Siskiyou County Grand Jury
1996-1997
Additional Recommendations
1
Not linked to specific findings.
R50-60:
feet below the water line; processed 210,000 cubic yds. Of soil and gravel per mo.; and use 10,000 gal./min. pumped from a pond to wash gravel through screens. SHASTA RIVER – Water was scarce at the main mining area on Yreka Flats and was necessary to wash the gold from the dirt. The only local streams that could be diverted at the necessary elevation were of intermittent flow. Seasonal water became scarce to work the mines and carts were used to transport pay-dirt to the creek to wash out gold. District meetings were held in 1852, and the “Big Ditch” project was born. The ditch was to run from Shasta River and Parks Creek descending from an elevation sufficient for a running grade to Yreka and Hawkinsville. When completed, although the source of inflow was thirty miles from Yreka, it was to run 96-100 miles in length. During the course of construction, the Yreka Ditch Co. ran out of finances. After one failed attempt at reorganization, the workers took over the Yreka Water Co. “Father” of the ditch, Louis Wortman, organized the workers on the basis that they would be paid from “first water” upon completion and would lose what was owed them if the project was never completed. Wortman received ¼ interest in the ditch for his efforts upon completion and was later in charge of its operation and maintenance as Ditch Supervisor. The “Big Ditch” was completed in the Spring of 1856, at an average grade of 2 inches to the hundred foot, and cost of $2,500 a mile. Many miners were paid for their work with script to be reimbursed with water for their claims, when available. Supplies were furnished by Yreka merchants, including food and clothing for the workers. The value of these was to be reimbursed at a rate of $2.50-$3.00 a day from the sale of water when the project was completed. At completion, the company sold the water to the miners on Greenhorn, Yreka Flats and Hawkinsville. The rate charged was 50 cents per miner’s inch per day and water recovered after first usage was resold at the same rate at lower levels. Ditch tenders were paid half in cash and half in water.
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F1:
Private Spanish land grants to establish pueblos or towns were first introduced in California in 1774. These provided colonists with seed livestock to establish hers to be grazed on common grazing grounds. The procedure was codified in California Governor Felipe de Neve’s Reglamento issued June, 1779. A private land grand was made by Commander Rivera to California’s first rancher, Manuel Butron, in 1775. However, it was not until 1784 that California Governor Fages, empowered to make private grants not to exceed three square leagues, employed the land-grant system in ernest. East grantee was required to agree to build a storehouse and to stock his holdings with at least 2,000 head of cattle. By 1790, there were 19 private rancheros in California. By 1824, Mexican Colony Law established rules for petitioning for a land grant. First the settler could petition for citizenship, pledging loyalty to Mexico and the Roman Catholic Church. After a year’s probation, he could receive citizenship and petition for a land grant. By 1828, the rules for establishing land grants were codified in the Mexican “Reglamento.” The minimum size of a ranchero was set at one square league (about 4,500 acres), with an 11 square league maximum. There was no limit on family holdings or holdings from inheritance or purchase. Of the 11 leagues, one was to be in irrigable soil, for dependent upon rain and six fit only for grazing. A native born or naturalized Mexican citizen could make an application for a land grant, setting forth location boundaries or approximate size; testifying that it did not overlap another grant; declaring that he would stock with the legally required number of horses and cattle; and supplying a “diseno,” or rough topographical map. A blotter copy or “borrador” of the grant was kept at the governor’s office; minutes of the transaction in the record book called the “toma de razon;” and the diseno and borrador placed in the archives in a file called the “expediente”. A land survey was carried out under a magistrate with witnesses and neighboring rancheros. Surveyors measured the grant starting at a pile of stones called a “mojonera” using a 50 foot “reata”, or rawhide cord tied to stakes that the riders thrust into the ground as they rode along. Validity of the grant depended on fulfillment of certain conditions such as building a house, stocking the land with cattle, and planting trees on boundaries. 2. “A patent of the United States issued to a conformance of a Spanish or a grant under the act of Congress of March 3, 1851, 9 Stat. 633, treated simply as the deed of the United States, is in its operation, like the deed of any other grantor, and passes only such interest as the United States possessed; the deed taking effect by relation at the date of the presentation of the petition of the patentee to the board of land commissioners. But such patent is not merely a deed of the United States. It is a record of the government – of its action and judgment with respect to the title of the pantentee existing at the date of the cession of California – and as such record is conclusive evidence of the title of the patentee at the time the jurisdiction of the Siskiyou County Comprehensive Land & Resource Management Plan February 1996 ` subject passed from Mexican government to the United States.” (Leese v. Clark, 20 Cal. 387, 412.)
F2:
“A patent of the United States issued to a conformance of a Spanish or a grant under the act of Congress of March 3, 1851, 9 Stat. 633, treated simply as the deed of the United States, is in its operation, like the deed of any other grantor, and passes only such interest as the United States possessed; the deed taking effect by relation at the date of the presentation of the petition of the patentee to the board of land commissioners. But such patent is not merely a deed of the United States. It is a record of the government – of its action and judgment with respect to the title of the pantentee existing at the date of the cession of California – and as such record is conclusive evidence of the title of the patentee at the time the jurisdiction of the
F3:
In the first Trade and Intercourse Act, ch. 33 1 Stat. 137 (1790), Congress provided that non-Indians could not acquire lands from Indians except by treaty entered into by the federal government pursuant to the Constitution. In Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543 (1823), the Court held that Indian tribes were incapable of conveying their land directly to individuals. Chief Justice Marshal concluded that discovery conferred upon the European sovereign a title good against all European governments. The United States succeeded to that title to the extent that it was held by the British. Marshall stated as to the Indians: “They were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own direction; but their rights to complete sovereignty, as independent nations, were necessarily diminished, and their power to dispose of the soil at their own will, to whomsoever they pleased, was denied by the original fundamental principle, that discovery gave exclusive title to those who made it.” Indian tribes that occupied and used land to the exclusion of others (except for mere temporary incursions) had an interest denoted as “right of occupancy”. This right of occupancy later came to be known as “Original Indian title”, “Indian title” or “aboriginal title”. That title could not be compromised by any other party except the federal government who could obtain it by conquest, purchase or simply taking it; Oneida Indian National vs. County of Oneida 414 U.S. 661 (1974). The United States, and only the United States, could extinguish the Indian right of occupancy. Until the United States extinguished “original Indian title”, a cloud of Indian occupancy right remained on the individual’s title. The national authority of the “federal land patent” became the vehicle by which the individual’s legal title in the lands became perfected – a quitclaim document that evidenced that any aboriginal or further federal claims or cloud on the legal title had been extinguished. In this manner, the authority of the federal patent, by necessity, could not be challenged by competing State authority without leaving original Indian title unextinguished.
F4:
In 1846, Congress abandoned the leasing policy for federal minerals used in the Midwest and offered mineral lands for sale by means of various statues applying selectively to particular geographic area. About the same time, Congress began to divide public domain lands into two categories – mineral and non-mineral lands. Only non-mineral lands were opened to various land disposal policies. Because a homestead claimant would take title to full property ownership, including any minerals subsequently discovered a determination of whether lands were mineral or non-mineral in character was called for when a nonmineral claimant asserted a right under disposal laws. (See 1914, Burk v. Southern Pac.) Siskiyou County Comprehensive Land & Resource Management Plan February 1996 ` Although the disposal of mineral lands were debated in 1850-51 and 1858-60, it was not until the Civil War was drawing to a close that a generic policy was developed with the Act of 1866, which stated: “In all cases lands valuable for minerals shall be reserved from sale, except as otherwise expressly directed by law.” (See 1918, United States v. Sweet)
F5:
With GLO (BLM) inefficiency in facilitating the settlement of public lands in California and the absence of clear federal direction, the California Supreme Court in 1864 ruled that whether public land could be considered closed to settlement would be based on whether, on the whole, the lands appeared better adapted to mining than other uses. 6. “The courts held that the operation of a patent as a deed was the nature of a quitclaim to any interest as the United States possessed in the land; Beard v. Federy, 70 U.S. 478, 3 Wall, 478, 18 L.Ed.88. A patent to land of the United States constituted a full conveyance of title out of the United States; McArthur v. Brue, 67 So. 249, 250, 190 Ala. 563. The issuance of a patent divested the government of all authority and control over the land; Moore v. Robbins, Ill. U.S. 530, 24 L.Ed. 848. A patent passes to the patentee all interest of the United States, whatever it may have been, in everyting connected with the soil and in fact everything embraced within the maning of the term “land”; Damon v. Hawaii, 194 US 154,48 L.Ed 916, 24 S.Ct. 617; Energy Transp. Systems, Inc. v. Union P. R. Co., (DC Wyo) 435 F.Supp 313, 60 OGR 427, affd (CA10 Wyo) 606 F2d 934, 65 OGR 576; Moore V. Smaw, 17 Cal 199; Hamilton v. Badgett, 293 Mo 324, 240 SW 214; Crawford Co. v. Hathaway, 67 Nob 325, 93 NW 781 (ovrid on other grounds Wassburger vs. Coffee, 180 Neb 149, 141 NW2d 738, adhered to 180 Neb 569, 144 NW2d 209.
F6:
“The courts held that the operation of a patent as a deed was the nature of a quitclaim to any interest as the United States possessed in the land; Beard v. Federy, 70 U.S. 478, 3 Wall, 478, 18 L.Ed.88. A patent to land of the United States constituted a full conveyance of title out of the United States; McArthur v. Brue, 67 So. 249, 250, 190 Ala. 563. The issuance of a patent divested the government of all authority and control over the land; Moore v. Robbins, Ill. U.S. 530, 24 L.Ed. 848. A patent passes to the patentee all interest of the United States, whatever it may have been, in everyting connected with the soil and in fact everything embraced within the maning of the term “land”; Damon v. Hawaii, 194 US 154,48 L.Ed 916, 24 S.Ct. 617; Energy Transp. Systems, Inc. v. Union P. R. Co., (DC Wyo) 435 F.Supp 313, 60 OGR 427, affd (CA10 Wyo) 606 F2d 934, 65 OGR 576; Moore V. Smaw, 17 Cal 199; Hamilton v. Badgett, 293 Mo 324, 240 SW 214; Crawford Co. v. Hathaway, 67 Nob 325, 93 NW 781 (ovrid on other grounds Wassburger vs. Coffee, 180 Neb 149, 141 NW2d 738, adhered to 180 Neb 569, 144 NW2d 209.
