# Gustine Land & Cattle Co. v. United States

> United States Court of Claims · February 18, 1966 · 174 Ct. Cl. 556

URL: https://www.frixlaw.com/law-library/cases/8593429

## Case

- **Full name:** GUSTINE LAND & CATTLE CO., INC. v. United States
- **Court:** United States Court of Claims
- **Decided:** February 18, 1966
- **Citations:** 174 Ct. Cl. 556; 1966 U.S. Ct. Cl. LEXIS 251; 1966 WL 8856
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Pee
- **Judges:** Collins, Cowen, Davis, Dureee, Laramobe, Pee
- **Cited by:** 15 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8593429

## How later opinions describe it (automated extraction)

- recognizing that a broad interpretation of Dickinson would put it in “unending conflict with the statute of limitations”
- describing origin and planning of the CVP and uses of San Joaquin River water
- describing Reclamation’s acquisition of rights from the Exchange Contractors
- discussing Reclamation’s agreements with the Exchange Contractors

## Opinion text

Pee Curiam :
Pursuant to the order of reference in the above-entitled case, and the order of the court of November 20, 1961, on September 4, 1964, Trial Commissioner W. Ney Evans filed his report (including findings of fact, memorandum opinion and recommendation for conclusion of law). Plaintiff has filed exceptions and a brief excepting to the opinion and certain of the findings of fact. Defendant has filed a brief without exceptions requesting that the court affirm the findings of fact, conclusion and opinion of the trial commissioner. The case was submitted upon oral argument of counsel. Since the court agrees with the commissioner’s findings, his opinion and his recommended conclusion of law, as hereinafter set forth, it hereby adopts the same as the basis for its judgment in this case. . Therefore, none of the plaintiffs is entitled to recover and the petition is dismissed. The court is of the view that this disposition is consistent with the opinion and the principles announced in Dugan v. Rank, 372 U.S. 609 (1963).
*558 REPORT AND OPINION OF COMMISSIONER *
Findings of Fact
Contents Findings
I.The Locale- 1-5
A. The Central Valley of California- 1-3
B. The San Joaquin River and Its Flood Plain- 4-5
1. The Course of the River- 4
2. The Channels and Segments of the River. 5
II.Waters of the San Joaquin Valley- 6-14
A. Surface Waters_ 6-7
1. The Flows of the River- 6
2. Channels of the River in the Santa Rita
Flood Plain_ 7
B. Subsurface Waters_ 8-14
1. General_ 8
2. Geology- 9
3. Ground Waters- 10
a. Marine Waters_ 11
b. Confined Fresh Water- 12
c. Unconfined Fresh Water-13-14
III. Appropriative, Prescriptive, and Riparian Rights-15-24
A. Irrigation_ 15-16
1. The Beginnings of Irrigation- 15
2. The Uses of Irrigation_ 16
B. Interferences and Modifications- 17-20
1. Electric Power Installations- 17
2. The Haines Decrees._ 18-19
3. Riparian Rights Above Gravelly Ford_ 20
C. Discharges' of the River-21-24
1. Volume of Flows_21-22
2. Upstream Diversions_ 23
3. Summary_ 24
IV. The Return Flow of Irrigation Water-■-25-26
A. Sources of Return Flow- 25
B. The Irrigation Efficiency- 26
V.The Central Valley Project_27-42
A. The Plan_27-29
B. Purchase of the Rights of Miller & Lux and
Others_ 30
C. The Agreement for the Exchange of Waters-31-33
1. Substitute Waters_32-33
D. Construction of Works and Impounding of
Water_34^-37
E. Operation of Canals-38-41
F. Recapitulation_ 42
*559
Contents Findings
VI.The Action. — __—_43-54
A. Filing — Trial_43-48
1. Relevant Dates_ 43
2. Gravamen of the Complaint_ 44
3. Identity of the Plaintiffs_ 45
4. The Lands_46-47
a. Location_ 46
b. Uses_ 47
5. Parcels of Land_ 48
B. Prior Litigation_49-50
1. Gerlach and Related Cases_ 49
2. The Wolfsen Case_ 50
C. Plaintiffs’ Theory of Their Case_51-54
1. Comprehensive Coverage.-_ 51
2. The Summary by Plaintiffs’ Counsel_ 52
3. Flexible Coverall_ 53
4. Valuation Evidence_ 54
VII.Predicates of Plaintiffs’ Rights_55-60
A. Plaintiffs and the Haines Decrees_ 55
B. Derivation of Title to Plaintiffs’ Lands_56-58
C. Riparian Rights of Plaintiffs’ Lands_ 59
D. Water From the CCID_ 60
VIII.Sources of the Lands’ Water Supplies_61-72
A. Surface Water_61-65
1. State of Nature_ 61
2. Before Friant Dam_ 62
3. After Friant Dam and Before the Delta-Mendota Canal_ 63
4. After the Delta-Mendota Canal_ 64
5. The Intrusion of the Friant-Kern Canal. 65
B. Subsurface Waters_ 66-68
1. The Ground Water Tables_66-67
2. Wellsl_ 68
C. Quantities of Water Available_ 69-72
1. Overall — Surface and Subsurface_ 69-71
2. Increáses in Use of Irrigation Water_ 72
IX.Salinity_._73-83
A. Nature of the Problem_ 73
B. The Concentration of Salts_74-76
1. In the Soils_ 74
2. In the Ground Water_75-76
C. Suitable Irrigation Water_77-80
D. Sound Irrigation Practices_81-83
1. Irrigation Water_ 81
2. Leaching_82-83
*560
Conteras Findings
X.Deprivations!_■-84-87
A. Grouping--- 84
B. Loss of the Flows of the River- 85
■ G. The Increase in Salinity_ 86
D. Campsites- 87
XI.Diminutions in Value_88-94
A. Grouping_ 88
B. Grasslands_ 89
C. Croplands_ 90-92
D. Campsites_93-94
1. The Camp in Being_ 93
2. Potential Campsites_ 94
XII.Specific Claims_ 95-113
A. Count 1_ 95
B. Count 2_ 96
C. Count 3_ 97
D. Count 4_ 98
E. Count 5_ 99
F. Count 6_ 100
G. Count 7_ 101
H. Count 8_ 102
I. Count 9_ 103
J. Count 10_ 104
K. Count 11- 105
L. Count 12_ 106
M. Count 13_ 107
N. Count 14_ 108
O. Count 15_ 109
P. Count 16_ 110
Q. Count 17_ 111
R. Count 18_ 112
S. Count 19_ 113
I. THE LOCALE
A. The Central Valley of California
1. The Central Valley of California, approximately 450 miles in length, lies between the Sierra Nevada Mountains on the east and the coastal ranges on the west. The northerly two-fifths of the valley is drained by the Sacramento Eiver system, and the southerly three-fifths is drained by the San Joaquin Eiver system. The Sacramento Eiver flows southerly, and the San Joaquin flows northwesterly. Both empty through the same delta into Suisun Bay, an arm of San Francisco Bay.
2. While the Sacramento Eiver has an annual runoff that *561 is approximately twice that of the San Joaquin River, abont three-fifths of the land in the Central Valley is accessible only to the San Joaquin. As a result, much of the water of the Sacramento River, prior to the construction of the Central Valley project, was dissipated needlessly into San Francisco Bay while large areas of fertile land in the southern part of the San Joaquin Valley remained undeveloped for lack of water. The State of California devised a plan under which the waters of the valley would be captured and used to greater advantage, which plan, although never carried out by the State, was subsequently taken over by the United States and became what is known generally as the Central Valley project.
3. The storage of waters, for use by the project, was achieved by the construction of Shasta Dam on the Sacramento River and Friant Dam on the San Joaquin River.
B. The San Joaquin River and Its Flood Plain
1. The Course of the River
4. The San Joaquin River is a natural watercourse, with well-defined channels and banks and with its source in the Sierra Nevada Mountains. It flows thence westerly to the plains of the San Joaquin Valley, which it enters at a point known as Friant. From this point, the river continues westward approximately 62 river miles to a point in the valley near the town of Mendota, where it is joined by the Fresno Slough of Kings River. It then turns abruptly toward the north and flows in a northwesterly direction until it reaches San Francisco Bay. Certain tributaries empty into the San Joaquin between Friant and Mendota, and other streams empty into the San Joaquin downstream from Mendota, contributing water in varying amounts to the river’s flow. Among the latter tributaries is the Merced River.
2. The Channels and Segments of the River
5. (a) In its course through the mountains and foothills and for some distance after it reaches the valley floor, the banks of the San Joaquin are so high as to preclude overflow, but after the river reaches a point known as Gravelly Ford, about 27 miles west of Friant, the banks become relatively *562 low. In a state of nature and during periods of high or floodwater, the river flowed out of its banks at places below this point and over and upon certain of the lands on either side of the river, either directly or after flowing into sloughs or branch channels. The flood plain (subject to overflow) extends approximately from Gravelly Ford to a point below the confluence of the San Joaquin River with the Merced River.
(b) Some 10 miles downstream from Mendota the river enters the southeastern end of what is known locally as the Santa Rita Flood Plain, which extends northwesterly a distance of 50 miles, in an average width of 7 miles.
(c) In terms of litigation involving the Central Valley project, the three main segments of the San Joaquin River are (i) the mountain watershed, from the reaches of the Sierra Nevada Mountains downstream to Friant; (ii) the area from Friant to Mendota; and (iii) the area downstream from Mendota.
The area from Friant to Mendota is subject to further division from Friant to Gravelly Ford and from Gravelly Ford to Mendota.
The area below Mendota is likewise subject to further division from Mendota downstream a distance of some 20 miles, being 10 miles below the southeastern end of the Santa Rita Flood Plain, and from that point to the delta at Suisun Bay.
The Santa Rita Flood Plain is also subject to further division from its southeastern end to the confluence of the Merced River with the San Joaquin River and from that confluence to the delta.
U. WATERS OE THE SAN JOAQUIN VALLEY
A. Surface Waters
1. The Flows of the River
6. The natural flow of the San Joaquin River has been and is variable in quantity, both over the years and in periods within the years. In the spring and summer the river is fed by the melting snowpack of the Sierra Nevada Mountains *563 and in the winter season by rainfall, supplemented by a small amount of snowmelt in the lower reaches of the mountains. As a result, there have 'been two periods of high water each year — the winter rain flood usually in December, January, and February, and the spring or summer snowmelt overflow usually in April, May, and June, with considerable variance in the times of commencement and duration, and the times of peak flow.
2. Channels of the River in the Santa Rita Flood Plain
7. (a) In the Santa Rita Flood Plain the river, in a state of nature and at the lowest stages of flow, was confined by natural banks to a sandy channel. This channel, except during stages of higher flow, hereinafter described, contained the water flowing in the river and is referred to as the low channel.
(b) At higher stages of the river in every year of ordinary flow, the waters spread farther, and for a time were confined to a wider channel by such natural banks. This wider channel is referred to as the high channel.
(c) In every year of ordinary flow in a state of nature, the river rose still higher, so that its waters were no longer confined to the high channel. The waters so overflowing the high channel banks and into and over the upland area moved slowly in the same general direction as the flow of the river in the low and high channels. This wide overflow was confined by rising ground on each side of the general overflow basin of the river. This is referred to as the overflow channel.
(d) In the area of overflow, the river flowed through numerous side channels, branch channels, and reaches of backwater, in addition to the main channel, such extra channels being referred to generally as sloughs. Some of the sloughs form networks; some have dead ends; some receive only backwater, and some receive water from the river and return it to the river at lower points, either directly or through connecting sloughs. Some sloughs branch off other sloughs. Some carry river water whenever there is water in the main channel; others carry river water only at higher river stages.
*564 B. Subsurface Waters
1. General
8. The surface flows of the river, at all stages, in the low channel, the high channel, or the overflow channel, are accompanied by subsurface flows of infinite complexity.
2. Geology
9. (a) At some point in remote geologic time, an inland sea lay between the Sierra Nevada Mountains and the coastal range in the area now occupied by much of the San Joaquin Valley, including the Santa Rita Flood Plain. Remnants of it are traceable in a body of saline connate water and marine sediments at considerable depths beneath the surface of the earth.
(b) One of the earlier episodes in the formation of the valley land mass was the accumulation or deposit of a layer of diatomaceous earth known as Corcoran clay, extending from a point north of the line between San Joaquin and Stanislaus Counties southward almost to Bakersfield and varying in width from 8 miles at the northern end to approximately 40 miles at the southern end. In the grassland areas of the Santa Rita Flood Plain, the top of the Corcoran clay is at a depth of approximately 290 feet below the surface.
