# Opposition Brief — California-Michigan Land & Water Co. v. City of Pasadena

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1950
- **Citation:** 339 U.S. 937

## Text

SUBJECT INDEX

PAGE

PINOCUIONY So ieee aaa

The opinion of this court in Pacific Live Stock Co. v. Lewis,
241 U. S. 440, 60 L. Ed. 1084, is an effective answer to peti-
tioner’s contention, under its Point I, that the judgment of the
Supreme Court of California herein deprived petitioner of due
process
Cases cited by petitioner 12

II.
The legal questions presented by petitioner under its Point II
are not federal questions but are questions of state or general

—
TABLE OF AUTHORITIES CITED
CasEs PAGE
Bray v. Superior Court, 92 Cal. App. 428, 268 Pac. 374............ 5, 17
California-Oregon Power Co. v. Beaver Portland Cement Co.,
295 U. S. 142, 79 L. Ed. 1356. es 18
Carter v. Kubler, 320 U. S. 243, 88 L. Ed. 26........................ 12, 14
Connecticut v. Massachusetts, 282 U. S. 660, 75 L. Ed. 602........ 18
Crowell v. Benson, 285 U. S. 22, 76 L. Ed. 598..00...0....eeseeeeeee 12
Crystal Springs Co. v. Los Angeles, 177 U. S. 169, 44 L. Ed.
720 18, 19
Devine v. Los Angeles, 202 U. S. 313, 50 L. Ed. 1046............ 18, 19
Fervel v. Fervel, 23 Cal. 2d 431, 144 P. 2d 592... eee 15
Fleming v. Bennett, 18 Cal. 2d 518, 116 P. 2d 442.0000... 5, 35
Hooker v. Los Angeles, 188 U. S. 314, 47 L. Ed. 487......11, 18, 21
Hudson v. Dailey, 156 Cal. 617, 105 Pac. 748. 23
Humboldt Land & Cattle Co. v. Allen, 14 F. 2d 650.......0.00.0002.... 17
Kansas v. Colorado, 206 U. S. 46, 51 L. Ed. 956...........00000000002.... 18

Katz v. Walkinshaw, 141 Cal. 116, 70 Pac. 663, 74 Pac. 766........ 21
Lindsley v. National Carbonic Gas Co., 220 U. S. 61, 55 L. Ed.

Rie nS pise 3 PE - Ee o O CS nN EE 22
Los Angeles F. & M. Co. v. Los Angeles, 217 U. S. 217, 54
i. A He ciccese ch ineidapnidicnciamesheivininainsia te Miaitsinsiaiaionutionscpssiennieiiiti 18
Miller & Lux v. Enterprise Canal etc. Co., 169 Cal. 415, 147
Se I vicceinsiehcnisoeitiahiannchasihaeiaoerinespnnpiitsiuennienmpsaceniinstiauiisnapmineucinntinsivititonts 24
Morgan v. United States, 298 U. S. 469, 80 L. Ed. 1288, 304
Beas Wick: SR. NE Rereiesennctneiopndiinbeneninaninibsonannstiianincenenninniebietaae 12, 13
Ohio Bell Telephone Co. v. Public Utilities Commission, 301
Bs i NE ke BI Be ctisereinpinerasnncsicncnicnsntinnensiiincin 12, 14, 21, 2
O’Neil v. Northern Colorado Irrigation Co., 242 U. S. 20, 61
I Rs “cal alk ghia tcnneienenphccelaleinei 25

Pacific Live Stock Co. v. Lewis, 241 U. S. 440, 60 L. Ed.

Pasadena v. Alhambra, 33 Cal. 2d ee | ae 5
Peoples Gas Co. v. Tyner, 131 Ind. 277.00 21
Peterson, Walter, In the Matter of, 253 U. S. 300, 64 L. Ed.
Wr sae 12
Powhatton Min. Co. v. Ickes, 118 F. 24 105... 12
Railroad Commission v. Rowan et al., 310 U. S. 573, 84 L. Ea.
Sa ws 22
Snake Creek etc. Co. v. Midway, 260 U. S. 596, 67 L. Ed. 423
pedininetaidiigascteiel 18, 20
Telluride vy. Rio Grande etc. Co., 187 U. S. 569, 47 L. Ed. 307
....18, 20
United States v. Dillman, 146 F. 2d ee ean hie ae 12, 15
United States v. Los Angeles and Salt Lake Railway Co., 273
sia So tic Epa Ne ee RS Td 12
United States v. Rio Grande Dam & Irr. Co., 174 U. S. 690,
43 L. Ed. 1136 ehstingicnnasilbinieashniattinsetiabiniuntereuus. akeinscn. 18

Western Union Tel. Co. v. Industrial Com., 24 Fed. Supp. 370.... 12
Weyerhauser v. Minnesota, 176 U. S. 550, 44 L. Ed. 583... 18, 20
Wood v. Pendola, 1 Cal. 2d Tom oe OP Oh 5

TEXTBOOKS

16 Corpus Juris Secundum, Sec. 128, p. 331

IN THE

Supreme Court of the United States

Octoser Term, 1949.
No. 353

California Supreme Court No. L. A. 19610 and L. A. 19186.
CALIFORNIA-MICHIGAN LAND AND WATER COMPANY, a cor-

poration, oF
Petitioner,
vs.

