# Petition for A Writ of Certiorari — Erreca v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for A Writ of Certiorari
- **Published:** January 1, 1948
- **Citation:** 335 U.S. 884

## Text

ee f = E & O a y | Office a U. S.
AUG 23 1948

Ci AKLLS ELiiGitc J UPLEY
CLERK

SUPREME COURT OF TE UNIT

OCTOBER TERM, 1948

No. 238

MARTIN ERRECA; ann BERNARD F. GAVIN anp
GEORGE D. COLEMAN, Apmrnisrrators oF THE Estate
or Tuomas J. Gavin, Deceased,

Plaintiffs and Petitioners,
vs.

THE UNITED STATES,
Defendant and Respondent

PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CLAIMS AND BRIEF IN SUPPORT
THEREOF.

_ Epwarp F. Treapwe.u and
Reerap 8. Laven,
Mills Building, San Francisco,
Attorneys for Petitioners.

INDEX

Sussect Inpex

The questions presented
Prayer for writ
Brief in support of petition

One. The Court of Claims erred in finding in its find-
ings of fact the intent of the instruments in
question in accordance with the contention
of petitioners, and in its opinion interpreting
the instruments in accordance with the conten-
tion of the government ....

Two. The Court of Claims, in concluding in its opin-
ion that the reservations not only reserved
the existing rights of Miller & Lux, Incorpo-
rated, but also reserved to Miller & Lux, In-
corporated, or its successors the right to store
and divert all the water of the river, violated
fundamental rules for the construction of
reservations and rules established by the
courts of California

I. The Words ‘‘Reserve’’ and ‘‘Reser-
vation’’ Indicate A Protection of
of Existing Rights Rather Than of
Future Rights

II. The Word “Rights” Indicates Exist-
ing, Vested Rights, Not Future Ex-
pectancies or Indefinite Possibili-
ties

III. The Granting Clause Granted Cer-
tain Riparian Rights; if the Reser-

—8034

INDEX

vation Is Construed So Broadly
As to Destroy All of the Riparian
Rights Granted, It Is Repugnant
to the Grant, and Void

IV. All Provisions of the Contracts and

Deeds Should be Harmonized if
Possible, and All Parts Given Ef-
fect; This Can Only Be Done by
Interpreting the Reservation as
Applying Only to the Existing
Rights of Miller & Lux

V. The Court of Claims Gives Undue

Importance to the Phrase ‘‘ All or
Any Part’’ of the Waters of the
River; However Broad the Terms
of the Reservation, It Could not
Operate on Rights Which Miller &
Lux Did Not Possess; and Those
Words Appropriately Described
Rights Which 1: Did Possess

VI. The Reservation of the Right, to

**Store’’ Water Is Consistent with
the Intention to Reserve Only Ex-
isting Rights, As Certain Power
Companies, Operating Under Con-
tract with Miller & Lux, Were Al-
ready Storing Water Above the
Land Conveyed

VII. The Provision That the Reserved

Rights Should Be an Easement in
the Lands Conveyed and in the
Riparian Rights Thereto Is Con-
sistent with the Interpretation that
Miller & Lux Intended to Reserve
Only Its Existing Rights

VIII. The Circumstances Surrounding the

Sale Show That Miller & Lux In-
tended to Reserve Only Its Evist-
ing Rights As Against the Ripar-
ian Rights Conveyed

Page

13

14

18

20

23

INDEX

Page
Deed to J. Sheldon Potter
(Claim No. 46245), dated No-

vember 30, 1926............. 25
Deeds to Martin Erreca, sole
(Claim No. 46244) dated Oc-
tober 20, 1937, and to prede-
cessors of Gerlach Live Stock
Comnmany (Claim No. 46009),

dated June 20,1935.......... 26
Deed to Gerlach Live Stock
i. RR pees erent Py au 28

IX. It Could Not Have Been Intended
That Miller & Lux Was to Make
New Appropriations of the Water
for the Irrigation of Lands in
Madera, Fresno, Kings, Tulare
and Kern Counties, Because All
the Surplus Water Had Been Cov-
ered by Filings of Madera Irriga-
tion District Transferred to the
United States, and the Legislature
of California Had Provided for
the Appropriation by the Depart-
ment of Finance of All Waters
Necessary for the Central Valley
Project and All Such Water Had
Been Filed Upon................ 30

X. The Circumstances Surrounding the
Sales Show That Martin Erreca
Paid for, and Understood That He
Was to Receive, All of the Ripar-
ian Rights Appurtenant to the
Land Conveyed, Subject to the Ex-
isting Rights of Miller & Lux..... 33

CMG So ice ee 35

Tase or Cases

Barataria v. Ott, 84 Miss, 737, 37 South. 121....__.. 7
Brookshire v. Casmalia, 156 Cal. 211, 103 Pac. 927...

iv INDEX
Chidester et al. v. City of Newark et al., 31 F. Supp.
WU ie een tien Tob TTS Ok UNCKE OES ches ce eK
City of San Diego v. La Mesa etc. Irr, Dist., 109 C. A.
MU 5 Woks os Gc Re hich kw eh es
City of Pasadena v. California-Michigan Land &
Water Co., 17 Cal. (2d) 576, 110 P. (2d) 983.......
Clark v. Pauley, 291 Ky. 637, 165 S. W. (2d) 161.....
Colegrove Water Co. v. City of Hollywood, 151 Cal.
I IE ih hes Reh ales chk oe Svcks aes
CPP Wy a A BE ws wc sb Sra) ce ec cee ean
Cutler v. Tufts, 3 Pick. (20 Mass.) 272..............
Dierssen v. McCormack, 28 C. A. (2d) 164, 82 P. (2d)
PRG a STL ret CE ee ees
Dunham v. Kirkpatrick, 101 Pa. 36, 47 Am. Rep. 696. .
Dyer v. Sanford, 9 Mete. 395, 43 Am. Dec. 399........
Fatherree et al. v. McCormick et al., 199 Miss. 248, 24
rE fas RS oe a hk SoM ks wv wean 8 &
ielsenthal v. Warring, 40 Cal. App. 119, 180 Pac. 67.
Poster v. Runk, 109 Pa. 291, 2 A.25................
Easkins v. Ryan, 71 N. J. Eq. 575, 64 A. 436..........
Hii v. Cutting, 107 Mass. 596......................
Horticultural Development Co. v. Lark, 224 Ala. 193,
8 8 RT OGRE Soin nae 5k een nea
Hoyt v. Hart, 149 Cal. 722, 87 Pac. 569..............
Jeffers v. Lampson, 10 Ohio St. 102................
Moakley v. Los Angeles Pac. Ry. Co., 139 C. A. 421,
Sn a ara a is we x
Mott v. Nardo, 73 C. A. (2d) 159, 166 P. (2d) 37.. ...
Powell v. Big Horn Low Line Ditch Co., 81 Mont. 430,
NTRS TNS REE ESE Grm i om aes Sepa nea

SG a oho cua niin pase san oe che ews
Rowland v. Lilly’s Heirs, 190 Ky. 757, 228 S. W. 448..
St. Helena Water Co. v. Forbes, 62 Cal.182..........
San Joaquin & Kings River Canal € Irr. Co. v.

Egenhoff, 61 C. A. (2d) 82,141 P. (2d) 939........
Skookum Oil Co. v. Thomas, 162 Cal. 539, 123 Pac.

Sie Dek 5-5 Xe Fee Oe ee CET ee mek eck es
Southern Pac. R. R. Co. v. U. S., 189 U. S. 447, 47 L.

PER AU les bare MENS els tea RPO TES OeleLkae

Page

13

22
17

Turner v. Cook, 117 C. A. 399, 4 P. (2d) 182........
United States v. Causby, 328 U. S. 256, 90 L. Ed.