(c) The cutting tools of the elements, powered by wind and Water, scarified the mountain slopes to send the soil down into the valley, in the process of which the river constructed its intricate network of aquifers and subterranean channels. The alluvial cone of the San Joaquin River begins at Friant and reaches its apex above Mendota. 1
*565 3. Ground Waters
10. Beneath, the surface of the lands in suit, there are three distinct bodies of water. Although they lie underground, they are known as ground waters.
a.Marine Waters
11. At the greatest depth, at varying distances below the Corcoran clay, is the body of saline connate water which is a remnant of the inland sea.
b.Confined Fresh Water
12. (a) Above the connate water, and between it and the Corcoran clay, is a body of fresh water. When originally tapped, it was found to be under pressure, and there were many artesian wells. By 1920, however, the withdrawals of water from beneath the Corcoran clay had been sufficient to exhaust the pressure.
(b) The principal recharge of this body of confined fresh water has been and continues to be the flows of the San Joaquin River (below Friant) and of rivers and streams east of the San Joaquin River and north of Friant. Since the Corcoran clay is virtually impermeable, recharge waters reach the area of confined waters only by percolation outside the edges of the clay. Insofar as material to this action, the points of principal recharge, while numerous, are located many miles away from the lands in suit; and any recharge contributed by the San Joaquin River would be made in the vicinity of Fresno, and would be drawn into the Fresno pumps.
c.Unconfined Fresh Water
13.(a) The third body of water, known as unconfined ground water, lies on top of the Corcoran clay. It occupies the voids in permeable soils and extends, in depth, all the way from the top of the Corcoran clay to a distance of only a few feet beneath the surface of the earth.
*566 (b) The sources of the unconfined ground waters are per-colations from the flows of the rivers, from floodwaters, rainfall, and contributions from excess water applied for irrigation.
(c) In times of high flows in the liver, the water table developed a gradient moving from the river toward a level corresponding with the river’s stage. As the high flows subsided, the gradient was reversed, and the water table tended to drain back into the river or sloughs. In either case the movement was quite gradual, being at the rate of approximately 1 foot per day. 2
14. Both bodies of fresh water, confined and unconfined, could be and were made available for irrigation and other uses by means of pumps. Ground water was therefore uniformly available throughout the area in suit to supplement the supply of surface flows in the river or, in many instances, for use in lieu of such surface flows.'
• m. APPROPRIATIVE, PRESCRIPTIVE,- AND RIPARIAN RIGHTS
A. Irrigation
1. The Beginnings of Irrigation
15. (a) Interferences with the natural flow of the river below Friant by manmade structures were begun in the 1870’s. One of the earliest was a dam at Mendota, hereinafter more fully described. Extensions of the diversions of the river’s flow continued, until there were developed many rights to water by appropriation and prescription.
(b) Miller & Lux, Incorporated, 3 a Nevada corporation doing business in California, and certain of its subsidiary and affiliated companies were, prior to the construction of the Central Valley project, the owners of rights to the use of a very substantial portion of the flow of the San Joaquin Elver.
(c) Prior to any of the times here involved, Miller & Lux had become the owner of large areas of land, beginning with a narrow strip at Gravelly Ford and extending in varying *567 widths down the San Joaqnin Valley to approximately the junction of the Merced River with the San Joaquin River. Large portions of the lands owned by Miller & Lux were riparian to the San Joaquin River, or to sloughs or branch channels thereof, and in some instances to both.
(d) Beginning about 1870 and continuing over a course of years, Miller & Lux and certain subsidiaries or affiliated companies constructed a series of control works along portions of the San Joaquin River and its sloughs. These physically changed to some extent the state of nature, so that as operated and maintained by Miller & Lux, the overflow from the river and from some of the sloughs was modified as to some of the land.
(e) Among the irrigation companies subsequently formed were the San Joaquin & Kings River Canal & Irrigation Company (whose rights were later acquired by the Central California Irrigation District, hereinafter CCID), Gravelly Ford Canal Company, Columbia Canal Company, Fire-baugh Canal Company (formerly Panoche Canal Company), and San Luis Canal Company. All were corporations.
(f) Prior to any of the times here involved, such corporations, with the consent of and under agreements with Miller & Lux, constructed certain canals and works and thereby diverted and appropriated large quantities of the water of the San Joaquin River for the irrigation (1) of lands riparian to the San Joaquin River owned by Miller & Lux, and (2) of lands nonriparian to the San Joaquin River owned (i) by Miller & Lux and (ii) by other persons.
(g) Also prior to any of the times here involved and in addition to the foregoing diversions, Miller & Lux constructed certain canals and works and thereby diverted and appropriated waters of the San Joaquin River for the irrigation of lands owned by it, both riparian and nonriparian to the San Joaquin River.
2. The Uses of Irrigation
16. (a) A large part of the water so diverted and appropriated by Miller & Lux and by the companies named in finding 15(e) was appropriated and diverted and was used for the irrigation of croplands. A large part also was di *568 verted and appropriated and was used for the purpose of irrigating grasslands or pasturelands through the medium and under the control of canals, ditch®, leve®, and other works. Such grasslands were referred to as controlled grasslands. Some of these lands, including portions of the lands of some of the plaintiffs, were riparian to the San Joaquin Elver or to sloughs or branch channels thereof. Miller & Lux applied water to those controlled grasslands only during periods when flows were in exc®s of the amounts that could be used beneficially on croplands.
(b) In addition to the croplands and controlled grasslands so irrigated, Miller & Lux owned lands of another character riparian to the San Joaquin Eiver, its branch® and sloughs. During the periods of spring and winter high water or floods, at times of normal or greater than normal flow, the waters of the San Joaquin Eiver flowed by and over and upon such grasslands by means of the main channel and branch channels and sloughs, and moistened such lands and provided water for cattle and other livestock. Lands so watered were referred to as uncontrolled grasslands.
(c) Th®e three categories of land use, croplands, controlled grasslands, and uncontrolled grasslands, have been prominent features in the adjustment of water rights during the course of and after construction of the Central Valley project. As herein described, and as considered in previous cases in this court, the irrigation of croplands and controlled grasslands, and the seasonal moistening of uncontrolled grasslands, were accomplished by the surface flow of the waters of the San J oaquin Eiver.
B. Interferences and Modifications
1. Electric Power Installations
17. During the period from 1895 to 1928, Southern California Edison Company and San J oaquin Light and Power Corporation, or their predec®sors, constructed dams and reservoirs in the San Joaquin Eiver Basin above Friant and stored water in the r®ervoirs and released and regulated the flow of the waters through a series of power plants. Beginning in 1906, Miller & Lux and its subsidiaries entered into numerous contracts with the two power companies or *569 their predecessors, by the terms of which it was agreed generally that, subject to certain limitations as to times and quantities, the two companies might store waters of the San Joaquin Biver system during comparatively high stages of the flow, use the stored water for the production of power, and return it to the river above the lands owned by Miller & Lux during lower stages of the flow.
The effect of such operations was to reduce the amount of the flow in periods of high water and to increase the amount of the flow during periods of low water. As new reservoirs were put into operation during these years, the regimen of the river below Friant was materially and progressively altered. The relative rights of the plaintiffs to the use of the waters of the San Joaquin Biver are limited to the flow of the river as altered by operations of the power companies under the agreements above mentioned.
2. The Haines Decrees
18. In the early 1920’s, Miller & Lux and two of its affiliated companies commenced three actions in the Superior Court of the State of California in and for the County of Fresno. In one of the actions, No. 25129, Miller & Lux, Incorporated, was plaintiff, and Madera Irrigation District and certain individuals were defendants. A decision, consisting of findings of fact and conclusions of law, was rendered in that case on January 4, 1933, and a decree was entered in accordance with such decision on January 26, 1933. In the second action, No. 25730, the San Joaquin & Kings Biver Canal & Irrigation Company, Incorporated (successor to San Joaquin & Kings Biver Canal & Irrigation Company), was plaintiff, and Madera Irrigation District and certain individuals were defendants. A decision was rendered in such action on January 4,1933, consisting of findings of fact and conclusions of law, and a decree was thereafter entered in accordance with such decision. In the third action, No. 25731, San Luis Canal Company, a corporation, was plaintiff, and Madera Irrigation District and certain individuals were defendants. A decision in this case was rendered December 31, 1932, and a decree was thereafter entered in accordance with such decision. These decisions and the decrees *570 entered upon them are referred to herein as the Haines decrees, so called because they were rendered by the Honorable Charles C. Haines, Judge of the Superior Court.
19. (a) The Haines decrees adjudicated that Miller & Lux and its affiliated companies had appropriated certain quantities of water for the irrigation of the land there involved, including cropland and controlled pastureland; that such diversion, appropriation, and use had continued adversely to all the world for more than 5 years; that Miller & Lux and its subsidiaries had acquired thereby a prescriptive right to the use of the water so appropriated; and that Miller & Lux and its subsidiaries were the owners by prescription and appropriation of the rights so defined in the decrees. These rights were expressed in terms of cubic feet per second, 4 but, except in two instances, with a limitation as to the total diversion in terms of acre-feet per year. 5
(b) For a long time prior to the construction of the Central Valley project there existed a number of appropriative and prescriptive rights Which were entitled to be satisfied out of the waters of the San Joaquin Liver flowing past Friant. Some 'of these (1) were so entitled apart from agreement or covenants or reservations and conditions in deeds (including those hereinafter mentioned), and (2) were adjudged by the Haines decrees to be owned by Miller & Lux and certain other corporations; and some were owned by other diverters.
(c) All of the appropriations described in this finding were upstream from the lands of plaintiffs. The rights thereto were valid and subsisting as of the dates of the Haines decrees. There has been no change in their number or magnitude between the dates of the Haines decrees and the present. The appropriative and prescriptive rights described in this finding were entitled to receive, in the aggregate, a maximum annual flow of 1,428,074 acre-feet.
*571 3. Riparian Rights Above Gravelly Ford.
■ 20. Prior to the construction of the Central Valley project there were also lands irrigated by water taken from the San Joaquin River between Friant Dam and the head of the Gravelly Ford Slough. These rights were riparian rather than appropriative or prescriptive rights and amounted in the aggregate to 30,464 acre-feet per year. 6
C. Discharges of the River
1. Volume of Flows
21. (a) Yearly discharges of the San Joaquin River at Friant varied widely in volume from the highest year, 1886, to the lowest, 1924. By 10-year periods (from 1897 to 1955), the average yearly discharge varied from a high of 2,210,044 acre-feet to a low of 1,286,200 acre-feet, with a mean for the six decades of 1,712,867 acre-feet. During each of such 10-year periods, the discharges for separate years varied widely. Actually, there were few years when the discharge was approximately that of the yearly average. In many years the excess over the yearly average was quite high, while in many years there was a deficiency. In some of the low years the discharge was less than the aggregate of maximum diversions to which all appropriators were entitled.
(b) The discharge is not uniform throughout a year, nor do the relative discharges for the months within the year remain constant. The highest monthly discharge during the year usually occurs in May or June, although occasionally it occurs in April. An average of monthly percentages based on 39 years (1905-1943) shows discharges of 21 percent in May, a like amount in June, and 13 percent in April, thereby accounting for 55 percent of the yearly discharge in these 3 months. For the crucial irrigation months of July, August, and September, the total shown by these averages was 18 percent (11 percent in July; 4.4 percent in August; and 2.6 percent in September).
*572 22. (a) As the flows actually occurred, there were times of the year when, as a matter of right, the owners of ap-propriative and prescriptive rights, without reaching or exceeding their maximum limits in cubic feet per second, diverted all of the water of the stream. At other times, the discharge exceeded the capacity of the diversion works of such appropriators and their requirements for use, as well as exceeding the maximum limit in cubic feet per second under their rights.
During the middle and latter part of the irrigation season, plaintiffs received only return water from the Miller & Lux operations, the quantity of which was dependent upon the water rights of Miller & Lux and the water taken by them. Outside of the irrigation season, some of the plaintiffs received the snowmelt floodwaters in the spring, of which there was an excess over all other water rights, sufficient for plaintiffs’ use.
