The opinion
INDEX BY TOPICS
Page
I. Preliminary statement............................................... 36
II. General geographical & physical features.............................. 39
III. History of litigation................................................. 49
IV. The parties.............................'............................ 53
V. The pleadings ...................................................... 54
VI. Jurisdiction of (1) subject matter
(2) defendant officials
(3) defendant districts ............................... 62
VII. Jurisdiction of the State of California.................'................ 66
VIII. Jurisdiction of the United States...................................... 69
IX. Default against United States........................................ 85
X. Eminent domain .................................................... 89
XI. Water rights under California law — general...........................104
XII. California water rights of plaintiffs....................................115
XIII. California water rights of defendants.................................. 116
(a) Purchase & exchange contracts................................. 117
(b) Change of point of diversion.................................... 117
(c) Applications to appropriate held by the United States............. 121
(d) Prescription .................................................. 125
(e) Laches ....................................................... 128
(f) Estoppel .......................... 128
(g) Public use ................................................... 130
XIV. Watershed and county of origin statutes...............................149
XV. Class action ........................................................ 154
XVI. Election of remedies — Tucker Act.................................... 159
XVII. Inadequacy of remedy at law......................................... 160
XVIII. Physical solution & form of judgment.................................. 161
XIX. Injunctive relief against United States................................ 175
XX. Tranquillity Irrigation District........................................176
XXI. City of Fresno...................................................... 178
(a) Complaint in intervention...................................... 178
(b) Ancillary proceedings ......................................... 178
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HALL, District Judge.
I.
Preliminary Statement.
This is a water rights case.
One phase or another of it has been considered in five reported opinions, viz.: Rank v. Krug, D.C., 90 F.Supp. 773 , United States v. United States District Court, etc., 9 Cir., 206 F.2d 303 , State of California v. United States District Court, etc., 9 Cir., 213 F.2d 818 , Rank v. United States, D.C., 16 F.R.D. 310 , and City of Fresno v. Edmonston, D.C., 131 F.Supp. 421 .
In view of the number of cases considered by the court in this opinion, and the fact that many of them are cited to several propositions, and to alleviate the frustrating use of the conventional “supra” and “post,” an alphabetical index of cases is attached as Appendix “A,” page 187.
This opinion is long. There is repetition in it. But these things are necessitated in order to have a proper understanding of the numerous legal and factual matters involved, many of which are complex, and several are important questions of first impression.
In view of the contentions made by some of the defendants at various times throughout the trial and related proceedings, it is well to state at the outset, as a reminder to the parties that this court has neither -the desire nor the power to question the
wisdom,
of any of the applicable Acts of Congress or of the laws of the State of California relating to the Central Valley plan or project or any unit of it, and that this suit is but an invocation of the powers confided by the Constitution and laws to the judicial department of the government to interpret and apply the applicable law to the issues raised by the pleadings and the evidence. Such relief in the form of a judgment as may be found necessary is but the usual exercise of the judicial power, though it may thereby restrict the conduct of the government and its officers to that which is judicially determined to be lawful and within its or their respective powers. If government officials were the sole judges of their powers and their conduct, then the courts would not be necessary.
This is not
a suit wherein the plaintiffs seek to establish for each of them their separate rights
inter sese
to a given quantity of water as between ■themselves or as against one another, but
it is
a suit to establish a
common right
to a
common source
of water. It is a type of suit familiar, for many years, to the arid West wherein parties seek the adjudication and enforcement by a court of equity of claimed common rights to the use of water, which rights are asserted to be interfered with or taken by the acts of the defendants contrary to applicable laws.
It is impossible to make any short and comprehensive statement of the issues. They will be dealt with in detail hereinafter.
Stated as simply as possible, the controversy may be described as follows: The plaintiffs do not seek to prevent the construction or operation of the Central Valley Plan or any unit or project thereof, but contend that the lawful operation of the Plan and units involved compels recognition and enforcement of their rights to water, as tested by applicable Federal and California laws. The- defendants at one stage or another have recognized -that the plaintiffs do have rights to water. The dispute throughout the trial has largely been over the extent and enforceability of those rights, the area having the San Joaquin river as its common source, the quantity of water required to fulfill those rights, and the most reasonable and economic method of doing so.
The plaintiffs and their class are riparian and overlying owners of land along the San Joaquin river and on its alluvial cone, below Friant dam and above Mendota Pool, 59 miles below Fri-ant. They formerly had the full flow of the river in its natural channel to satisfy their direct and underground supply,
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The average annual flow for the period 1897-1944 was 1,797,260 acre-feet,
1
and the average flow was at the rate of 2,-463 second-feet
2
measured at Friant.
The government (as that term is used, it applies to the Bureau officials and the United States unless it otherwise appears in the context of the opinion hereinafter) by its submitted plan of physical solution proposes to release only a sufficient amount of water into the natural channel of the river as will produce a flow of five second-feet past the lowest downstream lands (in the vicinity of Gravelly Ford, 36 plus miles downstream from Friant.).
While the prayer of plaintiffs’ complaint asked the full flow of the river, their counsel has insisted throughout the trial, and the case was tried on the basis, that the plaintiffs seek only that reasonable amount of water which they insist they are entitled to have for reasonable present and prospective uses by reasonable methods of diversion under the applicable Federal and California laws in the form of a judgment requiring a “physical solution.” In relation to the full flow of the river and the amount impounded and diverted at Friant, the amount thus sought is small.
All parties serving pleadings prayed that the court impose a reasonable physical solution as that term has been applied by the courts of California. Plans of physical solution were submitted before the commencement of the trial.
Prior td the commencement of the trial the court suggested that the entire matter be referred to the California Department of Public Works, Division of Water Resources, as special master or referee under the provisions of the California Water Code, Sections 2075-2076. This proposal was rejected by all parties, and the court felt it had no discretion to direct the reference, in view of the fact that government officials who were defendants had had the case removed from the State court to the Federal court.
The trial has been protracted and bitter.
3
By far, the greater portion of the evidence has dealt with the source, course and direction of underground waters. And while the defendant officials on the original Motion to Dismiss contended the plaintiffs had no rights at all, they, as well as all other answering defendants, admitted in their answers that the plaintiffs do have rights to water. The real difference as it has finally developed is the claim that the United States has taken the entire flow of the San Joaquin river by the exercise of its power of eminent domain, and that whatever rights the plaintiffs have to water to be released from Friant is solely in the discretion and determination of government officials. The question is, therefore, whether the plaintiffs are entitled to uncertain releases as a matter of mere grace in the amounts determined from time to time by government officials, or to releases of water as a matter of adjudicated right by virtue of their status as downstream and overlying owners with vested rights under applicable Federal statutes and the California law.
The lands of the class of landowners represented by the plaintiffs comprise approximately 300,000 acres which for many years have been highly cultivated
*38
with ample water supply. The San Joaquin river filled some plaintiffs’ needs fully and others partially, which will be discussed later. These lands lie in what may be roughly described as an equilateral triangle with the apex at Friant, and overlay the alluvial cone of the San Joaquin river westerly from Friant. In the Central Valley Plan no provision is made for bringing additional water to these lands, but their supply was to continue by releases from Friant.
It was not until long after the trial started that the definitive quantity of water to be released downstream from Friant to supply the lands of plaintiffs and their class was announced to be approximately only 48,000 acre-feet of water annually.
The first declaration by the Secretary of the Interior of the United States as to just how water was to be supplied to plaintiffs and their class was not made until March 30, 1953. And it is indefinite, as it leaves to the government officials the determination of “all valid legal requirements for the reasonable and beneficial use of water, both surface and underground, by x-easonable methods of diversion and reasonable methods of use in that area.”
The determination of those things are judicial questions, Gin S. Chow v. City of Santa Barbara, 1933, 217 Cal. 673 , 22 P.2d 5 , and to have them declared and enforced by judicial process is, in a word, the purpose of this suit.
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II.
General Facts, and Geographical and Physical Features.
3a
*40
*41
*42
In the Opinion of this Court, filed April 13, 1950, 90 F.Supp. 773 , a brief description of the Central Valley Plan, as well as its history, legislative and otherwise, was set forth.
It is felt, however, that some general facts and a description of certain geographical features of the valley, as well as a brief description of the physical works immediately involved in this case, will be helpful.
Many voluminous bulletins, reports, and the like, both California and United States, were admitted in evidence as exhibits, and carefully examined by the Court. By reference to such exhibits, or any other reference to them or any other exhibits, the Court does not adopt, or find as true, any statement in any of said exhibits which is contrary to, or inconsistent with, the conclusions expressed in this Opinion. Many of the reports, bulletins and publications contain factual matter concerning the surface and underground waters in issue in this case. The statements in the reports concerning many phases, of the Project are merely the opinions of the authors, expressed without any challenge to them, which challenge has occurred in this adversary proceeding, where all the experts were submitted to extensive examination and cross-examination, not only on their opinions, but the factual bases for them. Many of the statements of fact and opinion in such documents are contradictory and conflicting with one another, and were not borne out by the evidence in this case, and are contrary to it.
It would serve no useful purpose to attempt to analyze the voluminous evidence in the case. All of the statements of fact contained in this Opinion are found by the Court to be true from a preponderance of the evidence in the whole case, after carefully weighing it and giving due consideration to all the factors required by the trier of facts to be taken into consideration in making a decision on the facts.
The Central Valley of California is an inland valley having only one outlet to the ocean at San Francisco Bay. It is commonly called the Sacramento-San Joaquin Valley. It is in the shape of an elongated bowl, having mountains on all sides except where the water passes into the sea at San Francisco Bay, and even there, its debouchment to the ocean is through a narrow pass called the Carquinez Straits. The valley, between the foothills, is approximately 400 miles long from the Grape Vine grade on the south to Red Bluff on the north, and at its widest point is approximately 100 miles wide.
The trough of the valley is not in .the center of the valley floor, but lies westerly of the center so that only about one-third of the valley lies westerly of the trough.
The Sacramento River basin, with its separate tributary river systems, drains the northern half of the' valley. The San Joaquin River basin, with its separate tributary river systems, drains the southern half of the valley.
The tributary river systems of the two basins gather their waters from the separate watersheds of each tributary river system in the mountains on the westerly and easterly sides of the valley, then flow easterly or westerly, as the case may be, to the central trough of the valley where they j'oin the main drainage channels of each basin. After reaching the trough of the valley, they flow toward each other (i. e., the Sacramento southerly, and the San Joaquin northerly), until they meet in the so-called Delta area in the vicinity of Stockton, where they turn again and flow westerly through Carquinez straits into the San Francisco Bay, and thence into the Pacific Ocean.
The estimated mean average
seasonal
run-off of the combined rivers for the 53-year period 1894-1947 was 33,646,000 acre-feet. Of this, the Sacramento Basin accounted for 22,390,000 acre-feet, and the San Joaquin Basin for 11,246,000 acre-feet. (Ex. Cal.-M-l, p. 39).
This case is not concerned with the Sacramento river or any of its tributary river systems.
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In the southern part of the valley there is a negligible contribution of water from the mountains which lie on the west side of the valley. Rainfall on the floor of the valley varies from less than six inches to about twelve inches per annum and likewise, is negligible in contributing to river flow. The economic life of the valley does not depend on rainfall, but depends on the water gathered from the rivers which rise in the Sierra Nevada Mountains easterly of the valley and flows from them on to the floor of the valley, for direct diversion into irrigation ditches, or for replenishment of the groundwater for wells. Practically all of the water in the southern or San Joaquin part of the valley comes from streams which have their origin in separate mountain watersheds on the east side of the valley. The water from those rivers then flows westerly to the trough of the valley where it either joins the main San Joaquin drainage channel and flows northerly, or flows southerly into the sinks of Tulare Lake or Buena Vista Lake.
The lands of both plaintiffs and defendant districts which are concerned in this case are in the southern portion of the southern half of the Central Valley, and lie in what is referred to in Exhibit 136 (p. 84, Plate 1) as the “East side Upper (southern) San Joaquin Valley.” Such lands are in the counties of Madera, Fresno, Tulare and Kern.
That area lies easterly of the trough of the valley. On the south it is bounded by the Tehachapai Mountains, and on the north by a line slightly north of the Chowchilla River. Seven river systems in that area arise in their separate moun-' tain watersheds in the Sierra Nevada Mountains to the east, from whence each flows westerly across the valley to its trough. The total average seasonal natural run-off for the 53-year period 1894-1947 for these seven river systems, measured at the point of debouchment into the valley, was 5,017,300 acre-feet per year. That of each of them respectively (beginning at the south end of the valley and going northerly), was as follows: Kern River — 736,000 acre-feet; Tule River — 140,000 acre-feet; Kaweah River — 416,000 acre-feet; Kings River— 1.715.000 acre-feet; San Joaquin River —1,816,000 acre-feet; Fresno River— 103.000 acre-feet; and Chowchilla River —91,300 acre-feet. (Exhibit' Cal-M-1, pp. 410-411). There are a number of creeks rising in the foothills in the same area, but their contribution is slight compared to the above-named rivers. All of them fluctuate greatly, not only in different years, but in different seasons of each year.
The mean seasonal amount of water contributed by nature to the area of defendant districts other than to the lands of plaintiffs, is thus 3,201,300 acre-feet annually,
without any contribution from, the San Joaquin river.
All of the defendant Irrigation Districts, prior to the building of the Madera and Friant-Kern canals, were traversed by, or secured their water supply from, one or the other of these various river systems by wells or surface diversion. Thus, while water-hungry lands, they are not water-starved lands. Friant dam is calculated to give them a supplemental supply of water.
Each of the above-named river systems has a separate well-defined watershed area in the mountains, separate and well-defined points of debouchment from the mountains, and each has an alluvial cone.
4
Each is a separate river and river system, and has been historically known as such. And each has been concerned in much litigation about water
*44
rights. All of them, by the undisputed evidence, at one time in the geological past, emptied into an inland sea, the only remnants of which are now called Tulare Lake and Buena Vista Lake.
Buena Vista Lake is.the sink for the Kern River, and Tulare Lake is the sink for all the others, including the San Joaquin in flood time, except the Fresno and Chowchilla rivers whose contributions of water are minor. In times of extreme flood, the Buena Vista Lake empties north across the floor of the valley to Tulare Lake, and when that reaches a sufficient height, the water flows across the low ridge in the vicinity of Mendota and joins the San Joaquin at the place where it turns in the vicinity of Mendota to flow north after flowing westerly.
We are concerned here only with the waters of the San Joaquin river as they flow southwesterly from the mountains to Mendota.
The ultimate plan of development of the Central Valley, as stated in some of the bulletins and reports, calls for dams and reservoirs on each of the rivers as follows: Millerton (Friant Dam) on the San Joaquin River; Pine Flat on the Kings River; Terminus on the Kaweah River; Success on the Tule River; and Isabella on the Kern River. (Plate opposite p. 60, Ex. 136). Of these, the dams on the three large rivers of the area have been completed, viz.: Friant dam on the San Joaquin at Fri-ant; Pine Flat (by the Corps of Army Engineers, and not by the Reclamation Bureau) on the Kings at Piedra since this suit was filed; and Isabella in the mountains on the Kern River since this suit was filed. Terminus dam on the Kaweah River and Success dam on the Tule river were authorized as Flood Control Projects by the Act of December 22, 1944, 58 Stat. 887 at page 901. The ultimate plan is only a plan, and only a few of its many units have been authorized and built.
The Central Valley Plan is a comprehensive and colossal undertaking. It is integrated in the sense that upon completion of all of the units envisioned by it, the very wise object will be accomplished of preventing the waste of millions of acre-feet of water into the sea.