Sc ieee oem a ie CLE at vee, 3, 6
Village of Terrace Park et al. v. Errett, 12 F. (2d)
as ea ee ied Chick CER eV ETN oe ee as 8
Winslow v. City of Vallejo, 148 Cal. 723, 84 Pac. 191... 21
Miscellaneous:
California Civil Code:
SNE zr yee see Se ee Bae 13
NE MIU ogee ks eka sous Peace 33

Stats. of Cal. 1927, Ch. 286, p. 508, now Section
10500 et seq. of Water Code of California,
amended by Stats. of 1931 Ch. 720, p. 1514, 1933
Ch. 537, p. 1425, 1935 Ch. 462, p. 1519, 1939
Ce MERE fia sie sous Ge cr Galak oe 32
6 Thompson on Real Property, Sec. 3471........

SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1948

No. 238

MARTIN ERRECA; ann BERNARD F. GAVIN anp
GEORGE D. COLEMAN, Apministrators oF THE EstaTE
or THomas J. Gavin, Deceased,

Plaintiffs and Petitioners,
vs.

THE UNITED STATES,
Defendant and Respondent

PETITION FOR WRIT OF CERTIORARI

To the Honorable, the Supreme Court of the United States:

The petitioners, Martin Erreca; and Bernard F. Gavin
and George D. Coleman, administrators of the estate of
Thomas J. Gavin, deceased, plaintiffs in the action herein-
after mentioned, respectfully petition that a writ of cer-
tiorari issue out of this Court directed to the Court of
Claims of the United States requiring that the cause en-
titled ‘‘Martin Erreca; and Bernard F. Gavin and George
D. Coleman, administrators of the estate of Thomas J.
Gavin, Deceased, Plaintiffs, vs. The United States, Defend-
ant’’, No. 46247 in the records of the Court of Claims of the
United States, be certified to it for review and determina-
tion of all errors assigned.

The judgment in said cause was dated the 5th day of
April, 1948, and became final by the denial of a new trial on
June 1, 1948.

le

The official report of the opinion delivered in the Court of
Claims is found in 109 Ct. Cl. —, 76 F. Supp. 87.

Summary and Short Statement of the Matter Involved

The case sought to be reviewed is one of eight cases con-
solidated for trial in the Court of Claims and all brought
to recover compensation for the taking by the United States,
in connection with the Central Valley Project, of the riparian
rights of the lands of the petitioners. In all of the consoli-
dated cases, except the case here sought to be reviewed, the
Court of Claims decided all questions of law and fact in
favor of the petitioners and in the case sought to be re-
viewed decided ell questions of law and fact in favor of peti-
tioners, except the question as to the legal effect of the
‘reservations, conditions and exceptions’’ contained in the
contracts and deeds between Miller & Lux Incorporated and
the petitioners. In that connection the petitioners con-
tended that such reservations read in the light of the sur-
rounding circumstances only reserved the then-existing
rights of Miller & Lux Incorporated, and they now contend
that the Court of Claims in its findings of fact found that
such was the intent of the instruments. Still, the Court of
Claims in its opinion extended those reservations beyond
all the rights owned by Miller & Lux Incorporated to rights
which it, or its successors, might thereafter acquire in and
to all the water of the San Joaquin River, including the
water taken by the government for carrying out its project.

Basis upon Which It Is Contended That This Court Has
Jurisdiction to Review the Judgment in Question
This Court has jurisdiction to = view the judgment under
28 U.S. C. A., Section 288(b).
Reasons Relied On for Allowance of Writ

1. Petitioners claim that the Court of Claims so far de-
parted from the accepted and usual course of judicial pro-

_—

ceedings as to call for an exercise of this Court’s power of
supervision in that in its findings it found as a fact the inten-
tion of the instruments involved in accordance with the con-
tention of petitioners, but in its opinion interpreted the
instruments in accordance with the contention of the govern-
ment, in violation of the rule that the judgments of the
Court of Claims must be based upon and supported by the
findings of fact and cannot be supported merely by the
Court’s opinion.
United States v. Causby, 328 U.S. 256, 90 L. Ed. 1206.

3

2. Petitioners contend that the decision of the Court of
Claims is contrary to the fundamental rule that a reserva-
tion of rights only reserves existing rights and not future
rights, and in extending the scope of the reservation to
future rights the Court of Claims decided an important
question of local law in a way in conflict with applicable
local decisions.

The Questions Presented

The questions presented are the same as the two ques-
tions above set forth as the reasons relied upon for the
allowance of the writ.

Attached hereto is a brief in support of said petition.

Wherefore, said petitioners pray that a writ of certiorari
issue out of this Court directed to the Court of Claims of the
United States and that upon the record certified by said
Court of Claims of the United States the said judgment be
reversed, and petitioners be given such other and further
relief as may be meet in the premises.

Epwarp F. Treapwe and
Reermap 8. Laven,
Attorneys for Petitioners.

regener,

4

PETITIONERS’ BRIEF IN SUPPORT OF PETITION
FOR WRIT OF CERTIORARI

OnE

The Court of Claims erred in finding in its FINDINGS OF
ract the intent of the instruments in question in accordance
with the contention of petitioners, and in its opinion inter-
preting the instruments in accordance with the contention
of the government.

The petitioners, in their petition in the Court of Claims,
set forth in haec verba the language of the reservation
here involved, as follows:

‘*The land above described is riparian to Mariposa
Slough and other sloughs, and purchaser shall have
a right to make a reasonable use as a riparian owner
and in common with lower riparian land (including that
of seller) of any water which may at any time be ac-
tually flowing in said sloughs as the same passes said
above-described land. It is expressly understood and
agreed, however, that “he seller reserves the right to
store, impound, divert, and use all or any part of the
waters of the San Joaquin River and its tributaries,
whether naturally flowing therein or being therein,
after being stored or used by third persons at any
point or points above the land herein agreed to be
conveyed, and use the same for the irrigation of ripar-
ian or nonriparian lands, whether within or without
the watershed of said River, and/or for the produc-
tion of hydroelectric power. The rights herein re-
served may be transferred to and exercised by the
United States of America, the State of California, or
any of their agencies, any public district, private or
mutual water company, firm, or individual, to which
seller may transfer or assign said rights. These re-

_ — ee ee
5

served rights shall constitute an easement in said lands
so agreed to be conveyed and the riparian rights
thereto.’’ (R. pp. 12-13.)

In their petition, however, petitioners also alleged in de-
tail certain facts surrounding the instruments in question
and alleged that the intent of the instruments was to re-
serve merely the existing rights of Miller & Lux Incorpo-
rated (R. p. 14). The Court of Claims by Finding 72 found:

‘‘At the time of entering into the agreements Miller
& Lux, Incorporated, was the owner of large tracts of
land riparian and nonriparian to the San Joaquin
River and its tributaries which it had theretofore irri-
gated with the waters of the San Joaquin River. At
such time Miller & Lux, Incorporated, was subdividing
its land for sale in small parcels and intended to pro-
vide for the future irrigation of such land with the
rights which it then owned by means of public districts,
private or mutual water companies, firms, or individ-
uals to which it might assign said rights. At the time
of entering into such agreements Miller & Lux, Incor-
porated, owned certain lands riparian to the San
Joaquin River situated above the lands of all the plain-
tiffs herein, and also had made certain appropriations
of water of the river on lands situated above the lands
of such plaintiffs, but it owned no right to store any
water of the river at Friant, nor did it own any right
to store any water of the river elsewhere.’’ (Finding
72, R. p. 84.) (Italics added.)