The records of diversions show that there was a period in most years, usually commencing in October, November, or December, and ending the next summer, when there was an excess of water over the requirements of all appropriative and prescriptive rights. Generally, this period commenced just after the beginning of the winter rains, when the discharge of the river was relatively low, but the demand for water was even lower. The excess of supply over demand continued through the rising volume of discharge caused by the winter and snowmelt floods. It continued through the peak of the snowmelt floods and was cut off when the high discharges from the snowmelt floods began to subside.
(b) In order to achieve the most beneficial use of the water throughout the irrigation season, agreements were reached between the owners of several of the appropriative rights under which diversion or flow schedules were set up allocating the water in the river during each month by reference to the river stage at Friant. The principal agreement was executed on July 18, 1938, between Miller & Lux, the San Joaquin & Kings River Canal & Irrigation Company, the Edison Securities Company, and the Columbia, San Luis, and Firebaugh Canal Companies. The flow schedule contained in that *573 agreement was approved by the State Eailroad Commission and has been in use since that time.
This flow schedule was later expanded to include the several grassland rights as determined and limited by the Haines decrees. Grassland rights is the term generally used to describe the appropriative and prescriptive rights owned by Miller & Lux and its subsidiary companies and used by them for the irrigation of controlled grasslands as distinguished from croplands.
2. Upstream Diversions
23. (a) The diversions by Miller & Lux and its affiliated companies mentioned above were all upstream from the lands of plaintiffs. The greater part of the water so diverted was diverted 'by means of two dams across the San Joaquin River.
(b) Mendota Dam was originally built in 1871 by the San J oaquin & Kings River Canal & Irrigation Company, under contract with Miller & Lux, for the purpose of diverting San J oaquin water into several large canals heading immediately above the dam, and has been progressively maintained, improved, and replaced by the San Joaquin & Kings River Canal & Irrigation Company (now CCID) ever since. It was not built for and is not used for storage purposes. As an incident to raising the level of the water for the purpose of diversion, a certain amount of channel storage resulted. The amount of water thus stored was never more than a relatively negligible amount, and it was not utilized as stored water, or for any purpose other than maintaining the level necessary for diversion. Diversions were also made by Miller & Lux through other canals and sloughs.
(c) Sack Dam, located about 19 miles downstream from Mendota, was not a permanent structure. It was reconstructed each year, most often in mid-July, sometimes earlier and sometimes later, whenever the flow of the river dropped below an amount equal to or less than the requirements of the croplands irrigated by the canal companies. The dam remained in place until the major portion of the irrigation season had passed, at which time it was removed, usually in October, November, or December. During the period when the dam was installed, there was virtually no direct surface flow in the river immediately below the place of installation.
*574 (d) The records of water actually diverted show that Miller & Lux and its affiliated companies did not divert and put to use in any one year as much water as the 1,428,074 acre-feet authorized by the appropriative and prescriptive rights described in finding 19(c). The maximum yearly diversion during this period was 1,027,180 acre-feet in the year 1932, and the average diversion over the 20-year period, 1932-1951, was 870,834 acre-feet.
3. Summary
24. (a) The following statements are by way of summary of the facts set forth in findings 15-23 above.
(b) The Haines decrees adjudicated that Miller & Lux and its affiliated companies had appropriated certain quantities of water for the irrigation of the land there involved, including cropland and controlled grassland. Such diversion, appropriation, and use had continued adversely to all the world for more than 5 years. Miller & Lux and its subsidiaries had acquired thereby the prescriptive right to the use of the water so appropriated and were the owners by prescription and appropriation of the rights defined in the Haines decrees. Those decrees authorized a diversion by Miller & Lux, as against the Madera Irrigation District, et ah, of a maximum quantity of 1,428,074 acre-feet a year under certain circumstances.
(c) The highest annual diversion ever made by Miller & Lux thereafter was 1,027,180 acre-feet, and its annual average diversion from 1932 to 1951 was 870,834 acre-feet. The yearly discharge of the San Joaquin River at Friant, which included floods, exceeded 3 million acre-feet in the years 1911 and 1938. By 10-year periods from 1897 to 1955, the average yearly discharge, which included floods, varied from a high of 2,210,044 acre-feet to a low of 1,286,200 acre-feet, with a mean for the six decades of 1,712,867 acre-feet. Miller & Lux was therefore the owner of rights to the use of a very substantial portion of the flow of the river; but while the flow varied widely from year to year, during flood stages it usually exceeded the volume of the maximum possible demand. Consequently, during’ flood stages, there was usually some excess'over the water the prior appropria *575 tors had any right to demand, and almost always an excess over the actual use of the prior appropriators.
(d) Miller & Unix and its subsidiaries utilized such parts of the high waters and floodwaters as they could control by delivering them through canals to the lands referred to as controlled grasslands. The remaining part of the flood-waters flowed out over the flood plains of the river, elsewhere referred to as the Santa Eita Mood Plain, and eventually made its way back into the river and flowed downstream.
IV. THE RETURN ELOW 0E IRRIGATION WATER
A. Sources of Return Flow
25. Water used in the irrigation of croplands is not wholly consumed in the irrigation process. Part of the portion not consumed is lost in evaporation; part washes down and contributes to the ground water; and part reappears in the sloughs and in the river, downstream from the irrigated land, and is known as return flow. This return flow derives principally from three sources:
(1) Of the water that is actually applied to the land to be irrigated, a portion is lost in evaporation; a portion is con-sumptively used by the crops; and another portion seeps through the soil. It is neither possible nor desirable to apply exactly the amount of water needed to wet the earth no farther than the bottom of the root zone. In order to insure that the crops have enough water, more than is needed for plant consumption and evaporation allowance must be applied, and the excess percolates down until it reaches the top of the ground water table. The ground water table in this area is very close to the surface. When the ground water encounters sloughs or drains that are below the top of the water table, the water drains into these channels, thereby reappearing as surface water and as one element of the return flow.
(2) A second element of the return flow consists of what is sometimes referred to as tail water drainage of the irrigated cropland. Apart from the fact that more water must be allowed to percolate through the soil than is needed for the consumptive use of crops, it is also not possible to divert *576 onto the higher end of the field that is to be irrigated so precise an amount of water as to leave no surplus available at the lower end of the field, over and above the water that percolates into the soil. This surplus must be drained off if the crops at the lower end of the field are not to be damaged. It is occasionally thereafter reapplied in ordinary irrigation which greatly reduces the quantity and quality of the tail waters. It is carried off through the drains and ultimately finds its way into the sloughs and into the river downstream of the irrigated land.
(8) Finally, in the operation of a large distribution system it is not possible to schedule the deliveries of water to the various owners of irrigated land who are served by the canal with such precision that the entire amount diverted from the stream is always fully used; or, stated another way, so that there is never flowing in the canal, at or about the downstream end of its service area, an amount of water sufficient to supply only those lands in that area and no more. There must always be some surplus. These surplus waters are referred to as the operational spill of the canal system. They are allowed to drain off and constitute the third element in the return flow.
B. The Irrigation Efficiency
26. (a) The ratio between the amount of water actually used by the crop and the amount of water that is applied to the lands to be irrigated is known as the irrigation efficiency. An excellent irrigation efficiency would be of the order of 70 percent. In the area of the San Joaquin Valley with which this case is concerned, the irrigation efficiency is something less than 70 percent; possibly as low as 50 percent. Thus, between 30 and 50 percent of the water that is applied to the land is not consumed by the crops to which it is applied.
(b) Not only is a 100 percent irrigation efficiency impossible of fulfillment as a practical matter, but it would, if achieved, constitute a destructive irrigation practice. All of the water used for irrigation purposes contains a certain percentage of salts. It is desirable, if not necessary, to maintain what is termed the salt balance of the area. This means, broadly speaking, that the total amount of salts brought into *577 an area that is being irrigated must be compensated by the amount of salts taken out of the area. If it were possible to reuse and recirculate irrigation waters so that there was practically no return flow, this would necessarily result in a gradual buildup of the salts in the area, a condition which would ultimately decrease production and possibly even destroy the land. One expert witness testified that the ancient civilizations of the Tigris and Euphrates Valley perished as a result of such destruction of the productivity of their lands.
V. THE CENTRAL VALLEY PROJECT
A. The Plan
¡27. The plan for the utilization of the waters of the San Joaquin and Sacramento Elvers, as formulated by defendant, involved the irrigation of a large area of privately owned land nonriparian to the San Joaquin Eiver, situated both to the north and south of Friant in the California counties of Madera, Merced, Fresno, Tulare, Kings, and Kern. The plan contemplated, among other things, the construction of a dam across the San Joaquin Eiver at Friant, forming a reservoir. It contemplated the construction of two canals, one with a capacity of 1,000 cubic feet per second, referred to later as the Madera Canal, running north from the reservoir to the county of Madera, and another with a capacity of 3,500 cubic feet per second, referred to later as the Friant-Kem Canal, reaching south from the reservoir to the counties of Fresno, Tulare, Kings, and Kern. Except for occasional spills to provide reserve storage capacity for the purpose of flood control, the reservoir and canals were planned with capacity to store and divert substantially all the water customarily flowing in the San Joaquin Eiver at Friant. Details of the plan were set forth in a letter dated November 26, 1935, addressed to the President by the Secretary of the Interior. The President approved the plan on December 2, 1935, and thus authorized procedure under the Reclamation Act, 32 Stat. 388 . Cf. Rank v. Krug, 142 F. Supp. 1, 96 (1956). All of the plan and its modification was public information at all times involved herein and was known to prospective purchasers of lands involved herein or could have been studied by them by 1950 or prior thereto.
*578 28. The plan has been altered in a number of respects since it was approved by the President. Among other things, the height of the Friant Dam was increased from 250 feet to 320 feet, enlarging the storage capacity from 400,000 acre-feet to 520,000 acre-feet. The proposed pumping system which would have conveyed Sacramento River water up the bed of the San Joaquin River by means of natural and artificial channels and works in a series ending at the mouth of the Merced River, has been supplanted by another which pumps Sacramento-San Joaquin Delta River water from the delta into the Delta-Mendota Canal, to be carried thence by gravity south to Mendota. The capacity of the Friant-Kem Canal has been increased from 3,500 to 4,000 cubic feet per second.
Due primarily to the exigencies of the Second World. War, substantial portions of the project were not completed on schedule, but, with some modification, defendant’s original plan has continued as the plan of defendant, and has been carried out by the construction of the Friant and Shasta Dams, the canals known as Madera, Friant-Kern, and Delta-Mendota, and other features. Congress has appropriated large sums of money to finance the work.
29. (a) Defendant’s plan, as modified, contemplated that the United States should eventually store and divert to non-riparian use the waters of the San Joaquin River originating above Friant Dam and formerly flowing at or below Gravelly Ford, except for releases from Friant which would be for one or more of three purposes: (1) to satisfy riparian rights between Friant and Gravelly Ford; (2) to reserve vacant storage space in the reservoir in the exercise of flood control; and (3) to supply, when available, water to meet the requirements of the contract for exchange of waters referred to in finding 31, infra. The exchange waters are primarily supplied through the Delta-Mendota Canal. In normal, contemplated operation, releases for purposes (2) and (3) above would not provide an adequate or a dependable source of water to fulfill the exchange contract or for the irrigation of riparian land below Gravelly Ford.
(b) The plan contemplated that defendant should acquire or provide and maintain a substitute supply for all existing rights to the use of San Joaquin water originating above *579 Friant Dam and formerly flowing at or below Gravelly Ford. Such rights were of three classes: (1) use of the water for production of cultivated crops; (2) use of the water for irrigation of controlled grasslands under appro-priative or riparian rights; and (3) the riparian right to the flow of the river for the irrigation of other riparian lands, watering of livestock, and domestic purposes.
(c) Defendant’s plan contemplated that compensation for the acquisition of the right to the use of water on croplands at or below Mendota Dam to approximately the mouth of the Merced River would be made by providing a substitute supply of water from the Sacramento River through the pumping system. Pending the construction and completion of the pumping system, the plan contemplated that sufficient water would be released from the Friant Reservoir to meet the requirements of the cropland rights.
The plan contemplated that the rights of the second and third classes enumerated in paragraph (b) above were to be purchased or otherwise acquired by the defendant.