CITY OF PASADENA, a municipal corporation; CITY OF ALHAM-
BRA, a municipal corporation; CITY OF MONROVIA, a —-
corporation; CITY OF ARCADIA, a municipal corporation; CITY OF
SIERRA MADRE, a municipal corporation; LA CANADA IRRIGA-
TION DISTRICT, SAN GABRIEL COUNTY WATER DISTRICT,
LINCOLN AVENUE WATER COMPANY, a corporation; THE
LAS FLORES WATER COMPANY, a corporation; RUBIO CANON
LAND AND WATER ASSOCIATION, a corporation; VALLEY
WATER COMPANY, a corporation; MIRA LOMA MUTUAL
WATER COMPANY, a corporation; EL CAMPO MUTUAL WATER
COMPANY, a corporation; SUNNY SLOPE WATER COMPANY,
a corporation; CALIFORNIA WATER AND TELEPHONE COM-
PANY, a corporation; CROWN CITY ICE COMPANY, a corporation;
ROYAL LAUNDRY & DRY CLEANING COMPANY, a corpora-
tion; ERNEST CRAWFORD MAY, as the Executor of the California
estate of Charles Heuston Hastings, deceased; A. V. WAGNER,
EUGENE E. BEAN, CHESLEY E. OSBORN and KATHLEEN M.
OSBORN (substituted in lieu of Dell A. Schweitzer as executor of the
estate of Fred M. Wilcox, deceased, and Ernest E. Jones as custodian of
the estate of Fred M. Wilcox, deceased) ; ALICE GRAVES STEWART,
KATHARINE GRAVES ARMSTRONG and FRANCIS P. GRAVES,
as heirs at law and residuary legatees under the last Will and Testament
of Alice H. Graves, deceased (substituted in lieu of Alice H. Graves,
deceased) ; ROSS M. LOCKHART, PASADENA CEMETERY ASSO-
CIATION, a corporation; ALTADENA GOLF CLUB, a corporation;
HENRY E. HUNTINGTON LIBRARY AND ART GALLERY, a
corporation; DIVISION OF WATER RESOURCES, DEPARTMENT
OF PUBLIC WORKS, STATE OF CALIFORNIA, and said DIVI-
SION OF WATER RESOURCES AS REFEREE; CANYON
MUTUAL WATER COMPANY, a corporation,

Respondents.

RESPONDENTS’ BRIEF IN OPPOSITION TO
PETITION FOR WRIT OF CERTIORARI.

Introduction.

The complaint in the present action was filed on Sep-
tember 23, 1937, for the purpose of quieting the title of

2 Ba

plaintiff as against the defendants to divert and use the
underground waters in the Raymond Basin Area, and to
enjoin each defendant found to own a right to divert water
in said basin from taking therefrom in any year water in
such volume as, when added to the amount which the other
parties should be decreed to be entitled to take, would re-
sult in a total annual diversion from said basin in excess
of the average annual supply of water thereto.

On February 8, 1939, the Court referred the case to
the Division of Water Resources, as referee, for investi-
gation and report upon all of the physical facts involved
in the action, under authority contained in Section 24 of
the Water Commission Act. [Ex. 1, pp. xxi-xxiii.]
On June 21, 1939, the Division filed a preliminary report
recommending bringing in additional parties, and on July
13, 1939, the Court issued its order directing that certain
additional parties be brought into this action. On June
9, 1939, the Court made its order and instructions to
referee wherein it found and ordered “that the issues in
the above entitled cause embrace an adjudication of the
rights of the defendants inter se and the rights of each
and every party as against each and every other party.”
[Ex. 1, pp. xxiv, xxv. ]

Regarding the use of engineering data of parties in the
instant case, it is noteworthy that the trial court in order-
ing the reference herein included the following [Ex. 1, p.
xxiii]:

“Tt is recommended to the parties to this action,
that they, severally or jointly, appoint engineers to
collaborate with the Division of Water Resources
throughout this investigation, and it is recommended
to the referee that it seek the advice and counsel of
said engineers in the formulation of the program of
investigation and in the preparation of the report.”

alien

Acting on that recommendation certain of the parties
appointed engineering representatives who aided the referee
in the preparation of the report. The engineers so acting
and the enterprises represented by them are as follows [Tr.
pp. 671-672; Ex. 1, p. xxiv]:

“Epwarp R. Bowen City of Alhambra
California Water and Tele-
phone Company

Joun W. Cray City of Alhambra
Raymonp A. Hitt ‘Flintridge Mutual Water
Company
J. Q. JEwetr Las Flores Water Company
Lincoln Avenue Water Com-
pany
Rubio Canon Land and Water
Association
Valley Water Company
J. D. Mackerras First Trust and Savings Bank
of Pasadena (Altadena Golf
Club )
SAMUEL B. Morris __ City of Pasadena
assisted by

Morris S. JONES
CLAUDE W. Sopp

F. A. OLSEN Sunny Slope Water Company
H. A. Petrie San Gabriel County Water
District

RALPH SHOEMAKER _ City of Arcadia
City of Sierra Madre
FRANKLIN THOMAS’ Robert A. Millikan, et al.,
Trustees of the Henry E.
Huntington Library and
Art Gallery”

The referee’s report, therefore, is not only the result .
of investigation and study by a specially trained state
division, but also it has had the benefit of the cooperative
efforts of the engineers of many of the parties.

a
—

Petitioner not only refrained from appointing an en-
gineer as recommended in the order, but also refused to
furnish necessary records to the referee. On August 30,
1939, in response to a request therefor by the referee, the
court issued an order that petitioner submit and make
available to the referee all documentary evidence in its
possession bearing upon the issues referred to the referee.
[Ex. 1, p. xxxvi.]

On October 14, 1941, the referee transmitted copies of
its proposed draft of report as referee to the attorneys of
record in this action. On March 15, 1943, the referee
formally served its Draft of Report of Referee upon all
parties. Objections to the Draft of Report were filed by
some of the parties, including the petitioner, who filed 60
specific objections. [Tr. pp. 457-469.] The referee made
minor changes in the report pursuant to certain of the
objections.