As heretofore indicated, this case is not concerned with the whole Central Valley Plan. It is concerned primarily with Friant dam and the Madera and Friant-Kern canals, and, secondarily, with the Delta-Mendota canal. While each has relation to the objectives of the over-all plan of the Central Valley Plan, each is a complete unit, is physically operated as such, and has been, and is, regarded as such by the Congressional Appropriation Acts and the reports to Congress. They were so regarded and described in the Central Valley Project Act of 1933 of the State of California, Water Code, §■ 11100 et seq., and in the Feasibility Report approved by the President on December 2,1935. Reference to the applicable Acts of Congress and the text of the Feasibility Report are found in 90 F.Supp. 773 , and will not be repeated here, or hereafter alluded to, unless it is necessary to give point to the matter under discussion.
The San Joaquin river gathers its waters in its mountain drainage basin of 1,633 square miles in the Sierra Nevadas, and debouches from the mountains at Friant. It flows slightly west of south for 14 miles, then more southwesterly 45 miles to a place called Mendota (59 miles below Friant), whence it abruptly turns and flows northerly. The direction of flow is an important factor in connection with the extent of its alluvial cone and the groundwater therein.
Friant dam is built at Friant. The body of water impounded back of it is called Millerton Lake. Construction was started on Friant dam on November 3, 1939. A very small quantity of water was impounded during construction in October, 1941, below the valves which are the outlet to the San Joaquin river., The valves to the river bed were partially closed, and the first diversion of water to the Madera canal was made in 1944. The first diversion to Friant-Kem canal was made in 1949. The date of the com
*45
pletion of the dam is uncertain. It was not completed prior to the filing of the within suit in September, 1947.
Madera canal is 37 miles long, runs northerly from Friant along the easterly side of the valley, and serves the Madera and the Chowchilla Irrigation Districts. Friant-Kern canal, completed after this suit was filed, is 153 miles long, runs southerly along the Sierra-Nevada foothills on the easterly side of the valley, and terminates in the Kern river near Bakersfield, and serves the remaining 13 defendant Irrigation Districts. The take-off valve for the outlet to the Madera canal is lower than the take-off valve to the Friant-Kern canal. Thus, to serve the Friant-Kern canal, waters impounded back of Friant must be above the elevation of that take-off valve; and waters to serve the Madera canal must be above the elevation of the take-off valve to that canal.
The Delta-Mendota canal is on the westerly side of the valley, and begins in the vicinity of Tracy and goes southerly along the westerly side of the valley to Mendota 59 miles below Friant. It is 120 miles long. It is a different physical works than the San Joaquin River Pumping System, which is described in the Federal Feasibility Report of 1935 and the California Central Valley Project Act of 1933. When the change of plan or authority for it occurred, is not clear. It takes water out of the Sacramento river which, after being lifted by the pumping station at Tracy, flows southerly and enters the Mendota Pool where it is re-distributed and flows northerly through the old river bed of the San Joaquin or a system of canals, in the same direction as the San Joaquin river originally flowed at that point, and furnishes water to substantially the .same lands (about 200,000 acres) which were supplied by the San Joaquin river either by diversion into canals at Mendota Pool or by the bed of the river, before the building of the Delta-Men•dota canal. The Delta-Mendota canal is not directly involved in this lawsuit except as- it may be necessary to refer to it. It was not completed until 1951.
It is well at this point to refer to a popular misconception of the function of the Delta-Mendota canal, which easily could be received from the various official publications of both the State of California and the Federal government. That misconception is that the DeltaMendota canal
physically
takes water wasting into the ocean from the Sacramento river system, and by the canal
physically brings those waters to Miller-ton lake back of Friant dam, and from thence to the lands throughout the whole southern end of the valley, including the lands of the plaintiffs. That is not the case at all. Not one drop of water from the Sacramento river by way of DeltaMendota canal, or otherwise, is impounded back of Friant dam or is put upon any of the lands of plaintiffs or of defendant Irrigation Districts,
except a small amount temporarily from time to time on lands in the immediate vicinity of the Mendota Pool.
Prior to the inception of the Central Valley Project, Miller & Lux, Inc. and its subsidiary Canal Companies had various rights to the use of water of the San Joaquin river, which rights are complicated to describe in detail, but which may be generally classified as either riparian or appropriative, some of the latter of which had been acquired by prescription. The total quantity of water which such rights covered is not clear but seems to be in the neighborhood of 1,500,000 acre-feet per year. Some of the water was diverted by Miller and Lux canals above Mendota, such as Gravelly Ford, but most of it was gathered back of a comparatively small dam at Mendota in what is known as the Mendota Pool, and from that pool distributed to the lands to be served, either by way of the river bed or by way of various canals. Except for water diverted at Gravelly Ford by canals, all of the water for the Miller & Lux water rights, flowed past the lands of plaintiffs and their class to Mendota, and was used by the
*46
plaintiffs and their class, both for direct diversion and for supplying and replenishing the underground.
The United States purchased some of the Miller and Lux rights by the so-called
Purchase contract,
and paid $2,450,000 therefor. At the same time, and as part of the same transaction it agreed, by contract called the Miller and Lux
Exchange contract,
to provide water for substantially the same lands thereto-for served from the Mendota Pool or by the Miller & Lux Canal Companies, which water was to be taken from the Sacramento river by way of the DeltaMendota canal to Mendota Pool. From there, the water would be distributed by a system of canals to the lands formerly served by Mendota Pool so that there would be in effect little or no loss of usable water by the Miller and Lux lands, or the lands served by them or their subsidiaries below Mendota because of either the Purchase or Exchange contracts.
Thus, the water taken from the Sacramento river into the Delta-Mendota canal in effect, flows in a circle, beginning at the intake in the Delta in the vicinity of Tracy, thence south to Mendota Pool, thence north again to the Delta, without, at any time coming into contact with, or being able to serve, the lands of plaintiffs and their class. And the plaintiffs and their class receive no benefit from the Delta-Mendota canal.
It appears that the San Joaquin river has debouched at or near Friant for more than a million years;
5
it has flowed in its present channel and degraded its bed between the present bluffs during the past 100 or 150 thousand years; prior to that time and during the period of building its alluvial cone, it flowed in other channels, some of them as deep as the present channel, and deposited therein boulders, cobbles, gravel, sand and other alluvial material in the bed of its previous channels, the heavier and coarser material being deposited first and the fines last; water will flow underground through such coarse material more readily than through finer material; those channels changed from
geologic
time to geologic time
6
because of the tremendous quantities of water and detritus being brought from the mountain watershed on to the valley plain, which, when dropped in the channel, caused obstacles and forced a change in the direction of the flow; after those channels were changed,
7
finer alluvial material from the river, winds of unbelievable velocities carrying dust of extreme fineness, and other action of the elements filled the channels over which form what is
known
as aquifers,
8
through which water flows more freely underground than in the surrounding material; the aquifers are confined
9
in the sense that they are overlaid or encased in clayish material which is not wholly impervious, but is sufficiently so that water does not percolate freely through it; such aquifers are in contact with the present bed of the San Joaquin river,
10
and branch out from it much as the branches of a bush or tree all stem from the main trunk of the tree ;
11
such aquifers are buried and are at different depths;
12
the depth from the surface to the basement rock in the alluvial cone of the San Joaquin river
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varies from a few hundred feet, at Fri-ant to several thousand feet in the vicinity of Biola, and the river in earlier geologic times had a steeper grade than at present so that the deeper the aquifer, the steeper the grade; all of the material from the basement rock to the surface of the ground in the alluvial cone has been filled in by the actions of the San Joaquin river, except for some contribution from the Kings river and for some comparatively shallow alluvial deposits overlying the main cone of the San Joaquin river made by ephemeral small creeks such as Dry Creek, Little Dry Creek, Dog Creek and Fancher Creek; in the natural flow of the San Joaquin river its aquifers receive their supply and replenishment of water from the San Joaquin river; the aquifers, being the former beds of the river at different depths and of different ages, are not straight or regular in course or direction, but are winding and sinuous,
13
as is the present bed of the river, and follow the same general direction as the present bed of the river; some of said aquifers may cross and recross underneath, or at the present level of, the bed of the river; before the construction of Friant dam a great deal of cobbles, boulders, rock, sand and gravel and finer material was washed down from the mountains into the bed of the river, but with the building of the dam and the release of clear water therefrom, the water will tend to degrade the bottom of the San Joaquin river, which will put some aquifers out of contact with whatever flow is in the river; the area where the river formerly flowed and upon which it deposited the detritus and has built up the material, is the area of the alluvial cone; the alluvial cone of the San Joaquin river embraces all of the land within the exterior boundary lines of what has been referred to throughout the trial as the “Lee” lines; the water-bearing strata in the alluvial cone has been supplied and replenished from time immemorial in a substantial part by water percolating from the San Joaquin river; the San Joaquin river is a common source of supply for those pumping directly from the river and those in the alluvial cone taking water by wells; there is no adversity of interest in this case, in maintaining that common source of supply, between any of the plaintiffs or between plaintiffs and any riparian or overlying owner within the boundaries of the alluvial cone; within the limits of the alluvial cone lies a portion of the City of Fresno, other towns and villages, and several water districts, each of which takes water from wells which have been in the past supplied in whole or in part by percolation from the San Joaquin river, and which water is used for the inhabitants and water users for domestic and municipal purposes; all of the water taken either directly from the river, either by means of wells so supplied or replenished by the San Joaquin river by the plaintiffs and by all of the persons within the alluvial cone area, is now, and has been for many years since the first settlement of the area, put to reasonable and beneficial uses by reasonable methods of diversion for agricultural purposes, for stock and poultry raising, and for domestic and municipal uses; the San Joaquin river flowing in its natural state, in addition to providing water for pumping directly from the river and supplying and replenishing the underground aquifers in the alluvial cone of the San Joaquin river, also' supplied water by percolation into portions of the area of the alluvial cone immediately adjacent to the river, which water by capillary attraction and by forces of nature unknown to man, was taken by 'the roots of plants and other vegetation planted as crops upon said land in an amount sufficient to . maintain, in the bottom lands between the bluffs, certain crops and vegetation without the necessity of surface irrigation, or by virtue of which •a minimum of surface irrigation was required; a great portion of the area of the. San Joaquin river alluvial cone( south of the river is within the area of the
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Fresno Irrigation District, and is served water for irrigation by the Fresno Irrigation District which receives its water supply from the Kings river; the water so applied to surface irrigation which is not used by transpiration by plants or evaporation, or which does not run off as excess, seeps and percolates into the ground as a partial source of supply to shallow wells drilled in the area, but the nature of the soil is such that water does not percolate in any substantial quantity to, or penetrate to, the deeper lying aquifers formed by the San Joaquin river as it flowed in the geologic past, which aquifers supply water to the deep wells in the area, such as the City of Fresno wells and the deep wells in, and in the area of, the Tranquillity Irrigation District, and are confined and receive their principal supply and replenishment from the San Joaquin river; since the alteration of the regime of the natural flow of the river by the Friant project, the water level in the wells in the alluvial cone of the San Joaquin river has lowered more than can be ascribed to overpumping; such lowering of water levels is substantially caused by the alteration of the natural regime of the flow of the river as a result of the operation of the Friant project; the shallower water level in wells lying north of the City of Fresno and slightly west forms a groundwater mound,
14
or a perched water table,
15
receiving its supply largely but not wholly from the surface applications of waters by users in the Fresno Irrigation District; that the Fresno Irrigation District spills the excess runoff water into the bed of the San Joaquin river at several places, and as a result thereof, and of rainfall, there have been times when more water flowed in the river below Whitehouse gauging station than flowed from Friant; but such periods were short and varied, and such gain in flow does not indicate that water did not percolate into the aquifers between Friant and the several points of spill to the river from the Fresno Irrigation District.
At all times after the passage oi the Central Valley Project Act by the State of California, and after the passage of the Acts of Congress authorizing the construction of Friant dam and its appurtenant works, and during the construction thereof, the plaintiffs and the members of their class were assured by repeated public statements made by the officials of the Department of the Interior, not only to the public generally, but in all reports to Congress, that all of the land lying between Friant dam and Mendota, therefore receiving water in whole or in part by direct pumping or by replenishment of groundwater from the San Joaquin river, would continue to receive the supply of water they had previously received, and that in fact their supply of water would be increased and equated throughout the year, and thus the use thereof increased; that in fact in seasons of the year prior to the filing of the within suit, and after the commencement of the construction of Friant dam, increased quantities of water were released past Friant dam to flow in the channel of the San Joaquin river past the lands of plaintiffs and their class. On July 15, 1947, Richard L. Boke, Regional Director, Region 2, Bureau of Reclamation, wrote a letter, as Regional Director (Exhibit 162), which was the first indication that the plaintiffs and the members of their class would, by impoundment and diversion at Friant, be deprived of the rights which they had theretofore enjoyed to the use of water of the San Joaquin river as it flowed between Friant and Mendota; that after the receipt of such letter, the plaintiffs promptly, on behalf of themselves and all riparian and overlying owners similarly situated in the area of the alluvial cone of the San Joaquin river, commenced the within suit by filing it on September 25, 1947, in the Superior Court of the State of California, which
*49
action was thereafter removed to this court.
The natural flow of the San Joaquin river below Friant is, and from year to year and season to season has been, variable and includes all of the flood flow of the river prior to the development in 1928 of power dams upstream from Friant on the San Joaquin river, and since five years after 1928 the natural flow of the river was all of the water, including flood waters flowing past Fri-ant as affected by said power dams.
The operation of the Friant project as conducted since this suit was filed and as threatened by the United States and defendant officials will result in insufficient water flowing in the bed of the San Joaquin river either to replenish and supply the underground as theretofore done, or to permit the pumping of water directly from the river for irrigation, domestic and other useful and beneficial purposes, as theretofore done, all as alleged in plaintiffs’ complaint. Unless the plaintiffs and the members of their class receive water, they will be compelled to abandon their farms and homes, and the City of Fresno and others supplying water for domestic and municipal purposes will be unable to supply water, all of which will result in great immediate and irreparable injury, as alleged in plaintiffs’ complaint as amended and supplemented.
III.
History of Litigation.
On April 13, 1950, this Court filed its Opinion, 90 F.Supp. 773 , denying Motions to dismiss, and also denying the plaintiffs’ then pending Application for Temporary Restraining Order, as well as acting upon other motions not concerned here.
The opinions and conclusions therein expressed, as well as those expressed in 16 F.R.D. 310 , and 131 F.Supp. 421 , will be adhered to unless inconsistent with the opinions and conclusions herein expressed.
The suit was first filed in the State court on September 25, 1947, as a class suit, by certain named plaintiffs on behalf of themselves and all others similarly situated. The class and area involved are described above. The named defendants at that time were certain then officials of the United States (substitutions have since been lawfully made), and two Irrigation Districts which had made, or were about to make, contracts to take water from Friant dam by way of the Madera canal or by way of the FriantKern canal. Upon motion by the United States attorney, on behalf of the defendants who were officers of the United States, the case was removed to this Court on October 6, 1947. No motion to remand has ever been made.
In 90 F.Supp. 773 it was held that the Complaint, on its face, stated a claim for relief as a class action on behalf of the named plaintiffs and all those similarly situated, both as to those pumping water for agricultural and domestic uses, directly from the San Joaquin river, and as to those pumping water from the underground, claimed to be replenished by the water from the San Joaquin river as it flowed between Friant and Mendota prior to the building of Friant dam.
The Court held that the Complaint did not state a claim for relief as a class suit for rights of use of the water of the San Joaquin river for other purposes than agricultural, domestic, and municipal uses, including specifically, the right of use of the water for replenishing gravel beds, for spawning and fishing of salmon for both recreational and commercial purposes. In connection with the latter contention, it was pointed out that the responsibility for maintaining the flow in the river for the use of spawning and fishing of salmon and other fish lay with the officials of the State of California.
The State of California was not named as a defendant, but came into the case
voluntarily
by intervention.