F7:
Section 34 of the Mining Act of May 10, 1872 (concerning challenges to an application for patent) states: “It shall be the duty of the adverse claimant, within thirty days after filing his claim, to commence proceedings in a court of competent jurisdiction, to determine the question of the right of possession, and prosecute the same with reasonable diligence to a final judgment; and a failure to do so shall be a waiver of his adverse claim. After such judgment shall have been rendered, the party entitled to the possession of the claim, or any portion thereof, may, without giving further notice, file a certified copy of the judgment roll with the register of the land office, together with the certificate of the Director of the Bureau of Land Management [that federal statutory requirements for labor, description and fees have been met] whereupon the whole proceedings and the judgment roll shall be certified by the register to the Director of the Bureau of Land Management, and a patent shall issue thereon for the claim, or such portion thereof as the applicant shall appear, from the decision of the court, to rightly possess…” Siskiyou County Comprehensive Land & Resource Management Plan February 1996 `
F8:
As early as colonial times, transferable “bounty lands” or military warrants or scrip, (entitling the bearer to claim a certain amount of unappropriated public land,) had been awarded to soldiers in compensation or incentive for service. The issuance of “soldier’s warrants” continued well into the nineteenth century. These were used in redemption for some of the earliest claims in Siskiyou County. 9. “Once the federal patent requirements are satisfied, and there is no question of legitimate national interest in respect to treaties or trusts, the BLM is compelled to issue a patent to a claimant in rightful possession. Pittsburgh-Pacific Corporation applied for patents to a dozen claims in the Black Hills National Forest, upon which it asserted a discovery of iron ore. At the request of the Forest Service, the Bureau of Land Management challenged the existence of a discovery. When the contest came before the Interior’s Board of Land Appeals, the State of South Dakota participated and argued that the Bureau must prepare an environmental impact statement on the patent application. The board held the EIS was not required because patent issuance is not discretionary once Mining Law requirements have been met. [United States v. Pittsburgh-Pacific, 84 I.D. 282, (1977); Confirmed South Dakota vs. Andrus, 462 F. Supp, 905, D.S.D.(1978); affd. F.2d 1190, 8th Cir, cert. denied 449 U.S. 222 (1980.)]
F9:
“Once the federal patent requirements are satisfied, and there is no question of legitimate national interest in respect to treaties or trusts, the BLM is compelled to issue a patent to a claimant in rightful possession. Pittsburgh-Pacific Corporation applied for patents to a dozen claims in the Black Hills National Forest, upon which it asserted a discovery of iron ore. At the request of the Forest Service, the Bureau of Land Management challenged the existence of a discovery. When the contest came before the Interior’s Board of Land Appeals, the State of South Dakota participated and argued that the Bureau must prepare an environmental impact statement on the patent application. The board held the EIS was not required because patent issuance is not discretionary once Mining Law requirements have been met. [United States v. Pittsburgh-Pacific, 84 I.D. 282, (1977); Confirmed South Dakota vs. Andrus, 462 F. Supp, 905, D.S.D.(1978); affd. F.2d 1190, 8th Cir, cert. denied 449 U.S. 222 (1980.)]
F10:
A patent to land is the judgment of the Land Department and the conveyance of the title in execution of it to the party adjudged entitled, and, when the land described was in the jurisdiction and subject to the disposition of the Land Department, it is impervious to collateral attack; Neff v. United States, 165 F. 273, 277, 91 C.C.A. 241. A patent is recognized as the highest evidence of title, conclusive against the government and all claiming under junior patents or treaties until it set aside or annulled by some judicial tribunal; United States v. Mullan, 10F. 785, 792; Bayner v. Stanly, 13 F. 217, 223. If other parties possess equities superior to those of the patentee, a court of equity will, on property proceedings, enforce such equities; but in an action in the federal court in which the legal title is involved, the patent when regular on its surface is conclusive; Redfield v. Parks, 10S.Ct. 83, 88, 132 U.S. 239, 33 L.Ed.327. After issuance of a patent, any subsequent claim of the United States to titles therein or other disputes between private claimants must be determined by the courts; U.S. vs. McKenzie County, North Dakota, D.C.N.D., 187 F.Supp., 470 affirmed Murray v. U.S., 291 F.2d 161.
F11:
Suites to cancel a patent could only be brought within the statute of limitations, except for actions brought by the U.S. government (1) to recover the value of lands fraudulently obtained; (2) to construe and enforce a patent as construed; and (3) to impress a trust of the lands for the rightful owner – U.S. vs. Whited, 38 S.Ct. 367, 246 U.S. 552, 62 L.Ed. 879; Issac Walton league of America v. St. Claire, D.C. Minn, 55 F.R.D. 139, affirmed 497 F 2d. 849, certiorari denied 95 S.Ct. 329, 419 U.S. 1009, 42 L.Ed.2d 284. Siskiyou County Comprehensive Land & Resource Management Plan February 1996 ` The expression “patent”, used in Act of March 3, 1891, Section 8, 43 U.S.C.A. Section 1166, requiring suits to annual patents to be brought within six years after issuance, means a grant of land from the government. (United States v. La Rogue, 198 F. 615, 648, 117 C.C.A. 349.) A suit to cancel a patent must be brought by the United States, and, unless by virtue of an act of Congress, no one but the attorney general or someone authorized to use his name, can initiate the proceeding, (U.S. – U.S. v. Throckmorton, Cal. U.S. 61, 25 L. Ed. 93.) A patent conveying land which was a part of the public domain cannot be attacked or impeached by a person having no interest in the land, (U.S. – Roberts v. Southern Pacific Co., 185 P. 934, affirmed 219 1022, 134 C.C.A. 685; see also Issac Walton league v. St. Claire.) Such a patent is subject to impeachment only by the United States, or its grantee, (Idaho – Johnson v. Hurst, 77 P. 784, 10 Idaho 308), or a person who has succeeded to its rights, (Utah – Ferry v. Street, 7 P. 712, 11 P. 571, 4 Utah 521), or by a person who was defrauded or deprived of his rights by the issuance of a patent to another, (Cal. – Mery v. Brodt. P. 818, 121 Cal. 322).
F12:
Acts granting short term “preemptive” rights were passed in 1830 and 1834. In 1840, Thomas Hart Benton introduced the “Log Cabin Bill” which provided for permanent pre-emption where any adult male could pre-empt a quarter section of the public domain by building a cabin and making certain improvements, then buying the land at the minimum price when it went on sale. The Bill passed the senate, but was introduced too late for the House. A Distribution-Pre-emption Law was passed in 1841 with the provision that it would not go into effect as long as import duties were above 20%. In applying the doctrine of “relation back”, the patent has been regarded as relating back to the date of entry, (S.D. – Broadhurst v. American Colloid Co., 177 N.W.2d261, 85 S.D. 65; Utah – Washington Rock Co. v. Young, 80 P. 382, 29 Utah 108, 110 Am.S.R. 666), to the date of purchase, (Mich. – Fisher v. Hallock, 15 N.W. 552, 50 Mich. 461), to the date of filing of an application by the assignee of a soldier’s additional homestead certificate, (Minn – Gilbert v. McDonald, 102 N.W. 712, 94 Minn. 289, 110 Am.S.R. 368), to the date of certificate of location, (Iowa – Klein v. Argenbright, 26 Iowa 493), and to the inception of the equitable right upon which title is based, (Wyo. – Walliker vs. Escott, 608 P.2d 1272.)
F13:
In 1866, only 147,000 acres sold for cash or were homesteaded. In 1869, land homesteaded or purchased with either scrip, military warrants or cash totaled 2.4 million acres. In 1873, 658,000 acres were claimed.
F14:
A bill authorizing construction of the Pacific railroads in 1862 was illustrative of the practice of awarding “indemnity” lands as an incentive for development. The Union Pacific was authorized to build a line from Omaha, Nebraska to the California- Nevada line. The Central Pacific was to build a line from Sacramento eastward. The land grant for the “roads” included odd-numbered, alternate sections of land for twenty miles on either side (a swath 40 miles wide). The companies were required to Siskiyou County Comprehensive Land & Resource Management Plan February 1996 ` allow preemption by settlers on any land remaining thre years after completion of the road, which would be sold to them for not more than $1.25 per acre. A loan was made directly to the railroad of $16,48,000 for each mile of track laid; (U.S. Statues At Large XII p.492 –authorization, and P.356-appropriation). In 1886, many of the “in Lieu” of or “indemnity” lands still remained withdrawn from settlement, pending selection by the railroads. Guilford Miller complained to the General Land Office because Northern Pacific had claimed his homestead as part of their indemnity selection. Secretary of the Interior Lucius Lamar sent the dispute to the U.S. Attorney General for a legal opinion. In 1887, he upheld the railroads contention that a settler could acquire no rights to title of public land while railroad privilege of selection within a prescribed area was pending; (Report of the Secretary of the Interior, 1887, pp. 9-10.) In 1888, President Grover Cleveland wrote an executive order to the Interior Secretary to withdraw land from the contingent indemnity lists and reopen it to settlement. Lamar reopened over 21 million acres; (land Office Report 1888, p.41). Much of the lands managed by the BLM and some of that managed by the U.S. Forest Service (particularly in the Scott Valley) were indemnity lands for a planned rail line that was never built.
F15:
In 1850, California adopted the common law of England (Ca. Stats., pg. 219), so far as not repugnant to or inconsistent with the Constitution of the United States or laws of the State, as the rule of decision in all the courts of the State.
F16:
Blackstone, Commentaries, 2:32-33. See also The Agrarian History of England and Wales, vol. 4, 1500-1640, ed. John Thirsk (Cambridge, Eng., 1967); and J.A. Yelling, “Agriculture, 1500-1730,” in An Historical Geography of England and Wales, ed. R.A. Dodgshorn and R.A. Butlin (London and New York, 1978), 151-172. (As cited in Forest McDonald, Novus Ordo Seclorum, The Intellectual Origins of the Constitution, University press of Kansas, c1985, pp.20).
F17:
In the southern States, open-range herding prevailed from the early seventeenth to the twentieth century. This was due partly to the high ratio of empty land to people and partly to the fact that the south was settled by immigrants from upland northern and western England and the Celtic portions of the British Isles where open-range herding was practiced. The Virginia fencing act of 1632 provided that “every man shall enclose his ground with sufficient fences or else to plant, upon their own perill.” Fencing of any land except arable acreage actually under cultivation was prohibited by law in all southern colonies, and even non-landholding cattle and hog raisers could freely grace their animals upon the land of others. North Carolina attempted in acts of 1715, 1729 and 1775 to restrict and regulate common gracing rights, but the laws were found to be unenforceable. As late as 1830, Virginia planters were still attempting to get legislation passed to allow them to fence entire estates, or even private pasturage. From: Forrest McDonald, Novus Ordo Seclorum, The Intellectual Origins of the Constitution, University Press of Kansas, c1985, pp.21-2; citing Gray Southern Siskiyou County Comprehensive Land & Resource Management Plan February 1996 ` Agriculture, 1:138-151, 2:843; Forest McDonald and Grady McWhiney, “The Antebellum Southern Herdsman: A Reinterpretation,” Journal of Southern History 41 (1975): 147-166, and “The South from Self-Sufficiency to Peonage: An Interpretation,” American Historical Review 85 (1980): 1105-111; and J. Crawford King, “The Closing of the Southern Range: An Exploratory Study,” Journal of Southern History 48 (1982: 53-70. See also Terry G. Jordan, Trails to Texas (Lincoln Nebr., 1981) 1-58. In 1885, in response to the threat of preemptive property claims, Congress passed “An Act to Prevent Unlawful Occupation of the Public Lands” (23 Stat. 321), forcing removal of fenced on the public domain. President Cleveland implemented with an order “that any and every unlawful enclosure of the public lands…be immediately removed.” 18. “The 1890 U.S. Supreme Court case of Buford v. Houtz, 133 U.S. 618, the court held: “We are of opinion that there is an implied license, growing out of the custom of nearly a hundred years that the public lands of the United States, especially those in which the native grasses are adapted to the growth and fattening of domestic animals, shall be free to the people who seek to use them where they are left open and unenclosed and no act of government forbids this use… The government of the United States, in all its branches, has known of this use, has never forbidden it, nor taken any steps to arrest it. No doubt it may be safely be stated that this has been done with the consent of all the branches of the government and, as we shall attempt to show, with its direct encouragement… Everybody used the open unenclosed country, which produced nutritious grasses, as a public common on which their horses, cattle hogs and sheet could run and grace.” at 620. The court stated; “The whole system of control of the public lands of the United States as it has been conducted by the government, under Acts of Congress, shows a liberality in regard to their use which has been uniform and remarkable. They have always been open to sale at very cheap prices. Laws have been enacted authorizing persons to settle upon them, and to cultivate them, before they acquire any title to them. While in the incipiency of the settlement of these lands, by persons entering upon them, the permission to do so was a tacit one, the exercise of this permission became so important that Congress by a system of laws called the Preemption Laws, recognized this right so far as to confer priority of the right of purchase on their persons who settled them and cultivated any part of this public domain. During the time the settler was perfecting his title… both he and all other persons who desired to do so had full liberty to grace their stock upon the grasses of the prairies and open other nutritious substances found upon the soil.” at 621.