The Report of the Referee was filed in court on July
12, 1943. The Court set May 18, 1944, for the hearing of
exceptions to the Report of Referee and the further trial
of the case. Although a number of parties filed excep-
tions to the Report, all of such exceptions were withdrawn
at the beginning of the hearing on May 18, 1944, with
the exception of those filed by petitioner. There were
twelve days of trial in the period May-August, 1944. [Tr.
p. 419, fol. 891.] The reporter’s transcript of the trial
contains 1228 pages, all of which are devoted to the
presentation by petitioner of its exceptions (60 in number)
and evidence in connection therewith. We emphasize the
point that the entire trial involved the consideration of
those exceptions only which were filed by petitioner. The
trial was solely for its benefit.

_—

son

I.

The Opinion of This Court in Pacific Live Stock Co. v.
Lewis, 241 U. S. 440, 60 L. Ed. 1084, Is an Ef-
fective Answer to Petitioner’s Contention, Under
Its Point I, That the Judgment of the Supreme
Court of California Herein Deprived Petitioner of
Due Process.

The statutes of the State of California provide two
procedures for the adjudication of the relative rights to
the water of a common source of supply. In point of time,
they are first, the Statutory procedure, and second, the
reference procedure. The latter is the procedure involved
herein.

The statutory procedure in California is the same as that
provided in the 1909 Water Code of Oregon, the validity
of which was upheld by this Court in Pacific Live Stock
Co. v. Lewis, 241 U. S. 440, 60 L. Ed. 1084. The consti-
tutionality of this procedure has been upheld by the Cali-
fornia courts in Bray v. Superior Court, 92 Cal. App. 428,
268 Pac. 374, and Wood v. Pendola, 1 Cal. 2d 435, 35 P.
2d 526.

In the Bray case the court noted and discussed the simi-
larity of the statutory procedure adopted by California to
that of Oregon, involved in the Pacific Live Stock Co.
case, supra, and of other western states.

The constitutionality of the reference procedure has
been upheld by the California Supreme Court in Flem-
ing v. Bennett, 18 Cal. 2d 518, 116 P. 2d 442, and in the
instant case, Pasadena v,. Alhambra, 33 Cal. 2d 908, 207 P.
2d 17. In opening its opinion in the instant case, the Court
said (33 Cal. 2d 916):

“Plaintiff city, the chief producer of water from a
40 square mile alluvial-filled basin of ground water

ea ae

known as the Raymond Basin Area, instituted this
litigation to determine the ground water rights within
the area and to enjoin an alleged annual overdraft in
order to prevent eventual depletion of the supply. Pur-
suant to section 24 of the Water Commission Act,
which was then in force (Stats. 1913, p. 1012, as
amended, Deering’s Gen. Laws (1937), Act. 9091;
now Wat. Code, §§2000-2050), the trial court re-
ferred the matter to the Division of Water Resources
of the Department of Public Works for a determina-
tion of the facts, and the ensuing report of the di-
vision was received in evidence. On the basis of this
report all of the nondisclaiming parties, with the ex-
ception of the defendant California-Michigan Land
and Water Company, a public utility and the sole
appellant herein, entered into a stipulation for a judg-
ment allocating the water and restricting total pro-
duction to the safe annual yield. The court, after
hearing evidence presented by appellant in opposition
to the report, rendered a judgment substantially en-
forcing the terms of the stipulation against all par-
ties, including appellant.

“The principal issues presented on this appeal are
whether the trial court properly limited the amount
of water that appellant may take from the ground
in the Raymond Basin Area, and whether it erred
in placing the burden of curtailing the overdraft pro-
portionately on all parties. * * *”

Regarding the approval of the reference procedure by
the California Supreme Court, it is said in the instant case
(33 Cal. 2d. 917, 918):

“Every recent major water law decision of this
court has expressly or impliedly approved the refer-
ence procedure provided by section 24 and has recom-
mended, in view of the complexity of the factual is-

adiies

sues in water cases and the great public interests in-
volved, that the trial courts seek the aid of the expert
advice and assistance provided for in that section.
(See Fleming v. Bennett, 18 Cal. 2d 518, 522 et seq.
(116 P. 2d 442); Meridian, Ltd. v. San Francisco,
13 Cal. 2d 424, 457 (90 P. 2d 537, 91 P. 2d 105);
Rancho Santa Margarita v. V ail, 11 Cal. 2d 501, 558-
559 (81 P. 2d 533); City of Lodi v. East Bay Mun.
Utility Dist., 7 Cal. 2d 316, 341 (60 P. 2d 439); Tu-
lare Irr. Dist. v. Lindsay-Strathmore Irr. Dist., 3
Cal. 2d 489, 575 (45 P. 2d 972, 1014); Peabody v.
City of Vallejo, 2 Cal. 2d 351, 373-374 (40 P. 2d
486) ; Wood v. Pendola, 1 Cal. 2d 435, 443 (35 P. 2d
526).)