B. Purchase of the Right's of Miller & Lux and Others
30. (a) Promptly after the approval of its plan (in December 1935), defendant proceeded to ascertain the extent of the water rights to be purchased and the compensation to be paid therefor, and for that purpose an appraisal board was appointed. Attorneys for the United States Reclamation Bureau instructed the board as to the extent of such water rights. The water rights were considered in terms of two categories: (1) the water supply under rights for the irrigation of croplands; and (2) the water supply under appropria-tive, prescriptive, and riparian rights not used for the irrigation of croplands. The latter category included the appropriative and prescriptive, as well as the riparian rights, used for the irrigation of controlled grasslands, and the riparian rights Which benefited the uncontrolled grasslands.
(b) On July 27, 1939, Miller & Lux and its subsidiaries entered into a contract whereby Miller & Lux and its subsidiaries agreed to relinquish or convey to defendant for the sum of $2,450,000 all their rights to the use of the water of the San Joaquin River not used for the irrigation of crop *580 lands. Thereafter Miller & Lux and Gravelly Ford Canal Company executed and delivered to defendant a conveyance of the rights described in the agreement dated July 27,1989, being rights appropriative and riparian in origin for water not used for the irrigation of croplands.
(c) Defendant also negotiated with other owners of ap-propriative and riparian rights in the San Joaquin Yalley to acquire the water that those owners had the right to use. In some cases these negotiations resulted in settlements by which a supply of substitute Sacramento-San Joaquin Delta water was made available to the owners of these rights. Other owners filed suit in the Court of Claims and some were awarded damages for the loss of their rights to the use of water occasioned by the construction of the Central Valley project.
C. The Agreement for the Exchange of Waters
31. (a) On the same day, July 27,1939, Miller & Lux and its subsidiaries and defendant entered into a further agreement, referred to as the contract for exchange of waters. This agreement provided in detail (1) for the release of water from Friant Dam and (2) for the delivery of substitute water through the Delta-Mendota Canal when that system would became operative. It provided for a 'guaranteed flow of water of a specified quantity and purity to be delivered at Mendota Pool and granted the defendant the right to “store, divert, dispose of and otherwise use, within and without the watershed of the San Joaquin Diver, the aforesaid reserved waters” so long as substitute water was delivered in conformity with the contract.
(b) The volume of water, in terms of yearly aggregate, reserved by Miller & Lux in the exchange water contract of 1939, has been computed to be 1,056,340 acre-feet.
(c) Under date of June 1, 1955, the water exchange contract of July 27, 1939, was superseded by an amended exchange contract which, among other things, increased the quantity of water guaranteed to Miller & Lux and also increased the allowable percentage of salinity of the substitute water to be supplied by defendant by the Delta-Mendota Canal.
*581 1. Substitute Waters
32. Prior to the completion of the Delta-Mendota Canal, the lands in suit received return flows from irrigation water having the San J oaquin Biver as its source. After the completion of the Delta-Mendota Canal, the quantity of irrigation return water flowing in the channels of the San J oaquin Biver opposite plaintiffs’ lands was not diminished by the operation of the canal, but it consisted in ordinary and dry years of water from the Sacramento-San Joaquin Delta. Thus, the lands in suit were not wholly deprived, by the operation of Friant Dam, of return water originating in the upper San Joaquin Biver and used by Miller & Lux in their irrigation operations on their croplands until July 1953, when the completion of the Delta-Mendota Canal made possible the substitution of Delta water from that canal for upper San Joaquin water. The supply of Delta water was more reliable during crop seasons than had been the supply of San Joaquin water dependent upon the natural flow of the river.
33. The supply of substitute water guaranteed to Miller & Lux and its affiliated companies under the exchange contract is more stable than the supply which they enjoyed prior to the construction of the Central Valley project. Prior to the construction of the project, the yield of the water rights of the four affiliated companies in the month of August, one of the critical months of the irrigation season, varied from 11,400 acre-feet in the driest year of record to 118,500 acre-feet in the wettest year of record. The median amount was about 69,000 acre-feet. The original exchange contract guaranteed delivery of such quantity of water as the canal companies would have had in the absence of the operation of the Central Valley project, but with provision for a minimum amount of 93,000 acre-feet of water. Under the provisions of the amended contract, the minimum supply guaranteed in the month of August was increased to 126,000 acre-feet except in the case of very dry years.
D. Construction of Works and Impounding of Water
34. Friant Dam is a straight gravity concrete dam. Its total length at the top is 3,430 feet, and the maximum height *582 is 320 feet. Across the top of the dam is a roadway whose elevation above mean sea level is 583 feet.
The only openings extending entirely through the dam are those hereinafter mentioned. The first is the spillway at the top of the dam which is controlled by three drum gates. These drum gates are large steel cylinders, each 100 feet long and 18 feet in diameter, which float up and down in a chamber at the' bottom of the spillway opening and which are raised and lowered by the water let into and released from the chamber. By increasing the amount of water in a chamber, each gate floats up, closing to the extent desired the opening which the particular gate is to control. By reversing the process, the gate goes down. It can be adjusted and held to any point. When the gates are raised to the designed maximum elevation, the maximum water surface is at elevation '578. When the gates are completely lowered, the maximum water surface is at elevation 560, except for the head required to flow the water over the spillway. The drum gates were intended to be installed in 1942, but due to the advent of war in 1941, progress in that connection was halted. They were installed on October 31,1947.
The outlet to the Friant-Kern Canal at the south side of the dam is at elevation 464.
The outlet to the Madera Canal at the north side of the dam is at elevation 446.
The normal low-water surface of the river prior to the construction of the dam was at elevation 305.6.
35. The contract for the construction of the dam was awarded on October 9, 1939, and construction was commenced on November 3, 1939. In the early stages of construction, the water of the river was carried over the foundation of the dam in a wooden flume.
By October 20, 1941, the concrete work in the dam had been completed to a point above elevation 400, but not as high as the elevation of the designed outlet into the Madera Canal. On or about that day, the gates in the temporary outlet were partially closed for the purpose of impounding water and at the same time allowing the passage of approximately the amount of water required to be released under the agreement of July 27, 1939, with Miller & Lux and its *583 subsidiaries. This operation raised the surface of the water in the reservoir until, on November 11, 1941, the water reached elevation 375.42 and commenced to spill through the permanent river outlets.
The water was then cut off from the temporary outlet, and the work of permanently sealing that outlet was begun. The sealing was completed in about 5 months. Except for the amount approximately equaling the quantities reserved by Miller & Lux and its subsidiaries, no water passed the dam between October 20 and November 11,1941.
When the water was cut off from the last temporary opening and the opening was sealed, the water below the inverts of the permanent river openings was permanently impounded, with no means left for its release. The amount so impounded was approximately 17,400 acre-feet.
36.- The permanent river outlets were designed to be controlled by needle valves. Defendant had been taking steps ■preliminary to the purchase of the valves when, in the fall of 1941, the international situation became so bad, and demands for materials for defense purposes became so great, that the valves could not be obtained. Except for the emergency and for the ensuing war, the valves to control the permanent river outlets would have been installed in the year 1942.
In the fall of 1941, the Madera Canal had been constructed to the extent of about 7 miles, but had not yet been completed. Construction of the Friant-Kem Canal had not been commenced.
For a short time in the winter of 1942, a high flow in the river caused more water to enter the reservoir than could be drained by the uncontrolled permanent river outlets, and water was temporarily impounded to elevation 415. As the flow of the river dropped, the water impounded above the elevation of the permanent outlets drained through the uncontrolled permanent outlets into the river below the dam.
In 1943, needle valves for two of the four permanent river outlets and for the Madera Canal outlet were borrowed from Boulder Dam and were installed. The first storage of water in the reservoir by means of closing or partially *584 closing one of these valves was started on February 21, 1944.
37.The Madera Canal was at least partially completed in 1944. The surface level of tbe water in the reservoir was then raised sufficiently to divert a large quantity thereof through the Madera Canal, from which it was used to raise the general water table in the area served by the canal. Approximately 302,500 acre-feet of water was stored behind the dam at this stage of the operation. The flow of water through the dam was never completely stopped. For the 6 months after the needle valves were installed, the quantity of water released monthly was approximately that required under the agreement of July 27,1939, between the defendant and Miller & Lux and its subsidiaries. During and after September 1944, the releases were substantially larger than the requirements of such contract, except during the months of November and December 1944, when they were substantially equal to such requirements.
In 1945, by means of controls at permanent river outlets, the reservoir was filled to the base of the openings for the drum gates of the dam, creating storage of approximately 430,000 acre-feet of water. The installation of drum gates in the spillway section of the dam was completed approximately in August 1947, and these gates were first operated to impound water during the period from June 16, 1948, to July 13,1948, when the elevation of the surface of the water in the reservoir rose to 8.13 feet above the base of the opening of the drum gates.
E. Operation of Canals
38. Partial operation of the Friant-Kem Canal was commenced on July 9, 1949. Some deliveries of water from the reservoir through the canal for irrigation purposes were made after that date. The canal was not -ready for full operation until March of 1950.
39. The initial features of the Delta-Mendota Canal were completed in August 1951, making possible the first integrated operation of the Central Valley project. Thereafter the flow of the San Joaquin River was gradually diverted from its course below Friant and turned into the Friant- *585 Kern Canal in increasing amounts. The flow into the Madera Canal continued as before. By July 1958, the San Joaquin River was being substantially diverted, wherefore the flows of San J oaquin water reaching the lands of plaintiffs consisted of (1) floodwaters, averaging once in 4 years, and (2) releases from Friant Dam to provide storage space for flood control. Since the Delta-Mendota Canal was placed in full operation, any substantial quantity of water passing plaintiffs’ lands derives from sources other than the Ban Joaquin River except in times of extraordinary flood.
40. The monthly flows of the San Joaquin River at Friant into the Madera Canal, the Friant-Kern Canal, and the San Joaquin riverbed below Friant, for the years 1941 through 1953, are shown in tables I through VII. The diversions and ■streamflow of the San Joaquin River between Friant Dam io and including Fremont Ford, plus the flow of Mud Slough for the years 1946,1947, and 1948 are shown on tables VIII, IX, and X. Table XI shows the percentage of the 60-year normal or average annual flow of the river below Friant. Tables I through XI are incorporated herein by reference. 7
41. (a) Prior to the completion of the Delta-Mendota ■Canal, releases of water from Friant Dam were made to fulfill the requirements of the agreement between defendant and Miller & Lux, looking to the ultimate exchange of waters. The exchange of waters was begun in August 1951, whereupon the diversions of San Joaquin water at Friant were gradually increased until the exchange of waters was made -complete in July 1953. Thereafter, releases of water from Friant Dam to meet the requirements of Miller & Lux below Mendota Pool ceased.
(b) Releases of water from Friant Dam were and are made to provide room for flood control storage. Since the -construction of Friant Dam, there has been a flood in the San J oaquin River on an average of 1 year out of 4. The amount, height, and duration of the flow of floodwaters of the San Joaquin River below Friant have been materially reduced by the operation of the dam.
(c) The supply of substitute water guaranteed to Miller -& Lux and its affiliated companies under the exchange con *586 tract is not as great each year as was the full natural flow, including floods of the San Joaquin River before Friant Dam was constructed. The supply during the later portion of the irrigation season is larger and more reliable than was to be expected of the natural flow of the San Joaquin River.
(d) The lands in suit were not wholly deprived, by the operation of Friant Dam, of San Joaquin water in the return flow from Miller & Lux irrigation operations until July 1953, when the completion of the Delta-Mendota Canal made possible the full substitution of Delta water for San Joaquin water to supply Mendota Pool. Prior to the completion of the Delta-Mendota Canal, the lands in suit received return flows from irrigation water having the San Joaquin River as all or some of its source. After the completion of the Delta-Mendota Canal, the irrigation return water flowing in the San Joaquin River opposite plaintiffs’ lands consisted in ordinary and dry years of water originating in the Sacramento-San Joaquin Delta. This supply of water was more reliable during the latter portion of the crop seasons than had been the supply from the natural flow of the San Joaquin River.
F. Recapitulation
42. The following dates represent significant milestones in the construction and operation of Friant Dam and the canals which are material to this action.
(1) February 21, 1944, representing the beginning of the operation of controls at the Friant Dam.
(2) June-July 1948, representing completion of controls at Friant Dam and the beginning of their contemplated operation for the control of floods. After midsummer 1948, the regimen of the river in terms of floodwaters and flows in the high channels was completely altered.
(3) July 9, 1949, representing the beginning of partial operation of the Friant-Kern Canal.
(4) March 14, 1950, representing the readiness for full operation of the Friant-Kern Canal.
