the said defendants here assert, and as against the same Edison Co then operating a part of the same water power projects as are here involved. The Edison Co. in that suit raised substantially all of the issues as they have been proposed here; that is, that the use made by it of the water in storage was within its right as against the lower riparian holder; also that it was the licensee of the Government and entitled to claim immunity from damages, as the work was in aid of navigation; also riparian rights in itself for such land as it held title to and upon which some of its power works were built. Counsel for the United States appeared in that case as amicus curæ, supporting the appellant Edison Co. Many other counsel representing various irrigation and power interests also appeared. The decision was comprehensive in its review of the water law of the State. A petition for certiorari was dismissed by the Supreme Court of the United States on the ground that no Federal question was involved (275 U. S. 498). The Supreme Court of California in the Herminghaus case held that the storage of water for power purposes by the Edison Co. in the manner there shown (the same as that here described) was not a use that could be employed to the detriment of a lower riparian owner who claimed rights to the same uses as those which the land-owning defendants here assert. And the court said: *** the defendants frankly admit that their proposed plans for the storage of the waters of said river in its vast system of reservoirs hold in contemplation the retirement of said waters for long and indefinite periods of time; in fact, admit that as to certain of said reservoirs the sequestration of the portion of the said waters stored therein will be cyclic; and as to said waters as a whole and to the extent of their retention in said reservoirs, their ultimate return to the river would depend not at all upon the claims and asserted rights of lower riparian owners to the usual, natural, and ordinary flow of said waters, but altogether upon the will and convenience of the defendants in their proposed utilization of said waters for power production. The law as stated in the Herminghaus decision is affirmed in a later case decided by the California Supreme Court. (Seneca Consolidated Gold Mines Company . Great Western Power Co., Calif. Sup. Ct. Dec., vol. 79, No. 4174, April 4, 1930.) In the decision made in the case last noted, the court quoted with approval from the case of Clinton v. Myers, 46 N. Y. S. 511, as follows: A party has a right to erect a dam across a stream upon his land, and if, in seasons of drought it becomes inadequate for that purpose, he may detain the waters for such a reasonable time as may be necessary to raise the requisite head to enable him to use it advantageously and profitably upon such machinery. He has no right to erect machinery, requiring for its propulsion more water than the stream furnishes at its ordinary states, and operate such machinery by accumulating the water and discharging it upon those below in unusual quantities to their prejudice. Nor has he the right to create a reservoir, and detain and store the water therein for future use in a dry season. That a right riparian attaches as well to swamp and overflow lands as to those of different character is affirmed by the Herminghaus decision, and there is to be found in this case no matter respecting the relation and corresponding rights as between the parties litigant touching the use of the water involved that was not fully considered and determined by the California Supreme Court. A number of other questions were presented and argued exhaustibly in the briefs, which to me do not seem to affect the broad merits of the case as they now present themselves upon the admitted facts. The case of Ford & Son v. Little Falls Fibre Co. (supra) cleared away much of the dispute as to the law involved touching the liability of persons or corporations holding licenses issued under the Federal water and power act. The claim of the United States is that it is entitled to have determined by the Federal Courts its right, through its licensees, to store for power purposes waters tributary to the San Joaquin River in a manner which the courts of the State of California conclusively determined no riparian owner has the right to do. The Edison Co., serving a public utility, is given full power under the California law to condemn by suit property necessary to the carrying on of its business. In such a suit the damages which it is required to pay will be fixed. Thus it is that the power projects under Government licenses may be fully carried out. The motions to dismiss are granted. Decree accordingly. Dated October 6, 1930. WM. P. JAMES, U. S. District Judge. |