“In sustaining and approving the reference pro-
cedure, it was stated in the F leming case that ‘all of
the pertinent constitutional safeguards were observed
by the legislature in enacting the provisions of sec-
tion 24. . . .’ (18 Cal. 2d at p. 528.) The opin-
ion did not mention whether section 24 conflicted with
article III, section 1, of the Constitution, which pro-
vides for the separation of powers, or discuss whether
such an order of reference invalidly subjects an ex-
ecutive branch or division and its officers to the con-
trol of the judiciary. It was, however, expressly held
(18 Cal. 2d at pp. 523-525) that section 24 does
not provide for the exercise of judicial power by the
division, and implicit in the decision is the conclusion
that the separation of governmental powers is ob-
served. (See, also, Wood v. Pendola, 1 Cal. 2d 435,
442 (35 P. 2d 526).) In effect section 24 provides
that the court may appoint the division to act as an
investigator and an expert witness, but there is
nothing which authorizes the courts to control or
regulate, in any particular, the proper functions of
the division or the manner in which, pursuant to leg-
islative mandate, it shall proceed in conducting its ex-

on Be;

amination and making its report. The Fleming case
also expressly held that section 24 is not unconstitu-
ticnal and void as a special law providing for a varia-
tion from the general practice and procedure in the
superior court in violation of article IV, section 25,
of the Constitution. (18 Cal. 2d at p. 528, cf., Wood
v. Pendola, 1 Cal. 2d 435, 442 (35 P. 2d 526).)”

In both its petition and brief, petitioner seems to indi-
cate that the only evidence before the trial court when it
acted in this case was the report of the referee and the
stipulation for judgment executed by plaintiff and all de-
fendants other than petitioner. It ignores completely the
many days of trial given to petitioner (then defendant) by
the court in hearing its exceptions to the referee’s report.
At page 66 of its petition and brief herein, petitioner
argues :

4 In Fleming v. Bennett it was held that the
Legislature was authorized to permit the filing of the
report of a Referee made solely on the basis of private
investigation, and to give the report of the Referee
the status of prima facie evidence, and this on the
authority of Pacific Live Stock Company v. Lewis
(1916), 241 U. S. 440, although the Oregon statute
involved in that case required a full and fair hear-
ing, and the report of the Referee was made only
after a full and fair hearing in which witnesses were
sworn and examined and a record of all the evidence
was preserved.”

Petitioner clearly misunderstands the character of the
report of the State Water Board in the Pacific Live Stock
Co. case. It also fails to note that appellant in that case en-
tered the same objections to the procedure before the
Board that petitioner does here to the referee’s report. This

—o

is shown by the following excerpts from the opinion in
that case (241 U. S. 451, 60 L. Ea. 1097, 1098) :

“As an alternative to its first contention, which we
hold untenable, the plaintiff insists that the statute is
repugnant to the due process of law clause of the
14th Amendment, first, because it requires a claim-
ant, at his own expense, to assert and prove his claim
before the board, and to pay an extortionate fee for
having it considered,—all under penalty of forfeiting
his claim if he refuses,—notwithstanding the board
acts only administratively and its findings and or-
der are not conclusive; second, because it permits the
board to accept and act upon the sworn statement of
claimants taken ex parte and upon the data set forth
in the unsworn report of the engineer, without, as is
asserted, affording any opportunity for showing their
true value, or the want of it, by cross-examination
or otherwise; and, third, because it requires that the
board’s findings and order, although only adminis-
trative in character, be followed and given effect in
the distribution of the water pending the action of
the circuit court upon them.

“A serious fault in this contention is that it does
not recognize the true relation of the proceeding be-
fore the board to that before the court. They are not
independent or unrelated, but parts of a single statu-
tory proceeding, the earlier stages of which are be-
fore the board, and the later Stages before the court.
In notifying claimants, taking statements of claim,
receiving evidence, and making an advisory report,
the board merely paves the way for an adjudication
by the court of all the rights involved. As the su-
preme court of the state has said, the Board’s duties
are much like those of a referee. (And see Washing-
ton ex rel. Oregon R. & Nav. Co. vy. Fairchild, 224
U. S. 510, 526, 527, 56 L. ed. 863, 868, 869, 32 Sup.

pa ee

~ 7

Ct. Rep. 535.) All the evidence laid before it goes be-
fore the court, where it is to be accorded its proper
weight and value. That the state, consistently with
due process of law, may thus commit the preliminary
proceedings to the board and the final hearing and
adjudication to the court, is not debatable.

* * * * * * * *

Ve And while it is true, according to the con-
cessions at the bar, that the sworn statements of claim
are taken ex parte in the first instance, it also is true
that they are then opened to public inspection, that
opportunity is given for contesting them, and that,
upon the hearing of the contests, full opportunity is
had for the examination of witnesses, including those
making the statements, and for the production of ariy
evidence appropriate to be considered. Thus the fact
that the original statements are taken ex parte be-
comes of no moment. And while it is true that the
state engineer’s report is accepted as evidence, al-
though not sworn to by him, it also is true that the
measurements and examination shown therein are
made and reported in the discharge of his official
duties and under the sanction of his oath of office, and
that timely notice of the date when they are to begin
is given to all claimants. The report becomes a pub-
lic document accessible to all, and is accepted-as prima
facie evidence, but not as conclusive. Se

It is noteworthy that the following sentence is used in
the first of the above-quoted excerpts:
“As the supreme court of the state has said, the
board’s duties are much like those of a referee.”

onl Span

Unlike the statutory procedure, there is nothing novel in
the referee procedure. In 16 Corpus Juris Secundum Con-
stitutional Law, §128, p. 331, it is said:

“Regulating references. Legislation providing for
the trial of causes by auditors and referees and mak-
ing their findings evidence, without concluding the
parties thereby, is within the power of the legislature;
but legislation making the findings of such officers
conclusive is ordinarily an invasion of the province of
the judiciary and unconstitutional, although where the
constitution sanctions regulation of the jurisdiction
of a court, or the matter is peculiarly one for the
legislature, a statute may provide for reference to
officials having the same power of determination as
the court. . . .”