(5) August 1951, representing the beginning of partial operation of the Delta-Mendota Canal.
*587 (6) July 1953, representing the beginning of complete operation of the Friant-Kem and the Delta-Mendota Canals.
(7) June 1, 1955, the date when the water exchange contract of 1939 was superseded by an amended agreement which increased (i) the quantity of water guaranteed to Miller & Lux and (ii) the allowable percentage of salinity of the substitute waters.
TI. THB ACTION
A. Filing — Trial
1.Relevant Dates
43. (a) The petition in the present case was filed on March 10, 1955. The 6-year statute of limitations, if applicable, bars claims originating prior to March 10, 1949.
(b) Trial was held in California in October 1961. 8
2.Gravamen of the Complaint
44. The petition contains 19 counts 9 wherein 27 claimants seek just compensation for the taking of water rights affecting 35 parcels of land containing more than 20,000 acres. The claimants assert that their water rights and water have been taken; that the quantity and quality of water available for use in irrigating their lands have been degraded and diminished ; and that the value of their lands has been reduced— all because of the construction and operation of the Central Valley project by defendant, particularly that portion of the project which includes Friant Dam on the San Joaquin River, and the introduction of other (substitute) water into the riverbed by the Delta-Mendota Canal.
3.Identity of the Plaintiffs
45. The petition lists as plaintiffs one corporation and 26 individuals. The corporation is the single claimant in the *588 first count of the petition. Ten other counts are devoted to the claims of each of 10 individuals. In the remaining 8 (of the 19) counts, 2 or more individuals are named as claimants, including, in 3 instances, 1 or more of the 10 claimants named in separate, individual counts. This arrangement accounts for the listing of 36 names in the caption of the petition.
4. The Lands
a. Location
46. (a) All of the lands in suit lie on the west side of the San Joaquin River between the towns of Ingomar on the south and Westley on the north, in the California counties of Merced and Stanislaus, and within the exterior boundaries (or the northern or downstream end thereof) of the so-called Santa Rita Flood Plain of the San Joaquin River.
(b) Of the total area of 20,051.59 acres, 77 percent (15,445.84 acres 10 ) lies upstream from the junction of the Merced River with the San Joaquin.
(c) Of the remaining 4,605.75 acres, another Freitas tract of 937.42 acres lies at the mouth of the Merced River. The other 3,668.33 acres are downstream from the junction of the Merced and the San Joaquin.
(d) Above and below the mouth of the Merced River, the lands in the various tracts lie almost side by side, or end on end, for a distance of some 20 miles, except for the lands in Count 1, which are south and west of the other tracts, and the 1,641.80 acres in Counts 3, 4, 15, and 16, which are 10 to 12 miles downstream from (north of) the north end of the string of other lands.. There is thus involved a stretch of the river of some 30 to 35 (air) miles.
b. Uses
47. On March 14,1950 (the date on which plaintiffs claim the taking occurred, a contention explained hereinafter), the lands upstream (on the San Joaquin) from the mouth of the Merced (containing 15,445.84 acres) were all in native *589 pasture. The other 937.42 acres of Freitas land were either in native pasture or. used for dry farming. ■ The remaining 3,688.33 acres were, with minor exceptions, developed for irrigated row crop culture.
5. Parcels of Land 11
48. (a) Each count of the petition as amended contains the legal description of the parcel or parcels of land owned by the plaintiff or plaintiffs named in the count. The ownership is not disputed. 12
(b) Table XII 13 presents a tabulation, by counts, of the number of plaintiffs named and parcels described, together with the number of acres in each parcel, and reference by page, paragraph, and line of the petition where the legal description may be found. The accuracy of the legal descriptions is not disputed.
B. Prior Litigation
1. Gerlach and Belated Cases
49. (a) In 1948, the Court of Claims in three decisions disposed of eight cases involving alleged interferences with water rights along the San Joaquin Eiver resulting from the construction of Friant Dam. 14
*590 (b) The claimants in Gerlach, Potter, and Erreea, sole, were held entitled to recover for loss of the floodwaters which had moistened their grasslands. The taking was said to have been complete not later than October 20,1941. The diminution in value was found to 'be $9 per acre. 15
(c) The lands of the claimants in Gerlach, Potter, and Erreea, sole, are in the Santa Rita Flood Plain, just across the river from the bulk of the lands of the plaintiffs in the instant case. 16
2. The Wolfsen Case
50. (a) The case of Wolfsen v. United States 17 was decided in 1958. The lands of those claimants are on the west side of the San Joaquin River, immediately upstream from the bulk of the lands of the plaintiffs in the instant case.
(b) The petition in Wolfsen was filed on March 22,1955. 18 The claimants made no demand for loss of floodwaters. 19 They based their claims upon the alleged deprivation of riparian rights in Salt Slough, contending that the substitution of waters at Mendota Pool resulted in the introduction of foreign waters into Salt Slough in lieu of the waters of the San Joaquin River, in which they had riparian rights.
(c) The court denied recovery, saying: 20
* * * Plaintiffs are not entitled to compensation for a legal technicality. They must first show that something of substance has been taken from them. * * *
* * * There is no actual damage as a result of the deprivation of the San Joaquin waters and the substitution of the Sacramento waters. * * *
*591 C. Plaintiffs’ Theory of Their Case
1. Comprehensive Coverage
51. (a) With the Wolfsen decision before them, plaintiffs in the instant case have avowedly undertaken to prove actual damage — that something of substance has been taken from them — as a result of the substitution of waters. The basis of this claim is an alleged increase in the salinity of the waters available to them, surface and subsurface, since the curtailment of the flows of the San Joaquin Eiver and particularly since the exchange of waters was begun in August 1951. They contend that the increase in salinity of the water was caused by the curtailment of the flows of the San Joaquin Eiver and intensified by the exchange; that the more saline water is harmful to the salt-sensitive plants formerly grown on their lands, necessitating a change to salt-tolerant crops; that the presence of more saline waters imposes upon them an increased cost of leaching; and that the more saline waters are slowly degrading their soils with increasing salinity. They further contend that, in addition to the degradation of the quality of the water, there has been a diminution in the quantity of water available to them.
(b) In addition to the claim for degradation of quality and diminution in quantity of irrigation water, plaintiffs assert their right to recover for loss of floodwaters formerly used to moisten native pasture and for loss of flows in the high and low channels, which flows formerly were used for recreation — boating and fishing.
2. The Summary by Plaintiffs’ Counsel
52. At the trial of this action, upon completion of plaintiffs’ prima facie case, one of their attorneys gave the following summary of their theory of the case.
That concludes our witnesses, but before the Court adjourns may I make a short further response to your remark about the six-year period referring to annual floods ?
The Dickinson case dates the date of the taking for the purpose of eminent domain with the completion of the project. There had been several floods — that was a flowage case, and the Court went back to the date when *592 the damage became complete to sustain the claim under the statute of limitations.
Now, this is-not a tort action, not an action for damages against the Government. It’s a suit [for] inverse condemnation and would be judged the same as if the Government were seeking to condemn the land, and there is only one cause of action for a condemnation. In other words, all the damages are accrued — rare determined and the case is completed as of one time. Since there is only one cause of action, you cannot split up the cause of action into different segments and say that the statutes of limitation run separately as to different sections of it; such as the date of suppression to the annual floods as one segment, or the date of development of the salinity of the water as another segment. It is one cause of action and it is a cause of action that is found in time and all the segments are in time. For that we rely on the Dickinson, and also on the Slattery case, as I mentioned a short time ago, 231 F. 2d 37 , in which the Court held that once the date of taking is fixed you can consider how much the value was impaired for some years before the taking. In that case the Court was speaking of the knowledge that the burden was going to bo imposed, but it went back much further than the six-year period to include detriments to the market value of the land.
In other words, once you have fixed the date of taking, then you can go back more than six years to determine the different items that have affected the loss of value of the land. That was quoting from 18 American Jurisprudence 890; quoted m another, Circuit of Appeals case 218 F. 2d 518 ,523.
Well, in the present case Friant Dam was physically completed late in 1947 but there was no place to put the water outside of the Madera canal, so the water continued to run down the river. The Friant-Kern canal was open for partial operation July 9, 1949, and from that time on more and more of the water of the San Joaquin Diver was diverted from the bed of the river and turned into the Friant-Kern canal to irrigate new lands down towards Bakersfield, but they couldn’t do very much until they got the Delta-Mendota canal ready to replace San Joaquin water, and that was put in partial operation August 1, 1951, and substantially in full operation July 19,1953. All this is well in the six-year period. The six-y.ear period started to run March 10, 1949.
So, our position is that — -rather, we have assumed as the date of taking March 1950, when the Friant-Kern *593 canal became ready for full operation.
There are several dates we could have taken under that period under the Dickinson case. It is not, of course, the first date of any transaction affecting the value; according to the Dickinson case it is a date of the last event which affects the value. So that is the reason why we independently have the date when the ordinary annual floods ceased. We.say that since our suit was filed, six years after March 10,1949, all of these items of diversion of water occurred after that date, and since there is only one- cause of action, the action will include all of the earlier items which help to complete it;, the final completion being .1953 when the last of the San Joaquin water was taken out of the San Joaquin riverbed and turned into the Friant-Kern canal.
3. Flexible Coverall
53. (a) By selecting as the date of taking March 14,1950 (the date when the Friant-Kem Canal was ready for full operation), plaintiffs'would, in effect, toll the statute of limitations in relation to the loss of floodwaters and flows in the high channel by means of the “final account” doctrine of the Dickinson case. 21
(b) Instead of selecting two dates as dates of taking, one to toll the statute of limitations for claims which might otherwise be barred (such as the floodwaters, which were cut off in 1941), and another for claims which actually developed later (such as the degradation of irrigation water by the substitution which began in 1951), plaintiffs adhere to the one date (March 14, 1950) as the crucial date of taking in all of the claims. Such adherence affects the development of their case in two respects, one theoretical and one practical.
*594 (c) The uniform adherence to one date of taking (for all of the claims in all of the 19 counts) lends consistency to plaintiffs’ theory that the “burden” of which they complain as having been imposed upon them is not the construction or operation of the Friant Dam, as such, nor the construction or operation of the Delta-Mendota Canal, as such, but the Central Valley project as a whole. They would thus blur the distinctions between deprivations of floodwater and high water and the degradation through increased salinity of exchange water, by substituting therefor the project as a whole as the foundation of valuation evidence “without the burden” and “with the burden.” 22
4. Valuation Evidence
¡54. (a) The practical effects of adhering to the one date of taking, with the concomitant necessity of establishing valuations before and after March 14, 1950 (as if the project had never been built, and with the project in place), are threefold.
(b) At the outset, there is the element of certainty. As plaintiffs admit in their brief to the commissioner: 23
* * * It would, of course, be difficult, if not impossible, to find evidence of sales of comparable lands without the burden at the time of taking, i.e., the value in 1950 if Friant Dam and the Delta-Mendota Canal had not been built.
To overcome this difficulty, plaintiffs assert that: 24
The value of plaintiffs’ land in March 1950, if the dam and canals had not been built, i.e., without the burden of defendant’s taking, can be established by estimate or opinion of persons informed on real estate values in the area involved * * *. 25
Plaintiffs did just this. Their appraiser, following instructions, arrived at valuations as of March 14, 1950, as *595 if the Central Valley project had never been built. These valuations were, of course, based upon estimates without foundation on comparable sales. The estimates were made in 1961. The appraiser also arrived, in 1961, at valuations as of March 14, 1950, accepting the fact of the Central Valley project in its 1950 stage of development. These valuations were based, in part, on comparable sales. The difference between the values so determined, before and after, represented the appraiser’s opinion of the diminution in market value because of “the burden of the servitude,” i.e., the Central Valley project.
(c) A second practical effect of the selection of March 14, 1950, as the date of the taking, appears in relation to those claims which are predicated primarily upon the loss of flood-waters and flows in the high channel. These are the claims for diminution in value of lands devoted to native pasture and lands said to have potential value as campsites, for recreation (boating and fishing).
Insofar as Gerlach and related cases are any guide, such diminution (if any) must have begun as early as October 1941, being 814 years before claimants in the instant case would strike a balance and make a final accounting under the DioMnson doctrine. Moreover, the appraiser had to go back II14 years from October 1961 to strike the balance.