In the opinion of the Court of Claims, however, this lan-
guage is used:

‘*At the time the deeds were executed Miller & Lux
had acquired the right to divert at points above the
land conveyed and to use a part of the waters of the
San Joaquin River and to use these waters for the irri-
gation of riparian and nonriparian lands, and they
evidently intended to retain these rights notwithstand-
ing the conveyance to plaintiffs Martin Erreca et al.

6

But the reservation went further than this. It not only
reserved the right to divert the water which they had
already been diverting, but they further reserved the
right to ‘store, impound, divert and use all or any part
of the waters of the San Joaquin River * * *’ * * *
‘‘It would seem, therefore, that Miller & Lux, Inc.,
intended to do something more than merely reserve
their existing rights.’’ (Opinion 3(b) R. pp. 99-100.)
We submit that we were entitled to a finding as to the
meaning and effect of these reservations. The Court made
a finding that the intent of it was to reserve existing rights.
There was no finding that they were intended to reserve
future rights to store and impound all the water of the
river. It is well settled that this Court, in reviewing the
case will only consider the findings in order to determine
the facts in the case. Jt cannot consider the opinion of
the Court for the purpose of arriving at the facts and if
the findings of fact do not sustain the judgment it will be
reversed irrespective of what may be contained in the
opinion.
United States v. Causby, 328 U. S. 256, 90 L. ed. 1206.
Two

The Court of Claims, in concluding in its opinion that
the reservations not only reserved the existing rights of
Miller & Lux Incorporated, but also reserved to Miller &
Lua Incorporated or its successors the right to store and
divert all the water of the river, violated fundamental rules
for the construction of reservations and rules established
by the courts of California.

I
The Words “Reserve” and “Reservation” Indicate a Protec-
tion of Existing Rights Rather Than of Future Rights

In its Opinion, p.100, the Court of Claims observes:

‘*The condition of the deed reads, the grantor ‘re-
serves’ the right. This word means to keep or retain;

7

that is to say, to keep what one already has. You -lo
not reserve a right which you do not possess * * °’’.

At the time when the contracts were entered into and the
deeds were executed, Miller & Lux had certain well-estab-
lished rights, known to both parties, in the waters flowing
past the land involved in the case of Martin Erreca et al.
What appropriations Miller & Lux might try to make in the
indefinite future was wholly in the realm of speculation.
The reasonable interpretation to be given to a clause by
which the grantor ‘‘reserves’’ to itself certain rights is
that it is reserving those known, defined rights which it
already hes. The function of a ‘‘reservation,’’ as the
Court aptly observes, is ‘‘to keep what one already has’’;
to reserve to the grantor some estate or interest out of the
estate granted. A ‘‘reservation’’ does not reach outside
the estate granted to create something new in favor of
the grantor. ‘‘You do not reserve a right which you do
not possess.’’

This interpretation of the word ‘‘reserve’’ finds ample
support in the declarations of other courts:

‘*A reservation is always something which is taken
back out of that which is clearly granted.’’
Craig v. Wells, 11 N. Y. 315.

‘<A reservation in a deed must not only be, as herein-
before pointed out, of something which would other-
wise, by operation of the terms of the deed, be con-
veyed, but it must necessarily be of something which
belongs to the grantor at and before the execution of
the deed. Property cannot be conveyed by reserva-
tion.’’

Barataria v, Ott, 84 Miss. 737, 37 South. 121.

8

‘*TIn general, a reservation, like an exception, is some-
thing to be deducted from the thing granted, narrowing
and limiting what would otherwise pass by the general
words of the grant.’’

Dyer v. Sanford, 9 Metc. 395, 43 Am. Dec. 399.

‘*A reservation or exception can only be out of the
estate granted.”’
Hill v. Cutting, 107 Mass. 596.

‘«* * * a reservation in a deed does not create
or enlarge the vested rights of a grantor, but merely
reserves the specific interest named therein from the
operation of the grant.’’

Village of Terrace Park et al. v. Errett, 12 F.
(2d) 240.

The grantor cannot by reservation create in himself an
interest or estate in property which he does not own at the
time of the conveyance.

Chidester et al. v. City of Newark et al., 31 F. Supp.
892;
Mott v. Nardo, 73 C. A. (2d) 159; 166 P. (d) 37;
Powell v. Big Horn Low Line Ditch Co., 81 Mont. 430,
263 P. 692.
II

The Word “Rights” Indicates Existing, Vested Rights, Not
Future Expectancies or Indefinite Possibilities

Throughout the provision under consideration, the inter-
est retained by Miller & Lux is described as the ‘‘right’’
or ‘‘rights’’ retained. Nowhere in the reservation are there
words of futurity, referring to interests thereafter to be
acquired or appropriations to be made at some indefinite
future time. A ‘‘right’’ is a present, existent interest,

__—— RRA EIR ME
9

and the only ‘‘right’’ or ‘‘rights’’ to which a reservation
could in ordinary English usage apply are those rights
which the grantor owned at the time of the contract or con-
veyance. Miller & Lux had no ‘‘rights’’ to be retained by
it beyond the existing privileges enjoyed by Miller & Lux
and its subsidiaries, of using all of the flow of the San Joa-
quin and its tributaries at certain seasons of the year and
part of the flow at other seasons, and certain rights under
its contracts with the power companies. The balance of
the water in the river had been withdrawn by the State from
appropriation; it was not subject to any ‘‘rights’’ in Miller
& Lux at the time when these reservations were drawn.

The word ‘‘right’’ is not a term which indicates a mere
future expectancy. A ‘‘right’’ is that interest which a
person actually has in any subject of property, entitling
him to enjoy it or convey it at pleasure (Haskins v. Ryan,
71 N. J. Eq. 575, 64 A. 436). A mere expectancy is not a
‘‘right’’. (Jeffers v. Lampson, 10 Ohio St. 102). A pro-
spective right is not a ‘‘right’’. (Southern Pacific R. R.
Co. v. U. S., 189 U. 8. 447, 47 L. Ed. 896).

Ill

The Granting Clause Granted Certain Riparian Rights; If
the Reservation Is Construed So Broadly as to Destroy

All of the Riparian Rights Granted, It Is Repugnant to
the Grant, and Void.

The paragraphs from the contracts of sale and deeds
which are before the Court for interpretation (R., pp.
12-13) have been referred to by the Court and by the
parties, for convenience of reference, as constituting
‘‘reservations.’’ Actually, these paragraphs include two

2¢

10

separate operative parts: A grantimg clause conveying
certain described lands and riparian rights, and a reserva-
tion retaining for Miller & Lux certain rights in the riparian
rights conveyed.

The granting clause provides:

‘The land above described is riparian to Mariposa
Slough, and purchaser shall have a right to make a
reasonable use as @ riparian owner and in common
with lower riparian land (including that of seller’s) of
any water which may at any time be actually flowing
in said Slough as the same passes said above-described
land.’’

This provision certainly indicates that the land not only
had riparian rights prior to its conveyance, but that it
would continue to have such rights in the hands of the
grantee. This is entirely inconsistent with the thought
that the grantor intended to retain the right to destroy
completely the very riparian rights being granted. The
grantor did not purport to give a-mere revocable license
to use the water of the river; the words were ‘‘purchaser
shall have a right * * * ’’. How could the purchaser, in
common with lower riparian owners, have a right to enjoy
the water of the stream if no riparian rights were conveyed
to him or if the grantor could at will destroy the riparian
rights? The grantee is entitled to use the water ‘‘as a
riparian owner.* * * ’’. What does the grantee ‘‘own’’,
if we say that the grantor may at will destroy the riparian
rights conveyed with the land?