The following is from a footnote (p. 331):
“Reason for rule

“In such cases there is no interference with the
judicial power, since the subordinate officers act under
the direction of the courts, which may review and re-
verse the findings of such officers.—Janesville Cot-
ton Mfg. Co. v. Ford, 12 N. W. 377, 55 Wis. 197—
12 C. J. p. 828, note 21.”

In one of the early cases dealing with the pueblo right
of Los Angeles, Hooker v. Los Angeles, 188 U. S. 314,
318, 47 L. Ed. 487, it is said:

“The 14th Amendment does not control the power
of a state to determine the form of procedure by
which legal rights may be ascertained, if the method
adopted gives reasonable notice and affords a fair op-
portunity to be heard.”

ee

——
=

The power of a court to refer disputed issues in a case
to an auditor or referee with power to make findings with
respect thereto where such findings are not given con-
clusive but only prima facie effect and the parties are given
the opportunity of having their objections thereto heard
and considered by the court cannot be doubted. Such prac-
tice was approved by this court in the case of Jn the Mat-
ter of Walter Peterson, 253 U. S. 300, 64 L. Ed. 919.

Statutes providing for the determination of factual mat-
ters by administrative agencies where judicial review
thereof is provided do not violate due process.

Crowell v. Benson, 285 U. S. 22, 76 L. Ed. 598;

United States v. Los Angeles and Salt Lake Raiil-
way Co., 273 U. S. 299, 71 L. Ed. 651.

Cases CITED BY PETITIONER.

The following cases are cited by petitioner in support
of its contention that the judgment herein deprived peti-
tioner of due process:

(1,2) Morgan v. United States (1936), 298 U. S. 469,
80 L. Ed. 1288; (1937), 304 U. S. 1, 82 L. Ed.
1129;

(3) Ohto Bell Telephone Co. v. Public Utilities Com-
mission, 301 U. S. 292, 81 L. Ed. 1093;

(4) Carter v. Kubier, 320 U.S. 243, 88 L. Ed. 26;
(5) United States v. Dillman, 146 F. 2d 572;
(6) Powhatton Min. Co. v. Ickes, 118 F. 2d 105;

(7) Western Union Tel. Co. v. Industrial Com., 24
Fed. Supp. 370.

The first Morgan case dealt with a rate order of the
Secretary of Agriculture under Packers and Stockyard

—_

wtiiin.

Act. The full hearing required by the statute was not
given. The Court said (p. 477):

5 If upon the facts alleged, the ‘full hear-
ing’ required by the statute was not given, plaintiffs
were entitled to prove the facts and have the Secre-
tary’s order set aside. Nor is it necessary to go be-
yond the terms of the statute in order to consider the
constitutional requirement of due process as to notice
and hearing. For the statute itself demands a full

hearing and the order is void if such a hearing was
i

The Court further said (p. 478) that it would have been
good practice to have the examiner prepare a report and
submit it to the Secretary and the parties, and to permit
exceptions and arguments addressed to the points thus
presented, although it could not say that that particular
type of procedure was essential to the validity of the
hearing.

It must be emphasized that in the instant case a copy of
the referee’s report was given to each of the parties, in-
cluding petitioner and pursuant to statute each party was
given a fixed time to file objections thereto. Petitioner
filed 60 objections to the referee’s report and had a full
judicial hearing thereon.

In the second M organ case, 304 U.S. 1, 82 L. Ed. 1129,
no Opportunity had been afforded appellants for the ex-
amination of the findings, prepared by the Bureau of Ani-
mal Industry, until they were served with the order. This
Court was so impressed by the absence of due process in
this second Morgan case that it said (pp. 19, 20):

“Congress, in requiring a ‘full hearing,’ had re-
gard to judicial standards, —not in any technical sense
but with respect to those fundamental requirements

seni ee ee

ee a

Qoercer tree mimcnrsh

_—

of fairness which are of the essence of due process in
a proceeding of a judicial nature. If in an equity
cause, a special master or the trial judge permitted
the plaintiff’s attorney to formulate the findings upon
the evidence, conferred ex parte with the plaintiff’s
attorney regarding them, and then adopted his pro-
posals without affording an opportunity to his op-
ponent to know their contents and present objections,
there would be no hesitation in setting aside the re-
port or decree as having been made without a fair
hearing. The requirements of fairness are not ex-
hausted in the taking or consideration of evidence but
extend to the concluding parts of the procedure as well
as to the beginning and intermediate steps.”

The Ohio Bell Tel. Co. case, 301 U. S. 292, 81 L. Ed.
1093, is sufficiently explained by the tenth headnote as

follows:

“10. Where the findings of a state Utilities Com-
mission in a proceeding to determine the reasonable-
ness of rates as to the value of the property of a tele-
phone company at the periods in question are not
supported by evidence, the court has no occasion to
determine the propriety of the method of allocation
followed in ordering a refund of rates collected in
excess of those held reasonable, or of the commis-
sion’s treatment of going concern value and deprecia-
tion reserve.”

In Carter v. Kubler, 320 U. S. 243, in fixing the valua-
tion of a farm in a proceeding under the farmer-debtor

provisions of the Bankruptcy Act, the Commissioner based

r is

his conclusion as to value on his Own personal investiga-
tion. There was no Opportunity given to combat the per-
sonal views of the Commissioner thus obtained.

In U. S. v. Dillman, 146 F. 2d 572, dealing with the
value of land condemned by the Government, the trial
judge viewed the land and was given information by a
police sergeant. Neither the thoughts of the trial judge
nor the information given to him by the police sergeant

appeared in the record and, therefore, could not be com-
batted.

In Fervel v. Fervel, 23 Cal. 2d 431, 144 P. 2d 592, it
was held that it is not the province of investigators to make
a private factual report or recommendation to the judge,

or any recommendation independent of the evidence upon
which it is based.