F18:
“The 1890 U.S. Supreme Court case of Buford v. Houtz, 133 U.S. 618, the court held: “We are of opinion that there is an implied license, growing out of the custom of nearly a hundred years that the public lands of the United States, especially those in which the native grasses are adapted to the growth and fattening of domestic animals, shall be free to the people who seek to use them where they are left open and unenclosed and no act of government forbids this use… The government of the United States, in all its branches, has known of this use, has never forbidden it, nor taken any steps to arrest it. No doubt it may be safely be stated that this has been done with the consent of all the branches of the government and, as we shall attempt to show, with its direct encouragement… Everybody used the open unenclosed country, which produced nutritious grasses, as a public common on which their horses, cattle hogs and sheet could run and grace.” at 620. The court stated; “The whole system of control of the public lands of the United States as it has been conducted by the government, under Acts of Congress, shows a liberality in regard to their use which has been uniform and remarkable. They have always been open to sale at very cheap prices. Laws have been enacted authorizing persons to settle upon them, and to cultivate them, before they acquire any title to them. While in the incipiency of the settlement of these lands, by persons entering upon them, the permission to do so was a tacit one, the exercise of this permission became so important that Congress by a system of laws called the Preemption Laws, recognized this right so far as to confer priority of the right of purchase on their persons who settled them and cultivated any part of this public domain. During the time the settler was perfecting his title… both he and all other persons who desired to do so had full liberty to grace their stock upon the grasses of the prairies and open other nutritious substances found upon the soil.” at 621.
F19:
An excellent description of the application of the principles of the Common Law right of possession or “first in time, first in right” may be found in the 1914 case of Palmer v. Railroad Commission. Calif. 163, 168, 138, 170-173, 138 Pac 997, where the Court stated: “An analogy was found in the rules of the common law relating to controversies over the possession of land between persons who had no title thereto and in which the real owner did not interfere or intervene… It was held that since the real owner of the water-rights, that is, the United States or the state,, permitted these diversions and Siskiyou County Comprehensive Land & Resource Management Plan February 1996 ` was not in court to assert its rights or to be bound by the decision, the matter between the persons litigating was to be decided according to the rules of law in regard to priority of possession of the land. The diversion of the water was declared to be the equivalent of possession and the doctrine was laid down that he who was first in time was first in right.” Silver Lake Power & Irr. Co. vs. Los Angeles, 176 Calif. 96, 101-102, 167 Pac. 697 (1917) established that the right of possession was a property right claimed under the color of title. 1865, Statutes at Large, vol. 13, p.44; U.S.C. vol. 30, section 53; directed that no possessory action for recovery of any mining title would be affected by the factor that the paramount title to the land belonged to the U.S. Each case would be judged by the law of possession.
F20:
Article 1 of the Constitution of the State of California still recognized as among inalienable rights, the rights of “acquiring, possessing and protecting property.”
F21:
As an incidence of their sovereignty, the monarchies of England, Spain and France held absolute dominion and legal title over all the lands of their kingdoms with the capacity to grant proprietary use of such lands to individuals conditional on the royal prerogative to rescind such grants. The sovereign also has the prerogative to reserve any property rights in the land that he desired. 22. “Western wastelands” east of the Mississippi were included in the charter grants of many of the original thirteen colonies. After they became States, they specifically ceded title and jurisdiction to the lands to the federal government. Congress assumed that the cession passed “sovereignty” to the federal government. In 1807, using the rational that under English law, one could not alienate title from the “sovereign” through adverse possession, Congress passed U.S. Statues At Large, Congress, Sess. II, Ch. 46, pp. 445-446 “An Act to prevent settlements made on lands ceded to the United States, until authorized by law.” According to the Act, those who settled beyond the federal paperwork were technically “squatters” or trespassers. Unless the “sovereign” government agreed to recognize the squatters claims, no amount of occupancy, land economic contribution or civic good could validate those claims. 23. “According to the theory of the British constitution all vacant lands are vested in the Crown as representing the nation and the exclusive power is admitted to reside in the crown, as a branch of the royal prerogative. It has been already shown that this principle was as fully recognized in America as in the Island of Great Britain… [W]hen the Revolution took place the people of each State became themselves sovereign; and in that character hold the absolute right to all their navigable water and the soils under them for their own common use, subject only to the rights since surrendered by the Constitution to the general government.” See Martin v. Waddell’s Lessee (also known as Martin vs. Waddell). U.S. (16 Pet.) 367, 410, 10 L.Ed. 997, 1012-1013 (1842); quoting Johnson and Graham’s Lessee vs. M’Intosh (also known as Johnson vs. M’Intosh), 21 U.S. (8 Wheat.) 543, 595, 5 L.Ed. 694 (1823). Siskiyou County Comprehensive Land & Resource Management Plan February 1996 ` Under Pollard’s Lessee v. Hagan (a.k.a. Pollard v. Hagan) 44 U.S. at 225 ll L.Ed at 572; (1845), the Court made it clear that the transfer of legal title from nation to nation did not supersede the essence and distinct forms of sovereignty as established by the people and their Constitutional form of government: “It cannot be admitted that the King of Spain could, by treaty or otherwise, impact to the United States any of his royal prerogatives; and much less can it be admitted that they have capacity to receive or power to exercise them. Every nation acquiring territory, by treaty or otherwise, must hold it subject to the constitution and laws of its own government and not according to those of the government ceding it. (Vat. Law of Nations. bk. 1, ch. 19, sec, 210, 244, 245, and bk. 2, ch.7, sec. 80.)
F22:
“Western wastelands” east of the Mississippi were included in the charter grants of many of the original thirteen colonies. After they became States, they specifically ceded title and jurisdiction to the lands to the federal government. Congress assumed that the cession passed “sovereignty” to the federal government. In 1807, using the rational that under English law, one could not alienate title from the “sovereign” through adverse possession, Congress passed U.S. Statues At Large, Congress, Sess. II, Ch. 46, pp. 445-446 “An Act to prevent settlements made on lands ceded to the United States, until authorized by law.” According to the Act, those who settled beyond the federal paperwork were technically “squatters” or trespassers. Unless the “sovereign” government agreed to recognize the squatters claims, no amount of occupancy, land economic contribution or civic good could validate those claims.
F23:
“According to the theory of the British constitution all vacant lands are vested in the Crown as representing the nation and the exclusive power is admitted to reside in the crown, as a branch of the royal prerogative. It has been already shown that this principle was as fully recognized in America as in the Island of Great Britain… [W]hen the Revolution took place the people of each State became themselves sovereign; and in that character hold the absolute right to all their navigable water and the soils under them for their own common use, subject only to the rights since surrendered by the Constitution to the general government.” See Martin v. Waddell’s Lessee (also known as Martin vs. Waddell). U.S. (16 Pet.) 367, 410, 10 L.Ed. 997, 1012-1013 (1842); quoting Johnson and Graham’s Lessee vs. M’Intosh (also known as Johnson vs. M’Intosh), 21 U.S. (8 Wheat.) 543, 595, 5 L.Ed. 694 (1823).
F24:
Under the Color of Title Act, the Secretary of the Interior may be required to issue a patent if certain conditions have been met, (43 U.S.C.A. Section 1068- 1068b), such as that a tract of public land has been held in good faith and in peaceful adverse possession under claim of color of title for more than a specified period; (Beaver vs. U.S., C.A.Cal., 350 F.2d 4, certiorari denied 86 S.C. 1067, 383 U.S. 932,15 L.Ed.2d. 854; U.S. v. Wharton, C.A.Or., 514F.2d 406; Day v. Hickel, C.A.Alaska, 481 F.2d 473). In other cases, the court ruled that although the possessory right of an occupant of public land, (such as in a grazing parcel), is a valuable property right that he can legally transfer and convey to his vendee, or which may be the subject or consideration of a contract. (Neal v. Kayser, 100 P. 439, 12 Ariz. 118,); the purchaser acquires no rights as against the United States, (Gozales v. French, Ariz. S.Ct. 102, 164 U.S. 338, 41 L.Ed. 458).
F25:
On February 21, during the second hearing on what was to become the Taylor Grazing Act of 1934, Representative J.S. Scrugham of Nevada offered an amendment to Section 3 linking grazing rights to water rights with the following statement: “It is not the grass on the range that controls its use, it is the water. The control of the water is absolutely in the jurisdiction of the State. This point should be clearly understood because it has a very important bearing on matters of range control. In the arid western States the law separates water use and land use in a manner different from the custom in areas of ample rainfall. The old riparian doctrine of water rights was found absolutely unsuitable to the needs of the people of the arid west. Therefore, there grew up a doctrine entirely different from that which is accepted under the old English common law in the older parts of the country. This new concept is called the ‘doctrine of beneficial use.” No matter where the water may be situated, he who beneficially use[s] water can have the continued usufruct as long as beneficial use is continued. This bill proposes to take absolute control over grazing on the public domain, and admittedly the control of the water is the governing factor. “The water is legally controlled in the State of Nevada by what is known as the stockwatering acts. He who has used the water beneficially is entitled under the police powers of the State, to continue the beneficial use and be protected from the transient newcomer. Federal grazing control might be in direct conflict with State control of stock water. Siskiyou County Comprehensive Land & Resource Management Plan February 1996 ` “Forage on the public domain…is not worth anything whatever unless related to other factors in State or private control…Now the fallacy is wide-spread that the western range user is getting something for nothing, that he is obtaining the free use of something for which he is not paying, something that belongs to the people. The idea is utterly erroneous. The present system is based on the customs and use developed by a hardy, self-reliant, pioneer people who are wresting a living from the land which would deny existence to farmers untrained to its adversities…[T]he controlling factor in grazing is not the number of stock allowed on the range but the beneficent Diety who brings the rain that falls over the surface of this ground and brings out the grass.” (House hearing record pp.124-5 as cited in Frederick W. Obermiller, “Did Congress Intend to Recognize Grazing Rights? An Alternative Perspective on the Taylor Grazing Act,”The Grazer, No. 185, December, 1995, Extension Service, Corvallis, Oregon.)