The rights conveyed are to be used ‘‘in common with
lower riparian land (including that of seller’s)’’; in other
words, this was a ‘‘correlative right,’’ enjoyed by the
several riparian owners. This is a further recognition that
the land conveyed was to continue to have riparian rights
like those appurtenant to other riparian land, to be enjoyed

_— sen te AOA SE
11

in common with the lower riparian owners. Others of the
lower riparian owners have been expressly found by the
Court to have established property rights in the waters
of the river and its sloughs, subject only to the existing
rights of Miller & Lux at the time of the conveyances to
them. This would tend to indicate that Martin Erreca
who was to use this water ‘‘in common’’ with the lower
riparian owners, was to be placed on the same footing.

The language of the granting clause makes it clear that
Martin Erreca as grantee was to have a right, as a riparian
owner, in common with other riparian owners, to the waters
flowing in Mariposa Slough. This right was not absolute.
It was, as already noted, subject to correlative rights in
lower riparian owners. And, by the terms of the reserva-
tion, it was subordinated to certain rights reserved to
Miller & Lux. The reservation provided:

“‘Tt is expressly understood and agreed, however,
that the seller reserves the right to store, impound,
divert, and use all or any part of the waters of the
San Joaquin River and its tributaries, whether
naturally flowing therein, after being stored or used
by third persons at any point or points above the land
herein agreed to be conveyed, and use the same for
the irrigation of riparian or non-riparian lands,
and/or for production of hydroelectric power.’’

The reservation, like the grant, was in very general terms.
Taken out of context, and with no consideration of the
surrounding circumstanes, it might be claimed to mean
that Miller & Lux reserved the right to appropriate ali of
the waters of the San Joaquin River and its tributaries,
without any regard for the riparian rights of Martin Erreca
or the other lower riparian owners. But such an inter-
pretation would disregard one of the purposes of the grant,
which was to convey to the grantee some riparian rights
appurtenant to the land conveyed. Such an interpreta-

12

tion would entirely destroy the effect of the grant, and
would leave the land conveyed with no vested water rights.
A reservation so broad that it nullifies the grant is itself
void, as being repugnant to the grant. (6 Thompson on
Real Property, Sec. 3471; Horticultural Development Co.
v. Lark, 224 Ala. 193, 139 So. 229; Pynchon v. Stearns, 11
Mete. (52 Mass.) 312, 45 Am. Dec. 210; Cutler v. Tufts, 3
Pick. (20 Mass.) 272).

But the reservation here need not be held void for
repugnancy. If there is a reasonable basis for giving the
reservation a more restricted meaning—thus leaving some-
thing to pass by the grant—that more restricted meaning
should be adopted so that the reservation may be given
effect. (Foster v. Runk, 109 Pa. 291, 2 A. 25; Dunham v.
Kirkpatrick, 101 Pa. 36, 47 Am. Rep. 696.)

From the facts of record, that more restricted meaning
is easily determined. At the time of these conveyances
Miller & Lux and its subsidiaries had established riparian,
appropriative and prescriptive rights to a large part of
the flow of the San Joaquin and its tributaries: A maxi-
mum of 1,458,538 acre feet, before Erreca and other
riparian owners became entitled to the use of any of the
water of the San Joaquin. (Special Finding 21, R. p. 40.)
At certain times, these prior riparian, appropriative and
prescriptive rights required all of the water in the river,
at other times only a portion of it. (Special Finding 25,
R. pp. 48-44.) Naturally, Miller & Lux, in conveying land to
Erreca, with the riparian rights appurtenant thereto, did
not intend to destroy these prior appropriative and pre-
scriptive rights. What Miller & Lux did intend to do, and
what it did by the reservation, was to retain the existing
riparian, appropriative and prescriptive rights to use all
or a portion of the waters of the rivers, according to the
seasonal flow.

13

This interpretation gives effect to both the grant and
the reservation. Even with the prior riparian, appropria-
tive and prescriptive rights reserved and excluded from
the grant, the riparian rights appurtenant to the land con-
veyed were of substantial, measurable value, amounting to
$9.00 per acre, and provided an important part of the con-
sideration for the purchase price paid by Erreca. It is
entirely consistent with the language and basic intent of
both the grant and the reservation to view the grant as
vesting in the grantee the right to enjoy the high water
during spring floods, while the reservation retained for
Miller & Lux all prior riparian, appropriative and prescrip-
tive rights. The reservation, thus interpreted, modifies
the grant but does not destroy it; it is not repugnant to the
grant.

IV

All Provisions of the Contracts and Deeds Should Be Har-
monized If Possible, and All Parts Given Effect; This
Can Only Be Done by Interpreting the Reservation as
Applying Only to the Existing Rights of Miller & Lux.

It is a basic rule in the construction of contracts and
other instruments that all of the provisions of the contract
or other instrument should be construed together and given
effect (Cal. Civil Code, Sec. 1641). One part of the in-
strument should not be seized upon, at the expense of
other provisions; the intention should be derived from a
consideration of the instrument as a whole, and all of the
provisions harmonized to give effect to each.

Skookum Oil Co. v. Thomas, 162 Cal. 539, 123 Pac. 363;

City of San Diego v. La Mesa etc. Irr. Dist., 109 C. A.
280, 292 Pac. 1082;

Turner v. Cook, 117 C. A. 399, 4 P. (2d) 182.

This rule applies to the construction of a reservation.

Moakley v. Los Angeles Pac. Ry. Co., 139 C. A. 421, 34
P. (2d) 218.

14

The construction of the contracts and deeds which has
been adopted by the Court in this instance has the effect
of subordinating the grant of riparian rights completely
to the reservation. Though the contracts and deeds pur-
ported to convey a right to Martin Erreca to use the waters
flowing in Mariposa Slough, the reservation is seen as
retaining in Miller & Lux all of the water of the San
Joaquin and its tributaries, thus destroying the very right
conveyed. The reservation is given a broader interpreta-
tion than is needed to effectuate the basic intention of the
parties, while the granting clause is rendered meaningless.

This result is not necessary under the language used.
The Court can harmonize the granting clause and reserva-
tion by interpreting the reservation as applying only to the
existing rights of Miller & Lux, and the granting clause as
applying to the existing riparian rights then appurtenant
to the land conveyed. This interpretation, instead of de-
stroying the granting clause in favor of the reservation,
gives recognition to each of the provisions without doing
violence to either.

V

The Court of Claims Gives Undue Importance to the Phrase
“All or Any Part” of the Waters of the River; However
Broad the Terms of the Reservation, It Could Not Operate
On Rights Which Miller & Lux Did Not Possess; and
Those Words Appropriately Described re Which It
Did Possess.

In reaching the conclusion that Miller & Lux had by force
of the reservation acquired the right to appropriate the
entire flow of the river and destroy the grantee’s riparian
rights, the Court has, we respectfully submit, given undue
weight to the phrase ‘‘all or any part of the waters of the
San Joaquin River,’’ and has misinterpreted its import.

15

The Court says (Op., par. 3(b), R. p. 100) speaking of
Miller & Lux:

‘tin the deed they reserved, as against the grantee,
the right to appropriate ‘all or any part’ of the waters
of the river * * *°; that is to say, the riparian rights
in the lands conveyed should be exercised in subordina-
tion to the right of Miller & Lux to appropriate the
balance of the water in the river, not only the water
already appropriated, but, in addition, ‘all’ the water
of the river.’’