Thereafter, on May 3, 1950, the State of California filed a Complaint in Intervention asserting the right to have the release of a sufficient amount of water
*50
from Friant dam which would permit a continuous flow of 250 second-feet to reach the mouth of the Merced river (approximately 50 miles downstream from Mendota and about 100 miles below Friant), for the maintenance of fish life until the end of the 1950 spring salmon run. An application by the State of California for an injunction
pendente lite
was noticed, brought on for hearing, and heard extensively on May 15, 16, and 17, 1950, on oral evidence and voluminous affidavits. During the course of the hearings an agreement was reached between -the defendant officials of the United States and the State of California allowing the release of a certain quantity of water for the maintenance of fish life and the building of a fish ladder in the vicinity of the mouth of the Merced river. The Application for Temporary Injunction was then withdrawn.
Thereafter, on August 11, 1951, the State of California filed a Motion for leave to file an Amended Complaint in Intervention, which motion, after hearing, was granted. In the Amended Complaint the State abandoned its claim of right to have water released from Friant dam for the maintenance of fish. life.
Both the City of Fresno and Tranquillity Irrigation District are partially within the boundaries of the alluvial cone lines of the San Joaquin river. The City of Fresno gets its water supply from wells, and distributes it through an integrated system commingling water from all its wells. Both the City of Fresno and Tranquillity Irrigation District claim that their wells are supplied and replenished by the San Joaquin river, and being legal entities, were permitted to be added as named plaintiffs as members of the class, in order to prevent any future contention that as such legal entities they would be only partially bound by any judgment in this case as members of the class.
The total acreage of plaintiffs and their class is approximately 300,000 acres.
The asserted rights of the City of Fresno and the Tranquillity Irrigation District, as named plaintiffs and members of the class of overlying owners entitled to underground supply and replenishment from the San Joaquin river, are not to be confused with the asserted rights of each of them under the second cause of action of each of their Complaints in Intervention, which will be dealt with later.
All of the Irrigation Districts having contracts with the Bureau of Reclamation to release water from Friant dam, either by way of the Friant-Kern canal or by way of the Madera canal, were either joined as defendants, or came in voluntarily as Doe defendants, and filed answers to plaintiffs’ Complaint. There are 15 such Irrigation Districts having within them a total acreage of approximately 620,452 acres.
The defendant officials of the United States filed answers to plaintiffs’ Complaint as then amended on October 15, 1951.
After hearing, temporary restraining orders were made in August, 1951,
16
and August, 1952, with the consent of all parties. These orders restrained the impounding of water by defendants to an extent not necessary to detail here, and were complied with.
A pre-trial hearing was had, and a pretrial order was made in January, 1952. The trial of the case commenced in Fresno on January 29, 1952. It continued with interruptions until the close of the evidence on December 31, 1954, a few days short of three years after the trial commenced.
Two extraordinary writ proceedings were had in the course of -the trial — one in 1953 as a result of a temporary restraining order made on April 24, 1953,
*51
with the specific consent of the Attorney General of the United States and the Secretary of the Interior, 9 Cir., 206 F. 2d 303 , and the other in 1954, 9 Cir., 213 F.2d 818 , as the result of an order dated January 30, 1954, denying a motion to dismiss the United States as a party after an order which joined the United States as a party defendant under the Act of July 10,1952, 43 U.S.C.A. § 666 .
17
No writs were issued in either proceeding.
18
And no stays were ordered but out of respect to the appellate court, this Court took no action during either of the writ proceedings.
Motions of Tranquillity Irrigation District and the City of Fresno to file separate complaints in intervention were first put off calendar, but, on renewal during the trial, were granted as to the second cause of action of each.
After the decision by the Appellate Court in August, 1954, in the second writ proceeding, the plaintiffs, the intervenor City of Fresno, and the intervenor Tranquillity Irrigation District, each on order after notice and motion, filed two separate documents, a “Supplemental Complaint”
19
and an “Amendment and Supplement to Complaint.” After due and regular service thereof, and upon due and regular notice, the Court on November 18, 1954, made its order reopening the trial and setting a date therefor. D.C., 16 F.R.D. 310 . The Order, among other things, provided that the trial of the above-entitled action be reopened not only to allow any party to introduce evidence discovered since July 3, 1953, but also for the purpose of introducing evidence theretofore introduced for or against the United States of America and/or any of the then parties. A further pre-trial conference on December 3, 1954, was devoted largely to the evidence proposed to be introduced on the trial as reopened, and no further written pretrial order was made.
The defendant officials were ably represented throughout the trial and other proceedings in this court until July, 1953, by Special Assistant to the Attorney General, Joseph F. McPherson. He also appeared for their substituted successors and for the United States on the Motion to Dismiss filed in December, 1953, after the United States was joined as a party. He did not appear or participate in either of the writ proceedings had in the United States Court of Appeals. He continued to appear on various matters in the case until July 12, 1954, when he advised the Court that by direction of the Attorney General of the United States he would no longer be connected with the case. At that time, Harold Weise, Assistant United States Attorney for the Northern District of California, was presented to the Court with the idea expressed that he “will take over the defense of the case insofar as it affects the defendant officials of the Bureau of Reclamation and the Government of the United States.” Mr. Weise stated, however, that he was there that day just to
*52
“see how the case is shaping up.” He has not since appeared, either in court or on the pleadings. The matter then on for hearing was continued to August 16, 1954.
Since July 12, 195k, astonishingly, no appearance has been made by the United States Attorney, any Assistant United States Attorney, the Attorney General of the United States, or any Assistant or Special Assistant Attorney General of the United States at any proceeding or hearing or trial on behalf of either the defendant officials or the United States of
America,
20
Long after due, answers were tendered by the substituted officials, to the Supplemental Complaints filed August 10, 1954, of the plaintiffs and those of Tranquillity and of the City of Fresno. A motion was made by plaintiffs to strike them, on the ground that they were too late, but the motion was denied. No answer or motion to dismiss was ever filed by the defendant officials or the United States to the
Amendment and Supplement to the Complaint,
filed separately by each, the plaintiffs, the intervenor City of Fresno, and the intervenor Tranquillity, which separately state as a cause of action a claim for declaratory relief under Section 2201 of Title 28 United States Code. The trial as reopened, was set for, and resumed, on December 7, 1954.
Motions were made for default of the United States and the defendant officials in compliance with the Federal Rules of Civil Procedure, so that the trial proceeded on its reopening against all the defendants, whether represented by counsel or not, and all the evidence previously introduced was introduced and admitted against the United States and the substituted defendant officials. It should be noted here that after joinder of the United States, the Court was careful to require notice of all matters and proceedings to be served, not only on the United States Attorney for this District, but also on the Attorney General of the United States.
When the trial closed, dates were fixed for filing briefs, to expire on April 11, 1955, at which time the matter would be finally submitted for decision on the merits — at least that was the hope.
But on the day the trial closed — December 31, 1954 — the State set April 5, 1955 (before the briefs were due or filed), as the date to commence administrative hearings under the California Water Code, Sections 1200-1801, on the various applications to appropriate water, which applications had been introduced in evidence, and some of which were relied on by defendants, in part, as supporting the right to impound and take the water in derogation of the plaintiffs’ claimed rights. Said applications had laid dormant without action by the State, not only during the seven years since this suit had been filed, but they had been pending from 38 to 16 years without any hearings being called, noticed, or set by the State. The plaintiffs, after a few days of hearing over their objection, then filed an ancillary proceeding in the within suit to restrain further hearings on such applications. This matter was heard on April 27, 28, and 29, 1955, and on May 7, 1955, this Court, by its Memorandum Opinion, directed that the injunction
pendente lite
be granted. This was followed by for
*53
mal order to that effect on May 24, 1955. Reference is made to the Opinion of May 7th for further details of that proceeding, which Opinion is published in D.C., 131 F.Supp. 421 .
While a Notice of Appeal has been filed from that Order, the main case on the merits is now nevertheless finally postured for decision.
IV.
The Parties.
A further brief word should be said about the parties.
Three of the four Complaints in the action are Complaints in Intervention. For that reason, the plaintiffs, named in and as added to, the original Complaint, will be, and have been hereinbefore, referred to as the “plaintiffs.” They are, as the action has stood since the addition of other named plaintiffs in the early stages of the trial, 14 individuals, one private corporation, the City of Fresno, a municipal corporation, and the Tranquillity Irrigation District, a public corporation. They sue, not only on behalf of themselves, but as representatives and members of a class owning rights to the use of water from a
common source of supply,
viz.: the San Joaquin river as it flowed between Friant and Mendota pri- or to the Friant Project.
Generally speaking, there are two methods of taking water, viz.: pumping directly from the river, and pumping from wells which receive their underground supply from the San Joaquin river. All those who pump water directly from the river also take water either for domestic or irrigation purposes by wells. Such of the plaintiffs who take directly from the river own lands bordering on the river. Some of the plaintiffs, notably the City of Fresno, do not own land bordering the river, but get water from wells asserted to be supplied in whole or in part by water flowing underground from the San Joaquin river.
Those who pump directly from the river may sometimes hereafter be referred to as riparian owners or riparians, and those taking by wells from the underground, as overlying owners or overlying properties.
The State of California is the plaintiff in a separate Complaint in Intervention. The Tranquillity Irrigation District and the City of Fresno are complainants in separate Complaints in Intervention, as well as being named plaintiffs in the original Complaint.
The original Complaint named as defendants certain officials of the United States, two Irrigation Districts and their officers, and various Does. Substitutions of the official defendants who appeared have since been lawfully made, and parties added, so that now the parties defendant to the original Complaint, as amended and supplemented, and to the Complaints in Intervention of the City of Fresno and Tranquillity Irrigation District, as amended and supplemented, are: the United States of America, Clyde Spencer, Martin Blote, and Edwin F. Sullivan, (officials of the United State Bureau of Reclamation having to do with the operation of Friant dam and other works directly involved in this proceeding) and 15 Irrigation Districts, 13 of which take water from the FriantKern canal, and two of which take water from the Madera canal.
21
Plaintiffs’ counsel states in his brief that the State of California is a party defendant. But the State was not named originally, and no order has ever been made permitting it to be joined as a defendant.
The parties defendant in the original Complaint in Intervention of the State of California were those named in the' plaintiffs’ original Complaint. In its Amended Complaint in Intervention, no
*54
amendment of parties was made. Thus, the defendants to the State’s Complaint in Intervention are all of the defendants designated in plaintiffs’ original Complaint. It was assumed that the State of California had issued summons, and served all the defendants, but after many months of trial, during all of which the State participated, it was discovered in late 1953 that no summons had been issued on the State’s Complaint in Intervention, and that service of the Complaint had not been made, although an answer thereto had been filed by the original plaintiffs and by one Irrigation District. Thereupon, the Court ordered summons to issue and be served, as well as the State’s Amended Complaint in Intervention, upon all parties as they then existed, including the United States. Thereafter all parties answered the State’s Complaint in Intervention, except the United States and the officials of the Bureau of Reclamation.
V.
The Pleadings.
This phase of the discussion will deal with the original plaintiffs’ Complaint and amendments thereto and supplements, and the Complaint in Intervention of the State of California, as well as the Answers to both sets of pleadings. It will not deal with the Complaints in Intervention of the City of Fresno or Tranquillity, except incidentally.
While the case was tried on the issues described in the pretrial order (set out in full in Appendix B), it is nevertheless necessary to refer to the pleadings in view of contradictory positions taken by various defendants and by the State of California in pleadings and briefs.
The Complaint of the original plaintiffs, as it stood at the time of the ruling on the Motion to Dismiss in April, 1950,' insofar as the material portions are set out in D.C., 90 F.Supp. 773 , will not be repeated in full.
Paragraph X of the original Complaint contained a count for declaratory relief, not, however, stated as a separate cause of action. Several clarifying amendments were made before and after the April, 1950, ruling, 90 F.Supp. 773 , but they are not of particular consequence except the Amendment and Supplement to the Complaint filed on August 10, 1954, after the United States was made a party. By that amendment and supplement, a cause of action for declaratory relief was separately stated.
Summons and copies of all pleadings, as well as Notices of all proceedings, have been duly and regularly served on the defendant officials and on the United States in accordance with 43 U.S.C.A. § 666 and the Federal Rules of Civil Procedure.
No motion to dismiss that Amendment or Supplement has ever been made by the United States or the defendant officials of the United States. No answer has been filed by the United States or the defendant officials of the United States to that Amendment and Supplement, and no answer or responsive pleading at all, other than the Motion to Dismiss, which was denied by the Court in January, 1954, has ever been filed in the' name of the United States to any pleading.
In brief, the original Complaint, as amended and supplemented, alleges the ownership of the land of the plaintiffs and their class; the natural flow of the water of the San Joaquin river from time immemorial in its channel between Friant and Mendota prior to Friant dam; the claim of the plaintiffs to that flow of water needed for surface pumping and to restore and supply in whole or in part the underground water supply for the natural sub-irrigation of crops, and for wells of the overlying land owners ; the reasonable present and prospective beneficial uses of the water so taken ■for more than 60 years; that the plaintiffs are members of, and representatives of, a class of landowners taking water directly from the river and from the underground by sub-irrigation of crops, capillary attraction, and by wells; the positions and capacities of the defendant officials; the building of Friant dam and the’ Madera and Friant-Kern canals;
*55
and the continuous open and public representations by all officials of the United States and the State of California assuring the plaintiffs and members of their class that their supply of water or their water rights would not be taken, but that the supply would be improved. Attached to the Complaint is a letter of July 15, 1947, from the then Regional Director of the Bureau of Reclamation, whereby plaintiffs allegedly learned for the first time that such was not the case. The Complaint further alleges the making of contracts between the United States and the defendant Irrigation Districts, the threat of the defendant officials to take and destroy their water supply, and impound and divert water at Friant dam, allegedly contrary to the laws of the United States and of the State of California applicable thereto and contrary to the representations above made. By the amendment and supplement of the Complaint, the claim for declaratory relief originally set forth in Paragraph X of the original Complaint is stated as a separate cause of action against all defendants.
The plaintiffs pray, among other things, for a “physical solution,” as that term is used in the decisions of the courts of California, in the event the injunction they ask for is denied; they also pray for a declaration of invalidity of the contracts with the Irrigation Districts, and for other relief.
22
While the plaintiffs ask for the full natural flow of the river in their prayer,
plaintiffs, from the inception, have repeatedly stated that what they desire is a reasonable amount of water in accordance with their vested rights under the Federal Reclamation Act and California law, and the case was tried throughout on that basis.
The defendant officials’ Answer to plaintiffs’ Complaint raises, as separate defenses, the failure to state a cause of action; that this is an action against the United States; that the United States and the Secretary of the Interior are each an indispensable party, and have not consented to be sued; that the plaintiffs have a plain, adequate, and complete remedy at law; and that the plaintiffs seek by indirection to manage, operate, and control property of the United States over which this Court does not have jurisdiction. It denies that the defendant officials are acting unlawfully. It admits that the San Joaquin river flowing between Friant dam and Mendota Pool supplies underground and percolating water, but denies that it does sc to the extent claimed by the plaintiffs; the defendant officials say that they are without knowledge or information sufficient to form a belief as to the truth of the allegations of the Complaint as to the supplying of the underground by percolation, et cetera, “but demand strict and proper proof thereof.” The defendant officials deny the allegations of the Complaint as to the use to which the waters are put, with the qualification that they admit that certain of the lands described in the Complaint, as amended, have and are making beneficial use of small quantities of water diverted from the San Joaquin river. The defendant officials further deny that the plaintiffs have or will require all or even a substantial portion of the flow of the San Joaquin river in order to furnish them, and each of them, as may be lawfully ' entitled thereto, a sufficient quantity of water for beneficial use for surface irrigation and domestic use upon their lands, and to supply and maintain the underground percolating water strata. The defendant officials further state in their answer that the plan of the Central Valley Project, approved by Congress as it affects the San Joaquin river between Friant dam and Gravelly Ford—
“requires the Bureau of Reclamation to, and it will, recognize and respect existing water rights of all riparian owners, including such of the plaintiffs, if any, as are riparian
*56
owners, on the San Joaquin river between Friant dam and Gravelly Ford, as they exist under the laws of the State of California, and which have not heretofore been acquired or adjusted by the United States. In order to accomplish this purpose,
that is to say, to give that recognition to those rights which the laws of California require, it is the plan, purpose, and intention of the Bureau of Reclamation to release at Friant dam into the bed of the river a sufficient quantity of water so as to enable said riparian owners between Friant dam and Gravelly Ford to divert from the stream and to make reasonable beneficial use by using reasonable methods of diversion and reasonable methods of use and purpose, the waters required for irrigation and domestic use and, in addition thereto, to maintain a live stream in the river of not less than five second-feet at Gravelly Ford.”