(d) The third practical effect of the selection of March 14, 1950, as the date of taking, appears in relation to those claims which are predicated primarily upon the alleged degradation of quality and diminution of quantity of irrigation water. Here the difficulties are at the other end of the spectrum from the claims relating primarily to the loss of heavier flows in the river. The appraiser had to assume that a willing purchaser, well informed in March 1950, would foresee the salinity problem of 1961 and discount his offering price accordingly.
VH. PREDICATES OE ELAINTIEES’ RIGHTS
A. Plaintiffs and the Haines Decrees
/55. The plaintiffs herein do not dispute the correctness or challenge the validity of the Haines decrees as against the defendants in the cases wherein the decrees were entered. On *596 the other hand, they do not admit that the water rights possessed by Miller & Lux in Í9B9 could be the subject of valid transfer, or that the Government acquired any water rights by the 1989 agreement with and conveyance by Miller & Lux and its subsidiaries, as against, any of the plaintiffs herein. The plaintiffs were not parties to or in privity with either of the 1939 contracts of Miller & Lux with defendant or the conveyance of 1939 by Miller & Lux and its subsidiaries. 28
B. Derivation of Title to Plaintiffs’ Lands
56. In 1925, Miller & Lux instituted an intensive program for the sale of much of its land. Tracts of land in varying sizes were sold under deeds containing numerous and differing reservations, conditions, and covenants. In the case of sales of subdivisions of croplands, water rights were usually bestowed on such lands, often in the form of water rights in irrigation districts which had been created by Miller & Lux to provide for this irrigation. In the case of sales of subdivisions of grasslands, which include the lands purchased by some of the plaintiffs herein, Miller & Lux usually incorporated in its deeds provisions reserving certain water rights which otherwise would have gone with such lands on sale, to protect the water and water rights which Miller & Lux had assembled for its croplands. Each deed ordinarily contained several reservations.
57. (a) Certain of the plaintiffs in this case acquired part or all of their lands (1) from Miller & Lux or (2) by mesne conveyances from grantees of Miller & Lux. The reservations inserted in these conveyances are hereinafter noted.
(b) In the deeds to the lands of plaintiffs, which were not purchased from Miller & Lux or its grantees, there are no water reservations.
(c) Following is a tabulation of the several plaintiffs who derived title from Miller & Lux directly or by mesne conveyance.
Count 1. The plaintiff corporation acquired title from Miller & Lux by deed dated August 18,1931.
Count 8. Plaintiff Anna Freitas acquired title by mesne conveyances from Miller & Lux grantees F. T. and V. T. *597 Freitas. There were two deeds from Miller &'Lux: one dated September 25,1931 (which also relates to some of the land in Count-11), and one deed dated January 25, 1932 (which also relates to part of the land described in Count 9).
Count • 9. Plaintiffs Anna Freitas, Frank Freitas,' and Vernon Freitas acquired title by mesne conveyances from Miller &.Lux grantees F. T. and V. T. Freitas.- -íhere were four deeds from Miller & Lux: one deed dated January 25, 1932, to. F.- T. and V. T. Freitas, which included Parcel 1 of these plaintiffs’ lands; one deed dated March 26, 1935, to F. T. and V. T. Freitas, which covered Parcel 2 of these plaintiffs’ lands; one deed dated September 12,1933,- to V. T. Freitas, covering Parcel 3 of plaintiffs’ lands; and one deed dated April 30,1934, to V. T. Freitas, covering Parcel- 4 of the lands of these plaintiffs.
Count 11. Plaintiff Irma Freitas acquired title by mesne conveyance from Miller & Lux grantees F. T. and V. T. Freitas, the land being part of the land .described in the Miller & Lux deed of September 25,1931.
Count 12. Plaintiff Irma Freitas (sometimes known as Erma Freitas Brazil) acquired title by mesne conveyance from Miller & Lux grantee Cyrus J. Sheppard, whose deed was dated October 1,1933.
(d) The foregoing tabulation lists the following deeds from Miller & Lux:
(1) August 18,1931, to Gustine Land & Cattle Company, Inc. (Count 1);
(2) September 25,1931, to F. T. and V. T. Freitas (Counts 8 and 11);
(3) January 25, 1932, to F. T. and V. T. Freitas (Counts 8 and 9);
(4) September 12,1933, to V. T. Freitas (Count 9);
(5) October 1, 1933, to Cyrus J. Sheppard (Count 12);
(8) April 30, 1934, to V. T. Freitas (Count 9); and
(7) March 26,1935, to F. T. and V. T. Freitas (Count 9).
58, (a) The deed of August 18, 1931, from Miller & Lux to Gustine Land & Cattle Company, contained the following exceptions and reservations:
1. That the party of the second part shall have the right to impound any-water it may receive from the natural flow of Los Garzos Creek, and/or from subter *598 ranean waters, and/or from pumps, and by means of existing boxes or other suitable headgates in the Fremont and Horseshoe grades in Sections Fourteen (14), Twenty-three (23), and Twenty-six (26) of Township Eight (8) South, Range Nine (9) East, to hold such water to an elevation of 76.6 feet as related to the existing U.S.Gr.S. bench mark near the southeast corner of Section Fourteen (14), Township Eight (8) South, Range Nine (9) East, this bench mark being read at 76.0.
2. That said lands have heretofore been supplied with water purchased by the party of the first part.from the San Joaquin & Kings River Canal & Irrigation Company. The party of the first part reserves the right to said water and water right, and the party of the second part shall not be entitled to the same. The party of the first part may transfer said water right and use the water heretofore applied to said lands on any other land which it may own.
3. That the party of the first part has heretofore received water from the San Joaquin & Kings River Canal & Irrigation Company by means of a reconstructed channel of Los Garzos Creek along the north line of Section Twenty-seven (27) and Twenty-eight (28).
The party of the first part reserves the right, subject to the condition hereinafter stated, to take said water from said reconstructed channel and pass the same over the lands herein conveyed in order to irrigate other lands of the party of the first part surrounding the land conveyed by this deed. Party of the second part agrees not to change the natural conditions of said land so as to prevent said water from passing over said land, except as herein mentioned. The party of the second part, however, shall be entitled to raise the water level existing at any time, to an elevation of 76.6 feet by impounding the water as provided in Paragraph One herein, and to maintain the same, at said level even though said party of the first part may be taking said water across said land. In determining what water party of the first part shall be entitled to receive after having passed the same through said land as above described, consideration shall be given to the water level on said land at the time party of the first part commences to discharge said water on the same, the amount or quantity of water which party of the second part may have impounded as provided in Paragraph One, and the ordinary losses by evaporation or seepage in passing said water through said land.
*599 4. That the existing levee in Section Eleven (11), situated just , beyond what is known as “Goose Lake”, shall be maintained so that the natural drainage or the flow of any water belonging to the party of the first part can pass on to adjoining lands of the party of the first part or its successor.
5. That no dams or levees, or any other obstruction, except present existing ones, shall be placed in the deep slough running through the east half of Sections Fourteen (14) and Twenty-three (23) without the written consent of the party of the first part. This slough is east of the Horseshoe grade, and is erroneously referred to on the U.S.G.S. Topographical map, as “Los Garzos Creek”, being in fact the continuation of Los Banos Creek.
6. That the San Joaquin & Kings Eiver Canal & Irrigation Company and the party of the first part shall have the right to continue to use Los Garzos Creek to relieve its canals of surplus or waste waters, and that neither said Canal Company, nor party of the first part, shall be liable to the party of the second part for damages by reason of any such waters being turned on to the lands described in this conveyance and the party of the second part shall take any and all steps necessary to relieve said lands of the waters so turned on it, provided, however, that party of the second part shall not be required to pay for said water.
(b) The lands described in Count 8, Count 9 (Parcels 1,2, and 4), and Count 11 (Parcel 1) are all subject to the following exceptions and reservations among others. (The precise language of several of the deeds varies in minor particulars. The parties have agreed, however, that for present purposes the substance and intention expressed in each deed are the same.)
(f) The right to take, divert, store and use the waters of the San Joaquin Eiver and its tributaries, whether naturally flowing therein, or being thereinafter stored or used by any other persons, at any place or places above the land herein conveyed, and use the same for the irrigation of riparian or nonriparian lands, and/or for the production of hydro-electric power or any other purpose for which the party of the first part desired to use the same. The rights herein reserved may be transferred to and exercised by any public district or private corporation, firm, or individual to which the party of *600 .the first part may transfer' or assign said rights. Provided, however, that nothing herein contained shall be construed to in any way affect any right of the parties of the second part to take, divert or use on the land herein conveyed, any water flowing in the- Said river at their said land, and not taken, diverted or used by. the party of the first part, or anyone to whom the party of the first part has or shall hereafter grant the right to divert water, but nothing herein contained shall obligate- the party of the first part, or its assigns to permit, or cause to be permitted, any amount of water of the said river to be or flow at the land herein conveyed.
(g) The right to conduct or carry excess or waste waters from any irrigation canal owned by the party of the first part or The San Joaquin & Kings Elver Canal & Irrigation Company Incorporated, or its successors and assigns, across the above-described land, and that the parties of the second part shall not acquire any right in or to said waters, and any use which the parties of the second part shall make of said water shall be deemed to be permissive and not under claim of fight.
(h) Pending the sale of its grassland waters tó any water storage district or irrigation district, or until the party of the first part desires to change the place of use of said water to other lands, whether or not in ownership of the party of the first part, the party of the first part may divert from the San Joaquin Kiver and apply to said lands for the irrigation thereof, in the customary manner, the quantity of water heretofore applied according to past usage. The parties of the second part shall acquire no right, title or interest in or to said water or the use thereof by virtue of said application of said water to said land.
(j) It is further understood that the water rights reserved in the preceding paragraphs, and the covenants therein contained, shall be considered as easements in the land hereinabove conveyed, and shall run with and bind said land and subsequent purchasers thereof.
(k) It is further understood that the land herein conveyed is part of a larger tract of land belonging to the party of the first part bordering on a natural stream and watercourse and this conveyance shall in no way affect the riparian rights of the remainder of said tract of land retained and owned by the party of the first part, but such riparian rights shall be preserved and be unaffected by this conveyance.
*601 (c) The reservations and exceptions set forth in the preceding subsection as clauses (g), (h), and (k), were likewise contained in the Miller & Lux conveyances of the lands described in Count 9 (Parcel 3) and Count 12. 27 These conveyances also contained the further reservations and exceptions identified as clause (d), as follows:
(d) The riparian rights of the land herein conveyed shall always remain and be exercised subject and subordinate to the "water rights of the party of the first part, its successor, subsidiary and affiliated companies, whether such water rights be riparian, appropriative or prescriptive, to the end that the party of the first part, its successors, subsidiary and affiliated companies may use, enjoy and transfer said water rights, including the right to contract for or permit storage on the upper reaches of the San Joaquin River without let or hindrance from the party of the second part, his heirs and assigns. These covenants and conditions shall not be construed as an extinguishment of the riparian rights of the land herein conveyed, but as an estoppel in favor of the party of the first part, its successors, subsidiary and affiliated companies, against the party of the second part, Ms heirs and assigns, to the extent herein provided.
C. Riparian Rights of Plaintiffs’ Lands
59. (a) Some of plaintiffs’ lands are (and on March 14, 1950, were) riparian to the San Joaquin River or its sloughs; some are contiguous to the river or its sloughs, with riparian status modified in varying degrees; and some are noncontiguous and nonriparian to the surface flow of the San Joaquin River or its sloughs. 28 All of the lands overlie the underflow of the San Joaquin River and ground waters fed by it.
(b) Table XIII 29 identifies the lands by count number and parcel and indicates the acreage that is riparian, contiguous, and not contiguous (nonriparian).
*602 D. Water From the CCID
60. (a) The parties have agreed that each of the following parcels contains the following acreages lying within the Central California Irrigation District:
Water from the river is used on land within the CCID in Counts 5 and 7. 30
(b) Table XIV 31 contains a more detailed tabulation of lands within and without the CCID, with distinctions between developed croplands and pasturelands.
Vm. SOURCES OK THE LANDS5 water supplies
A. Surface Water
1. State of Nature
61. Since the lands in suit were within the Santa Rita Flood Plain, they received the natural flow of the San Joaquin River prior to the interruptions of such natural flow by manmade structures. The river was then free to cut channels, sloughs, and backwater sluices, and to develop its alluvial fans, underground aquifers, and ground water tables through the architecture of the elements and the laws of nature.