Such an interpretation must rely heavily on inference
and implication; it does not result naturally from the lan-
guage of the reservation. There is no express provision in
the reservation authorizing Miller & Lux to appropriate
additional water. Nor are there two separate provisions,
one reserving present rights and another authorizing Miller
& Lux to appropriate additional rights. The meaning of
the reservation must be found in the single clause: ‘‘the
seller reserves the right to store, impound, divert and use
all or any part of the waters of the San Joaquin River and
its tributaries * * *.’’ Miller & Lux had, at the time of
these conveyances, the very right described. It had the
right, in low water seasons, to take all of the water in the
river, and at times of flood to take part of the water. The
words used were apt words to describe the existing rights
of Miller & Lux. The Court has found, as to the existing
rights of Miller & Lux and its subsidiaries (Special Finding
12, R. p. 33):

‘‘The diversions mentioned above were upstream
from the lands described in plaintiffs’ petitions and the
parties to these actions do not dispute that the rights
founded on these diversions and the use of the water
so diverted are entitled to be satisfied out of the waters
of the San Joaquin River before the plaintiffs in these
four cases are entitled to the use of any waters of the
San Joaquin River. Because of the variability of the

16

flow, satisfaction of these rights and of other undis-
puted prior rights hereinafter mentioned require the
entire supply of water in the river at certain times of
the year, and at all times of the year in some years of
exceptionally low water.’’

Seen in the light of the surrounding circumstances, the
phrase ‘‘all or any part’’ is no more than a general descrip-
tion of the waters to which the existing riparian, appro-
priative and prescriptive rights of Miller & Lux extended.
There is in the phrase, as thus explained, no basis for an
implication that Miller & Lux intended to create in itself
an additional right to appropriate all of the water of the
river at all times, thus destroying the very riparian rights
which it granted to Erreca.

It is common, in granting or reserving all forms of
property, particularly incorporeal rights of an indefinite
or variable nature, to describe the rights granted in general
terms. It would have been wholly impractical in these con-
tracts and deeds to describe by monthly flow or acre feet
the exact extent of the riparian rights which were being
granted to Erreca, and the prior riparian, appropriative
and prescriptive rights which were being reserved to Miller
& Lux, because the amount of water involved varied from
month to month and year to year. The use of general
words of description, however, does not have the effect of
enlarging the estate granted beyond what the grantor owns
at the time of the conveyance. Similarly, in the case of a
reservation, general terms of description may be used, but
they should be understood as applying only to the rights
which the grantor possessed at the time of the conveyance.

For example, in Rowland v. Lilly’s Heirs, 190 Ky. 757,
228 S. W. 448, one of two joint tenants conveyed to the
other all of his right, title and interest in and to the joint
property, reserving ‘‘all the minerals’’ and the right of

17

ingress and egress to and over the ‘‘said lands.’’ This
reservation was interpreted as reserving only a one-half
interest in the minerals, since the grantor could not by
reservation take out of the operation of the conveyance an
interest to which she had no title.

Similarly, in Hill v. Cutting, 107 Mass. 594, tenants in
common effected partition by exchanging quitclaim deeds,
and one of them attempted to reserve for his own use all of
the timber on a described tract of the land conveyed. It was
said that this reservation could not operate on timber on
the undivided half of the tract already in the other tenant
in common, because a reservation or exception could only
be out of the thing granted.

To the same effect is Clark v. Pauley, 291 Ky. 637, 165
S. W. (2d) 161, where a grantor owning a portion of an oil
and gas tract purported to convey the entire tract and re-
serve to himself a life interest in the oil, gas and pipe line
rights. The Court construed the reservation as applying
only to that portion of the oil, gas, and pipe line rights
which the grantor owned.

And in Fatherree et al. v. McCormick et al., 199 Miss. 248,
24 So. (2d) 724, where there was a grant of land ‘‘less and
except one-half of all mineral rights’’, but the grantor’s
interest did nét extend to one-half the mineral rights, the
reservation was held ineffective.

The phrase ‘‘all or any part’’ of the waters of the river
was no more than a general description of the varying
physical limits of the existing rights reserved. It was not
intended to be, and under the authorities it should not be
construed as being, a description of some new, additional
right never previously in existence.

18
VI

The Reservation of the Right, to “Store” Water Is Con-
sistent With the Intention to Reserve Only Existing
Rights, as Certain Power Companies, Operating under
Contract With Miller & Lux, Were Already Storing Water
Above the Land Conveyed.

In concluding that more than the existing rights of Miller
& Lux were covered by the reservation, the Court has relied
heavily upon the reservation of the right to ‘‘store.’’

Actually, the terms of the reservation, read in the light
of the surrounding circumstances, did not go beyond the
existing rights of Miller & Lux. The reservation, rather,
aptly described the established riparian, appropriative and
descriptive rights then in existence and then being exercised
by Miller & Lux, and its subsidiary corporations, and the
power companies who were its assignees under prior con-
tracts.

The right reserved was ‘‘to store, impound, divert, and
use all or any part of the waters of the San Joaquin River
and its tributaries * * *.’’? Miller & Lux and its subsidi-
aries had the right, at the time of these conveyances, to
‘‘divert and use all or any part’’ of the flow of the river,
according to the seasonal flow (Special Findings 9-13,
R. pp. 32-34).

When Miller & Lux reserved the right to ‘‘store’’ and
‘‘impound’’ water the purpose was to protect its existing
position under its numerous contracts with two power
companies : Southern California Edison Company, Ltd., and
San Joaquin Light and Power Corporation. For many
years prior to these conveyances, these two power com-
panies had constructed and maintained dams and reservoirs
in the San Joaquin River above the lands here involved,
stored water in the reservoirs and released and regulated
the flow of the waters through a series of power plants.

19

Beginning in 1906, Miller & Lux and its subsidiaries entered
into numerous contracts with the two power companies, or
their predecessors, by which the power companies were
authorized and required to store water of the San J oaquin
River System during comparatively high stages of the flow,
use the stored water for producing power, and return it to
the river above the lands owned by Miller & Lux during
lower stages of the flow for the use of Miller & Luz (Special
Finding 14, Plff’s. Ex. 43, R. pp. 34-35). These contracts
were in effect a relinquishment or assignment by Miller &
Lux (and its subsidiaries) of a portion of its riparian, appro-
priative and prescriptive rights in the waters of the river,
and gave Miller & Lux a direct contract interest in main-
taining the rights of the power companies to store and im-
pound water. The ownership by Miller & Lux and its sub-
sidiaries of the water stored and released under these con-
tracts was one of the major questions involved in the
‘‘Haines’’ decree, and such ownership was upheld as
against the contrary contention of Madera Irrigation
District.

To avoid being in default under its existing contracts
with the power companies, Miller & Lux was required to
make any conveyance of its lower riparian lands and their
appurtenant riparian rights subject to the existing rights
of the power companies to ‘‘store’’ and ‘‘impound”’ the
water of the river. This circumstance adequately explains
the reservation of the right to ‘‘store’’ and ‘‘impound”’
the waters of the river, and negatives any idea that the
reservation was intended to encompass any new, additional
rights.

20

VII

The Provision That the Reserved Rights Should Be an
Easement in the Lands Conveyed and in the Riparian
Rights Thereto Is Consistent With the Interpretation
That Miller & Lux Intended to Reserve Only Its Existing

Rights.

The concluding sentence of the reservatidn states:

‘*These reserved rights shall constitute an easement
in said lands so agreed to be conveyed and the riparian
rights thereto.’’

The Court of Claims appears to give some weight to this
statement in arriving at the conclusion that the grantor
intended to go beyond its existing rights and acquire addi-
tional rights. On the contrary, it is respectfully submitted,
this provision is persuasive that the rights reserved were
intended to be only the grantor’s existing rights.

So far as the land conveyed was concerned, this provision
added nothing to the legal effect of the instrument. Even
without such a provision, a right to take water as against
certain land is held to constitute an easement in the land
(St. Helena Water Co. v. Forbes, 62 Cal. 182). But this
provision went further and provided that the rights re-
served would be an easement in the ‘‘riparian rights con-
veyed’’. Certainly this indicated that the land would con-
tinue to have riparian rights, notwithstanding the grantor
reserved an easement in those rights. There cannot be an
easement without a servient tenement, and the parties ap-
parently visualized a riparian right in these lands which
would be limited but not destroyed by an easement in those
riparian rights. It would have been wholly inappropriate
to describe the reserved rights as an ‘‘easement”’’ in the
riparian rights conveyed, if in fact no vested riparian rights
were conveyed, or the grantor had the power to destroy the
riparian rights at will.