23
It is alleged that the costs necessarily incurred in converting, altering, or adapting such of the present diversionary facilities as are reasonable to facilitate diversion from the stream as it will exist, or as the flow will be altered under the operational plan therein set forth, will be borne by the Bureau of Reclamation, either as a direct charge or by way of reimbursement to the owners, of costs necessarily incurred by them in such conversion of their presently existing facilities.
It is further alleged that:
“These defendants are informed and believe, and so believing allege, that the costs, if any, necessarily incurred by those diverting from the
underground water ■table
supplied or fed by the San Joaquin River, in adapting or adjusting their facilities to meet the change, if any, in said underground water supply caused or resulting from the reduced and controlled flow of the San Joaquin River, will likewise be borne by the Bureau of Reclamation, but these defendants are informed and believe, and therefore allege, that the underground water supply will not be affected by the reduced and controlled flow of the San Joaquin River under the operational plan aforesaid.”
The Answer further admits that the Bureau of Reclamation intends to store and divert at Friant
certain
quantities of water, without specifying the quantity, which would otherwise normally flow along and through the San Joaquin river.
Answering plaintiffs’ count for declaratory relief, they — ■
“Admit that an actual controversy exists between the plaintiffs on the one hand and the United States of America and certain of the defendants
on the other hand,
with respect to the waters, property, and property rights described in the Complaint, as amended.”
They further státe:
“and these defendants further allege that the authorized and declared plan of operation of the Central Valley Project will not deprive plaintiffs or any or either of them, or any other person, firm or entity, of their water rights as they exist under the laws of the State of California, or impair them or their exercise save and except in the manner herein-before alleged.”
The official defendants pray for dismissal, and then that the—
“Court determine
which lands
described in plaintiffs’ Complaint are
riparian
to the San Joaquin River, and are entitled to a reasonable quantity of water for irrigation and domestic use therefrom”
and
which lands
“have their
underground water
strata charged and recharged from the San Joaquin River.”
*57
They further pray:
' “4.
That this Honorable Court determine that the lands found to be riparian to the said San Joaquin River shall be entitled to a reasonable quantity of water for beneficial use thereon for irrigation and domestic purposes, and that sufficient water allowed to flow in the San Joaquin River to furnish said riparían owners with said supply of water by the use of reasonable means of diversion from the said San Joaquin River by pumps,
and further determine that channelization of the said San Joaquin River foe made so as to reduce the quantity of water to be discharged from Friant dam in order to supply said riparian lands with said quantity of water.
“5. That this Honorable Court determine and adjudge that a live stream shall be maintained at all times between Friant dam and Gravelly Ford on said San Joaquin River, which said live stream shall at no time be required to be in excess of the natural flow of the San Joaquin River if Friant dam were not constructed and in operation, which said live stream shall be for the purpose of supplying the said quantity of water for use upon lands riparian to said San Joaquin River and
to supply the underground percolating
waters for lands determined to be entitled to a recharge from the San Joaquin River for said underground waters.
“6. That this Honorable Court further determine that at no time a flow of greater than five second-feet need pass the downstream boundary of the lowest riparian owner upon said river between Friant dam and Gravelly Ford.
“7. That the plaintiffs’ prayer for injunction be denied.
“8. That the Court award to defendants their costs.
“9. That the Court grant such other and further relief as is meet and equitable in the premises.”
As will be seen from the foregoing summary of the Answer, the defendant officials admit rights of the plaintiffs to water.
But the position taken by the Attorney General of the United States since 1953 is that plaintiffs have no rights to water at all.
In the defendant officials’ Answer to the
Supplemental
Complaint, (none having been filed to the Amendment and Supplement to the Complaint of August 10, 1954), they incorporate all of the allegations of their first answer, thus admitting that the plaintiffs have rights to water. They also again assert separately, the separate defenses set forth in their first Answer, going to jurisdiction, and in addition thereto, claim that the Secretary of the Interior and the Commissioner of the Bureau of Reclamation are each indispensable parties, and that the Court does not have jurisdiction over them, a position which was asserted on the original Motion to Dismiss, but after the ruling in D.C., 90 F.Supp. 773 , was not asserted as a special defense in their first Answer. They also assert, as a special defense, that the plaintiffs are not representatives of a class. The Answer also contains admissions and denials which are not of sufficient importance to be recited here. They again assert that the United States “is the owner and operator of Friant dam and appurtenant works.” They do not assert in that Answer or in their previous Answer that the United States owns the title, .fee or otherwise, to the water or to the use of it.
However, confusion arises by reason of allegations contained in the Answers filed by the Bureau officials to the Complaints in Intervention of Tranquillity and the City of Fresno. In each such Answer they assert that—
“A public use in favor of the United States of America has and is attached to all rights to the use of water in the San Joaquin River,”
*58
and that—
“The United States of America through the exercise of its power of eminent domain has taken all rights to the use of water in the San Joaquin River which are required for the operation of Friant dam and its appurtenant works, all components of the Central Valley Project,
that fee simple title to all the rights to the use of water required for the operation of the Central Valley Project has at all times since that taking resided in the United States of America.”
They do not allege the date or manner of such alleged “taking.”
The defendants Chowchilla Irrigation District, Madera Irrigation District, and Southern San Joaquin Municipal Utility District, each filed separate Answers. The remaining 12 Districts joined in one Answer.
Madera and Southern San Joaquin Municipal Utility District filed substantially the same answer, containing general denials, and alleging laches and lack of jurisdiction.
The Answer of the Chowchilla District raises certain special defenses and makes denials, but admits that certain land of the plaintiffs is making beneficial uses of certain water of the San Joaquin river, both in surface application and in the supply of underground water, which underground supply is unknown to the answering defendant, Chowchilla. The Answer also demands proof of the area covered and served by underground strata but specifically denies that the lands ascertained
will require all the flow
of the San Joaquin river. The Answer specifically
admits
the allegations of Paragraph X of plaintiffs’ Complaint, the count for declaratory relief. The prayer of Chowchilla asks that the Court determine which lands are riparian to the San Joaquin river, and are entitled to a reasonable quantity of water for irrigation and domestic uses therefrom, and determine
which lands have their underground water strata charged and recharged from the San Joaquin river,
and that the Court determine that the lands found to be riparian to, and having their underground waters recharged by, the San Joaquin river
shall be entitled to a reasonable quantity of water for beneficial use thereon, for irrigation and domestic purposes, and sufficient waters be allowed to flow in the San Joaquin river to supply said riparian and overlying owners with water by use of reasonable means of diversion from the San Joaquin river,
and further prays that certain channel authorization work be done, and a live stream at all times be required to flow between Friant dam and White-house gauging station which shall at no time be greater than five second-feet past the downstream boundary of the lowest riparian owner of said river.
The remaining 12 Irrigation Districts filed a joint Answer, specifically admitting the allegations of plaintiffs’
Complaint as to Paragraph X for declaratory relief,
and alleging, inter alia, that the United States holds whatever rights it does hold in trust for the use and benefit of answering, defendants, among other water users making use of the works of the Central Valley Plan and Project. They deny that the action of the defendants impounding and diverting the water is illegal or unlawful, and allege that the United States holds rights in the waters of the San Joaquin river acquired by purchase, by exchange, by appropriation, and by other means of acquisition in the amount equal to the entire flow of said San Joaquin river. The joint Answer also alleges the various applications made by the State of California, Madera Irrigation District, and others; the assignment thereof .to the United States; and that by virtue of the terms of “said assignments” the State of California has become and is the trustor or grantor of an express trust; that the United States has become and is the trustee of that trust; that the landowners acquiring rights to the use of water from the works of the Central Valley Project, including the landowners of defendant districts, have become, and are,
*59
the beneficiaries of that trust; that any and all claims or interests of the United States obtained by. the “Exchange Contracts” and similar or comparable contracts, and under the assignments hereinabove referred to, are held by the United States as such trustee under said express trust and as a part of a trust fund or res, for the use and benefit of the Central Valley Project, in particular, the landowners of defendant Districts; and that the State of California, as trustor or grantor, and as
parens patriae,
is entitled to be heard, among other things, as to all matters relating to the administration and execution of said trust by said trustee and entitled to require that the trustee administer said trust according to its true intent and meaning.
The joint Answer of the defendant Districts also alleges that the plaintiifs have no right to the whole flow of the San Joaquin river, nor to any part of the
flow of the river in excess of the amounts required to meet their reasonable needs for irrigation and domestic uses,
and
that the plaintiffs
have no right to insist on the uninterrupted use of their diversion devices, and
must submit to a physical solution.
The various Districts also answered the Amended and Supplemental pleadings of plaintiifs, in each case incorporating and re-alleging their prior Answers.
The Amended Complaint in Intervention of the State was filed August 11, 1951, by leave of the Court.
The State’s Complaint contains a partial description of the Central Valley Project, a recital of some of the legislative history, and mentions what it calls the “Major Engineering features.” It alleges the so-called Miller & Lux Purchase and Exchange contracts of July 27, 1939, and in connection therewith, asserts “that the United States acquired certain appropriative and prescriptive rights, contract rights and estoppels against the exercise by said companies and others of riparian and prescriptive rights claimed by them to use for irrigation and other purposes, waters of the San Joaquin river and its tributaries, * * . . It then alleges the filing by the Finance Department of the State of California of applications to appropriate water, and the assignment thereof to the United States, and alleges that by virtue of the said assignments of applications .to appropriate water and of the Miller & Lux Purchase and Exchange contracts, the State of California is the trustor or grantor of an express trust; the United States has become and is the trustee of that trust; the landowners who acquire rights to the use of water from the works of the Central Valley Project, including the landowners of defendant Districts, have become and are the beneficiaries of that trust; that the State of California, as such trustor or grantor and as
parens patriae,
“is entitled to be heard, among other things, as to all matters relating to the administration and execution of said trust by said trustee and entitled to require that the trustee administer said trust according to its true intent and meaning.”
It is particularly noted that the State, in its amended Complaint in Intervention, alleges: “That the plaintiifs have no right to insist on the uninterrupted use of their existing diversion devices
and must submit to a physical solution ■whereby their reasonable needs and
wses
may be supplied; that this Court has the power and duty of requiring a physical solution,”
and that “ * * *
it is in the public interest of the People of the State of California that the. rights, if any, of the plaintiffs be protected by such a solution if the same is physically .possible and feasible.”
It is further asserted by the State, on information and belief:
“that if the San Joaquin river does in fact support, supply, sustain amd replenish the underground and percolating waters as described in said Paragraph II
(of plaintiffs’ Complaint)
by seepage, or percolation,
the
defendants do not have, have not, and do not intend to materially interfere with such seepage or percolation.”
The State also denies the lands of the plaintiffs contain
*60
underground or percolating water supplied by the San Joaquin river.
The State alleges that it is informed and believes, and on the basis of such ■information and belief, alleges: “that the defendants do, always have, and will continue to, release sufficient quantities of water from Friant dam to make available to the plaintiffs all the water they can reasonably and beneficially use on their land, by reasonable methods of use and by reasonable methods of diversion.”
The prayer of the State’s Complaint is as follows:
“Wherefore, the intervenor prays:
“(1) That the rights of the plaintiffs and defendants be determined according to the laws of the State of California;
“(2) That the injunction as prayed for in the Complaint be denied and
that a physical solution, if possible, be directed;
“(3) That the impairment, if any, of the plaintiffs’ rights be declared to be for a public use, and the plaintiffs relegated to their remedy by damages.”
The State also filed an Answer to plaintiffs’ Complaint wherein it admitted the allegation of Paragraph X for declaratory relief, and the Answer contained many allegations to the same effect as those in the Amended Complaint in Intervention.
It is significant that it again alleges it to be the duty of the Court, and in the interests of the People of California and of the plaintiffs, to impose a physical solution, and that such a physical solution is possible and feasible
and will be offered by the State. It is of particular significance, in view of the State’s contention that the plaintiffs are relegated to damages, that it alleges in that Answer:
“that in the event the Court determines that no physical solution is feasible, it is the duty of the Court to relegate the plains tiffs to their remedies, if any, by way of damages.”'
In the prayer to the Answer, the State ■ again prays that the Court make a physical solution.
The plaintiffs filed an Answer to the State’s Complaint in Intervention on January 23, 1952, wherein they admitted that the State of California is the technical owner of the water involved, alleging, however, that the State of California holds the water for its inhabitants and “is without power to sell or assign the same.” The Answer also alleges that the assignments of applications are void, and that the Central Valley Plan, as provided for in the laws of the State of California, calls for the construction of a hydro-electric plant at Friant dam, and that the same has not been built.
The Court made its order on October 29, 1953, requiring the issuance and service of summons on the Complaint in Intervention of the State of California on all parties, including the United States and defendant officials. Such service was made. Thereafter, the City of Fresno and Tranquillity Irrigation District filed Answers generally asserting the same position they had asserted in their previous pleadings. But the 12 defendant Districts that had previously filed a joint Answer to plaintiffs’ Complaint,
wherein they asserted it was the power and duty of the Court to impose a physical solution,
in their Answer to the State’s Complaint in Intervention deny: “that the above entitled Court has the power and the duty of requiring a physical solution in the above entitled action.” While these Answers are not responsive to plaintiffs’ Complaint, as amended and supplemented, they are exactly contrary to those Answers, and create confusion as to what the real position of defendant Districts is. The defendant Districts participated throughout the trial, and offered evidence in support of the physical solution proposed by the Government.
It is seen that the Answer filed by the Bureau officials, as well as the Complaint in Intervention of the State and the Answers of the defendant Districts, recognize that the plaintiffs and their class have water rights, albeit it is denied that they have the right of the entire flow of the river. But, on the other
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hand, in other pleadings not responsive to the plaintiffs’ Complaint, they deny that the plaintiffs have
any
rights at all.
At this point it is well to call attention to the fact that the Order of August 29, 1951, which was made with the consent of all parties, provided in Paragraph 12 thereof, that the contending parties submit their proposed plans of physical solution, in the following language:
“12. Plaintiffs, the State of California, and the defendant officials of the Bureau of Reclamation are directed, on or before December 15, 1951, to prepare and serve upon counsel of record for each party hereto their respective plans for a physical solution of the problem of supplying water for irrigation and domestic purposes, (a) to lands heretofore supplied by pumping directly from .the San Joaquin river between Friant dam and Gravelly Ford, (b) to lands heretofore supplied by pumping from wells in the San Joaquin river bottoms, and (c) to lands neighboring the river in Madera County and Fresno County, together with such explanatory matter as may in their respective views be necessary for comprehension of such plans.”
Thereafter, in December, 1951, before the pre-trial hearing and in compliance with the above-mentioned Order, the plaintiffs, the Bureau officials and the State each filed their respective plans of physical solution. Each of them was later introduced in evidence.
Thereafter, on December 20, 1951, the Court required the parties to file a written statement of their position on the law and the facts. While this Order was made prior to the pre-trial conference, the statements were not filed until the date of the commencement of the trial.