*603 2. Before Friant Dam
62. (a) Upstream Alterations. In 1939, when construction of Friant Dam was begun, the natural flow of the river was being controlled, retarded, and diverted by an intricate complex of electric power installations and irrigation works. Upstream owners retained riparian rights and had developed additional rights based upon appropriation and prescription.
(b) Floodwaters. Previous 'findings recite that “* * * there was a period in most years * * * when there was an excess of water over the requirements of all appropriative and prescriptive rights,” 32 and that while “Miller & Lux and its subsidiaries utilized such parts of the * * * flood-waters as they could control * * *, the remaining part of the floodwaters flowed out over the flood plains of the river, elsewhere referred to as the Santa Bita Flood Plain, and eventually made its way back into the river and flowed downstream.” 33
Prior to the construction of Friant Dam, therefore, some of the lands in controversy received the floodwaters of the river in substantial, albeit somewhat curtailed, volume. These floodwaters overflowed much of the low-lying lands, moistening the uncontrolled grasslands as well as the controlled grasslands. In most years the floodwaters filled all channels and sloughs to overflowing.
(c) High Waters. The high water flows occurred just before and just after the floods of winter and spring. The demand for water was at its lowest before and after the winter flood and before the spring flood.
Prior to the construction of Friant Dam, therefore, the lands in controversy received substantial parts of the flow of high water. This water filled the high channels of the river, including sloughs and backwaters.
(d) Low Waters. The lower stages of the river’s flow occurred after the subsidence of the high flow following the spring flood, usually not before July 15th of an average year. Low waters continued through the remaining season of crop *604 land irrigation, when the demand for water was at its highest. During such remaining cropland irrigation season, practically all of the water then'originating above-Friant Dam was 'diverted from the river upstream from plaintiffs’ lands (at Mendota Pool and Sack Dam).
Prior to' the construction of Friant Dam, therefore, virtually none of the natural flow of the river in its low stages reached plaintiffs’ lands in the low channels.
(e) Return Flow. Diversions of water by Miller & Lux and its subsidiaries at. Mendota Pool and Sack Dam were for the purpose of irrigation. Some of the return flow- of this irrigation water reached the low channels and sloughs of the river, and some of it percolated into the underground water tabled
3. After.Friant Dam and Before the Delta-Mendota Canal
63. (a) Floodwaters. The floodwaters of the San Joaquin come from winter rains or spring snowmelt. Each year the amount of contribution of water from rain and snowmelt depends ■ entirely upon the vicissitudes of - nature. Friant Dam and Miller-ton Lake, in conjunction with canal diversions, will accommodate -503,200 acre-feet of water for flood storage. Floods in excess of this flow cannot be stored. Releases are made from Friant to provide flood storage in anticipation of the annual floods. But approximately 1 year in 4, there will be a flood on the San Joaquin River above Friant which, within a relatively short period of time, will contribute a quantity of water in excess of the available storage. Such, floods will be referred to herein as extraordinary floods. Such extraordinary floods overflowed the lowlands below Friant Dam, including the flooding of such of plaintiffs’ lands as were subject to flooding before the building of Friant Dam.
Since the completion of Friant Dam, therefore, the lands in suit have not received the floodwaters of the San Joaquin River in manner or quantity comparable to the flows of such waters before the construction of Friant Dam.
(b) High Waters. The curtailment of the'quantity and the alteration of the times of the flow of floodwaters, through the controls of Friant Dam, resulted in similar curtailment *605 of the quantity arid trie flow of high waters.- Since trie completion of Friant Dam,; during dry years, trie lands dn - suit riave not received trie riigri water flows of trie San Joaquin Diver in manner ór .quantity comparable to trié flows, of sucri waters before trie-construction of Friant Dana.-; -. . .. /
■ (c) Low Waters. Prior-to trie completion óf'the Delta-Mendota Canal, defendant released from Friant Dam enough water to supply (1) certaimriparian rights downstream from Friant to Gravelly Ford and (2) the irrigation. needs of Miller & Lúx and its subsidiaries. . The extent of ..diversion of such waters at Mendotá was much, trie saíne as before. Consequently,. trie lands in suit received virtually none of trie low flow in terms, of flow through trie low channels of trie river.
(d) Return Flow. Plaintiffs’ lands received the return flow of irrigation water, after trie construction of. Friant Dam and before trie exchange of waters, in much the same manner and quantity, and with trie same effect, as had been trie case prior to the construction of Friant Dam.
4. After the Delta-Mendota Canal
-64. (a) Exchange and Diversion. Trie first integrated operation of trie Central Valley project occurred in August 1951, upon the completion of trie initial features of the Delta-Mendota Canal. With exchange waters available to supply trie demands of Miller & Lux and its subsidiaries at Mendota Pool, diversions of San Joaquin water at Friant were increased, trie increases going largely into the Friant-Kern Canal. By July 1953, trie San Joaquin River was being substantially diverted.
(b) Floodwaters. As heretofore noted, floods of sufficient magnitude to warrant substantial releases of excess water from Millerton Lake riave occurred once in 4 years, on trie average, since 1944. Sucri releases have occurred since trie completion of the Delta-Mendota Canal, as well as before. No material change in the flow of floodwaters resulted from trie operation of that canal. The significance of the completion of trie Delta-Mendota Canal has been that, since it was placed in full operation, in 1953, any substantial quantity of *606 water passing plaintiffs’ lands derives from sources other than the San Joaquin River except in times of extraordinary flow.
(c) High Waters. The elimination of the flow of flood-waters, except in times of extraordinary floods, has meant the virtual elimination, subject to the same exception, of the flow of high water.
(d) Low Waters. The exchange waters in Mendota Pool were as fully diverted into irrigation works as had been the case before the exchange. Consequently, after the exchange, as well as before, the lands in suit received virtually no water in terms of natural flow through the low channels of the river.
The significance of the exchange lay in the fact that the water supply came from the Delta rather than from the San Joaquin River.
(e) Return Flow. Plaintiffs’ lands received the return flow of irrigation water after the exchange, as well as before. The quantity was somewhat more plentiful after the exchange, because of the larger and more constant supply. The water was, however, water from the Delta, and not from the San Joaquin River.
5. The Intrusion of the Friant-Kern Canal
¡65. (a) Friant Dam was completed in 1947. Since its completion, as heretofore noted, the lands in suit have not received either the floodwaters or the flows in the high channel in manner or quantity comparable to the flows of such waters before the construction of the dam.
(b) Diversions at Friant into the Madera Canal were begun as early as 1947. Tables I, II, and III show the following diversions into that canal:
Year Aere-feet
1947 _ 78,833
1948 _ 75,000
1949 _151, 508
Meanwhile the flows below Friant were as follows:
Year Acre-feet
1947 _ 1,108,470
1948 _ 1,028,690
*607 (c)The Friant-Kem Canal was ready for partial operation in July 1949, and for full operation on March 14,1950. The diversions into that canal were as follows:
Year Acre-feet
1947 _ 0
1948 _ 0
1949 _45,118
(d) Except for these diversions in 1947, 1948, and 1949, water had to be released from Friant Dam into the channel of the San Joaquin Eiver, to the extent needed for flood control, since there was nowhere else to put it. Consequently, during the nonirrigation season, the flows in the low channel (and sometimes in the high channel) were somewhat higher and certainly more sustained than had been the case before the controls of Friant Dam were placed in operation.
(e) The initial diversions into both the Madera and the Friant-Kem Canals were made to build up the ground water table near the canals and in some measure near the area to be served. The evidence does not specify the date when the Madera Canal was placed in full service operation. The inference to be drawn from the tables of diversion and stream-flow is that such full operation was begun in 1949. Likewise, the evidence does not specify the date when the Friant-Kem Canal was placed in full operation. The inference to be drawn from the tables of diversion and streamflow is that such full operation was not achieved until 1953, when the Delta-Mendota Canal was equally ready for full operation. The pertinent data follow:
Acre-feet
Year Madera Friant-Kem
1950 - 118,321 195,449
1951 - 142,429 391,414
1952 - 181, 361 529, 304
1953 - 191,523 679,976
Comparable figures for the flows below Friant follow:
Year Aere-feet
1950 - 1, 085, 710
1951 - 1, 063,410
1952 -^_ 2, 079, 040
1953 - 862,060
*608 (f) The specifications in the hables of' diversion- and streamflow (by months) below Friant for the years 1947-1952 (both inclusive) warrant the inference that once the controls of Friant Dam had been fully imposed, the new regimen of . the river (in terms of floods and high waters) was not materially altered until 1953. During these years (1947-1952), the heaviest concentration of flows was in April, May, and June; the next highest concentration was in July, August, and September (the crucial'months of the irrigation season); the third order of magnitude was in January, February, and March; while the lowest concentration of flow was in the fall months of October, November, ■and December.
(g) The years of significant developments, relating the construction and operation of the Central Valley project to alterations of the surface water supplies of the lands in suit, were 1947, marking the completion of Friant Dam, and 1953, marking the completion and full operation of the Delta-Mendota Canal. No material significance attaches to the date (March 14, 1950) when the Friant-Kern Canal was ready for full operation.
B. Subsurface Waters
1. The Ground Water Tables
66. (a) The marine water table at the lower level of the ground water table confined below the Corcoran clay has no bearing on the water supply available to the lands in suit.
(b) Otherwise, the lands in suit overlay the ground water tables, confined and unconfined, and had access to them by means of wells as sources of supply of irrigation water and for other uses.
67. (a) It is not established by the evidence that the construction of the Central Valley project (including the imposition of controls at Friant Dam, the diversions at Friant into the Madera and Friant-Kern Canals, or the exchange of waters at Mendota Pool via the Delta-Mendota Canal) had any effect upon the confined fresh water table underlying the Corcoran clay that is material to the availability, *609 quantity, or quality of that water table as a potential supply of water to the lands in suit for irrigation or other uses.
(b)The unconfined ground water table "(extending from the top of the Corcoran clay to levels within a few feet, of the surface of the earth) was affected by the curtailment and ultimate diversion of the flows of the San Joaquin River in that there was some subsidence of the top level of the ground water table. This subsidence was not extensive. In relation to lands improved for irrigated row crop culture, the subsidence was an advantage, in that prior to its occurrence the ground water table had been too close to the root zones in many areas. In relation to some pasturelands, the subsidence was a disadvantage in that the lowered level deprived such lands of subirrigation of grass roots theretofore enjoyed.
2. Wells
68. (a) Wells on the lands in suit, used to supply water for irrigation, or to water cattle, or for domestic use, were sometimes deep, sometimes shallow, sometimes in between.
(b) Deep wells could penetrate. the Corcoran clay and draw water from the confined water table. While the evidence indicates that there were some such wells on some of the parcels of land in suit, they are not clearly identified. Their specific identification is immaterial, since, as noted in finding 67(a), it does not appear that the availability, quantity, or quality of the water supply from that source has been materially affected by the Central Valley project.
(c) A well could penetrate the soil down to or approaching the top level of the Corcoran clay without penetrating it and still be a deep well. The descriptive term “deep” is. therefore relative. Wells considered deep, or between deep and shallow, drew water from the unconfined water table above the Corcoran clay. Usually there were in the casings' of such wells perforations at various levels, enabling them to draw water from such varying levels.
(d) Shallow wells penetrated only a short distance below the top of the water table and relied on a relatively narrow cross-section of the water table gradient as their sources of supply.
*610 C. Quantities of Water Available
1. Overall — Surface and Subsurface
.69. (a) Before Frimt Dam. Subject to tbe upstream diversions (described in finding 20), the annual flows of the river (summarized in finding 18) reached the lands of plaintiffs before the construction of Friant Dam as floodwaters, flows in the high channel, and return flows of irrigation water. On the average, approximately one-half of the annual discharge of the river at Friant was diverted upstream and one-half flowed past the lands of plaintiffs.
(b) These flows were seasonal. As indicated in finding 18(b), some 55 percent of the annual discharge occurred in the 8-month period of April, May, and June, while 18 percent of the flow occurred during the crucial irrigation season of July, August, and September, leaving 27 percent for the 6-month period of October through March. The flows in the first quarter (January, February, and March) were appreciably heavier than were the flows in the last quarter (October, November, and December).
(c) The flows of the river contributed to the ground water table. Some of the floodwaters unquestionably seeped and percolated through the topsoil to the ground water table. The principal source of recharge of ground water, however, was percolation through the banks of the river and sloughs. During periods of high flows in the river, the gradient of the water table extended outward and downward from the channels of flow. As the flows in the river subsided, the gradient was reversed, becoming downward toward the channels of flow.