F26:
In Hunter v. United States, 388 F. 2d 148 at 149 Ninth Circuit Court-C.A. Cal. (1967), the court ruled that the right to water by prior appropriation from public domain for any beneficial use is entitled to protection. Evidence by ownership of livestock that Hunter and members of his family had since prior to 1880 persistently grazed and watered livestock in public domain…clearly showed a legal basis for acquisition of an appropriation to water by virtue of local decision. In view of practically uncontroverted proof establishing that Hunter and his predecessors had appropriated water from public domain…and that they had always used all water that was available from springs and creek whose flow fluctuated from year to year, judgment was to protect the grant of use of waters. Hunter’s grazing had been excluded when the land in question was withdrawn as a national monument. The court agreed that Hunter’s water rights based on grazing use were valid, but also concluded that his right to graze lands adjacent to the water was not essential to the use of the water. The court reasoned Hunter could still exercise his right to use of the water by piping it out of the boundaries of the monument. Squatter on public domain may acquire by appropriation right to use of water that is used by him to irrigate such land, and if he is evicted he may nevertheless divert water elsewhere if he is able. (Public Lands, Ch. Appropriation of Waters, 43 Section 661, Pg. 722)
F27:
According to William D. Rowley in U.S. Forest Service Grazing and Rangelands: A History, p. 19 (1985): “These grazers who had arrived earlier attempted to establish prescriptive rights to the range by their customary occupancy and acceptance of those rights among themselves, their stock organizations and roundup committees. Some western writers have compared these range rules to the customs of mining districts in their attempt to regulate and distribute access to ore in rich stream beds or quartz lodes. As with mining-district rules, western legislatures sometimes reinforced the regulations of stock organizations by authorizing inspections of cattle shipments for legitimate brands and passing water laws that gave rights to the first users. It was in Siskiyou County Comprehensive Land & Resource Management Plan February 1996 ` the area of water rights that early arrivals established their most effective power. Whoever controlled the water sources often controlled great areas of land.”
F28:
According to Earnest Staples Osgood in The Day of the Cattleman, P.185 (1929): “The presence of others along a stream, too long to permit individual control, meant that exclusion of outsiders must come through some sort of an understanding among those already on the ground. Cooperation among neighbors in the conduct of their business resulted in the growth of a certain amount of range privilege and good will. Participation in the roundup, in the use of common corrals, in the group protection against Indians, thieves and predatory animals and, in some cases, in the group drive of the beef turnoff to the railroad could be permitted or denied to the newcomer. To deny such privileges, often appeared to be the only way of preventing overcrowding of a range already taxed to its full carrying capacity. The success of such a method would, of course, depend upon the size of the outfit so denied and upon the amount of cooperation among older stock growers.”
F29:
The Latin term “foris” refers to exclusion from the application of the ordinary law and not to a wooded land. (Information taken from Joseph and Frances Gies, Life in a Medieval Castle, Harper & Row Publishers, c1979, pp0. 135-9) William the Conqueror brought “forest law” from France, reserving large tracts of land embracing villages, wastelands and woods for his own exclusive use under the sovereign prerogative. By the thirteenth century, forest law was more strictly enforced in England than on the Continent and William’s successors had vastly extended the royal forest. Provisions of the Magna Carta limited the royal prerogative to reserve e forests, reducing their scope to those that had existed in 1199 and denying the king the right to extend the borders. Provisions reducing the severity of the forest laws and their arbitrary application became separated into the Parva Carta (Little Charter) or Forest Charter. This codified forest law and designated the administrators and courts to enforce it: local courts met every six weeks; special forest inquisitions were called to deal with serious trespass; and the royal forest eyre (circuit court) had ultimate jurisdiction. The local attachment courts dealt with minor offenses to the “vert” – the greenwood of the forest: cutting, clearing; gathering dead wood, honey and nuts; allowing cattle to graze or pigs to feed on acorns or beechnuts. When a graver offense to the vert or a crime against the “venison” – the right to hunt deer – was committed, a special court was called to hear the case before the forest officers, and either send the offender to prison until the next eyre or attach him by other’s pledges to appear before it. The hierarchy of officials that administered the forest was headed by a justice who directed the whole forest administration of England. Next in authority were the wardens, also called stewards, Bailiffs or chief foresters, who had custody of single forests or groups of forests. Below them were officers called verderers, knights or landed gentry nominally in charge of the vert but actually with a variety of duties. Siskiyou County Comprehensive Land & Resource Management Plan February 1996 ` There were also foresters who acted as gamekeepers, responsible to the wardens and appointed by them. Usually, each forest also had four agisters appointed by the wardens to collect money for the pasturing of cattle and pigs in the king’s demesne woods, allowed at certain seasons. The agisters counted pigs as they entered the forest and collected the pennies as they came out. Every three years an inspection of the forests was made by a body of 12 knights, the “regarders” who were supposed to report any encroachments on the king’s demesne – the erection of a mill, fishpond, enlargement of a clearing, enclosure of land without a license, or any abuse of the right to cut wood.
F30:
There are several questions concerning the power of the federal government to “reserve” lands. The Court appears to make a differentiation between the federal reservation of lands from disposal from lands still in Territorial status, (prior to statehood,) and reservation of lands from disposal subsequent to Statehood. (Alaska is the only State where the federal government has formerly appropriated land from a Territory to itself and reserved it from the Statehood process specifically as federal property.) Regarding the question as to whether the federal government may “reserve” “Territory” from the process of Statehood, the following discussion from Rotunda & Nowak, Treatise on Constitutional Law: Substance and Procedure, 2D, supra, Section 3.6, footnote 4, p. 322 is submitted: “[U]nder the equal footing doctrine the judiciary treats the property in a territory that is destined for statehood as being owned by the federal government in trust for the future state. Congress could sell parts of the territory, which it owns under its Article IV property power, to private persons prior to admitting that territory to statehood. The court has not determined whether Congress could defeat a future state’s title to land simply by reserving title to a portion of the territory for the federal government prior to admitting the state to the union. “The Supreme Court has adopted a strong presumption against finding that Congress intended to defeat a state’s title to land that had once been part of a federal territory, prior to the state’s admission to the union. In Utah Division of State Lands v. United States, 482 U.S. 193, 107 S.Ct. 2318, 96 L.Ed.2d 162 (1987), on remand 846 F.2d 618 (10th Cir. 1988) the Court assumed, arguendo, that the federal government could reserve title to territory so as to overcome the presumption of state title to land, but it found that Congress would have to demonstrate clearly and affirmatively that it intended to defeat the future state’s title to land within its borders, which otherwise would be state-owned public lands (such as river beds or lake beds).” Regarding the reservation of lands subsequent to Statehood, in Friedman v. Goodwin, (CC.1856) Fed. Cas. No. 5, 119, 1 McAll. 142, the court decided: “On the cession of [Mexican] California to the United States, all the public lands therein became the property of the United States. On her admission to the Union, she became the owner of all public land not disposed of by law of congress.” Siskiyou County Comprehensive Land & Resource Management Plan February 1996 ` After extensive lobbying by John Muir, Yosemite was designated to a National Park in 1891. However, in order to vest exclusive jurisdiction and ownership in regard to these lands in the United States, it was necessary for the California Legislature to approve a deed of cession for Yosemite to the U.S. in St. 1891, p. 262 as follows: “The State of California hereby cedes to the United States of America exclusive jurisdiction over such place or parcel of land as may have been or may be hereafter ceded or conveyed to the United States…” On the question of the nature of jurisdiction that the federal government may exercise over lands reserved or withdrawn from disposal, or remaining in her possession, the court has held: In People, by McCullough vs. Shearer, 30 C. 645, 1 P.L.M. pt. 2, 97 (1866,) the court clarified: “The relationship of the United States to the public land since the admission of California into the Union is simply proprietary, that of any owner of lands like any other Citizen who owns lands, and not of a municipal sovereign.” In the case of Kansas v. Colorado, 185 U.S. 143 (1902) and 206 U.S. 46 (1907), the federal government argues that the amount of the flow of interstate river was “subject to the superior authority and supervisory control of the United States” by virtue of its ownership of substantial national “territories” through which the river passed, and its powers under: (1) Article IV, Section 3 – “…the power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States,” and (2) the power vested in the national government to acquire territory by treaty. The Court agreed that the federal government did have full power of legislation in respect to all Territories, (public domain lands held prior to statehood,) subject to no restriction other than those expressly named in the Constitution. The right to dispose of and make all necessary rules and regulations on federal “properties” located within the States were, however, subordinate to the legislative powers of general government of the States. The Court found that the powers of the national government within the geographical limits of the States, was the same as those within the limits of the original thirteen States. Absent a definite power enumerated in the Constitution the federal government could not legislate in respect to lands within State borders. The Court concluded: “…It is enough for the purpose of this case that each state has full jurisdiction over the lands within its borders, including the beds of streams and other waters.”
F31:
The Timber Culture Act granted a homesteader a patent to 160 acres of land in the Great Plains if he agreed to plant ¼ of land in trees. (This was later changed to eliminate tree planning provision.) Siskiyou County Comprehensive Land & Resource Management Plan February 1996 `
F32:
Sec. 24: “That the President of the United States may, from time to time, set apart and reserve, in any State or Territory having public land bearing forests, in any part of the public lands wholly or in part covered with timber or undergrowth, whether of commercial value or not, as public reservations; and the President shall, by public proclamation, declare the establishment of such reservations and the limits thereof.” The rider was never referred back to its originating committees, (House and Senate Public Lands Committees,) technically an illegal procedure. Later challenges in 1911 questions the Forest Service’s right to impose grazing permits and fees on the use of range in the public domain on the basis of the “implied license” affirmed in Buford v. Houtz. The Court ruled in Light v. U.S. (220 U.S. 523, 55 L. Ed. 570, 32 Sup. Ct. Rep. 485) and U.S. v. Grimaud (220 U.S. 506, 31 S. Ct. 480, 55 L.Ed. 563) that the Forest Reserves had been withdrawn from the public domain and that the “implied license” of Buford v. Houtz had been “curtailed and qualified” by Congress, to the extent that the privilege of grazing should not be exercised in contravention of the rules and regulations of the permit system. (At the time of the Grimaud case there were extensive valid permits to grace in the Sierra Forest Reserve with which his grazing activities would have conflicted. Under Forest Service “Use Book” rules for granting grazing permits, transient herders, such as Grimaud, who could make no claim to local property ownership were given Class C, or last priority is granting of permits.)
F33:
In 1894, the Department of Agriculture prohibited the “driving, feeding, grazing, pasturing or herding of cattle, sheep and livestock” as its first administrative policy on the forest reserves. (Frederick Coville, “Forest Growth and Sheet Grazing in the Cascade Mountains of Oregon, U.S. Department of Agriculture, Division of Forestry Bulletin no. 15, p. 10.)
F34:
The Act states: “…but it is not the purpose or intent of these provisions of the Act Providing for Such Reservations to authorize the inclusion therein, of lands more valuable for the mineral contained therein and for agricultural purposes, than for Forest Reserve purposes…”
F35:
Statues at Large, vol. 30, p. 36; U.S.C. vol. 16, sec. 478 provided that nothing in the act would “prohibit any person from entering upon such national forests for all proper and lawful purpose including that of prospecting, locating and developing the mineral resource thereof…such persons must comply with the rules and regulations covering such national forests.” The section also provided that the Secretary of the Interior to “make such rules and regulations…as will insure the objects of such reservations, namely, to regulate their occupancy and use and to preserve the forests thereon from destruction.”