It is clear from the above comments upon the cases cited
by petitioner that no one of them presents procedural facts
at all similar to those involved herein. We have elsewhere
stated the number of objections filed by the present peti-

tioner to the report of the referee and the number of ex-
ceptions to such report filed in and heard by the trial
court. The procedure of the instant case in its liberality
in affording opportunity to present objections and excep-
tions, and evidence and arguments thereon, is in marked
contrast with the total absence of such Opportunity pre-
sented in the cases relied upon by petitioner. On this point

the words of the California Supreme Court in Fleming v.
Bennett, 18 Cal. 2d 518, 527 (the first California case up-

7

holding the constitutionality of the reference précedure)

ontliiinin:

are appropriate:

“cc

(4a) The appellants do not question the
power of the legislature to prescribe that the report
of the referee shall be prima facie evidence of the
facts reported. Indeed, that power may not be denied.
(See People v. Buckley, 143 Cal. 375, 393 (77 Pac.
169) ; Miller & Lux, Inc., v. Secara, 193 Cal. 755, 766
(227 Pac. 171); Pacific Live Stock Co. v. Lewis, 241
U. S. 440 (36 Sup. Ct. 637, 60 L. Ed. 1084).) The
parties were not deprived of any constitutional right.
They were afforded full opportunity to be heard in
opposition to the report as evidence, and to introduce
evidence contrary to the facts appearing therein. Con-
stitutional mandates are observed where such facts are
not made incontrovertible and opportunity is given to
refute them in court. (Pacific Live Stock Co. v.
Lewis, supra; see also Heiner v. Donnan, 285 UV. S.
312 (52 Sep. Ce. 36, 76 L.. Eid. 772).) 3).

Petitioner asserts (Petition p. 34) that the parties did
not disclose their claims to petitioner prior to trial, and
therefore it was impossible for petitioner to defend against
the claims. The record, of course, shows the falsity of this
contention. The claims of the various parties were set
forth in their pleadings on file. True, the answers of the
other defendants were not served upon petitioner, but peti-
tioner could have easily ascertained the nature and extent
of the claims by inspecting the pleadings on file. More-

over, long prior to the trial the parties served petitioner

with copies of the agreement and judgment which they

saiiliiess

sought to have the court make effective as among them-
selves prior to the time of trial and gave notice to peti-
tioner of the time and place when that application would
be made to the court. [Tr. pp. 477-478.] The proposed
judgment and agreement set forth fully the concept of
these parties as to the nature and character of the basin,
the basis upon which the rights of each party should be
determined, the amount of the water these parties thought
petitioner was entitled to under the facts and law applicable
as well as the amount each of the stipulating parties con-
sidered he was entitled to. [Tr. pp. 482-506. ] Thus,
petitioner had full and complete knowledge of the claims
of the parties not only with respect to the factual situa-
tion, but also with respect to the legal principles they
would seek to have applied in the determination of the
case.

Due process does not require that pleadings and the
claims of the various parties to an adjudication suit be
personally served upon each of the other parties. It is
sufficient if the nature and extent thereoi can be ascer-
tained by the parties from an inspection of the record in
the case (Humboldt Land & Cattle Co. v. Allen, 14 F. 24
650). Such was the established law in California at
the time of the commencement of the instant action (Bray
v. Superior Court, supra).

PMO AE LOBE

er

—1g—

Il.
The Legal Questions Presented by Petitioner Under
Its Point II Are Not Federal Questions but Are
Questions of State or General Law.

Questions of state or general law are not federal ques-
tions.

United States v. Rio Grande Dam & Irr. Co., 174
U. S. 690, 43 L. Ed. 1136;

Kansas v. Colorado, 206 U. S. 46, 51 L. Ed. 956;

California-Oregon Power Co. v. Beaver Portland
Cement Co., 295 U. S. 142, 79 L. Ed. 1356;

Connecticut v. Mass., 282 U. S. 660, 75 L. Ed.
602;

Crystal Springs Co. v. Los Angeles, 177 U. S. 169,
44 L. Ed. 720;

Hooker v. Los Angeles, 188 U. S. 314, 47 L. Ed.
487;

Devine v. Los Angeles, 202 U. S. 313, 337, 50 L.
Ed. 1046, 1054;

Los Angeles F. & M. Co. v. Los Angeles, 217 U.S.
217, 54 L. Ed. 736;

Telluride v. Rio Grande etc. Co., 187 U. S. 569, 47
L. Ed. 307;

Snake Creek etc. Co. v. Midway, 260 U. S. 596,
67 L. Ed. 423;

Weyerhaueser v. Minn., 176 U. S. 550, 44 L. Ed.
583.

In the first four cases cited above this Court has recog-
nized the right of each state to adopt its own system of
water law. This is exemplified by the following excerpt
from Kansas v. Colorado, 206 U. S. 93, 94:

“But it is useless to pursue the inquiry further in
this direction. It is enough for the purposes of this

—19—

case that each state has full jurisdiction over the
lands within its borders, including the beds of streams
and other waters. * * * It may determine for
itself whether the common-law rule in respect to
riparian rights or that doctrine which obtains in the
arid regions of the West of the appropriation of
waters for the purposes of irrigation shall control.”