21

If the scope of the reservation here is tested by the law
of easements, it is immediately apparent that Miller &
Lux did not reserve the right to destroy entirely the ripar-
ian rights which constituted the servient estate, but intended
rather to retain limited rights of user as against those
riparian rights.

It is common to create easements—whether by grant or
reservation—in very general terms. The dominant owner
is given ‘‘a right of way’’, ‘‘a right to lay pipes’’, ‘‘a right
to take gravel’’. The extent of the user is generally not
defined precisely, but that does not mean that the dominant
owner may use the servient estate without limit, even to
the extent of destroying it. There must be only a ‘‘reason-
able’’ use, under the circumstances surrounding the con-
veyance, which will at the same time carry out the purposes
of the grant and impose as little hardship as possible on the
servient owner. The California courts have been partic-
ularly jealous of the rights of the servient owner, and
particularly willing to keep for him the right to make the
maximum use of the servient estate consistent with enjoy-
ment of the easement.

Despite the broad terms of a grant or reservation, the
scope of the easement is restricted to the use which the
parties actually establish in practice. When the dominant
owner exercises his rights in a certain way, and the servient
owner acquiesces in such exercise, that use fixes and limits
the scope of the easement, and the use cannot thereafter
be expanded or increased by the dominant owner.

Winslow v. City of Vallejo, 148 Cal. 723, 84 Pac. 191;

San Joaquin € Kings River Canal & Irr. Co. v. Egen-
hoff, 61 C. A. (2d) 82, 141 P. (2d) 939;

Felsenthal v. Warring, 40 Cal. App. 119, 180 Pac. 67.

The rights actually exercised by Miller & Lux after the con-
veyances to Erreca showed what the parties intended by the
terms of the conveyances and had the effect of defining

and limiting the scope of the easement reserved. It is of
the greatest significance that Miller & Lux did not attempt,
after the conveyances to Erreca, to assert any broader or
greater rights than it had enjoyed for many years before
the conveyances, It did not attempt to make additional
appropriations, It did not increase the capacity of its
diversions. The spring floods continued to flow over and
enrich the land conveyed to Erreca without any hindrance
from Miller & Lux beyond the exercise of its established
riparian, appropriative and prescriptive rights. When
Miller & Lux continued, after these conveyances, to exercise
only the rights which it had been exercising for years (diver-
sion of water for its own purposes and irrigation and sale,
and storage and impounding of water by the power com-
panies, as its assignees) that user defined the scope of its
rights as precisely as if the details had been spelled out in
the reservation. Thereafter, Miller & Lux had no right to
expand its own rights, and it naturally followed that it had
no right to convey, or attempt to convey, more extensive
rights to the United States.

With the extent of the easement right defined both by a
reasonable interpretation of the reservation and by the
use which Miller & Lux practised under it, the servient
owner had an unimpaired right to any use of the servient
estate (the riparian rights) which would not conflict with
the rights of Miller & Lux as so defined and limited.

City of Pasadena v. California-Michigan Land & Water
Co., 17 Cal. (2d) 576, 110 P. (2d) 983;

Brookshire vy. Casmalia, 156 Cal. 211, 103 Pac. 927;

Colegrove Water Co. v. City of Hollywood, 151 Cal. 425,
90 Pac. 1053;

Hoyt v. Hart, 149 Cal. 722, 87 Pac. 569;

Dierssen v. McCormack, 28 C, A. (2d) 164, 82 P. (2d)
212.

‘‘It is well settled, as a general proposition, that the
owner of the servient estate may use his property in any

—
23

manner and for any purpose consistent with the enjoy-
ment of the easement.’’
Hoyt v. Hart, supra.

‘*The law is jealous of the claim of an easement (19
Cor. Jur. 958) and likewise of the extent of the rights
claimed under an instrument granting an easement.
The rule is that every incident of ownership not incon-
sistent with the easement and enjoyment of the same, is
reserved to the grantor.’’

Dierssen v. McCormack, supra,

The same reasoning would, of course, apply to the rights
of the servient grantee, where the easement is created by
reservation.

Thus, at the time when Miller & Lux purported to convey
its interest in rights riparian to Erreca’s land to the
United States, it had only the rights which it had exercised
over the intervening years, and these rights were all that
it was entitled to convey. All other rights remained in
Krreca up to the time of the taking by the United States by
the building of Friant Dam.

VIII

The Circumstances Surrounding the Sale Show That Miller
& Lux Intended to Reserve Only Its Existing Rights as
Against the Riparian Rights Conveyed.

Probably the most significant circumstance to be con-
sidered in construing these instruments is the position of
Miller & Lux at the time of the sales, and its course of
dealings with Erreca and other purchasers of riparian land.
The conclusion of the Court that Miller & Lux intended
to reserve as against Erreca et al. new, additional rights,
beyond its existing rights, cannot be reconciled with the
Court’s finding as to the intention of Miller & Lux in sub-
dividing and selling its land. That finding (Special Find-
ing 72, R. p. 84) we have already quoted on page 5 hereof.

24

This finding is of the greatest significance, because it is
the sole finding of fact relating to the intention of Miller
& Lux. There is no finding—and on the record herein
there could be no finding—that Miller & Lux intended to
reserve non-existent, future rights to irrigate the counties
of Madera, Fresno, Kings, Tulare and Kern. As the Court
aptly puts it, Miller & Lux ‘‘intended to provide for the
future irrigation of such land with the rights which tt then
owned * * *’’, This finding is diametrically opposed to
the idea that Miller & Lux intended to destroy the riparian
rights conveyed with these parcels of land, and necessary
for their irrigation, by making new, additional appropria-
tions higher on the river for the irrigation of lands in those
counties not owned by it. a

It is true, as the Court finds, that at the time of these
conveyances Miller & Lux, itself, ‘‘owned no right to store
any water of the river at Friant, nor did it own any right
to store any water of the river elsewhere.’’ It should not be
concluded from this finding, however, that the reservation
by Miller & Lux of the right to ‘‘store’’ and ‘‘impound”’
water was intended to encompass new, nonexistent rights.
As is fully explained above (VI, pp. 18-19) two assignees
of Miller & Lux, Southern California Edison Co., Ltd. and
San Joaquin Light and Power Corporation, did have ezist-
ing rights under contract with Miller & Lux, to ‘‘store’’
and ‘‘impound’’ for the benefit of Miller & Lux, and the
right to ‘‘store’’ and ‘‘impound’’ was reserved in order to
protect these existing rights.

The sales to Martin Erreca here involved did not consti-
tute isolated transactions, but were part of a larger plan,
described in Special Finding 72, of subdividing a large tract
of land into parcels and selling the riparian lands with the
riparian rights appurtenant thereto. In order to determine
the meaning of the contracts and deeds here under con-
struction, the Court should also look at the other con-

_

25

tracts and deeds executed by Miller & Lux with respect to
other parcels of land similarly situated and sold as part
of the same general scheme of subdivision.
Deed to J. Sheldon Potter (Claim No. 46245 ), dated
November 30, 1935.

The history of the deed from Miller & Lux to J. Sheldon
Potter (J. Sheldon Potter v. U. S., No. 46245, R. p. 119-20),
which was made at about the same time as the contracts here
under consideration and as a part of the same series of land
sales, shows clearly that the purpose of Miller & Lux in
reserving the right to ‘‘store’’ and ‘‘impound”’ water in
deeds to its several grantees was to protect the existing
rights of the power companies with which it had contracts.

