented, plaintiff will be deprived of its right to an increase of revenues from said project 96 and will be deprived of its right to have its licensees contribute and cooperate in the construction of headwater improvements as in section 10 (f) of the Federal Water Power Act [16 USGA § 803 (f)] provided.” “15. The defendant, Central Stockholders Corporation of Vallejo, claims to be the owner of certain lands in the county of Stanislaus in said state of California, alleging the same to be riparian to the San Joaquin River, and claims certain rights in the flow of the waters of said river adverse to the right of plaintiff and its licensees therein as herein set out; and has demanded large sums of money from tho said defendants Southern California Edison Company, as damages to said lands by reason of the operation of said projects. Plaintiff alleges that the claim of the defendant Central Stockholders Corporation of Vallejo to the waters of said river is without right, arid that the rights, if any, possessed by the said defendant, Central Stockholders Corporation of Vallejo, are inferior and subordinate to the right of plaintiff and its licensee, Southern California Edison Company, as herein set out, to reservoir, store and use said waters for the production of power and to regulate the flow of said stream for the protection and improvement of navigation. * * * “16. Plaintiff alleges that by reason of its ownership of the said lands in Exhibit ‘A’ hereof described, by reason of the navigable chai’aeter of the said San Joaquin River where the same borders upon the lands of the. defendant Central Stockholders Corporation of Vallejo, and by reason of plaintiff’s sovereign authority to protect and improve the said river for the uses of interstate and foreign commerce, the rights of plaintiff in the control and use of said waters is superior to all rights of the defendants herein. * * * ” “20. Plaintiff alleges that the San Joaquin River at all points opposite the lands claimed by the defendant, Central Stockholders Corporation of Vallejo, is a navigable stream, and that the use made by said defendant, Central Stockholders Corporation of Vallej O', of the waters of said river as claimed in the action referred to in paragraph 16 hereof, is not a use in connection with navigation and is not a reasonable use as against the plaintiff herein, but