F36:
In 1896, restrictive Forest Rules regarding sheep grazing were challenged in United States v. Tygh Valley Co., 76 V. 693. The Forest Rules were upheld on the basis that closely herded sheep were damaging the resources; (see also Dastervignes v. United States, 122 F. 30; 1903; and Dent v. United States, 76 P. 455, reversing 71 P. 920; 1904.) According to Colorado Judge Ethelbert Ward, The Legal Aspect of the Grazing Problem, these were essentially civil cases by injunction to prevent damage to property “and would apply as well to the individual as to the Siskiyou County Comprehensive Land & Resource Management Plan February 1996 ` United States. They are founded on the law of the land, and do not depend on rules and regulations.” (Forest Service Law Office Correspondence RG 49, Drawer 16, National Archives.) The grazing system devised by the Bureau of Forestry in 1902 issued the first grazing permits for sheep. A circular issued by the department of Interior on January 8, stated livestock on the forest reserve would receive preference in the following order: 1) Stock of residents within the reserve; 2) Stock of persons who own permanent stock ranches within the reserve, but who reside outside of the reserve; 3) Stock of persons living in the immediate vicinity of the reserve, called neighboring stock and 4) stock of outsiders who have some equitable claim.
F37:
Forest Service “Use Book” of 1905 or “The Use of the National Forests”, (subtitled “Regulations and instructions for the use of the National Forest Reserves”,) July 1905, p.22 listed three classes of grazing permits; A.) For those who owned adjacent ranch property (“small near-by owners”); B.) For those who owned nonadjacent property and traditionally used the public forest ranges (all other regular occupants of the reserve range”) and C.) For transient herders who could make no claim to local property ownership (“owners of transient stock”.) “In relation to Forest Officers to the public, the administration of Forest Reserves is not for the benefit of the government, but of the people. The revenue derived from them goes, not to the general fund of the United States, but 10% of it directly to the counties in which the reserves are situated, and the other 90% towards maintaining upon the reserve a force of men organized to serve the public interest. This force has two chief duties: to protect the reserves against fire and to assist the people in their use. Forest officers, therefore are servants of the people. They must answer all inquiries fully and cheerfully, and be at least as prompt and courteous as they would be in private business. It is no less their duty to encourage and assist legitimate enterprises. The continued prosperity of agriculture, lumbering, mining, and livestock interests is directly dependent upon a permanent and accessible supply of water and forage. The dominant industry on the land will be considered first, but with as little restriction to minor industries as may be possible. In the long run, where conflicting interests are concerned, the question will be decided from the standpoint of the greatest good of the greatest number whether it be mining, lumbering, or the livestock industry. Every effort will be made to assist the stock owner to a satisfactory distribution of stock on the range. The prime objective is the best permanent good of the livestock industry. The Reserve Officer will see to it that water, wood and forage are used to the benefit of the home builder. It is the home builder, first of all, upon whom depends the best permanent use of lands and resources alike. “The Secretary of Agriculture has the authority to permit grazing to the best permanent good of the livestock industry through proper care and improvement of the grazing lands. Grazing permits will be given preference in the following order; small nearby owners and then persons living in or close to the reserve whose stock have regularly grazed upon the reserve range and are dependent upon its use. The protection of settlers and home builders against unfair competition in the use of the range is prime requisite. Priority in the occupancy and use of the range and the ownership of improved farming land in or near the reserve will be considered, and Siskiyou County Comprehensive Land & Resource Management Plan February 1996 ` preference will be given to those who have continuously used the range for the longest period. “All the resources of the forest reserves are for use, and this use must be brought about in a thoroughly prompt and businesslike manner, under stuck restrictions only as will insure the permanence of these resources. The vital importance of forest reserves to the great industries of the Western States will be largely increased in the near future. The permanence of the resources of the reserve is therefore indispensable to continued prosperity, and the policy of the Forest Service for their protection and use will invariably be this fact… “The timber, water, pasture, mineral and other resources of the Forest Reserves are for the use of the people. They may be obtained under reasonable conditions without delay. Legitimate improvements and business enterprises are encouraged. The Forest Reserves are open to all persons for lawful purposes.” (Federal Lands “UPDATE”, Dec. 1991, pg. 3) In the Forest Service “Use Book,” (The Use of the National Forest Reserves, July 1905, 1910 edition) it is stated under Regulation 45: “Whenever any live-stock association whose membership includes a majority of the owners of any class of livestock using National Forest or a portion thereof shall select a committee, an agreement on the part of which shall be binding upon the association, such committee upon application to the district Forrester, may be recognized as an advisory board for the association, and shall then be entitled to receive notice of proposed action and have an opportunity to be heard by the local Forest officer in reference to increase or decrease in the number of stock to be allowed for any year, the division of range between the different classes of stock or their owners, or the adoption of special rules to meet local conditions.”
F38:
According to a circular released in 1906 by the Chief of the Forest Service in Washington, D.C., grazing permits for the 1906 season would be required. This meant that all stockmen and settlers using the Forest for grazing were placed under the permit system. R.L.P. Bigelow wrote to local Rangers that a man living in the Forest Reserve was entitled to six head of domestic stock to run on the range free of charge. The authorized use of the Forest was 9,750 cattle and horses; 2,300 head of sheep and goats; and no hogs. Frank Harley at Scott Bar and Chris Quigley at Walker were instructed to meet with stockmen at Fort Jones or Etna and get applications made out. According to Davies and Frank, there was significant hostility from locals for the need to obtain a permit for activities they had been doing for two or more generations. In 1907, the designation “special privilege permits” was changed to “special use permits.” Klamath Forest Supervisor Bigelow issued grazing orders addressed to all Forest Officers outlining procedures for establishing seasons. The 3 seasons were for six months, eight months and one year starting on May 1. Payments were to be made before stock entered the range by bank draft or money order – no cash. During a meeting with stockmen, Bigelow felt that since the stockmen could not come to reasonable terms among themselves on range use, he would decide for himself. (Davies, Gilbert W. and Frank, Florice M., editors; Stories of the Klamath National Siskiyou County Comprehensive Land & Resource Management Plan February 1996 ` Forest The First 50 Years: 1905-1955; HiStory ink Books, P.O. Box 52, Hat Creek, CA; cl1992.) 39. “Possessory interest” by grazers in “public lands” is considered a valuable property interest that is recognized and taxable in the State of California. According to State of California Board of Equalization Property Tax Rules, Chapter 1, Subchapter 1, Rule 21 “Possessory interest Definitions”: “Possessory interest means an interest in real property which exists as a result of possession, exclusive use, or a right to possession or exclusive use of land and/or improvements unaccompanied by the ownership of a fee simple or life estate in the property. Such an interest may exist as the result of: (a) A grant of a leasehold estate, an easement, a profit prendre, or any other legal or equitable interest of less than freehold, regardless of how the interest is identified in the document by which it was created, providing the grant confers a right of possession or exclusive use which is independent, durable, and exclusive of rights held by others in the property; (b) Actual possession by one intending to the property to the exclusion of any other interfering use, irrespective of any semblance of actual title or right.” Decisions in Board of Supervisors, County of Modoc v. Archer (18 Cal. App. 3d 717, 1971 – 96 Cal. Rptr. 379 and Dressler v. County of Alpine (64 Cal. App. 3d 557; 1976 – 134 Cal. Rptr. 554) resulted in additions to the California tax code. Possessory Interest Tax was codified in 1939, Calif. Stats, c. 154, pg. 1277, Section 107 as meaning: possession of, claim to, or right to the possession of land or improvements, except when coupled with ownership of land or improvements in the same person; taxable improvements on tax-exempt land. The grazing allotment tax was imposed by the California Board of Equalization and added to the code in 1971 as “the right to grace livestock or raise forage on public lands.” “Exclusive use means the enjoyment of a beneficial use of land or improvements, together with the ability to exclude from occupancy by means of legal process others who interfere with that enjoyment. Co-tenants may each make use of land or improvements without impairing the other’s right to use the property, as this constitutes but a single use jointly enjoyed. Exclusive use is not destroyed by one or more of the following: (a) Multiple use by persons making different uses of the same property in such a manner that they do not prevent the enjoyment of co-existing rights held by others, as, for example the development of mineral resources by one person and the enjoyment of recreational uses by others; (b) Concurrent use when the extent of each party’s use is limited by the other party’s right to use the property at the same time, as, for example, when two or more parties each have the independent right to grace cattle on the same land; (c) Alternating use when the duration of each party’s use is limited, as, for example, the use of premises by a professional basketball team on certain days of the week and by a professional hockey team on certain other days.” Siskiyou County Comprehensive Land & Resource Management Plan February 1996 ` In 1990, the California Supreme Court in Hubbard v. Brown (785 P. 2d, 1183) rejected an argument that federal regulations denied by any interest in federal lands to grazing permit holders.
F39:
“Possessory interest” by grazers in “public lands” is considered a valuable property interest that is recognized and taxable in the State of California. According to State of California Board of Equalization Property Tax Rules, Chapter 1, Subchapter 1, Rule 21 “Possessory interest Definitions”: “Possessory interest means an interest in real property which exists as a result of possession, exclusive use, or a right to possession or exclusive use of land and/or improvements unaccompanied by the ownership of a fee simple or life estate in the property. Such an interest may exist as the result of: (a) A grant of a leasehold estate, an easement, a profit prendre, or any other legal or equitable interest of less than freehold, regardless of how the interest is identified in the document by which it was created, providing the grant confers a right of possession or exclusive use which is independent, durable, and exclusive of rights held by others in the property; (b) Actual possession by one intending to the property to the exclusion of any other interfering use, irrespective of any semblance of actual title or right.”
F40:
Stockmen continued to buy, sell, table, inherit and mortgage range rights as part and parcel of the ranch unit. Banks and lending institutions continued to view range rights as real property and collateralized those range rights for loan purposes. Private investment in range improvements by the ranchers in fencing, water facilities, livestock handling facilities, roads, etc., increased the rancher’s private property rights claims. In Schufflebarger v. Commissioner of Internal Revenue (24 TC 980-1955) the court upheld the Internal Revenue Service’s consideration of grazing rights as part of a stockman’s estate for tax purposes. The IRS taxes the value of grazing rights on federal lands as part of the rancher’s real property. For tax, ranch sale and collateral definition for bank financing purposes, the value of the grazing rights are capitalized into the value of the ranch unit. Typical grant bargains and sale deeds sell “certain real and personal property, water rights and privileges, grazing leases, rights and privileges…” A letter from Attorney Richard P. Chamberlain, Internal Revenue Service, to R.B. Tippeconnic, Forest Supervisor, Coronado National Forest, Tucson, Ariz., dated August 25, 1988, IRS correspondence code no. 1235-4208PX, now located in the files of the Coronado National Forest states: “We are aware of the Forest Service policy that National Forest Service grazing permits have no value. However, the Federal tax statutes require us to value the assets of a decedent or donor based on their ‘fair market value.’ Even though you do not place value on leases, the ranchers do whenever they buy or sell a ranch. Every ranch with substantial leases sells on an animal unit basis considering the grazing leases, and every reputable fee appraiser places a value on them despite your regulations. “For the Internal Revenue Service to value the leases does place government agencies in an inconsistent position. But the greatest inconsistency is for the taxpayers to rely upon your regulations to claim the grazing rights have no value for tax purposes, and then to universally place a value on them when they sell or mortgage their ranches. “It would appear that the market place is the best indication of whether or not there is a market value for the leases. As long as the market place says there is a value, a fair evaluation of a ranch cannot be made without considering the price a willing buyer would pay for the grazing leases.”