The deed which Miller & Lux first offered to Potter re-
served the right to ‘‘store and impound”’ water in very
general terms (Special Finding 52, R. p. 68):

‘Grantor reserves the right to store and impound
at any point or points above the land herein conveyed
all or any part of the water flowing in the San J oaquin
River, or any of its tributaries * * *,”

When Potter refused to accept the deed with this and
other provisions, Miller & Lux offered a deed which spelled
out in more explicit terms the rights which Miller & Lux
intended to reserve. This deed (Special Finding 51, R.
p. 67) provided in part:

‘This conveyance is made subject to the following
conditions, covenants, and reservations:

(1) To all existing water rights of the Grantor and
its subsidiary companies * * * whether estab-
lished by appropriation, prescription, or existing con-
tract, and the right of the Southern California Edison
Company, Ltd., and the San J. oaquin Light & Power
Corporation to store the water of the San Joaquin
River under existing contracts with the Grantor.

26

(2) To the right of Grantor and said subsidiary com-
panies to sell and convey any water right already
established in it or them, by appropriation or prescrip-
tion, in or to the waters of the San Joaquin River or
its tributaries * * * and to store and/or change
the place of use of such water, whether within or with-
out the watershed of said river * * *.’’

The substitution of the new provisions in the deed to
Potter was a clarification of the intention of Miller & Lux,
rather than a new and different transaction. Potter paid
for his land, under the new deed, the price which had been
previously agreed upon, and there was no suggestion in
his dealings with Miller & Lux that they were making a
new deal or a special concession in his case.

The second Potter deed is significant in two respects:

1. It shows that there was in existence at the time of the
conveyance a right of storage which Miller & Lux desired
to protect: The right of the power companies to store under
existing contracts with Miller & Lux.

2. It showed that Miller & Lux did not intend, in making
the reservations in its several deeds, to reach out for new,
additional rights, but was merely attempting to protect
existing rights of storage which were long established.

Similarly, the reservation in the deed to Erreca of the
right to ‘‘store’’ and ‘‘impound’’ water is no basis for an
inference that Miller & Lux was reaching out for new, addi-.
tional rights. The right to ‘‘store’’ and ‘‘impound’’ was
long-established, and it was this ewisting right of storage
which the reservation was intended to protect.

Deeds to Martin Erreca, sole (Claim No. 46244) dated
October 20, 1937, and to predecessors of Gerlach Live
Stock Company (Claim No. 46009), dated June 20,
1935,

27

The reservation clauses in these two deeds are identical.
So far as pertinent here, they provide:

“This conveyance is made on condition that the
riparian rights of the land herein conveyed shall always
remain and be exercised subject and subordinate to the
water rights of the Grantor * * * whether such
water rights be riparian, appropriative, or prescrip-
tive, to the end that the Grantor * * * 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 hind-
rance from the Grantee, his heirs, and assigns. This
covenant 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 Grantor,
* * * against the Grantee, his heirs and assigns, to
the extent herein provided.’’ (Special Finding 59,
R. p. 73).

In the opinion of the Court of Claims herein it is
stated:

‘‘By this exception it was plainly intended to reserve
to the grantor its existing water rights.”’ (Opinion,
par. 3(c), R. p. 101).

The Court of Claims suggested that the clause ‘*including
the right to contract for or permit storage on the upper
reaches of the San Joaquin River, without let or hindrance
from the grantee, his heirs, and assigns’’ might be con-
strued to include the right to enter into additional contracts
for ‘‘storage on the upper reaches of the San J oaquin
River.’’ The Court did not consider it necessary to decide
this matter. We respectfully submit that the natural, rea-
sonable construction of the language used is that it referred
to the existing rights of the power companies to store for
power, high on the river and its tributaries, and could not
reasonably refer to storage at Friant Dam for the irrigation

28

’ of the counties of Madera, Fresno, Kings, Tulare and Kern.
Friant Dam is on the edge of the San Joaquin Valley, prac-
tically on the floor of the valley. The power reservoirs are
at elevations between five and ten thousand feet.

The word ‘‘reaches’’ means nothing more than some
stretches of the river. The word ‘‘upper”’ is clearly rela-
tive and means ‘‘higher”’ in elevation or on the course of
the river. While it clearly was intended to limit this stor-
age to some place which the parties intended to be ex-
pressed by the words ‘‘upper reaches,’’ if they referred to
future storages, the contract contains no data from which
the particular reaches can be located. This is demonstrated
by the fact that the expression standing alone is equally
applicable to reaches

(1) above tidal action;

(2) above plaintiffs’ land;

(3) above Miller & Lux land;

(4) above the floor of the valley;

(5) above the foothill area;

(6) above the snow line;

(7) above the timber line;

(8) above the junction of the snowfed tributaries (North

Fork, South Fork, and Middle Fork) with the main chan-
nel.

On the other hand, if the parties understood that these
words applied to existing storages, the expression had cer-
tainty and was descriptive of the actual location of such
storages, and the validity of the contract was saved by
the rule that that is certain that can be made certain.

The language used does describe aptly the storage main-
tained by the power companies at their reservoirs, for the
benefit of Miller & Lux, and it is this storage to which the
reservation naturally applies.

Deed to Gerlach Live Stock Company.

29

The language of this deed is set forth in Finding 78, R.
p. 109, and with respect to it the Court of Claims concluded
that it only reserved the existing rights of Miller & Lux
(Opinion, par. 3(c), R. p. 122).

All of these deeds and contracts were part of the general
scheme of subdivision and sale of its lands by Miller &
Lux, described by the Court in Special Finding 72, R. p.
84. While the language differs, they all follow the same
general pattern and show a general, pervading intention.
That intention was to convey with each of the parcels sold
the riparian rights appurtenant thereto, but to reserve to
Miller & Lux the existing riparian, appropriative and pre-
scriptive rights which it enjoyed in the water of the San
Joaquin and its tributaries, including the storage rights
which it had assigned to the power companies on the upper
reaches of the river.

Since all of the riparian rights conveyed to the several
grantees were correlative rights, to be enjoyed in common
by the several grantees, Miller & Lux could not possibly
have hoped to gain any substantial advantage by reserving
as against Erreca the right to make additional appropria-
tions, when its intention clearly was in all of the other con-
veyances—and the Court of Claims has so found—to
reserve only its existing rights. All of the lands involved
in these several conveyances were moistened and enriched
by the same general flow of water (Special Finding 28,
R. p. 46. Miller & Lux could not interfere with that flow,
or make further appropriations against it, without violating
the vested, recognized rights of its other riparian grantees.
It is not reasonable to suppose that Miller & Lux intended
to reserve as against Martin Erreca, alone of all its
grantees, a right to make future appropriations which it
could not legally make, because of the other riparian rights
which it granted.

30

Seen as a separate transaction, the sale of the parcels
of land here involved to Martin Erreca cannot be under-
stood properly, and the terms of the contracts and deeds
are ambiguous and uncertain. But the Court is entitled to
consider all of the surrounding circumstances, among the
most important of which are these other sales made at about
the same time, as part of the same general pattern. The
intention of Miller & Lux throughout its sales program is
clear: To convey the riparian rights with each parcel sold,
but to retain its existing riparian, appropriative and pre-
scriptive rights. Where the purchaser did not consider this
intention clearly expressed, the language was clarified to
make it clear.

Ix

It Could Not Have Been Intended That Miller & Lux Was
to Make New Appropriations of the Water for the Irriga-
tion of Lands in Madera, Fresno, Kings, Tulare and Kern
Counties, Because All the Surplus Water Had Been Cov-
ered by Filings of Madera Irrigation District Transferred
to the United States, and the Legislature of California
Had Provided for the Appropriation by the Department
of Finance of Aii Waters Necessary for the Central Val-
ley Project and All Such Water Had Been Filed Upon.