All of the plans for physical solution were before the Court and the parties at the pre-trial conference, called on motion of the State and the Bureau officials, and at the extensive hearings on pre-trial on January 15, 16, and 17, 1952. The result of the pre-trial conference was the pre-trial order of January 17, 1952. The full text of the pre-trial order is set forth as Appendix “B” (page 193 hereof), but the heart of it is contained in Paragraph 4 thereof, which reads as follows:
“4. That said trial will be limited to and relate to the issues framed by the pleadings relating to claims of plaintiffs and the class wffiich they claim to represent, having riparian rights or surface diversion rights to take water from the main channel of the San Joaquin river only between Friant dam and Gravelly Ford, and the claims of plaintiffs and the class which they claim to represent as to underground waters received from the main channel only of the San Joaquin river above its junction with Fresno Slough by lands lying within the exterior limits of the lands described in Exhibit ‘C’ of the Amendment to the Complaint filed July 15, 1951, or within the limits of the so-called alluvial cone or cones shown on plaintiffs’ Exhibit ‘1-52-1,’ whichever of said limits are farthest from the main channel of the San Joaquin river.”
Statements in the nature of written opening statements were filed as above mentioned by the plaintiffs on January 15, 1952, and by various defendants on January 29, 1952.
The case was tried throughout, not only in the stages before the United States was joined as a party, but thereafter, on the basis of the pre-trial order and the plans of physical solution submitted by the parties as they were modified by amendment during the trial. The pre-trial order was not modified except that the Complaints in Intervention of Tranquillity Irrigation District and the City of Fresno were permitted to be filed during the course of the trial, and the issues raised by them were tried. The case was not tried as a damage or inverse or reverse condemnation case. It was tried throughout, and was treated by all counsel participating therein, as
*62
an equity suit for the declaration and ascertainment of the respective rights of the parties to the use of water and such means of enforcing them as would be consistent with applicable law governing present and prospective reasonable and beneficial uses by reasonable methods of diversion.
It was hoped that when briefs were filed all of the parties would attempt to meet the issues as they were framed by the pleadings, as they had been tried by the parties, and indicated by the evidence. But regretfully, the joint briefs filed by the State and certain of the Districts have been of little help, and have only added to confusion of their position. As shortly above noted, the State took the position that the plaintiffs were entitled to the use of water of the river
“substantially, but not exactly, as they have enjoyed them,”
whereas, in the final brief filed by the State, they labor the point that
All
of the water of the river was intended to be diverted at Friant, leaving the plaintiffs without any water. The brief filed on behalf of the defendant officials does not meet the issues at all, but merely argues abstractly and obliquely as to the alleged invasion by the Court of legislative and executive powers.
The foregoing statement evidences the difficulty of any precise statement of the position of the parties on the various issues.
The Court is thus compelled to distill a definition of issues from the whole case, evidence, pleadings, briefs and arguments, as well as the extraordinary writ proceedings.
The Court, in proceeding to discuss and decide the issues, has hereinbefore and will hereinafter make reference to certain facts which, as heretofore stated, from hearing all of the evidence in the case, are found to be proven by an overwhelming preponderance of evidence.
VI.
Jurisdiction.
While the Court in the Opinion on the Motion to Dismiss — 90 F.Supp. 778 — held, that from the pleadings then before it, there was jurisdiction of the subject matter and of the parties then before it, nevertheless, the defendants have raised questions of jurisdiction by answer, which they are entitled to do under the Federal Rules of Civil Procedure.
Thus, the question of jurisdiction must now be settled on the merits as a matter of law and fact from the pleadings and from all of the evidence in the case.
There are five general facets to the question of jurisdiction in this case, viz.: (1) subject matter, (2) the defendant officials, (3) the defendant districts, (4) the State of California, and (5) the United States.
Jurisdiction of:
(1) Subject matter,
(2) Defendant Officials, and
(3) Defendant Districts.
Inasmuch as the question of jurisdiction as to the above-mentioned can be disposed of in one discussion, they will not be dealt with separately.
What is said in connection with jurisdiction applies with relation to the plaintiffs and their class, (members of which are the City of Fresno and Tranquillity Irrigation District), and also applies to the Complaints in Intervention of the City of Fresno and of Tranquillity Irrigation District as to their second causes of action.
The present defendant officials have been regularly and lawfully substituted as defendants under Federal Rules of Civil Procedure, Rule 25(d).
Insofar as the Opinion in D.C., 90 F. Supp. 773 went, on the Motion to Dismiss, the Court adheres to the conclusions therein expressed as a matter of law concerning jurisdiction of the defendant officials and defendant districts and subject matter.
Before discussing the applicable law further, it is now found as a matter of fact from all of the evidence in the case, that the present defendant officials have the same powers and du
*63
ties under the law as their predecessors had; they, or their predecessors, do now exercise and have exercised the management and control of Friant dam and its appurtenant works, and do determine and control the amount and time of the release of water to be made from Friant dam to the river bed and to the Madera canal and to the Friant-Kern canal without prior approval of such acts by either the Secretary of the Interior or the Commissioner of the Bureau of Reclamation or any other official or officials.
As heretofore noted, this case was removed from the State court by the then defendant officials upon the ground that it was an action of a civil nature arising under the laws of the United States, and that the suit was specifically directed to acts performed or to be performed under those laws by the defendant officials of the United States Bureau of Reclamation in their capacity as agents of the United States, and that the value of the matter in controversy exceeded $3,-000, of which suits “the district courts of the United States are given original jurisdiction.”
Section 1331 of Title 28 United States Code, is the basic statute conferring general jurisdiction of a suit, the subject matter of which is a Federal question. It provides:
“The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $3,000, exclusive of interest and costs, and arises under the Constitution, laws or treaties of the United States.”
As now commonly understood, a case presents a “Federal question” when it “arises under the Constitution, laws or treaties of the United States.”
There has never been any question but that the matter in controversy exceeds the jurisdictional amount.
In a case arising under the Constitution and laws of the United' States, with the jurisdictional amount being present, the Court has jurisdiction of the subject matter which is the Federal question. Woods Bros. Construction Co. v. Yankton County, 8 Cir., 1931, 54 F.2d 304 -306, 81 A.L.R. 300 ; Cooper v. Reynolds, 1870, 10 Wall. 308 , 77 U.S. 308 -316, 19 L.Ed. 931 ; United States v. Association of American Railroads, D.C. Neb.1945, 4 F.R.D. 510 , at page 517.
A United States district court has original jurisdiction, and a case arises under the laws of the United States whenever decision depends on the correct construction of such laws, United States v. “Old Settlers”, 1893, 148 U.S. 427 , 13 S.Ct. 650 , 37 L.Ed. 509 , such as when some title, right, privilege or immunity upon which a recovery depends would be defeated by one construction, or sustained by an opposite construction, of such laws. Starin v. City of New York, 1883, 115 U.S. 248 , at page 257, 6 S.Ct. 28 , 29 L.Ed. 388 .
A case presents a Federal question when the rights of
either
party depend' in whole or in part upon the construction of the Constitution or Federal statutes. Chief Justice Marshall said in Cohens v. Commonwealth of Virginia, 1821, 6 Wheat. 264, 379 , 19 U.S. 264 , 379, 5 L.Ed. 257 : “A ease in law or equity consists of the right of one party,
as well as the other,
and may be truly said to arise under the Constitution or a law of the United States, whenever its correct construction depends on either.” (Emphasis supplied). Also see: Patton v. Brady, 1902, 184 U.S. 608 , at page 611, 22 S.Ct. 493 , 46 L.Ed. 713 , and cases there cited, as well as State of Tennessee v. Davis, 1879, 100 U.S. 257 , at page 264, 25 L.Ed. 648 .
In Ames v. Kansas, 1884, 111 U.S. 449 , at page 462, 4 S.Ct. 437 , at page 443, 28 L.Ed. 482 , the Court said: “* * * to use the language of Chief Justice Marshall in Osborn v. United States Bank, 9 Wheat. [738, at page] 825 [ 6 L.Ed. 204 ], an act of congress ‘is the first ingredient in the case, — is its origin, — is that from which every other part arises.’ The right set up by the [defendants] will be defeated by one
*64
construction of these acts and sustained by the opposite construction. When this is so, it has never been doubted that a case is presented which arises under the laws of the United States. Cohens v. [Commonwealth of] Virginia, 6 Wheat. [264] 379 [ 5 L.Ed. 257 ]; Gold-Washing & Water Co. v. Keyes, [1877] 96 U.S. [199] 201 [ 24 L.Ed. 656 ]; [New Orleans M. & L.] Railroad Co. v. [State of] Mississippi, [1880] 102 U.S. [135] 140 [ 26 L.Ed. 96 ].”
In a diversity case, the jurisdiction of the Court is founded entirely on the character of the parties; and the nature of the controversy is not contemplated — the character of the parties is everything, the nature of the case nothing. In Federal question cases, the jurisdiction is founded entirely on the character of the case, and the parties are not contemplated; the nature of the case is everything, the character of the parties nothing. Cohens v. Commonwealth of Virginia, 1821, 6 Wheat. 264 , 19 U.S. 264 , at page 392, 5 L.Ed. 257 .
That is to say, even though the parties to a suit are all citizens of the same State, the Court has jurisdiction if it arises under the laws or Constitution of the United States. Cummings v. City of Chicago, 1903, 188 U.S. 410 , 23 S.Ct. 472 , 47 L.Ed. 525 ; Stark v. Payne, D.C. Mont.1921, 271 F. 477 , at page 479; Chalmers Chemical Co. v. Chadeloid Chemical Co., C.C.W.Va.1909, 175 F. 995 .
Regardless of the source or foundation of the plaintiffs’ rights, they allege in their Complaint violations of Federal laws by defendants, and the defendants rely upon various acts of Congress for their authority to impound and divert water at Friant, in derogation of plaintiffs’ claimed rights. In the appendix following 90 F.Supp. 773 , reference is made to some 30 different Acts of Congress having relation to the issues raised on the motion of the defendant officials to dismiss.
The physical works involved were constructed under the authority of various Acts of Congress, 43 U.S.C.A. § 372 et seq., and statutes cited in appendix to 90 F.Supp. 773 . The officials operating such physical works do so under claim or color of authority of the Constitution of the United States and various Acts of Congress.
In a removal case, the question of jurisdiction of the subject matter is to be determined from the Complaint at the time of removal. Great Northern Railway Co. v. Alexander, 1917, 246 U.S. 276 , 38 S.Ct. 237 , 62 L.Ed. 713 ; State of Minnesota v. Northern Securities Co., 1904, 194 U.S. 48 , 24 S.Ct. 598 , 48 L.Ed. 870 ; Houston & Texas Central Railroad Co. v. State of Texas, 1889, 177 U.S. 66 , 20 S.Ct. 545 , 44 L.Ed. 673 ; Postal Telegraph Cable Co. v. State of Alabama, 1894, 155 U.S. 482 , 15 S.Ct. 192 , 39 L.Ed. 231 ; Stauffer v. Exley, 9 Cir., 1950, 184 F.2d 962 .
As heretofore noted, after removal by the defendant officials, they filed a Motion to Dismiss. The grounds of the Motion were that: the action was one in fact against the United States, asserted to be an indispensable party not consenting to be sued; that the Secretary of the Interior was an indispensable party of which the Court had no jurisdiction; that plaintiffs had a plain, complete, and adequate remedy at law under the Tucker Act for damages; and that the Complaint stated no claim for relief in that defendants’ conduct was authorized by various Acts of Congress. In support of these contentions, it was urged that the plaintiffs had
no rights to either water or damages
on the ground, that Friant dam and the attendant works had been constructed by the United States under its constitutional powers to regulate navigable rivers and control floods, by virtue of the Commerce clause. All of these were, and are, substantial questions of primary importance which were postured by the Complaint at the time of removal, requiring the interpretation and application of the Constitution of the United States and various Acts of Congress, including the Reclamation Act of 1902, as amended 43
*65
U.S.C.A. § 372 et séq., to the state' of facts set forth in plaintiffs’ Complaint, which, under the doctrine of the foregoing cases, gave this Court jurisdiction of the subject matter at the time of the removal.
Nothing has occurred since to cause this Court to lose jurisdiction, and inasmuch as all of the grounds of the Motion to Dismiss are again asserted as special defenses, the Federal questions still remain in the case.
The Court concludes from the foregoing cases that, having jurisdiction of the subject matter, regardless of the lack of diversity of citizenship between the plaintiffs and defendant officials and defendant districts, it acquired jurisdiction over the defendant officials and the defendant districts by either service of process or by their appearance in the case.
As heretofore noted, no motion to remand has ever been made.
If there were any defects in the removal proceedings, they have long since been waived.
In French v. Hay, 1847, 22 Wall. 238 , 89 U.S. 238 , 22 L.Ed. 854 , nearly three years after the case had been removed, a motion to remand was made on the ground that the motion had not complied with the statute. As to this, the Court said, 22 Wall, at page 244: “The objection made in the court below touching the removal of the case from the State court, and which objection has been renewed here, was not made in the court below until testimony was all taken, the case was ready for hearing, and nearly three years had elapsed since the transfer was made. The objection came too late. Under the circumstances it must be held to have been conclusively waived.” See also Baggs v. Martin, 1900, 179 U.S. 206 -209, 21 S.Ct. 109 , 45 L.Ed. 155 ; American Fire & Cas. Co. v. Finn, 1950, 341 U.S. 6 -16, 71 S.Ct. 534 . 95 L.Ed. 702 ; Monroe v. United Carbon Co., 5 Cir., 1952, 196 F.2d 455 .
Here, almost eight years have passed since the removal to this Court.
24
The defendant officials and defendant districts answered and participated in a long and extensive trial at great expense to all parties, and the case is now submitted for decision on the merits, so that any defects in the removal proceedings come clearly within the provisions of the last above-cited cases, and have been waived.
Special defenses have been raised by the defendant officials and others that this Court lacks jurisdiction on the ground (1) that the Complaint as amended and supplemented fails to state a claim for relief, (2) that the plaintiffs and the class they represent have an adequate and complete remedy at law, (3) that the United States was, and is, an indispensable party, and (4) that the Secretary of the Interior and the Commissioner of the Bureau of Eeclamation were, and are, indispensable parties, and being residents of the District of Columbia, this Court could not acquire jurisdiction over them.
The question as to whether or not the Complaint stated a claim for relief was disposed of in D.C., 90 F.Supp. 773 . The court adheres to the conclusion therein expressed, but adds that the Complaint as amended and supplemented, since that Opinion, states claims for relief against all defendants, including the United States.
The special defenses concerning the failure of the plaintiffs to represent a class will be disposed'of under the discussion concerning whether or not this is a proper class action.
The question of jurisdiction of the United States, and whether or not it is an indispensable or a necessary party, will be dealt with more fully hereinafter under the heading “Jurisdiction of the United States of America.”
*66
With respect to whether or not the Secretary of the Interior and the Commissioner of the Bureau of Reclamation are indispensable parties, the court adheres to the conclusions set forth in D.C., 90 F.Supp. 773 , except to add that as heretofore noted, the facts show that the defendant officials are exercising control over the physical works involved, and
do make the decision, and control the release of water without prior approval or authority from either the Secretary of the Interior or the Commissioner of the Bureau of Reclamation.
All the contracts for water service, except one, were executed on behalf of the United States by the predecessor in office of the defendant, Spencer. The predecessor was then designated “Regional Director, Region 2, Bureau of Reclamation.” Spencer’s duties and powers are the same as his predecessor.
Neither the Secretary of the Interior nor the Commissioner of the Bureau of Reclamation are indispensable or necessary parties to the relief sought in this case as against either the defendant officials, the defendant districts, or the United States.
The defendant districts also make the point that this Court has no jurisdiction over them because there is no Federal question present. What has been said concerning the existence of the Federal question is equally applicable to the defendant districts.
Although not analytically briefed or argued, a point has been raised to the effect that when the United States was joined as a defendant, this Court lost jurisdiction of some or all of the defendants.
Having jurisdiction of the subject matter, that jurisdiction was not lost by joining the United States if the United States has consented to be sued. The case is still one arising under the Constitution and laws of the United States. Jurisdiction rests on the presence of a Federal question and was obtained as to the parties, without regard to the citizenship or character of the parties, by service of process or appearance in the case, and this jurisdiction obviously continued though the United States was joined.