F41:
H.M. Taylor, head of the Bureau of Animal Husbandry, in an 1886 report entitled Importance of the Range Cattle Industry, pg. 316, stated: “It will be seen that the ownership of the watering places gives tenure to contiguous range. The fact is recognized by the Western Cattlemen, and the question as to the number of cattle individual owners are permitted to hold, under regulations of the various local associations, it is determined by the question of water frontage. Siskiyou County Comprehensive Land & Resource Management Plan February 1996 `
F42:
First clause of Act reads; “…in order to promote the highest use of public lands pending its final disposal, the Secretary of the Interior is authorized…” Section I includes language to the effect that: “Nothing in this sub-chapter shall be construed in any way…as limiting or restricting the power or authority of any State as to matters within its jurisdiction.”
F43:
House hearing record p. 126 as cited in Frederick W. Obermiller, “Did Congress Intend to Recognize Grazing Rights? An Alternative Perspective on the Taylor Grazing Act,” The Grazer, No. 185, December, 1995, Extension Service, Corvallis, Oregon.
F44:
Chief F.A. Silcox testified before the Senate Committee on Public Lands and Surveys on April 26, 1934, stating: “The real purpose of this language is, I fear, to grant to the stockmen who are grazing lands on the public domain an estate or property interest in the particular lands which they have been accustomed to use, and that the fee simple title now possessed by the Federal Government will be terminated and the Government’s interest thereafter limited by a part interest granted to the particular stockmen who chanced to be using the lands at the present time, and confirmed to them as a property right. “[Many westerners] have been demanding that such preferences should be recognized as constituting ‘rights’ in and to the use of Government property, but is some instances have gone so far as to contend that by reason of the preference granted in the past a State of facts exists which results in already conferring upon the users legal rights in fact. In short, they contend that the national forest permittee whose lands have been recognized as depending upon national forest range holds the range not merely by license from the Government, but by reason of an actual property interest in the Government land itself. They claim, in short that the stockman has estate in the national forest range lands used by him and his estate is dominant and the Government’s estate servient. I am advised by our legal officers that this position is not legally sound; that such a property interest cannot be established over lands which are the property of the Federal Government by prescription of adverse user and can only be established by actual grant; also the authority to grant public lands or easements therein rests exclusively in Congress. “If the language of the amendment quoted above, referring to grazing preferences specifically as grazing ‘rights’ rather than leases or privileges, is not subject to construction as thereby constituting the grant of an easement in the public domain lands, it at least comes perilously near it…If anyone doubts that this is the ultimate purpose of this amendment, his doubt will be removed if his attention is called to the intimate connection in the language used in confirmation of grazing rights and that of water rights. [T]he amendment grants…what certain stockmen have been consistently contending was already the actual status of the Government’s property – in short, that the stockmen already held the dominant estate in the Government lands which they have grazed, and that there remains to the Government only a servient estate…it opens the door to endless controversies, misunderstandings, and footless litigation. Siskiyou County Comprehensive Land & Resource Management Plan February 1996 ` “If Congress wants to establish these vested rights, it is up to Congress. But we know from our experience in handling the question on the western range that you get into all sorts of complications and speculations with those grazing preferences on the assertion of a property interest. If that is what is intended, then we ought to have it clearly understood…It is my opinion alleged vested rights are going to be asserted.” Assistant Solicitor Poole testified on April 27, 1934: “The danger of this [Scugham] provision is obvious. It would, perhaps forever cloud the fee simple title of the Federal Government, and, in turn, the title of the transferee. Like other property it would be transferable and inheritable. If this provision…operates as a federal grant, the Department of the Interior cannot subscribe to it, and the Secretary has instructed me to inform the committee that he would prefer to have the bill defeated if this provision is not removed” Senate hearing record pp. 56-59 and p. 70 as cited in Frederick W. Obermiller, “Did Congress Intend to Recognize Grazing Rights? An Alternative Perspective on the Taylor Grazing Act,” The Grazer, No. 185, December, 1995, Extension Service, Corvallis, Oregon.
F45:
According to Legislative History, Secretary of the Interior, Harold Ickes, during the Taylor Grazing Act Senate Hearings had stated; “We have no intention to…drive stockmen off their ranges or deprive them of rights to which they are entitled either under State laws or by customary usage.”
F46:
In a colloquy on the Senate floor to clarify the intent of the McCarran provision on June 12, 1934, it was stated: Mr. McCarran: “[O]ne holding a farm or a homestead who has heretofore depended upon the public range as a part of an integral unit of which his homestead may have been a minor part, shall have the privilege of going to a loaning agency and asking permission to borrow, and having recognition of the fact that he has certain rights open the public domain which shall not be interfered with during the terms of the loan.” Mr. Mahoney: “If I understand the Senator correctly, his purpose is merely to guarantee that the rights to grazing privileges which are conveyed by the bill shall be so definite that they may be recognized as security when the holder seeks a loan.” Mr. McCarran: “That is exactly correct.” From of the June 12, 1934 Congressional Record – Senate as cited in Frederick W. Obermiller, “Did Congress Intend to Recognize Grazing Rights? An Alternative Perspective on the Taylor Grazing Act,” The Grazer, No. 185, December, 1995, Extension Service, Corvallis, Oregon.
F47:
By the turn of the century, a complex system of ditches and flumes served many of the water needs of the people of the county. According to Gold Mining in Siskiyou County 1850-1900, Occasional Paper #2, -76; by Gary Stumpf; Siskiyou County Comprehensive Land & Resource Management Plan February 1996 ` published by the Siskiyou County Historical Society in 1979, the building of these structures was an engineering feat: “Flumes were a source of continuous expense. They were subject to destruction by fire, wind, ice and snow and they seldom lasted more than 10 or 12 years. However, when it was necessary to bring water across open spaces, along vertical cliff faces, or through terrain where soil of other conditions prohibited the use of ditches, flumes were constructed. They were built of planks 1 ½ - 2” thick, 12-24” wide, and 12-16 feet long. Where the boards joined, wood battens 3-4” wide and ½” thick covered the seams to minimize leakage. Sills, posts, and caps, with dimensions varying according to the size of the flume, were added for strength every 4 feet. The entire flume, thus constructed, was supported by wooden trestles set to provide the desired grade of 25-35 feet per mile.” “In the construction of very long flumes and trestles, where a great deal of wood was needed, it was often most economical for the builders to cut their own lumber. In this case, a cheap sawmill could be set up at the head of the flume, supplied by trees in the vicinity. As the work progressed and the flume was filled with water, the lumber could be floated down to the point where it was needed.” “Ditches were cheaper to construct and required less maintenance than flumes and were therefore used whenever possible. A well-constructed ditch, running a large amount of water on a fairly steep grade, would keep itself relatively well cleaned out and would enlarge slightly from erosion as its banks solidified. It was estimated in 1900 that the capacity of such a ditch, well maintained, would actually increase by about 10% in eight years.” “In cross section, ditches were commonly trapezoidal – the relative dimensions of top, bottom, and depth varied widely according to the volume and velocity of the water the ditch was designed to carry. A fall of between 10-20 feet was generally considered desirable for a ditch, although the grade might be more or less, depending upon soil conditions. If the grade was too steep, excessive erosion would occur, and if the grade was too shallow the ditch would fill in with sediment. To build a good ditch, from source to claim, within such a narrow range of tolerance, in the rugged terrain of Siskiyou County, was a job that required considerable skill, and as one mining engineer put it in 1894: “‘Through faulty engineering, some of our pioneer ditches, when finished, demonstrated the soundness of the hydraulic theorem that water cannot be made to run uphill.” According to A Textbook on Metal Mining, (Copywritten in 1899 by the Colliery Engineering Co. under the title A Treatise on Metal Mining) pgs. 76-80: “Locating and engineering a ditch involved laying out the general elevations at intervals by means of compared aneroid barometers, then surveying. Leveling was done, keeping all turning points on grade. A series of stations were set, numbered and staked with pegs driven to grade. Bench marks were placed at ¼ - ½ mile intervals for reference. Trapezoidal forms or half a regular hexagon form was used for ditches. The banks were at least three feet wide on top. The material excavated from the ditch was piled on the lower side and ultimately consolidated into firm ground, raising the sides of the ditch and increasing its capacity. In mountainous Siskiyou County Comprehensive Land & Resource Management Plan February 1996 ` areas, narrow and deep ditches with grades from 16-20 feet per mile were common. If ditches were not so steep as to scour their bottoms, they would ultimately become lined with scum or silt of fine clay which closed up pores and openings in the soil. This stopped leakage and increased the carrying capacity of the ditch. Flumes were usually used when the grade was as much as 25-30 feet to the mile. Flumes were more costly to build and maintain and were subject to fire, rot and other natural destruction.
F48:
The Klamath River Basin Fisheries Task Force 1991 Long Range Plan For The Klamath River Basin Conservation Area Fishery Restoration Program lists the adjudication decree for the Shasta River as 1932. The adjudication, including Willow Creek (1972) and Cold Creek (1978) lists 212 decreed users and a total of 68.82 total decreed water rights.