The Court is not restricted in considering the surround-
ing circumstances to the circumstances prevailing at or
before the time when the contracts and deeds took effect.
It is also proper to consider the ‘‘practical construction”’
which the parties put upon the instruments by their own
conduct under them. So far as Miller & Lux was concerned,
there is no evidence that from the date of the contracts with
Erreca to the present time it ever made any appropriation
of water or applied to the Division of Water Resources of
the State of California for the right to make further appro-

—7~—V—~“Y~—"—"™

31

priations for the benefit of the counties named. In other
words, it never did anything that indicated any understand-
ing on its part that it had the right to appropriate all of the
water of the river, in excess of its existing rights.

As a physical matter, Miller & Lux could not have made
any further appropriations without constructing very ex-
pensive installations for the control of the flood waters of
the river. It must be remembered that Miller & Lux already
had under existing riparian, appropriative and prescrip-
tive rights the right to use all of the waters of the river at
slack periods. Only during the winter or spring floods was
there an excess to benefit lower riparian lands. The Court
has expressly found (Special Finding 31, R. p. 48) that the
upper riparian land of Miller & Lux could not benefit fur-
ther from the spring floods in the absence of controlled
diversion, and that installations for such diversion had
never been constructed or planned. Indeed, there is no
evidence of record that Miller & Lux had ever planned
the installation of works to make additional appropriations
for any purpose.

As a legal matter, Miller & Lux could not have made
additional appropriations, because the entire flow of the
river had already been subjected to prior appropriations.
Madera Irrigation District had in 1916, 1919, and 1922 filed
applications for appropriation which aggregated 15,000
second feet of flow and 1,600,000 acre feet of storage, far
more than the surplus of water available for appropriation
(Special Finding 16, R. p. 37). These applications were
assigned to the United States on January 29, 1940.

Further, the California Legislature had as early as 1927,
in aid of the Central Valley Project, authorized the State
Department of Finance to file application “for any water
or the use thereof which in the judgment of the state depart-
ment of finance is or may be required in the development
and completion of the whole or any part of a general or co-

—

32

ordinated plan looking towards the development, utilization
or conservation of the water resources of the state’’ (Stats.
of Cal., 1927, Ch. 286, p. 508, now No. 10500 et seq. of Water
Code of California, amended by Stats. of 1931 Ch. 720,
p. 1514, 1933 Ch. 537, p. 1425, 19385 Ch. 462, p. 1519, 1939
Ch. 685, p. 2199). The records of the Division of Water
Resources, Department of Public Works, State of Califor-
nia, of which this Court may take judicial notice, show that
on July 30, 1927, Applications 5637 and 5638 were filed by
the Department of Finance pursuant to this statutory
authority. These applications were for diversion at Tem-
perance Flat Dam and involved 4,500 cu. ft. per second
direct diversion for power and 5,000 cu. ft. per second direct
diversion for irirgation, both specifying 1,210,000 acre-feet
for storage. These amounts far exceed the maximum
amount available for appropriation, over and above the
outstanding riparian, appropriative and _ prescriptive
rights, leaving nothing available for later appropriation
by Miller & Lux or any other party.

Since Miller & Lux never showed any intention to spend
the many millions of dollars which would have been neces-
sary to appropriate the flood waters of the river, and after
1927 it could not legally appropriate them, it is respectfully
submitted that Miller & Lux could not sensibly have in-
tended, when selling land in 1935 and 1936, to reserve the
right ‘‘to appropriate the balance of the water of the river,
not only the water already appropriated, but, in addition,
‘all’ the water of the river’’ (Opinion, par. 3(b), R. p. 100).

33

x

The Circumstances Surrounding the Sales Show That Mar-
tin Erreca Paid For, and Understood That He Was to
Receive, All of the Riparian Rights Appurtenant to the
Land Conveyed, Subject to the Existing Rights of Miller
& Lux.

In constructing these contracts and deeds, it is important
to consider not only the intention of the grantor, but also
the intention and understanding of the grantee. California
Civil Code 1649 provides:

‘‘If the terms of a promise are in any respect am-
biguous or uncertain, it must be interpreted in the
sense in which the promisor believed, at the time of
making it, that the promisee understood it.’’

Krreca’s knowledge of common English, and his knowl-
edg of the whole Miller & Lux sales program, indicated to
him that his land was to have riparian rights and that Miller
& Lux was reserving that which it owned, not some indefi-
nite future rights which it did not own. The phrase ‘‘all
or any part’’ of the waters of the river gave him no warn-
ing that Miller & Lux might claim more than its existing
rights, because that phrase could be applied without any
violence whatever to the existing rights which Miller & Lux
had long exercised: The right to take ‘‘all’’ of the water in
the river during slack seasons and ‘‘part’’ of the water dur-
ing periods of flood.

Most important, Erreca paid for land with riparian rights
attached. The land purchased by J. Sheldon Potter sold
at about the same time, cost $25 per acre (Tr., p. 207).
The United States and Miller & Lux have agreed that the
value of riparian rights to uncontrolled grasslands—of
which the land here involved was part—was $9 per acre
(Special Finding 37, R. p. 55). The Court has expressly

34

found that the Potter land was subject only to the existing
rights of Miller & Lux (Opinion, par. 3(a), R. p. 98).

Not only did he pay for the land with riparian rights at-
tached, but after receiving his land Erreca showed consist-
ently by his conduct that he understood that his land had
established riparian rights. As shown by the findings (Spe-
cial Findings 74 and 75, R. pp. 85-86) he improved and culti-
vated the land in reliance upon continuing riparian rights:

‘‘The lands involved in this claim were originally
grasslands subject to the uncontrolled overflow of the
San Joaquin River. During the period in which it
owned the lands, Miller & Lux Incorporated commenced
a program of bringing the lands under cultivation by
building levees or dikes where required along the river
and the sloughs to confine and control the flow of the
water therein, and by leveling the land.

‘‘When plaintiff Erreca came into possession of
the lands, he leveled and brought under cultivation ad-
ditional acreage thereof, so that in 1941 approxi-
mately 70 percent was leveled land on which crops were
grown. The remainder was pasturage.’’

‘‘During the spring flood seasons, hereinabove de-
scribed, the San Joaquin River water flows down the
main channel, past the Erreca land and through the
sloughs across such land. Except in a year of extreme
high flow, it is confined to the main channel and to the
sloughs by means of levees or dikes and does not over-
flow the land. When the water is high in the main
channel and in the sloughs, it seeps therefrom for a
distance of approximately one-half mile. Plaintiff
Erreca has promoted such seepage by the placings of
checkdams in sloughs. During the years when there
is no high water the crops are poor, but when there is
high water the crops are good. Winter rains start the
growth of pasturage, but the seepage is necessary to
continue the growth. About two-thirds of the land is
adversely affected when there is no seepage. For these
reasons the land derives benefit from the spring floods
of the San Joaquin River.’’

35

Thus Erreca, as grantee, consistently showed his under-
standing that he had purchased certain riparian rights ap-
purtenant to the land. His course of conduct is much more
pursuasive than any declarations could be. He paid for land
with certain water rights attached, and he made expensive
improvements which would not have been justified if the
land had no vested riparian rights. His intention and un-
derstanding are perfectly clear: That the land which he
purchased enjoyed riparian rights, subject only to the ezist-
ing rights of Miller & Lux.

Conclusion

Petitioners respectfully submit that the writ should be
granted.

Epwarp F. TreapwE 1,
Reernatp 8. Lavexuin,
Attorneys for Petitioners.

(8034)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386416_1881%3A1. Public record. Not legal advice.