The contention of the defendants that the Court lost jurisdiction of defendant officials when the United States was joined is really but another way of saying that the joinder of the United States was improper. Thus, the question is solved by the determination as to whether the United States was properly joined, which question is subsequently treated.
It is concluded on this phase that the Court has jurisdiction of the subject matter, the defendant officials, and the defendant districts.
VII.
Jurisdiction of the State of California.
As heretofore noted, the State of California originally intervened to compel a flow of water to sustain fish life in the river. At that time the State sought affirmative relief. Thereafter, the State abandoned its position, and withdrew its request for an injunction. Subsequently, the State of California voluntarily filed its Amended Complaint in Intervention wherein it appeared in its “sovereign, governmental and proprietary capacities in its own interest, and for the protection of its own rights; also as
parens patriae,
in the interest of and for the protection of, all its citizens, residents, landowners and water users, and its agencies, the defendant districts, and to protect the integrity and proper application of its constitution and laws respecting water and the use thereof, water rights, contracts, property and property rights; also as trustor of express trust,” and also “as absolute owner of the corpus of the water.”
It must also be pointed out, to clearly understand the status of the State in this suit, that it is not a party defendant. It is true that in the Amended and Supplemental Complaints of the plaintiffs, and the City of Fresno and
*67
Tranquillity in their separate Complaints in Intervention filed in August, 1953, the State is designated as a party defendant. However, this occurred during the course of trial, and no motion under the Federal Rules of Civil Procedure, Rule 21, to add the State as a defendant was ever made, and leave of Court was never obtained. It follows that the State is not a party defendant, despite its sometimes designation as such in the pleadings.
It participated in the trial throughout and in all of the proceedings had after August 11, 1951. It produced witnesses and voluminous other evidence to support its theories, and examined and cross-examined all witnesses on a multitude of subjects over long periods of time in support of its various contentions.
The intervention for the State of California was filed by the law officer of the State generally authorized to appear in lawsuits involving the rights and interests of the State, and specifically authorized to institute an action concerning property in which the State claims an interest. People v. Birch Securities Co., 1948, 86 Cal.App.2d 703 , 196 P.2d 143 , certiorari denied 336 U.S. 936 , 69 S.Ct. 745 , 93 L.Ed. 1095 ; Pierce v. Superior Court, 1934, 1 Cal.2d 759 , 37 P.2d 453 , 460, 96 A.L.R. 1020 ; People v. Oakland Water Front Co., 1897, 118 Cal. 234 , 50 P. 305 ; People of State of California v. United States, 9 Cir., 1950, 180 F.2d 596 , certiorari denied 340 U.S. 826 , 71 S.Ct. 61 , 95 L.Ed. 607 ; California Constitution, art. V, Sec. 21; California Government Code, Sections 12510-12522. The appearance in intervention was not of a limited or temporary nature, but could not have been broader and more all-inclusive.
It, thus, having voluntarily come into the case, of which this Court was .then vested with jurisdiction, originally seeking affirmative relief, it waived its sovereign immunity and submitted itself to the jurisdiction of the Court. Clark v. Barnard, 1883, 108 U.S. 436 , 2 S.Ct. 878 , 27 L.Ed. 780 ; State of Puerto Rico v. Ramos, 1914, 232 U.S. 627 , 34 S.Ct. 461 , 58 L.Ed. 763 ; State of Missouri v. Fiske, 1933, 290 U.S. 18 , 54 S.Ct. 18 , 78 L.Ed. 145 ; Gunter v. Atlantic Coast Line Railway, 1906, 200 U.S. 273 , 26 S.Ct. 252 , 50 L.Ed. 477 ; Gardner v. State of New Jersey, 1947, 329 U.S. 565, 574 , 67 S.Ct. 467 , 91 L.Ed. 504 . Even in Hans v. State of Louisiana, 1890, 134 U.S. 1 , 10 S.Ct. 504, 509 , 33 L.Ed. 842 , strongly relied on by the State, the Court held that a State consents and is subject to a judgment if it comes voluntarily into court, and stated: “To avoid misapprehension, it may be proper to add that, although the obligations of a state rest for their performance upon its honor and good faith, and cannot be made the subjects of judicial cognizance unless the state consents to be sued
or comes itself into court,
* * (Emphasis supplied.)
It should also be stated, that the general proposition of law is well established that when an intervenor comes into a case of which the Court has jurisdiction, it accepts the proceedings as it finds them at the time of the intervention, and is considered for all intents and purposes as one of the original parties. Galbreath v. Metropolitan Trust Co., etc., 10 Cir., 1943, 134 F.2d 569 ; Piccard v. Sperry Corporation, D.C.N.Y. 1941, 36 F.Supp. 1006 , affirmed 2 Cir., 120 F.2d 328 ; In re Raabe, Glissman & Co., D.C.N.Y.1947, 71 F.Supp. 678 ; Godfrey L. Cabot, Inc., v. Binney & Smith Co., D.C.N.J.1942, 46 F.Supp. 346 . In Rector v. United States, 8 Cir., 1927, 20 F.2d 845 -859, the Court said: “By that intervention she became a party to the action clothed with all the rights, burdened with all the duties and subject to to all the legal consequences inhering in such status. French v. Gapen, [1881] 105 U.S. 509, 525 , 26 L.Ed. 951 ; Swift v. Black Panther Oil & Gas Co., [1917] 244 F. 20, 29 , this court; Hamlin v. [Toledo, St. L. & K. C.] R. Co., 6 Cir., [1897] 78 F. 664, 666 , 36 L.R.A. 826 , Circuit Judges Taft and Lurton sitting, the opinion by Judge Lurton. One of the legal consequences was that she (as all other parties to the action) would be bound by all orders properly made there
*68
after in the litigation. One of the legal rights was to object and to be heard upon all matters affecting her rights and, at some time, to have reviewed on appeal any order she deemed to her prejudice.”
Original jurisdiction of a suit wherein either a State, the United States, or both, are or may become parties is not exclusive with the Supreme Court. Congress has the power to confer jurisdiction on an inferior Court. Bors v. Preston, 1884, 111 U.S. 252 , 4 S.Ct. 407 , 28 L.Ed. 419 ; Ames v. State of Kansas, 1884, 111 U.S. 449 , 4 S.Ct. 437 , 28 L.Ed. 482 ; State of Minnesota v. United States, 8 Cir., 1942, 125 F.2d 636, 639 ; United States v. State of Louisiana, 1887, 123 U.S. 32 , 8 S.Ct. 17 , 31 L.Ed. 69 ; United States v. State of California, 1936, 297 U.S. 175 , 56 S.Ct. 421 , 80 L.Ed. 567 ; People of State of California v. United States, 9 Cir., 1950, 180 F.2d 596 , certiorari denied 340 U.S. 826 , 71 S.Ct. 61 , 95 L.Ed. 607 ; United States ex rel. Charley v. McGowan, D.C.Wash. 1931, 2 F.Supp. 426 , affirmed 9 Cir., 62 F.2d 955 , 290 U.S. 592 , 54 S.Ct. 95 , 78 L.Ed. 522 ; United States v. Gas & Oil Development Co., D.C.W.D.Wash.1954, 126 F.Supp. 840 .
In Ames v. State of Kansas, supra, the State of Kansas filed suit in its courts. The case was removed to the Federal court which remanded it to the State court. The Supreme Court reversed the order of remand on the ground that there was a Federal question which gave the Federal courts jurisdiction, under what is now 28 U.S.C.A. § 1331 .
As heretofore noted, this Court had original jurisdiction under 28 U.S. C.A. § 1331, and the case was properly removed, at the time the State intervened.
That being so, the mere joinder of the United States did not deprive this Court of jurisdiction of the State.
Whether or not the United States was properly joined under 43 U.S.C.A. § 666 is a question which will shortly be discussed.
The State, in essence, contends that no relief can be given against the State because the State, while voluntarily intervening, has not consented to be sued.
The plaintiffs ask no affirmative relief against the State.
The plaintiffs do seek a declaration of the rights of the parties; so does the State, and, admitting that a dispute exists between the other parties to the action as to their respective rights to the use of water, the State asks a judicial declaration and determination of those rights. The plaintiffs seek a physical solution. The State asserts that it is the duty of the Court to impose its own physical solution in event none of the physical solutions proposed by the various parties are, in the judgment of the Court, consistent with the California requirements of reasonable use and against waste. The State contends that the plaintiffs’ claim of right to the entire flow of the river would contravene the Constitutional prohibition against waste of water.
Though the State submitted a different plan of physical solution than either the plaintiffs or defendant officials, the fact that the Court might conclude that some other plan of physical solution than that submitted by the State should be adopted would not, in itself, amount to a judgment against the State. The State specifically asserted it was the
duty
of the Court to impose its own plan of physical solution, if the Court should find that those proposed by the parties was not consistent with the requirements of reasonableness of California law. For the State to now contend that the Court has no jurisdiction to impose a physical solution, other than the one it proposed, is tantamount to saying that the Court has no jurisdiction to do other than what the State wants done.
As noted, the State has prayed that the rights of the plaintiffs and defendants to the use of water be judicially declared by this Court. In making such a declaration, the Court is not giving relief for or against the State since it is not the rights of the State that are be
*69
ing judicially settled. The sole purpose of the amended intervention by the State was stated to be the vindication of its laws relating to the use of water, and thus to protect its natural resources by requiring compliance with the California Constitution and laws by all parties to •this proceeding. It is this interest of the State which has entitled it to be heard.
When the law of the State of California is applied to the rights of the other parties to this case, and a judgment made declaring them, together with appropriate provisions for enforcing those rights, then the interest of the State is at an end. That is what is done here. The Constitution and laws of the State of California will in this manner be vindicated.
Thus, it is the conclusion of the Court that it has jurisdiction of the State on the basis of its original intervention, but that no relief for or against the State is required or is possible under the pleadings and issues which show an actual litigable controversy only among the parties other than the State.
A judgment of dismissal will be made of the State’s Complaint in Intervention.
The ancillary proceedings of the City of Fresno against the State Engineer of California and others to restrain hearings on applications to appropriate water will be treated under the heading “City of Fresno.”
VIII.
Jurisdiction of the United States.
The order joining the United States as a party was made on September 18,1953.
Except for filing a Motion to Dismiss, which was denied on January 30, 1954, the United States has since that time boycotted the litigation. Although, as heretofore noted, a Special Assistant to the Attorney General appeared and actively participated throughout the trial and all other proceedings herein until July 12,1953,
no Answer or other responsive pleading has been filed in the name of the United States, nor has any appearance been made at any hearing, or on the reopened trial,
since July 12, 1954,
either on behalf of the United States or any of the defendant officials,
despite the failure in the Prohibition proceeding of 1954 to secure vacation of the Order dated September 18, 1953, joining the United States, and of the Order of January 30, 1954, overruling the Motion of the United States to dismiss, and ordering it to answer, the vacation of which were specifically sought.
25
No brief has been filed on behalf of •the United States, and the brief filed by the Special Assistant to the Attorney General of the United States on behalf of the defendant officials makes no pretense of meeting the issues. It is of such a nature, in fact, that the Court would be warranted in striking it, and requiring a proper brief to be filed.
26
But such
*70
procedure would only further delay a decision in this case.
In order, therefore, to ascertain the position of the Attorney General of the United States, it is necessary to gather it from the pleadings, the memoranda and briefs heretofore filed, and from various “Suggestions”, see D.C., 16 F.R.D. 310 , which have been filed from time to time, as well as from briefs filed in the two Writ proceedings. Even so, the position of the Attorney General of the United States on the issues in this case is exceedingly vague.
27
The position of the State of California has changed several times, and indicates that the Attorney General of California is uncertain, either as to policy he wishes to adopt, or the stand he wishes to take as to the law.
28
Nevertheless, it is the duty of the Court to examine the question of jurisdiction over the United States.
Involved in this question are Rules 19, 20 and 21, as well as Rule 1, of the Federal Rules of Civil Procedure, and S. 18, the Act of July 10, 1952, 43 U.S.C.A. § 666 . Before discussing the provisions of the Rules, it is best to go at once to a consideration of S. 18 — 43 U.S.C.A. § 666 , as it is under that Statute that the waiver of sovereign immunity, if it exists in this case, must be found.
The text of S. 18, the Act of July 10, 1952, in full, is as follows:
43 U.S.C.A. § 666—
“(a) Consent is hereby given to join the United States as a defendant in any suit (1) for the adjudication of rights to the use of water of a river system or other source, or (2) for the administration of such rights, where it appears that the United States is the owner of or is in the process of acquiring water rights by appropriation under State law, by purchase, by exchange, or otherwise, and the United States is a necessary party to such suit. The United States, when a party to any such suit, shall (1) be deemed to have waived any right to plead that the State laws are inapplicable or that the United States is not amenable thereto by reason of its sovereignty, and (2) shall be subject to the judgments, orders, and decrees of the court having jurisdiction, and may obtain review thereof, in the same manner and to the same extent as a private individual under like circumstances: Provided, That no judgment for costs shall be entered against the United States in any such suit.
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“(b) Summons or other process in any such suit shall be served upon the Attorney General or his designated representative.
“(c) Nothing in this Act shall be construed as authorizing the joinder of the United States in any suit or controversy in the Supreme Court of the United States involving the right of States to the use of the water of any interstate stream.”
By statute, consent is given to join the United States in any “smi.” There are qualifications, which will shortly be discussed.
The word “suit” has such a common and accepted meaning that it would seem unnecessary to discuss it. . But one of the quondam contentions of the defendants is that the word “suit” as used in Section 666 means only administrative proceedings under various State laws. So, it is first necessary to determine what is meant in the Act of Congress by the word “suit.”
Courts have been called upon many times to define a “suit.”
Said Chief Justice Marshall in Cohens v. Commonwealth of Virginia, 1821, 6 Wheat. 264 , at page 405, 5 L.Ed. 257 : “What is a suit ? We understand it to be prosecution or pursuit of some claim, demand or request; in law language, it is the prosecution of some demand in a
court
of justice.” Speaking also in Weston v. City Council of Charleston, 1820, 2 Pet. 449 , at page 464, 7 L.Ed. 481 , he said: “The term is certainly a very comprehensive one, and is understood to apply to any proceeding in a
court
of justice, by which an individual pursues that remedy in a
court
of justice which the law affords him. The modes of proceeding may be various, but if a right is litigated between parties in a
court
of justice,
the proceeding by which the decision of the court is sought, is a suit.”
The definitions framed by Chief Justice Marshall of the word “suit” have been consistently and universally followed since. It would be supererogation to cite all the cases approving it. Upshur County v. Rich, 1890, 135 U.S. 467 , at page 474, 10 S.Ct. 651 , 34 L.Ed. 196 , collects the authorities. State of Missouri v. Fiske, 1933, 290 U.S. 18 , at page 26, 54 S.Ct. 18 , 78 L.Ed. 145 , quotes with approval the above definition from Co-hens v. Commonwealth of Virginia, as does Federal Housing Administration, etc., v. Burr, 1940, 309 U.S. 242 , at page 246, 60 S.Ct. 488 , 84 L.Ed. 724 . In Upshur County v. Rich, 1890, 135 U.S. 467 , 10 S.Ct. 651 , 34 L.Ed 196, the Court held that proceedings before executive or administrative officers or bodies are
not
suits. The word “suit” does
not
include a proceeding before a State Water Board, of so-called adjudication of water rights on a stream. In the case of In re Silvies River, D.C.Or.1912, 199 F. 495 , a so-called adjudication proceeding under the laws of Oregon, similar to provisions in the law of California, was removed to the Federal court, but it was remanded on the ground that such a proceeding was not a suit. A similar situation arose, and the same holding was made by the Supreme Court, in Pacific Live Stock Co. v. Lewis, 1916, 241 U.S. 440 , at page 446, 36 S.Ct. 637 , 60 L.Ed. 1084 , where the Court cited with approval the Silvies case, supra.