F49:
Two articles described the effects of the flood of 1890. (Taken from The Scott Valley News, February 8, 1890) Sunday: rain added to swelling waters of Moffet Creek and a torrent rushing down the mountain through Sterling Street. Monday: The stream began to encroach on buildings near the stream, then between houses. “snow covered the water like giant fleeces of wool.” The west side was evacuated and household goods taken to safety. At the Davidson farm, the dwelling was surrounded by water – a new channel having been cut on the west side by the overflow. Tuesday: The waters now threatened to undermine buildings all along the stream that had withstood the first shock, but there was a slight decrease in water volume. Wednesday: The channel of the stream was shifting toward the east. Men hauled trees to try to turn the current to the west. The rain stopped and the dam was partly successful in changing the course of the current. Thursday: As the waters receded, losses could be seen – fences torn down, mines flooded, bridges swept away. Damage: Barns, buildings and fences on the west side from Isaac Hamilton’s to Newton street were damaged. T.C. Jones’ barn lay between the creek and firm ground. All along the Scott River from some distance from the banks, fences had been swept away and buildings damaged. The Ohio House Bridge, slough bridge, Goodale bridge and new bridge at the mouth of the Scott were gone. (Fort Jones bridge stood.) Main Street at Sterling was cut away by a mountain stream. Nearly all the bridges but the railroad bridge on the Shasta was gone. “The Flood of 1890” by J..B.. Grider, D.M.D. Emeritus: “February 1-4. It began raining in the evening about 6 p.m., February 1st and continued without stopping until 1:30 a.m., February 4th. There was about five feet of settled snow on the ground and the warm, steady rain made quite a volume of water to be carried off by the many streams and rivers. The temperature registered 42 degrees F. I measured the rainfall at Seiad and found that it was 13 inches deep. The flood of 1861-1862 was just 14 inches, one inch higher than 1890 measured, by an old blaze or scalp on a black oak tree near the river bank. The river at Seiad measured 37 ½ feet above low water mark, about the same Siskiyou County Comprehensive Land & Resource Management Plan February 1996 ` as ’61-62. Many deer died from deep snow and high water by starvation and exposure to climatic conditions. In the winter of 1938-1939, heavy loss in property, livestock and soil occurred in flood waters that crested over the Fort Jones Bridge. Following major floods of the 1930’s that took as much as 40 acres of land on the Young Ranch and 20 acres on the Hammond Ranch, the After the floods of the winter of 1948-1949, the Scott River channel had widened to over 1,000 feet in areas, where the original span had been about 100. The 1955 “Christmas Flood” washed out 30 bridges, houses, outbuildings and livestock in Scott Valley. The East Fork of the Scott River flooded throughout the valley. At the same time, the water system for the town was full of debris. There were many landslides, with bridges washed out to the Klamath River. All the summer homes and water systems washed out on Kelsey Creek. The water in Yreka was running down the street sidewalk to sidewalk. There were numerous slides on Yreka Mountain. Kidder Creek drainage had suffered a major fire prior to the 1955 flood. Sediment and debris washed from the watershed by flood and formed a major delta where Kidder Creek canyon emptied into the Scott River Valley. The steam still flows underground for much of the year as a result of massive aggradation. The Scott River remained at or near flood stage from October 1957 to June 1958 with tremendous loss from soil erosion. Following the flood, a Aerial photos from 1958 of Scott Valley show 20-25 miles of bare eroding bank with little vegetation when the Siskiyou Resource Conservation District was first formed. The 1964-1965 flood brought excessive amounts of logging debris into local stream channels and blocked access. The Salmon River area was completely isolated for several weeks. The heavy snow on Salmon Mountain closed the Etna-Sawyers Bar Road for several months. A helicopter base was established on Mathews Creek near the Forks of he Salmon. For copters distributed 10,000 pounds of food and supplies to people from Forks to Sayers impacted by the flood. An April 12, 1965 article in the Siskiyou Daily News reported damage from the December 1964 storm which was followed by a snow storm (as much as five feet in Etna.) From the period December 22, 1964 to January 4, 1965, $1,726,463 in damage was done as reported by Frank J. Jackson of the Soil Conservation Service. Scott Valley farms lost an estimated 730 acres. Another area on 106 farms was covered by debris, silt and gravel – taking an additional $313,570 of farmland out of production. Seventeen homes and 16 farm buildings were demolished. In addition to farm machinery and equipment lost, more than 100 miles of fending must be replaced. Etna Creek changed its course and flooded an entire section, leaving it covered with debris and silt. Siskiyou County Comprehensive Land & Resource Management Plan February 1996 `
F50:
Past studies dealing with water in the Scott Valley include: USGS Water Study Paper 1462, “Geology and Ground Water Features of Scott Valley” 1958. DWR Bulletin No. 83, “Klamath Basin Investigation”, July 1964. DWR Bulletin No. 94-5, “Land and Water Use in the Shasta-Scott Valleys Hydrographic Unit”, July 1965 MCCreary-Koretsky Engineers, “Siskiyou Soil Conservation District Report on Comprehensive Planning Study,” March 1967. Hahn, Wise, and Associates, “General Plan Siskiyou County”, May 1969 DWR Memorandum Report, “Water Supply and Demand in the North Coastal Area”, September 1969. DWR Memorandum Report, “Water Supply and Demand in the North Coastal Area”, December 1969
F51:
A Scott Valley Irrigation District proposal conducted in the early 1990s for installing piping on that major ditch indicated a cost of about five million dollars. Attempts are being made to assess areas of the greatest seepage where rocks are larger and it is more difficult to seal. Then to obtain grant funding for spot lining and ATV access for weed control to improve flow and reduce seepage. (Similar spot lining is currently underway by one irrigation district in the Shasta Valley. The projects works on a few sections each year.) Funding for such projects is a major obstacle to seepage control. It should be noted that early in the 1990s, the State of California claimed a portion of many irrigation district’ self-assessment funding collected through the tax rolls, leaving the districts poor in financial resources to implement any efficiency measures. Currently, many farmers along the ditches benefit indirectly from seepage and tailwater, through sub-irrigation and aquifer recharge. There is a reluctance to embrace possible changes under federal or state funding that require dedication of “water savings” to instream fisheries needs when water supply is insufficient to meet the irrigation water use rights of senior appropriators. [Note: There is much case law to support current diversion practices although they may have substantial water loss through soil: See 1893 Barros v. Fox 98 Calif. 63, 64-67, 32 Pac. 811 – The court stated that the appropriator in conveying water to the place of use is required to keep his flumes and ditches in good repair in order to prevent unnecessary waste. However, in regions in which ditches and flumes are the usual and ordinary means of conveying water, parties who have made their appropriations y such means cannot be compelled to substitute pipes. Siskiyou County Comprehensive Land & Resource Management Plan February 1996 ` See 1912 Thayer v. California Development Co. Calif 117, 125, 128, 137, 128 Pac 1 – the court recognized that there is always and inevitably a difference between the quantity of waste diverted and the quantity that reaches the place of use through open ditches and flumes, so that some loss by absorption and evaporation necessarily takes place even in conduits well-constructed and maintained. The court stated: “So much of the water as may be unavoidably wasted is to be deemed a part of what is appropriated to beneficial use.” See 1925 Witherill v. Brehm 74 Calif. App. 286, 295-296, 240 Pac. 529 and 1929 207 Calif. 574, 579-580, 279 Pac. 432 – the court ruled that methods of water conveyance that have been used for long periods of time and that conform to the custom of the country are not to be held unreasonable, even though they result in losses of water in transit amounting in some areas of 30-50%. See 1929 Joerger v. Pacific Gas & Electric Co. Calif. 8, 23, 24, 276 Pac. 1017 – the court ruled that the irrigator was entitled to make reasonable use of the water according to the custom of the locality. The amount of water required to irrigate lands should be determined in reference to the system used (in this case flood irrigation,) although it may result in some waste which might be avoided by the adoption of another or more elaborate and extensive distribution system. The court stated there is no authority which requires an appropriator of water to change his system or irrigation so that others may perhaps be benefitted thereby. See 1930 Mt. Shasta Power Corp. v. McArthur 109 Calif. App. 171, 181, 292 Pac. 549 – the court ruled that if an irrigation system conforms to the standards of the community, even though it may be primitive and wasteful as compared with more modern methods of irrigating, its use may not be disturbed on that account. See 1935 Tular Irrigation District v. Lindsay – Strathmore Irrigation District 3 Calif. 2d, 489, 525-526, 547, 567-568 45 Pac. 2d 972 – The appropriator is entitled to the quantity of water needed for reasonable beneficial use at the place of use, plus reasonable conveyance loss under reasonable method of diversion. Appropriators in this case had been conveying water in earthen ditches for long periods of time – some of them for more than 50 years – and it appeared the conveyance losses amounted from 40-45%. The court ruled that the appropriators had the right, as a matter of law, to transport the water in that way and could not be compelled, at their own expense, to construct impervious conduits to save water.
F52:
Lux v. Haggin, 69 Calif. 255, 390, 4 Pac. 919 (1884), 10 Pac. 674 (1886).
F53:
In Eddy v. Simpson, 3 Calif. 249, 252, (1853), the court stated: “It is laid down by our law writers, that the right of property in water is usufructuary, and consists not so much of the fluid itself as the advantage of its use. The owner of land through which a stream flows, merely transmits the water over its surface, having the right to its reasonable use during its passage. The right is not in the corpus of the water, and only continues with its possession.” Vernon Irr. Co. v. Los Angeles, 106 Calif. 237, 257, 39 Pac. 762, (1895) established that riparian water rights were usufructuary in nature. (See also Hargrave v. Cook Siskiyou County Comprehensive Land & Resource Management Plan February 1996 ` (1895); Gould v. Eaton 117 Calif. 539, 542, 49 Pac. 577 (1897); Duckworth v. Watsonville Water & Light Co. (1907). In 1914, the Water Code provided under division 2 water, sec. 1001: “Nothing in this division shall be construed as giving or confirming any right, title or interest to or in the corpus of any water.”
F54:
PRE-1928 RIPARIAN – In Miller & v. Madera Canal & Irrig. Co., 155 Calif. 59, 76, 77, 99 Pac. 502; (1907 & 1909) the Court rules that, as against an appropriator, the riparian owner was not held to any measure of reasonableness. (This was reversed by the Calif. Constitutional Amendment of 1928.) In 1926, the California Supreme Court in Herminghaus v. Southern California Edison, 200 Cal. 81, 88, 92, 103, 252 Pac. 607, ruled that a downstream riparian may command the entire flow of a river to flood irrigate. 1928 CONSTITUTIONAL AMENDMENT – On November 6, 1928, in response to public protest on the Herminghaus decision, the California Constitution (Article X, Section 2,) was amended to require all water uses, not just appropriative, to be both reasonable and beneficial. The amendment was drawn after a long series of legislative hearings and other conferences and discussions extending over many parts of the state. “It is hereby declared that because of the conditions prevailing in the State the general welfare requires that the water resources of the State be put to beneficial use to the fullest extent of which they are capable, and that the waste or unreasonable use or unreasonable method of use of water be prevented, and that the conservation of such waters is to be exercised with a view to the reasonable and beneficial use thereof in the interest of the people and for the public welfare. The right to water or use or flow of water in or from any natural stream or water course in the State is and shall be limited to such water as shall be reasonably required for the beneficial use to be served, and such right does not and shall not extend to the waste or unreasonable use or unreasonable method of use or unreasonable diversion of water. Riparian rights in a stream or water course attach to, but to no more than so much of the flow thereof as may be required or used consistently with this section, for the purposes for which such lands are, or may be made adaptable, in view of such reasonable and beneficial uses; provided, however, that nothing herein contained shall be construed as depriving any riparian owner of the reasonable use of water of the stream to which his land is riparian under reasonable methods of diversion and use, or of depriving any appropriator to water to which he is lawfully entitled.” In Peabody v. Vallejo, 2 Calif.-2d-351, 368, 372, 374-375, 40 Pac.-2d -486; (1935,) the Calif., in interpreting the 1928 amendment, the court stated; “distinctions heretofore made between the usual or extraordinary and the usual or ordinary flood and freshet of waters of a stream are no longer applicable.” Siskiyou County Comprehensive Land & Resource Management Plan February 1996 ` The 1928 amendments were epitomized as follows: 1) The right to the use of water is limited to such water as shall be reasonably required for the beneficial use to be served; 2) Such right does not extend to the waste of water; 3) Such right does not extend to unreasonable use or unreasonable method of use or unreasonable method of diversion of water; 4) Riparian rights attach to, but to no more than so much of the flow as may be required or used consistently with this section of the Constitution. In Tulare Irrigation District v. Lindsay-Strathmore Irrigation District, 3 Calif.