The four cases cited above in which Los Angeles was
defendant in error dealt with the pueblo right of that City
to the water of Los Angeles River. This pueblo right
had come down from the Mexican regime in California
and was considered paramount to the riparian rights of
upper owners on the river. It was claimed by the riparian
owners that treaties with Mexico were involved and that,
therefore, a federal question was presented. The rule
adopted by this Court in these four cases is concisely stated
in the headnote to the opinion in the Crystal Springs L.
& W. Co. case, 177 U. S. 169, as follows:

“A suit to establish water rights connected with
lands included in a grant from the Mexican govern-
ment, which rights are claimed to be within the pro-
tection of a treaty with Mexico, is held to involve no

Federal question for the purpose of giving jurisdic-
tion to the Federal courts.”

In the third of the pueblo-right cases cited above, Devine
v. Los Angeles, 202 U. S. 313, 337, it is said:

“In truth, the questions as to the nature and extent
of complainants’ title or rights, as put forward in the
bill, are not Federal questions, but questions of state
or general law.

“In Hooker v. Los Angeles, supra, it was contended
that the decision of the state court against the claim
of plaintiffs in error to certain riparian rights and

—20—

in certain alleged percolating waters, which rights
were alleged to be derived from a patent of the United
States, and confirmed Mexican grants, was a decision
against a title, right, privilege, or immunity claimed
under the Constitution or some statute or treaty of the
United States and so reviewable here. But this court
held otherwise, and we said:

“ ‘Obviously, the question as to the title or right of
plaintiffs in error in the land, and whatever apper-
tained thereto, was one of state law and of general
public law, on which the decision of the state court
was final. San Francisco v. Scott, 111 U. S. 768, 28
L. ed. 593, 4 Sup. Ct. Rep. 688; California Powder
Works v. Davis, 151 U. S. 389, 38 L. ed. 206, 14 Sup.
Ct. Rep. 350. And the question of the existence of
percolating water was merely a question of fact... .”

In Telluride P. T. Co. v. Rio Grande W. R. Co., 187
U. S. 569, the second headnote is:

“2. Findings of fact or questions of local law
upon which depends a party’s right, under U. S. Rev.
Stat. §2339 (U. S. Comp. Stat. 1901, p. 1437), to
the protection of vested water rights, are not review-
able in the Supreme Court of the United States on
writ of error to a state court.”

In Snake Creek M. & T. Co. v. Midway Irrig. Co., 260
U. S. 596, 599, it is said:

“The parties, while agreeing that the Utah law is
controlling, differ as to what the law is.”

In Weyerhaueser v. Minn., 176 U. S. 550, 559, it is
said:

“Besides, whether a party in a case has been given
or refused the benefit of the law of estoppel involves
no Federal question.”

_ =

In the cases above considered it is shown that even
though the water rights presently involved may have come
down from the Mexican government or may have been ac-
quired on public lands, no Federal question was involved.
In the instant case the matter of pueblo rights, or riparian
rights, or appropriative rights to waters of a stream, are
not present. The title to percolating water is alone in-
volved. Until Katz v. Walkinshaw, 141 Cal. 116, 70 Pac.
663, 74 Pac. 766 (1903), the owner of land in California
owned the percolating water contained therein. The Katz
case established the doctrine that the owner of land has a
correlative right to use the underlying percolating water
with other owners of land similarly situated. The source
of the title to percolating waters under either the old or
the new doctrine was the ownership of the land. Under
the authorities above cited this ownership does not present
a Federal question. In the excerpt from Hooker v. Los
Angeles hereinabove quoted (p. 20) it is stated:

“Obviously, the question as to the title or right of
the plaintiffs in error in the land, and whatever ap-
pertained thereto, was one of state law and of gen-

eral public law upon which the decision of the state
court was final.”

Cases dealing with oil and gas often speak of the
analogy between them and percolating water. In Ohio Oil
Co. v. Indiana, 177 U. S. 190, 207, 44 L. Ea. 729, this

Court in quoting from Peoples Gas Co. v. Tyner, 131 Ind.
277, 281, said:

““Water, petroleum, oil and gas are generally
classed by themselves as minerals possessing in some
degree a kindred nature. * * * Like water it is not
the subject of property except while in actual occu-

—22—

pancy, and a grant of either water or oil is not a grant
of the soil or of anything for which ejectment will
lie.”

The opinion in the Ohio Oil Co. case closes as follows
(177 U. S. 211, 212):

“In view of the fact that regulations of natural
deposits of oil and gas and the right of the owner to
take them as an incident of title in fee to the sur-
face of the earth, as said by the supreme court of
India.a, is ultimately but a regulation of real prop-
erty, and they must hence be treated as relating to the
preservation and protection of rights of an essentially
local character. Considering this fact and the peculiar
situation of the substances, as well as the character of
the rights of the surface owners, we cannot say that
the statute amounts to a taking of private property,
when it is but a regulation by the state of Indiana of a
subject which especially comes within its lawful au-
thority.”

In Lindsley v. National Carbonic Gas Co., 220 U. S. 61,
81, 55 L. Ed. 369, it is said:

“Each state possesses the general power to prescribe
the evidence which shall be received and the effect
which shall be given to it in her own courts, and may
exert this power by providing that proof of a particu-
lar fact, or of several taken collectively, shall be prima
facie evidence of another fact.”

In R. R. Com. v. Rowan et al., 310 U. S. 573, 580, 581,
84 L. Ed. 1368, dealing with the proration of oil produc-
tion, it is said:

“
.

But such cases are only episodes in the evo-
lution of adjustment among private interests and in
the reconciliation of all these private interests with the

—23—

underlying public interest in such a vital source of
energy for our day as oil. Certainly so far as the
federal courts are concerned the evolution of these
formulas belongs to the Commission and not to the
judiciary. A controversy like this always calls for
fresh reminder that courts must not substitute their
notions of expediency and fairness for those which
have guided the agencies to whom the formulation and
execution uf policy have been entrusted.”