In Bowers v. New York & Albany Lighterage Co., 1927, 273 U.S. 346 , 47 S.Ct. 389 , 71 L.Ed. 676 , the Court had under consideration provisions of a revenue Act which contained a time limitation on a “suit or proceeding.” The petitioner contended that the word “proceeding” was synonymous with the word “suit.” As to that the Court said, 273 U.S. at page 349, 47 S.Ct. at page 390: “There are two methods to compel payment. One is suit, a judicial proceeding; the other is distraint,
an executive proceeding.
The word ‘proceeding’ is aptly and commonly used to comprehend steps taken in pursuit of either. There is nothing in the language or context that indicates an intention to restrict its meaning, or to use ‘suit’ and ‘proceeding’ synonymously.”
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If there were any question about the meaning of the word “suit” as contained in the first clause of Section 666, it is eliminated by an examination of the rest of the section. Clause (2) of the second sentence of subdivision (a) provides that the United States “shall be subject to the
judgments, orders, and decrees of the court”.
It further provides that
no judgment for costs
against the United States can be entered in any such suit. A judgment can only be entered in a judicial proceeding.
Subdivision (b) provides for service of
summons
or other
process
in any such suit. Summons is universally understood to be the process issued by a court upon the commencement of a suit, and service of it is required to give the court jurisdiction to enter a judgment, after trial, or by default, if the defendant does not appear. 72 C.J.S., Process, § 1(2). Process, while including summons also, on the other hand, may precede or follow a judgment in civil actions, such as Writ of Execution, Federal Rules of Civil Procedure, Rule 69, attachment and sequestration, Federal Rules of Civil Procedure, Rule 70, or other formal writings and commands such as injunctions, writs of habeas corpus, mandamus, and the like. In California, California Code of Civil Procedure, Section 17, subdivision 6, provides that “The word ‘writ’ signifies an order or precept in writing, issued in the name of the people, or of a court or judicial officer;
and the word ‘process’ a writ or summons issued in the course of judicial proceedings”.
The Federal Rules of Civil Procedure, by Rule 4, provide for the issuance and service of summons. It is significant that that Rule is entitled “Process.”
Moreover, subdivision (c) of Section 666, Title 43 United States Code Annotated, prohibits the joining of the United States
in any suit,
or controversy, in the Supreme Court of the United States, involving the rights of States to the use of water in interstate streams. Obviously, the word “suit” in subdivision (c) has the same meaning as the word “suit” in subdivision (a). It can hardly be said that a proceeding in the Supreme Court of the United States is an administrative proceeding, or anything other than a suit.
It cannot be doubted that in this case, the plaintiffs are prosecuting their claims and demands in a court of justice for the establishment and enforcement of their rights to the use of water, and are thus pursuing such remedies as the law affords them. It is thus a “suit” as contemplated by Section 666.
Proceeding with a further analysis of the section, it is appropriate to refer to one of the other contentions of the defendants, that inasmuch as plaintiffs seek, among other things, in personam relief by way of an injunction against defendant officials and others, no adjudication of water rights is required, and that, hence, this is not a suit contemplated by Section 666.
Does the present suit qualify as one for “the adjudication of rights to the use of water of a river system or other source”?
The nature of the relief which might ultimately be granted on a determination that the plaintiffs have rights to use water which have been invaded by the defendants is not controlling. The question is: “Does the suit require an adjudication of water rights?” Here the very essence of the suit is a claim of right to have and use water as it flowed in the San Joaquin river. That claim must be judicially determined before the matter of the relief to be granted is reached. Whatever relief can be granted — with or without the United States as a party — an adjudication of the existence
vel non
of water rights in the plaintiffs would in any event be necessary to the granting of any relief. The essential and primary ingredient in this case is the determination and adjudication of water rights. The fact that this suit may require a determination as to whether or not the impounding and diversion of water is unlawful does not make it any the less a suit for the adjudication of water rights. This, be
*73
cause the lawfulness of the diversion and impoundment is dependent on whether or not existing water rights are respected as required by the Federal statutes, as well as California law. The basic problem has always been the ascertainment of those rights.
Before any judgment is entered prescribing the means for the enforcement of rights, there must be an adjudication that a party has rights. For instance, in the ordinary quiet-title suit, which is an action in rem, the court adjudicates the rights of the parties to the property in question. If it quiets the title in the plaintiff, it enters a decree to that effect and it also issues an injunction which is, in effect, a decree in personam against those asserting rights contrary to the rights of the plaintiff; and, in such case, there may also be a Writ of Ejectment, which also acts in personam. While such a case is a suit in rem, at the same time, one of the means of enforcing it is a decree in personam. Moreover, in the ordinary suit for injunction, it is incumbent upon the Court to first determine the rights of the parties. If it determines that the plaintiffs have rights, either in rem or in personam which have been invaded, it makes its judgment and declaration to that effect, and may issue an injunction. The injunction operates in personam, but there is always first the adjudication that a party has a right.
In California, the rights to the use of water are part and parcel of the land to which they are appurtenant. And while this is not a quiet-title suit in the sense that an individual seeks to quiet the title to the use of a quantity of water measured in miner-inches, second-feet, or acre-feet for a specific parcel of real property, the case, nevertheless, partakes of the nature of a quiet-title suit in that the plaintiffs and their class assert a common right to a flow of water in the stream, which is asserted to be the common source of supply.
In this suit, the plaintiffs and their class assert that they have rights to the use of water of the San Joaquin river; the defendant officials assert that the plaintiffs and their class do not have the rights they claim; the districts who are defendants assert that they have certain rights; and it is asserted that the United States owns the fee title to the water. These different assertions plainly present a suit for adjudication of water rights, regardless of the form of decree enforcing those rights.
The Answer of defendant officials, the defendant districts, and the Complaint in Intervention of the State prayed for “adjudication” of those water rights.
And the Court of Appeals in the 1954 Extraordinary Writ proceedings — 9 Cir., 213 F.2d 818 — pointed out that basically this case was for the adjudication of water rights.
It is also contended that by the use of the words “adjudication” or “administration” in Section 666, Congress contemplated
only
administrative proceedings before State administrative bodies.
By common understanding, the word “adjudicate” means determination by a court or judge in a judicial proceeding. It requires a judgment or a decree by a court. Goldwyn v. United Artists Corp., 3 Cir., 1940, 113 F.2d 703 -706. And in view of the meaning of the word “suit,” the words “adjudication” or “administration” of rights in a “suit” as used in this section clearly contemplate judicial action.
Considering next, the phrase “(2) for the administration of such rights,” does the term “administration” show that the section does not contemplate judicial proceedings ?
In the first place, it is noted that the suit may be one for adjudication
or
administration. As set forth above, the adjudication of rights in a “suit” contemplates judicial action.
In the second place, courts of equity, to carry out a
decree of adjudication
of water rights,
have traditionally undertaken the administration
of water rights. For instance, the decree in State of Nebraska v. State of Wyoming, 1945, 325 U.S. 589 , 65 S.Ct. 1332 , 89 L.Ed.
*74
1815, was actually a decree not only adjudicating water rights, but also for the administration of those water rights. State of Nebraska v. State of Wyoming, 1945, 325 U.S. 589 , at page 616, 65 S.Ct. 1332 , 89 L.Ed. 1815 ; see also Union Mill & Mining Co. v. Dangberg, 9 Cir., 1897, 81 F. 73 ; Conrad Investment Co. v. United States, 9 Cir., 1908, 161 F. 829 ; Pacific Live Stock Co. v. Hanley, 9 Cir., 1912, 200 F. 468 ; Gila Valley Irrigation District v. United States, 9 Cir., 1941, 118 F.2d 507 ; Vineyard Land & Stock Co. v. Twin Falls S. R. L. & W. Co., 9 Cir., 1917, 245 F. 9 .
Historically and traditionally, courts of equity may adjust their remedies to circumstances of cases and formulate them appropriately to safeguard and conveniently to adjudge and promptly enforce substantial rights of all parties before them.
After all, the appointment of a Water-master by a court for the enforcement of its decrees is essentially no different than the exercise of the power of the court to appoint a receiver, such as for railroads and the like. The United States has sought and obtained such appointment. In 1930 a judgment was entered in United States v. Angle, et al., No. 30 Equity, by the United States District Court for the Northern District of California, adjudicating water rights on Stoney Creek, and appointing a Water-master to enforce the decree. The court-appointed Watermaster is still functioning and the judgment is still open and has been modified from time to time. Contempt proceedings have been had from time to time for violation of the decree, including failure to pay the fees of the Watermaster. Other similar cases have occurred in other Districts in other States. In Montezuma Canal Co. v. Smithville Canal Co., 1910, 218 U.S. 371 , 31 S.Ct. 67 , 54 L.Ed. 1074 , the Court approved a decree appointing a Water-master with broad powers.
Thus, there is embodied in the phrase and term “administration” nothing new or -inconsistent with the power of a court of equity. No inference is to be drawn that the use of the phrase “for the administration of such rights” imports exclusively the functions of an administrative body. Especially so, when the phrase -is considered with the language of the whole Section. The phrase must be understood in the context of the entire statute in which it appears.
There are several reasons, other than hereinbefore set forth, for concluding that Section 666 does not contemplate that statutory administrative adjudication proceedings should be the exclusive proceedings in which the United States can be joined as a party, if the statute applies in such proceedings at all.
But, in any event, an examination of the California laws relating to adjudication of water rights demonstrates that -the administrative procedure set up in the California Water Code is merely optional and not exclusive.
Sections 530 and 534 of the California Code of Civil Procedure have special provisions relating to
actions
for the determination of water rights and the
prevention by injunction
of diversion, diminution or increase of flow water. Furthermore, it must be remembered that California law permits suits to quiet title to either real or personal property. As heretofore seen, water rights are part and parcel of the land in California and are real property. Numerous cases have been brought in the California courts which resulted in judgments quieting title -to water rights, and enjoining interference with such rights.
The provisions of Division 2, part 3 of the California Water Code, entitled “Determination of Water Rights”, are obviously not exclusive, as Sections 2000 and 2076 relate to references to the State Division of Water Resources, Department of Public Works
“In any suit
brought in any
court
of competent jurisdiction in this State for determination of rights to water”. Thus, it is apparent that the “Statutory Adjudication” procedure set up in Chapter 3 of Division 2 of the California Water Code is one that
*75
may be invoked at the option of an owner of water rights, but it is not compulsory upon anyone to invoke it before filing a suit for the determination of their rights to water. If it were compulsory and a preliminary prerequisite to a suit, then the United States, the defendant officials, defendant districts and the State should have long ago invoked it. It is clear from even a cursory examination of the California Water Code that a proceeding before the State Department of Public Works, Division of Water Resources, is not a suit.
29
It is claimed that the use of the words “river system” in Section 666 further supports their contention. In the first place, Section 666 permits adjudication of rights to the use of waters of a river system “or other source”. In the second place, the defendants attempt to define the San Joaquin river “system” as including not only the San Joaquin river, but also all the rivers in the Central Valley from the Delta on the north to the Grapevine on the south. They are: the Stanislaus; the Tuolumne; the Merced; the Chowchilla; the Fresno; the Kings; the Kaweah; the Tule; the Poso; and the Kern, and all intermediate creeks, streams, and flows of water. This area covers millions of acres of lands, and there are thousands of wells and diversion devices on thousands of separately owned parcels of land. It is preposterous that the so-called State administrative method is the exclusive procedure applicable to such a situation or was the exclusive procedure Congress had in mind when it passed Section 666 permitting the joinder of the United States in any suit for the adjudication or administration of water rights.
Furthermore, Section 666 applies throughout the United States. It is a statute of general application, in every State, whether that State has an administrative procedure for the so-called statutory adjudication of water rights or not. If State administrative bodies were the exclusive forum intended by Congress in passing Section 666, a ridiculous result would occur. In States not having such administrative procedure, a party seeking adjudication of rights to the use of water under Section 666 could not join the United States, and there would, in fact, be no remedy against the United States in such States, while there would be in others.
There is one additional reason to support the foregoing conclusions, and that is that the judicial power of the United States courts extends under Article III, Section 2 of the United States Constitution to suits to which the United States is a party. To hold that the State administrative procedure is exclusive, would be to hold that Congress intended not only to waive sovereign immunity, but also intended to deprive the United States of the right to be sued in its own courts. In effect, such a holding would be to negate not only the statutes conferring original jurisdiction on United States courts, but also all the provisions in the statutes for removal of causes from State courts where the interests of the United States are concerned, or where it is a party, or where a Federal question is involved.
The next requisite for joinder of the United States is that the suit be one “where it appears that the United States is the owner of or is in the process of acquiring water rights by appropriation under State law, by purchase, by exchange, or otherwise”.
The recital of facts earlier -in this Opinion should be ample to show that this requirement is met, but to dispel any doubts, the status of the United States in this regard will be briefly recapitulated.
First, the previously described applications by the United States to appro
*76
priate water are Surely intended to result in water rights of some character in the United States. The precise nature of any water rights which might result from the perfection of these applications under the law of California is not important at this point, but it is enough to fulfill this requirement of Section 666 that the United States is in the process of attempting to acquire water rights by applications to appropriate.
Second, the so-called Miller & Lux Purchase and Exchange contracts, previously described, have been entered into. By those contracts, the United States obtained water rights of some character; at least as against the parties with whom it contracted — regardless of any lack of rights acquired against plaintiffs herein or others. The true nature of those rights as against the plaintiffs and their class is involved in this case. Thus, if necessary, the requirement that the United States has acquired water rights of some nature on the San Joaquin river is met in this regard.
Third, the United States has impounded water. Possession may be the beginning of ownership. It is asserted that, among other things, the United States has acquired rights by prescription. Whether or not this is or can be so, and the nature of the prescriptive right and Its limitations, is not important at this point. It is enough for this statute that the United States may be attempting to acquire some prescriptive right to the use of water involved in this litigation.
The requirement that the United States be the owner of, or in the process of acquiring, water rights of some nature concerned in the suit, is clearly and indisputably met in this case.
Another condition of joinder of the United States is that the United States be a “necessary” party to such suit.
Defendants have argued from the outset, and defendants and the United States contended in the 1954 Writ proceedings — 9 Cir., 213 F.2d 818 — that the United States is an indispensable party. This Court held in 90 F.Supp. 773 that the United States is not an indispensable party.
30
Thereafter, this Court proceeded in accordance with the rule laid down in Barney v. City of Baltimore, 1867, 60 Wall. 280 , 73 U.S. 280 -284, 18 L.Ed. 825 , that when the Court does not have jurisdiction of a party who may have an interest in the lawsuit, the Court: “will proceed to administer such relief as may be in its power, between the parties before it.” At that time, this Court did not have and could not secure jurisdiction over the United States because no consent to be sued had been granted by a Congressional Act.
The Court now adheres to the conclusion that the United States was not and is not an indispensable party. The Court did not, in permitting the joinder of the United States as a party under Section 666, hold that the United States was an indispensable party, but from all of the files and records and evidence in the case at the time the Motion was granted, and
*77
in view of the then existing Congressional consent to be sued, the holding is that the United States is a necessary party in order to give complete relief among those already parties, and that the United States could be joined^ without ousting the Court of jurisdiction.
Whether the United States or the defendants now concede that the United States is a necessary party is not disclosed in any of the briefs or proceedings in this court, or in the two Writ proceedings in the Appellate Court. How it can be contended that the United States is an indispensable party, but at the same time, not a necessary party, is not clear, as parties who are indispensable parties are also necessary parties, but necessary parties are not always indispensable parties.
The distinction between necessary and indispensable parties has long been established.
In Shields v. Barrow, 17 How. 129 , 15 L.Ed. 158 , the question was fully discussed.