Í70. (a) After Friant and Before Delta-Mend ota. The construction of Friant Dam did not, of course, affect the potential annual discharge of the river. It affected only the distribution of the discharge.
(b) The effect of Friant Dam (before the completion of the Delta-Mendota Canal) on the distribution of the river’s discharge was twofold. As the Madera and Friant-Kern Canals were made ready, water was diverted into them as indicated in finding 65. The diversions upstream from plaintiffs’ lands were increased accordingly, and the flows *611 past the lands were diminished. The amounts of these increases and diminutions were relatively small. Of greater moment to plaintiffs was the result of the application of controls at Friant, in altering the regimen of the river in terms of floods, flows in the high channels, and seasonal availability of water.
(c) Whereas, before Friant, 82 percent of the yearly discharges of the river occurred during months other than the crucial irrigation season, leaving only 18 percent for that season, the flows below Friant after construction of the dam placed 72 percent during months other than the irrigation season, and 28 percent in the irrigation season. In terms of quarterly flows, the 55 percentage points of April, May, and June, before Friant, were replaced by 43 percentage points after Friant. Whereas the fall and winter months had seen 27 percentage points of the flow before Friant, these months had 29 percentage points after Friant.
(d) The conclusion follows that the application of controls at Friant Dam, beginning not later than 1947 (and having their inception as early as 1944), resulted in (1) curtailment and virtual elimination of floodwaters (except for the extraordinary flows in 1 year out of 4); (2) substantial increases in the water available during the irrigation season; and (3) somewhat higher and considerably more sustained flows in the channels of the river and its sloughs during the nonirrigation season, particularly April, May, and June.
71. (a) After the Délta-Mendota, Oanal. Operation of the Delta-Mendota Canal, providing Delta water in exchange for San Joaquin water at Mendota Pool, made possible the diversion of all San Joaquin water at Friant excepting only (1) the amounts required to supply riparian rights from Friant to Gravelly Ford and (2) releases made in the interest of flood control.
(b) Once the exchange of waters was begun in full force (in 1953), all floodwaters were eliminated (except for the extraordinary flows 1 year in 4), and flows in the high channel were reduced and made dependent upon the timing and volume of releases made for flood control.
(c) The inference to be drawn from the evidence (which is not altogether clear on the point) is that the subsidence of *612 the level of the ground water occurred, in the main, following the systematic lowering of the flows in the high channels. This would place its beginning about 1947.
(d)After the Delta-Mendota Canal was placed in full operation, in 1953, the supply of irrigation water at Mendota Pool was greater in volume and more sustained and reliable in quantity than had been the case either before Friant or after Friant and before the Canal.
2. Increases in Use of Irrigation. Water
72. (a)' The much publicized migration of new population into southern California began shortly after the close of World War II, sparked by men who had been stationed in California.while in the armed services. This migration, well underway in 1950, continued throughout the next decade.
(b) The completion of the Delta-Mendota Canal and the prospect of ample and sustained quantities of irrigation water led to the improvement- for irrigated row crop culture of extensive acreages not theretofore used in lands upstream from the lands of plaintiffs on the San Joaquin River. A similar development occurred along the reaches of the Merced River.
(c) Prior to these developments, the Merced River had made a substantial contribution to the flows in the low channel of the San Joaquin downstream from the confluence of the Merced.
(d) At the time of the trial of this action, in October 1961, the region here involved was experiencing the third of a series of relatively dry years. The drought did not affect the supply of exchange water at Mendota Pool, since the Sacramento drainage basin continued to provide an ample supply. The drought did affect the contributions of the Merced and other tributary streams, by severely curtailing their flows.
(e) The increase in lands developed for irrigation placed a greater demand upon the available supply of water.
(f) At the time of trial (1961), and possibly during the preceding year or two, the supply of irrigation water available to the lands of plaintiffs lying downstream on the San Joaquin from the confluence of the Merced, insofar as such *613 supply came from surface flows in the bed of the river and its sloughs, was less than had been the case in prior years. The supply of ground water, in terms of volume available for irrigation, was unaffected.
IX. SALINITY
A. Nature of the Problem
73. (a) In a state of nature, mineral salts are present in varying amounts in all soils. Many of these salts are soluble in water, including (among many others) sodium, calcium, magnesium, and boron. In solution, some salts replace acids to form alkali. Chemical reactions also occur in solution, with various effects on the soils over which the waters flow or through which they percolate. As evaporation occurs, some salts are deposited on or in the soils. The salt content of the soil to be irrigated therefore represents the starting point of the problem of salinity in relation to any irrigation area or, indeed, to any irrigated field.
(b) A second factor is the degree of salinity of the water available for irrigation, since all water, even if it begins with the purity of snowmelt, picks up salts in the course of runoff or of seepage into and through the soils. Moreover, in the process of irrigation, transpiration is added to evaporation as a cause of deposits of salt on and in the soils. When irrigation water is used over and over again (as is often the case with the return flow of irrigation water), salinity increases markedly with each use.
(c) The accepted antidote to the gradual increase in the salt content of irrigated land is expressed in terms of maintaining the salt balance, the ideal of which is to provide for the removal each year of as much salt as has been brought into the area. 34
*614 (d) Volumes have been and are being written on the problem of salinity in the practice of irrigation. For present purposes, the problem may be outlined in terms of (1) the concentration of salts, in the soil and in the ground water table; (2) the allowable extremes of purity and impurity in irrigation water; and (3) the application of sound irrigation practices.
B. The Concentration of Salts
1. In the Soils
74. (a) Throughout the geologic processes of the depositions of alluvial materials in the grasslands area of the Lower San Joaquin Valley (wherein lie the lands in suit), the soils being laid down had a tendency to be gently irregular, forming small closed depressions or surface pockets. These pockets would retain water from the flood periods. The water in turn would evaporate during the summer. Concentrations of mineral salts from the water were thus left in these depressions each year. Through the series of years constituting a geologic period, additional alluvial deposits were brought down to add to the soil. Each new deposition sealed in the salts previously deposited. The process continued until salt beds were made by the evaporation of the water and the concentration of mineral salts in the soils.
(b) The mineral salts contributed by the east side streams were primarily bicarbonates of calcium, sodium, and magnesium. The waters picked up those salts by washing over the exposed granitic igneous rocks of the Sierra Nevada Mountains. The contribution of floodwaters from the east side streams accounted for the greatest part of the water coverage in the grasslands area. While the concentration of salts in the water of the San Joaquin River was low, the residues left from the evaporation of water from it and other east side streams over the periods of years constituting geologic time left the grasslands deeply impregnated with these salts.
(c) Many of the soils in the grasslands area were classified as alkali soils. They were slick and gelatinous and would not permit the penetration of water. This condition was due to the sodium concentrates which were delivered in historic times by the clean San Joaquin floodwaters.
(d) The west side streams also made some contribution to *615 the geologic buildup of the lands involved in this suit. 35 These streams were high in sulphates and chlorides and carried reasonably high concentrates of other salts, among which was boron. The ground water in the vicinity of these west side streams generally reflects the character of the stream water, bearing high concentrates of sulphate and relatively high concentrations of boron.
2. In the Ground Water 36
75. (a) The formation of salt beds and the lesser accumulations of concentrated salts have had a pronounced effect on the unconfined ground water table. 37 Throughout the years that irrigation has been practiced in the grasslands area, experience has shown that the quality of water drawn from the ground water table may be good or poor (relatively fresh, or quite brackish), depending upon the location of the well and the character of the geologic formation of the soil at that point.
(b) The depth of a well (in the unconfined water table) apparently has little if any relation to the quality of the water obtained from it. Again, the quality may be good or poor, which indicates an extensive degree of stratification in the ground water table, and little if any movement at levels other than the very top.
78. (a) As previously noted, when surface water is flowing in the channels of the river and sloughs at a level higher than the top of the ground water table, the gradient of the water table is outward and downward, away from the *616 channels. As the surface flow subsides, the gradient is reversed, and the movement is inward and downward toward the channels. These movements are relatively slow, being at the rate of approximately 1 foot per day, varying with the porosity of the soil. The fluctuations of the gradient represent the extent of movement in the ground water table. Water lying below the level of the bottoms of the channels of the river and sloughs has no outlet other than percolation, which in this instance is severely restricted by the presence of the Corcoran clay. 38
(b) Within the narrow limits of the fluctuations of the gradients, the floodwaters and flows in the high channels had some effect in diluting and leaching the higher concentrates of saline water lying at the very top of the water table. Otherwise, references to “flushing” and “cleansing” the ground water table by the flowing action of the river tend to exaggerate the importance of such dilution and leaching. Ground water is generally stagnant. It tends to stratify, creating pools of widely variant quality, some good and some poor. The flow of the river, pre-Friant, did not flush or cleanse the ground water in the sense of accelerating its movement, or of displacing substantial quantities of more highly concentrated saline solutions with solutions less concentrated. 39
(c) For the purpose of lands improved for irrigated row crop culture, the slight subsidence of the ground water table (making it fall below the root zone in areas where it had previously invaded such zone) was of greater advantage than any disadvantage resulting from the loss of minor “flushing” or “cleansing” action. 40
*617 C. Suitable Irrigation Water
i77. (a) In terms of dissolved solids, rainwater and snow-melt are almost as pure as distilled water. If the runoff from the mountain watershed reached the irrigation areas in such purity, it would be almost as far from ideal for the purpose as is water which contains too many dissolved solids. Such a possibility is theoretical, of course, since waters do acquire dissolved solids (salts) in the course of runoff.
(b) The possibility of irrigation water containing too many dissolved solids is, on the other hand, a very practical reality. Water in which the salts in solution have reached too high concentration is unsuitable for irrigation use and should be wasted.
(c) One question therefore is, at what stage of concentration must water be condemned as waste. There is no specific answer upon which experts agree, other than that there is such a point and that water which reaches or exceeds that point should be wasted.
(d) A second question is, how far along toward the condemnation stage is it prudent or practical to use water of concentrated solution. Again there is no agreed answer.
78. (a) Analysts of salinity speak in terms of “total salts,” frequently referred to as “parts per million (ppm),” or “total dissolved solids (TDS).”
(b) The individual salt elements include the cations 41 of calcium, magnesium, sodium, and potassium, and the anions 42 of bicarbonate, carbonate, sulphate, and chloride.
(c) The presence of mineral salts has a direct relationship to the electrical conductivity of the water. Therefore, the presence of total salts is sometimes determined by its electrolyte concentration (EC) or its power to conduct an electric charge measured by millimhos. 43
79. (a) All of these terminologies (ppm, TDS, EC, mhos) are, of course, useful in the laboratory. 44 They are, however, *618 unsatisfactory and even inaccurate terms for describing the quality of irrigation water in the context of this case. To the layman they convey only a crude, generalized means of cataloging the total salts in a specimen of irrigation water.
(b) Some salts are heavier than others. Calcium has a chemical equivalent of 20; sodium has a chemical equivalent of 23; and potassium has a chemical equivalent of 39. It would thus take 39 ppm of potassium in water to equal the impact of 23 ppm of sodium or 20 ppm of calcium.
Also, some salts are slow to react, while others have an immediate effect upon the plant.
Some of the chemicals in the water may react with certain chemicals in the soil to create compounds and also to facilitate the leaching of certain salts out of the soil.
If the soil has an excess of sodium carbonate or bicarbonate, the remaining salts in the soil will be entirely sodium which tends to make the soil gelatinous rather than floccu-lated. The gelatinous soil becomes impermeable to water and is referred to as alkali or black alkali soil.
(c) Irrigation water to be beneficial must have chemical constituents which will react to the sodium, flocculate the soils, increase permeability and drainage, and let the water reach the root zone and wash out the deleterious salts.
The infiltration capacity of water depends on two factors: the concentration of electrolytes, and the relationship of calcium and magnesium to the sodium salts of the soil. The electrolytes are salts with electric charges which tend to induce charges in clay particles in the soil, producing the effect of keeping the soil open and permeable. This is the process of flocculation. The relationship of calcium plus magnesium to sodium induces flocculation in a sour soil that is gelatinous and tends to make it become granulated.
(d) Certain salts, such as boron, lithium, fluorine, molybdenum, and salinium, are toxic to plantlife. Some of these toxic salts may be essential in small quantities, but toxic if they appear in concentrated form. Thus, the nature of t

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8593429. Public record. Not legal advice.