It is therefore unnecessary to review the many conten-
tions made by petitioner with respect to the facts or the
weight or sufficiency of the evidence to justify the findings
of the trial court with respect to the facts, nor to enter
into a discussion of the conclusions of the District Court
of Appeal in so far as they are contrary to those reached
by the trial court and by the Supreme Court.

It is apparently asserted by petitioner that the decision
of the California Supreme Court reverses prior decisions
of that court with respect to the application of the statute
of limitations and the doctrine of notice. Petitioner points
to no prior decision of any court of California holding that
the lowering of the water table is not notice of a dimuni-
tion in the supply of water or that such dimunition in the
supply is not notice of an adverse and hostile taking of
water from the common supply, nor does petitioner cite
any case decided by the California courts holding that
the taking of water from a depleted basin is not hostile
to the taking of others from the same source. The reason
for this failure is apparent as the rule in California ever
since the decision in 1909 in the case of Hudson v. Dailey,
156 Cal. 617, 105 Pac. 748, has been that a diminution in
the amount of water at a party’s point of diversion
(abundantly evidenced by the substantial and progressive

—tA—

lowering of the water levels at petitioner’s point of di-
version) puts that party on notice of the invasion of his
right and starts the prescriptive period. There the court
stated (p. 631):

“There is no foundation for the proposition that
the statute of limitations would not begin to run in
favor of Currier, with respect to his right to main-
tain wells, until the extraction of water by his wells
had begun to diminish the flow at the plaintiff’s dam.
The evidence shows that the effect was perceptible at
the dam immediately and that the plaintiff had knowl-
edge of the flow from the wells and the use thereof
by Currier from the beginning. This was sufficient to
charge her with notice that the tendency of the di-
version of the flow at those wells would be to reduce
the amount in the stream below and to start the stat-
ute of limitations running.”

The law was likewise well settled that two uses made
simultaneously from a basin are necessarily inconsistent
and antagonistic. In the case of Miller & Lux v. Enter-
prise Canal Etc. Co., 169 Cal. 415, 147 Pac. 567, the court
stated (p. 433) with respect to a basin of water created
by a dam:

ae The opening of the headgate at such times
would inevitably divert into the canal water that would
otherwise pass into the slough. This would be the
result alike when water stands at the natural river
level, and when it is backed up the slough by the dam.
The two uses, if made simultaneously, would neces-
sarily be inconsistent and antagonistic. For these rea-
sons, the finding cannot be true that the natural flow
of the water from the river into the slough is not
and never has been impeded by the operation of said
canal.”

—25—

The rule, of course, is well settled that before a party
can complain that his property is taken without due process
of law because of the construction placed upon a state
statute of limitations by a state court, he must show that
the prior decisions construing the statute were contrary to
the construction complained of and the prior decisions had
become a rule of property. In the case of O’Neil v. North-
ern Colorado Irrigation Co., 242 U. S. 20, 26, 27, 61 L.
Ed. 123, this court said:

“. . . The answer to the first half of the plain-
tiff’s contention is no less plain. It is that the con-
struction of a statute does not take a party’s property
without due process of law simply because it takes
him by surprise, and when it is too late for him to
act on the construction and save his rights. That is
all that the plaintiff has to complain of. There was no
different construction of the statute by the court be-
fore the limitation had run, that might have lulled
him to repose.

* * * * * * * *

“It is suggested that the cases cited established a
rule of property, and that any departure from it vio-
lated the plaintiff’s rights under the 14th Amendment.
But we already have said that the cases do not estab-
lish the rule supposed, and if they did, something more
would be necessary before the plaintiff could come to
this court. Sauer v. New Y. ork, 206 U. S. 536, 547,
548, 51 L. ed. 1176, 1182, 27 Sup. Ct. Rep. 686; Chi-
cago & A. R. Co. v. Tranbarger, 238 U. S. 67, 76,
59 L. ed. 1204, 1210, 35 Sup. Ct. Rep. 678.”

That the case, even under petitioner’s view, involves no
more than the application of existing statutes to a new
situation rather than the overruling of prior decisions ap-
plying the statute to the same Situation, is apparent from

—26—

petitioner’s statement on page 81 that “until the instant
decision there had been no such thing known to the law

as ‘mutual prescription.’” Prior decisions had not in-
volved an inter se determination of conflicting adverse
claims to a common supply in a basin. (33 Cal. 2d p.
931.) Of course, under the cited case, this involves no

question of due process.

However, as we have noted, the application of the doc-
trine of prescription and of notice made by the Supreme
Court of the State of California in the instant case is in
harmony with and not contrary to its prior decisions, and
petitioner has pointed to no prior decision of the California
courts sustaining its position. The application of the prior
rules well established by the California courts prior to the
decision in the instant case and the commencement of this
action, together with petitioner’s stipulation that the tak-
ing of water by each party was under a claim of right which
was asserted to be and was adverse to each and all other
parties, sufficiently disposes of petitioner’s contentions
and fully justifies the conclusion of the court as set forth
in its opinion (33 Cal. 2d pp. 922, 928-932). As noted
by the court the stipulation covered all elements of pre-
scription except the period covered by the adverse user
and the nature and extent of the user. It found sufficient
evidence to support the trial court’s finding with respect to
these elements and held that under state law the facts justi-
fied the application of the doctrine of notice. Thus no

federal question is presented.

—

—27—
Conclusion.

For the reasons herein set forth we respectfully submit
that the Petition for Writ of Certiorari should be denied.

Respectfully submitted,
A. E. CHANDLER,
Attorney for Respondents.

KENNETH K. WRIGHT,
Of Counsel.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386417_0032%3A2. Public record. Not legal advice.