In State of Washington v. United States, 9 Cir., 1936, 87 F.2d 421 , at page 425, the Court said: “Classification of Parties. In Shields v. Barrow, 17 How. 129 , 58 U.S. 129, 139 , 15 L.Ed. 158 , it is said: ‘The court here points out three classes of parties to a bill in equity. They are: 1. Formal parties. 2. Persons having an interest in the controversy, and who ought to be made parties, in order that the court may act on that rule which requires it to decide on, and finally determine the entire controversy, and do complete justice, by adjusting all the rights involved in it. These persons are commonly termed necessary parties; but if their interests are .•separable from those of the parties before the court, so that the court can pro- • ceed to a decree, and do complete and final justice, without affecting other per.sons not before the court, the latter are not indispensable parties. 3. Persons who not only have an interest in the controversy, but an interest of such a nature that a final decree cannot be made -without either affecting that interest, or leaving the controversy in such a condition that its final termination may be wholly inconsistent with equity and good conscience.’ ”
After pointing out that it was essenya]i maintain these distinctions, the Court, 87 F.2d at page 427 , said: “The classification, thus made, and the proper distinctions, are not always verbalized or clearly made in the cases, for an ex-animation of the many cases shows that often the word ‘necessary’ is used, when the word ‘indispensable’ would be the proper classification under the foregoing rules.
Necessary parties under the above classification have been referred to as ‘conditionally necessary’ parties, and ‘indispensable parties’ under such classification have been referred to as ‘unconditionally necessary’ parties.
In using the words ‘necessary’ and ‘indispensable’ hereinafter, we mean that
‘necessary’ parties are those of the second class, or ‘conditionally necessary,’ and we mean that ‘indispensable’ parties are those of the third class or ‘unconditionally necessary.’ ”
Rule 19(b) of the Federal Rules of Civil Procedure provides, in part, as follows:
“When
persons who are not indispensable, but
who ought to be parties if complete relief is to be accorded between those already parties,
have not been made parties and are subject to the jurisdiction of the court as to both service of process and venue and can be made parties without depriving the court of jurisdiction of the parties before it, the court shall order them summoned to appear in the action. The court in its discretion may proceed in the action without making such persons parties, if its jurisdiction over them as to either service of process or venue can be acquired only by their consent or voluntary appearance or if, though they are subject to its jurisdiction, their joinder would deprive the court of.jurisdiction of the parties before it; but the judgment rendered therein
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does not affect the rights or liabilities of absent persons.”
While this language does not attempt to define who are necessary parties, it is manifest that it distinguishes between indispensable and necessary parties. Necessary parties, in effect, are those who are not indispensable parties, but “who ought to be parties if complete relief is to be accorded between those already parties”.
Rule 20 deals with the permissive joinder of parties and provides that a plaintiff or defendant need not be interested in obtaining or defending against all the relief demanded, and that judgment may be given against one or more defendants according to their respective liabilities.
In Barron & Holtzoff Federal Practice and Procedure, Section 511, it is said with respect to Rule 19:
“Rule 19 deals with necessary and indispensable parties.
“Indispensable parties are those without whom the action cannot proceed. They must be joined even if by such joinder the court loses jurisdiction over the controversy.
“ ‘Necessary parties’ are those who have an interest in the controversy but whose interests are separable and will not be directly affected by a decree rendered in their absence, which does full justice between the parties before the court.
“The term ‘necessary parties’ is a misnomer. It does not mean ‘essential parties.’ Rather it means ‘desirable parties’ as distinguished from indispensable parties, on the one hand, and from proper parties, on the other hand. It means ‘parties who should be joined, if feasible.’ It has been suggested that ‘conditionally necessary’ may be a preferable term, and the New York Civil Practice Act, § 193, has adopted that term and classifies parties as conditionally necessary and indispensable. However, the term ‘necessary parties’ has acquired a definite meaning in federal law. It has been used in the decisions of the Supreme Court and other federal courts for over a century. To substitute another term, even if it be more accurate, might prove confusing, especially in connection with a reading of decided cases.
“Necessary parties must be joined if they ought to be parties in order to afford complete relief between those already parties, and if they are subject to the jurisdiction of the court both as to venue and service of process, and can be made parties without depriving the court of jurisdiction of the parties already before it. Necessary parties who are not subject to the jurisdiction or venue of the court, or cannot be served with process, or whose joinder would deprive the court of jurisdiction of the parties before it, need not be joined, and the action may proceed without them.”
To the same effect see Commercial Casualty Ins. Co. v. Lawhead, 4 Cir., 1933, 62 F.2d 928, 931 , certiorari denied 289 U.S. 731 , 53 S.Ct. 527 , 77 L.Ed. 1480 ; State of Minnesota v. Northern Securities Co., 1902, 184 U.S. 199, 235, 236 , 22 S.Ct. 308 , 46 L.Ed. 499 ; and the recent case of United States v. Aetna Casualty & Surety Co., 1949, 338 U.S. 366, 382 , 70 S.Ct. 207 , 94 L.Ed. 171 , 186.
The United States is a necessary party to the doing of complete-relief, though it would not be an indispensable party to the obtaining of relief only against the defendant officials.
The contention was made on the Motion to Dismiss in 1950 that the United States had taken the water by its power to regulate navigable streams under the Commerce clause of the Federal Constitution. That contention was rejected by this Court in its ruling on the Motion to Dismiss, 90 F.Supp. 773 , and was also rejected by the Supreme Court in United States v. Gerlach Live Stock Co., 339 U.S. 725 , 70 S.Ct. 955 , 94 L.Ed. 1231 . The Court there held that the Central Valley Project and each unit of it was.
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undertaken and operated under the Reclamation laws, requiring the recognition of water rights measured by and existing under State law. The Answers filed by the defendant officials and by all other defendants concede that. But as the case developed, broad and unlimited claims of ownership in the government of the water and rights to its use were, nevertheless, made. Since the duty was imposed on the defendant officials, of respecting water rights vested by the Reclamation Act according to State law, it is obvious that it becomes necessary for the Court to decide, in ascertaining whether this duty had been breached, whether the plaintiffs had rights to water which were in fact superior to the rights of the government, for whom the defendant officials purported to act. In Ickes v. Fox, 300 U.S. 82 , 57 S.Ct. 412 , 81 L.Ed. 525 , the Supreme Court sustained the use of a Court’s injunctive process to enforce water rights, though in doing so, it necessarily decided that the United States did not own the water, i. e.,
it decided rights of the United States when it was not formally and technically a party to the. suit.
In granting relief in this case against the defendant officials alone without the United States as a party, a decree would not be res judicata against the United States. ■Complete relief, and the settling of this ■question for all time, required that the United States be made a party when that became possible. The relief to be had may not be the same against the United States as against the defendant officials, though the question to be determined remains the same.
Thus, though the United States has never been an indispensable party to the injunctive relief sought on account of ■the alleged wrongful invasion by the defendant officials of the vested water rights of the plaintiffs, a complete settling of the basic controversy entails an .adjudication of relative water rights. To this relief the United States is a necessary party.
The defendants rely in this connection upon Larson v. Domestic & Foreign Commerce Corporation, 1948, 337 U.S. 682 , 69 S.Ct. 1457 , 93 L.Ed. 1628 . While that case contains a general discussion of the right to sue an agent of the sovereign, it turns solely upon the question as to whether or not the actions of the particular government officials therein involved were, in truth and in fact, the acts of the sovereign which was an
indispensable
party
and had not consented to be sued.
The action was on a contract for the sale of coal, and the Court simply held that under the terms of the contract, injunctive relief would not be granted to compel the delivery of the coal without joinder of the sovereign, and that the sovereign
had not consented to be sued,
in that instance, and
was an indispensable party.
The situation is not at all analogous to the situation in this case where Congress, by the Act of July 10, 1952, 43 U.S.C.A. § 666 , consented that the United States can be sued, and has commanded for many years prior thereto that the United States and its officers recognize water rights of parties under State law.
The contention of the defendants that by joining the United States the plaintiffs concede that the impoundment and diversion of water at Friant was and is authorized, and that hence the plaintiffs’ suit must fail as against both the United States and the defendant officials, is without merit. The plaintiffs seek a declaration of their substantive water rights under the Federal Reclamation statutes and California laws. To a suit for the purpose of seeking such substantive declaration, the United States has consented to be joined, and is a necessary party. The Court has jurisdiction of the United States. It likewise has jurisdiction of the persons of the defendant officials against whom an injunctive decree would be enforceable by the sanctions of contempt.
It is to be noted in this connection that by Clause (2) of the second sentence of Section 666(a) “The
United States,
when a party to any such suit * * * (2) shall be
subject
to the
judgments, orders, and decrees
of the
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court having jurisdiction
* * * in the same manner and to the same extent as a private individual under like circumstances”.
If a private corporation had built Friant dam and the Madera canal and the Friant-Kern canal, it could not be gainsaid that as a matter of law such private corporation and its employees could be joined in the same suit for the adjudication and enforcement of water rights.
From all of the evidence in the case, as well as from the pleadings and records, clearly the United States ought to be a party if complete relief is to be accorded between those already parties. And, hence, it is a necessary party to the within suit.
The Court turns next to a consideration as to whether or not Section 666 and the Federal Rules of Civil Procedure permit joinder in pending suits.
Even the most conservative construction of a statute waiving sovereign immunity
31
does not permit a narrow, restricted, and technical interpretation which will defeat the purposes of that statute. Miller v. Robertson, 1924, 266 U.S. 243 -248, 45 S.Ct. 73 , 69 L.Ed. 265 . Where broad statutory language is. used in a waiver-of-immunity statute, such as is used in Section 666, it “is not to be thwarted by an unduly restrictive interpretation.” Canadian Aviator v. United States, 1945, 324 U.S. 215, 222 , 65 S.Ct. 639, 643 , 89 L.Ed. 901 . Or as stated in United States v. Aetna Casualty & Surety Co., 1949, 338 U.S. 366 , at page 383, 70 S.Ct. 207 , at page 216, 94 L.Ed. 171 , in a quote from Judge Cardozo — “ ‘The exemption of the sovereign from suit involves hardship enough, where consent has been withheld. We are not to add to its rigor by refinement of construction, where con■sent has been announced.’ ”
In determining whether Section 666 applies to pending suits, such as this one, it is necessary to inquire into the intent of Congress from the text of the Act, and if necessary, from the legislative history. If the statute neither creates nor abrogates vested rights, then it is remedial and procedural in character, and the general rule requiring a construction for prospective operation only, does not apply, and the statute can properly be held applicable' to pending suits. Home Loan Bank Board v. Mallonee, 9 Cir., 1952, 196 F.2d 336 , at page 382, certiorari denied Mallonee v. Fahey, 345 U.S. 952 , 73 S.Ct. 863 , 97 L.Ed. 1374 ; Petition of Callanan, D.C.E.D.Mich.1931, 51 F.2d 1067 ; Bowles v. Strickland, 5 Cir., 1945, 151 F.2d 419 ; Federal Reserve Bank of Richmond v. Kalin, 4 Cir., 1935, 77 F.2d 50 ; Standard Accident Insurance Co. v. Miller, 7 Cir., 1948, 170 F.2d 495 ; Link v. Receivers of Seaboard Air Line Railway Co., 4 Cir., 1934, 73 F.2d 149 ; Beatty v. United States, 8 Cir., 1951, 191 F.2d 317 ; Dargel v. Henderson, Em.App. 1952, 200 F.2d 564 ; Fancher v. Clark, D.C.1954, 127 F.Supp. 452 ; Connett v. City of Jerseyville, 7 Cir., 1938, 96 F.2d 392 .
The situation with relation to Section 666 is different than any of the-other statutes wherein the United States, has consented to be sued, such as the-Tort Claims Act, 28 U.S.C. §§ 1346 , 2671
*81
et seq., Suits in Admiralty Act, 46 U.S. C.A. § 741 et seq., and the “sue and be sued” agencies of the government. This statute must be read in light of, and construed with reference to, the previous Acts of Congress which recognized the rights of individuals against the United 'States under State law, and the obligation of the United States to abide the State law with reference to water rights as contained in the Reclamation Act of 1902,' as amended, and others.
32
As conclusively settled by the Gerlach case, supra, the Central Valley Project and all the works involved in the instant suit are being undertaken and operated under the Reclamation Act. The various Acts of Congress authorizing the Central Valley Project, 50 Stat. 850 , 54 Stat. 1198 , 63 Stat. 852 , 64 Stat. 1036 , contain declarations by Congress of the recognition of substantive vested .rights according to the law of the State where the project is situated, by making the Reclamation Act applicable. Section 666 does not disturb, by enlargement or restriction, the obligations of the United States or the vested substantive water rights of parties under California law, which had theretofore been specifically recognized by Congress in the Reclamation Law and other Acts of .Congress.
In Keifer & Keifer v. Reconstruction Finance Corporation, 1939, 306 U.S. 381 , at page 394, 59 S.Ct. 516 , at page 520, 83 L.Ed. 784 , the Court held with relation to the waiver-of-immunity statute concerning the Reconstruction Finance Corporation, that in ascertaining the Congressional will, the Court was not limited to the single statute, and said, to do so “is to impute to Congress a desire for incoherence in a body of affiliated enactments and for drastic legal differentiation where policy justifies none. A fair judgment of the statute in its entire setting relieves us from making such an imputation of caprice.”
The difficulty has been that, through all the years since the declaration by Congress of the recognition of existing vested rights as against the United States in the Reclamation Act and others, there was no means of enforcing those rights, except by equity suits against officials of the United States, without joining the United States as a party and without having any conclusive adjudication upon the United States.
Obviously, the very purpose of this statute on its face was to provide a remedy and a procedure where these previously Congressionally recognized vested rights could be litigated as against the sovereign, and result in a judgment which would be res judicata upon the United States.
As so aptly stated by the Senate Committee Report, No. 755, 82nd Cong., 1st Sess. Sen., on Senate Bill 18, now 43 U.S.C.A. § 666 :
“Down through the years the courts of the respective states marked out the pathway whereby order was instituted in lieu of chaos. Rights were established, and all this at the expense, trial and labor of the pioneers of the West, without material aid from our Unit.ed States government until a much later time when irrigation projects .were initiated by Congress through the Department of the Interior, and later, the Bureau of Reclamation. Even then, Congress was most careful not to upset, in any way, the irrigation and water laws of the Western States. In 1902, Congress wrote into the Federal Reclamation
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Act a strict admonition to the Secretary of the Interior, * * *. It is most clear that where
water rights have been adjudicated by a court and its final decree entered, or where such rights are in the course of adjudication by a court, the court adjudicating or having adjudicated such rights is the court possessing the jurisdiction to enter its orders and decrees with respect thereto and thereafter to enforce the same by the appropriate proceedings.
* *• * Unless Congress removed such immunity by statutory enactment, the bar of immunity from suits still remains, and any judgment or decree of the State court is ineffective as to the water rights held by the United States. Congress has not removed the bar of immunity even in its own courts in suits wherein water rights acquired under State law are drawn into question. The
Bill fS. 18) was introduced for the very purpose of correcting this situation and the evils .growing out of such immunity.
* * * If a water user possessing a decreed water right is immune from suit and proceedings in the courts for the enforcement of valid decrees, then the years of building the water laws of the Western States in the earnest endeavor of their proponents to effect honest, fair and equitable division of the public waters will be seriously jeopardized. If such a condition is to continue in the future, it will .result in a throw-back to the conditions that brought about the enactment of statutory water laws.”
33
Clearly, the statute was intended to be and is remedial and procedural, and provides a remedy to enforce against the United States existing substantive water rights required to be recognized for years by previous Congressional Acts.
Language of the section is also peculiarly apt in indicating an intention to permit the United States to be joined in a pending suit. Consent is given to
join
the United States as a defendant
in any suit.
In Ex parte Collett, 1949, 337 U.S. 55 -58, 69 S.Ct. 944, 946 , 93 L.Ed. 1207 , the Court construed “ ‘any civil action’ ” in 28 U.S.C. § 1404 (a) to include pending actions. In National Labor Relations Board v. Pittsburgh S. S. Co., 1951, 340 U.S. 498 , at page 500, 71 S.Ct. 453 , at page 455, 95 L.Ed. 479 , after final board order, the reviewing
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