-2d-489, 525-526, 547, 567-568 45 Pac.-2d- 972; (1935,) the court stated; “It is to be noted that the new doctrine embodied in the constitutional amendment, as interpreted in Peabody case, not only applies the doctrine of reasonable use as between riparian and appropriator, but also between an overlying owner and an appropriator. The overlying owner in this state has been held to have analogous rights to those of a riparian…Such overlying owner is now subject to the same restrictions as those applicable to riparian owners. The court also stated; “What is beneficial use at one time may, because of changed conditions, become a waste of water at a later time.” It qualified that in an area of great need for water, the use of an appreciable quantity of water for the purpose of exterminating gophers and squirrels during the winter is not considered a reasonable and beneficial use. The appropriator is entitled to the quantity of water needed for reasonable beneficial use at the place of use, plus a reasonable conveyance loss under a reasonable method of diversion. Appropriators in this case had been conveying water in earth ditches for long periods of time – some of them for more than 50 years – and it appeared that conveyance losses amounted from 40-45%. The court ruled that the appropriators had the right, as a matter of law, to transport the water in that way and could not be compelled, at their own expense, to construct impervious conduits to save water. The court stated at 3 Calif. (2d) 547: “In determining what is a reasonable quantity for beneficial uses, it is the policy of the state to require within reasonable limits the highest and greatest duty from the waters of the state…However, an appropriator cannot be compelled to divert according to the most scientific method known. He is entitled to make a reasonable use of the water according the general custom of the locality, so long as the custom does not involve unnecessary waste.” In Meridian v. San Francisco, 13 Calif.-2d-424, 445, 447, 449, 90 Pac.-2d- 537; (1939,) The Calif. Supreme Court stated: “It was undoubtedly the purposes of the proponents of the amendment of 1928 to make it possible to marshal the water resources of the state and make them available for the constantly increasing needs of all of its people.” The amendment means: “that when the law has guaranteed to the riparian owner the use of the waters of the stream to the full extent to which he may put the same for all present and prospective beneficial purposes and has made available to him the means of protecting the rights so guaranteed, he has received the full measure of his benefit and protection to which he is entitled, and can claim no more.” Siskiyou County Comprehensive Land & Resource Management Plan February 1996 ` The amendment limits the riparian owner to a reasonable beneficial use of water, but likewise safeguards his right to whatever part of the natural flow of the stream is necessary to yield him such reasonable beneficial use. The riparian owner is not entitled to an injunction to control the use of the water by an appropriator who is exercising a subordinate right that is in no way injurious to the riparian right. When a riparian or overlying water owner brings an action against an appropriator, it is now necessary for the trial court to determine whether such owners, considering the needs of those in a particular area are putting the waters to a reasonable beneficial use under reasonable methods if diversion and use. The Calif. Supreme Court stated concerning “waste”. The term is necessarily relative. As denounced by the amendment of 1928, it was the use of water by riparian owner under an asserted, and therefore protected right to compel the waters of the stream, without any benefit to himself, to flow to a lower level and onto the sea when otherwise beneficial use could be made of the same.” The court also stated: “It was undoubtedly the purpose of the proponents of the amendment of 1928 to make it possible to marshal the water resources of the state and make them available for the constantly increasing needs of all its people. In according to that great purpose its proper significance it is necessary and appropriate to declare, as inherent in the plan, that the storage of water for the purposes of flood control, equalization and stabilization of the flow and future use, it is included in the beneficial uses to which the waters of the rivers and the streams of the state may be out within the intent of the constitutional amendment. But such right of storage must necessarily be subordinate to all beneficial uses of the stream made in the exercise of riparian and prior appropriative rights. And the right of storage may be exercised only pursuant to appropriations lawfully made.” APPROPRIATIVE – In Barrows v. Fox 98 Calif. 63, 64-67, 32 Pac. 811 (1893), the court stated that the appropriator in conveying water to the place of use is required to keep his flumes and ditches in good repair in order to prevent unnecessary waste. However, in regions in which ditches and flumes are the usual and ordinary means of conveying water, parties who have made their appropriations by such means cannot be compelled to substitute pipes. In Thayer v. California Development Co. Calif 117, 125, 128, 137, 128 Pac 21 (1912), the court recognized that there is always and inevitably a difference between the quantity of water diverted and the quantity that reaches the place of use through open ditches and flumes, so that some loss by absorption and evaporation necessarily takes place even in conduits well-constructed and maintained. The court stated: “So much of the water as may be avoidably wasted is to be deemed a part of what is appropriated to beneficial use.” In Hufford v. Dye, 162 Calif. 147, 159, 121 Pac. 400; (1912,) the court stated; “The use of water in tis state is of such great necessity as to preclude its being allowed to run to waste and its full beneficial and economical use requires, that when the wants Siskiyou County Comprehensive Land & Resource Management Plan February 1996 ` of one appropriator are supplied another may be permitted to use the flow for his benefit.” In Dannenbrink v. Burger 23 Calif. App. 587, 593-595, 138 Pac. 751 (1913); hearing denied by the Calif. Supreme Court – court ruled that while an appropriator may at all times keep his ditch and essential equipment in such repair as will preserve to him all waters he has rightfully appropriated and which are required for the purposes he lawfully applies the, nevertheless, he may not construct his flumes and dam as to prevent waters that have been seeping there from for many years, and have been applied to beneficial use by other appropriators during all such time, from continuing to escape into the stream from which originally diverted, to the injury of other appropriators. Those who for long periods of time (in the cited case about 25 years,) have appropriated and continuously used the waters thus seeping back into the stream were entitled to continue to use as against the appropriator of the original flow. In California Pastoral & Agricultural Co. v. Madera Canal & Irr. Co., 167 Calif. 78 84- 86, 88-89, 138 Pac. 718; (1914,) the Court stated: “It is further substantially declared that wherever the question has been considered that beneficial use is not what is actually consumed, but what is reasonably necessary for the purpose to which the water is devoted, and that an excessive diversion of water for any purpose cannot be regarded as a diversion for beneficial use, in so far as it is in excess of any reasonable requirement for that purpose.” “The effect of the decisions clearly appears to be that one actually diverting water under a claim of appropriation for a useful or beneficial purpose, cannot by such diversion acquire any right to divert more water than is reasonably necessary for such use or purpose, no matter how long a diversion in excess thereof has continued.” In Felsenthal v. Warring, 40 Calif. App. 119, 127, 133, 180 Pac. 67; (1919,) the Court stated; “The extent of an appropriator’s or adverse user’s right is limited, not by the quantity of water actually diverted, nor by the capacity of his ditch, but by the quantity which is, or may be, applied by him to his beneficial uses…An appropriator’s right is limited to such quantity, not exceeding the capacity of his ditch, as he may put to a useful purpose upon his land within a reasonable time, by use of reasonable diligence…A diversion over and above what is reasonably necessary for the uses to which he devotes the water cannot be regarded as a diversion for beneficial use. He cannot waste.” In Witherill v. Brehm 74 Calif. App. 286, 295-296, 240 Pac. 529 (1925) and 207 Calif. 574, 579-580, 279 Pac. 432 (1929), the court ruled that methods of water conveyance that have been used for long periods of time and that conform to the custom of the country are not to be held reasonable, even though they result in losses of water in transit amounting in some areas of 30-50%. In Joerger v. Pacific Gas & Electric Co., 207 Calif. 8, 23, 24, 276 Pac. 1017; (1929,) the court stated; “While an appropriator can claim only the amount (of water) which is necessary to properly supply his needs, and can permit no water to go to waste, he is not bound, as here claimed, to adopt the best method for utilizing the water or take Siskiyou County Comprehensive Land & Resource Management Plan February 1996 ` extraordinary precautions to prevent waste. He is entitled to make a reasonable use of the water according to the custom of the locality and as long as he does so, other persons cannot complain of his acts. The amount of water required to irrigate his lands should, therefore, be determined by reference to the system used, although it may result in some waste which might be avoided by the adoption of another or more elaborate and extensive distribution system…” “The lands of the plaintiff, as above pointed out, constitute a contiguous area along the knolls and sloping hillsides adjacent to Hat Creek. The ground is hilly and porous, marked by numerous depressions, and is irrigated by turning the water upon the ground and permitting it to run over the slopes. This is the character of system commonly used in the vicinity. There is no authority which requires an appropriator of water to change his system of irrigation so that others may perhaps be benefitted thereby, assuming that the method may produce some waste.” In the Joerger case, an allowance had been made for 2 1.2 miners inches per acre for the irrigation season and 1 ¼ m.i. during the nonirrigation season for preservation of the ditch and other purposes. The argument that this was excessive was overruled with consideration of the particular conditions. The determination of the duty of water in a particular controversy is a judicial function with consideration of the facts and circumstances of each particular case. The court stated: “In this state there is no statute which definitely regulates the duty or amount of water reasonably necessary for irrigation. This being so, the question becomes one of fact for the court, in a given case, to determine upon the evidence presented to it. The question of what quantum of water is reasonable required for irrigation is necessarily a complicated one, depending, as it does upon many different conditions. The character of the soil, the area sought to be irrigated, the climatic conditions, the location, quality and altitude of the lands, the kinds of crops to be raised and the length of the irrigation season must all be taken into consideration and weighed as well with other conditions as may be peculiar to each particular case…Under such circumstances it is apparent there can be no exact uniform rule for computing the duty or reasonable quantity of water for irrigation to be applied to all cases alike.” In Mt. Shasta Power Corp. v. McArthur 109 Calif. App. 171, 181, 292 Pac. 549 (1930), the court rules that if an irrigation system conforms to the standards of the community, even though it may be primitive and wasteful as compared with more modern methods of irrigating, its use may not be disturbed on that account. GENERAL – In Lodi v. East Bay Municipal Utility Dist., (7 Calif.-2d-316, 339-340, 60 Pac.-2d-439, (1936), the court ruled that before issuing a decree entailing a great waste of water in order to safeguard a prior right to a small quantity of water, the Amendment of 1928 compels trial courts to ascertain whether a physical solution to the problem exists that will avoid the waste and at the same time not unreasonably or adversely affect the vested right of the paramount holder. The court stated that the release of a large quantity of water which, after having served the purpose of forcing a relatively small quantity of water into adjacent land, flows for the most part unused to the sea, is clearly a waste of water. Siskiyou County Comprehensive Land & Resource Management Plan February 1996 ` The court marked the 1928 California Constitutional amendment as a turning point to the requirement that a physical remedy be sought to avoid Waste. Prior to the amendment, a prior appropriator to ground (well) water fed by a stream was entitled to an injunction against subsequent appropriators of surface water (stream) that lowered the water table in injury of the prior well water user. In Rancho Santa Margarita v. Vail, (11 Calif.-2d-501, 554-555, 559, 81 Pac.-2d- 533, (1938), the court stated that if no physical solution to the problem of wasting water to protect a prior right to a small quantity of water is suggested by the parties, it is the duty of the trial court to work one out independent of them.
F55:
Alta Land & Water Co. v. Hancock, 85 Calif. 219, 229, 24 Pac. 645 (1890).
F56:
Ranch Santa Margarita v. Vail, 11 Calif. (2d) 501, 528, 533 81 Pac. (2d) 533 (1938.) Title Insurance & Trust Co. v. Miller & Lux, 183 Calif. 71, 85, 190 Pac. 433 (1920) Omnes v. Crawford, 202 Calif. 766, 768, 262 Pac. 722 (1927), Joerger v. Pacific Gas & Electric Co., 207 Calif. 8, 30-33, 276 Pac. 1017 (1929); Joerger v. Mt. Shasta Power Corpn., 214 Calif. 630, 635, 7 Pac. (2d) 706 (1932).
F57:
Anaheim Union Water Co. v. Fuller, 150 Calif. 327, 328-329, 88 Pac. 978 (1907).
F58:
Boehmer v. Big Rock Irr. Dist., 117 Calif. 19, 26-27, 48 Pac. 908 (1897). Lux v. Haggin, 69 Calif. 255, 424-428, 4 Pac. 919 (1884), 10 Pac. 674 (1886).
F59:
Title Insurance & Trust Co. v. Miller & Lux, 183 Calif. 71, 82, 190 Pac. 433 (1920).
F60:
California Pastoral & Agriculture Co. v. Enterprise Canal & Land Co., 127 Fed. 741, 742 (S.D. Calif., 1903). United States v. Central Stockholders’ Corporation of Vallejo, 43 Fed. (2d) 977, 981 (S.D. Calif. 1930. Lux v. Haggin, 69 Calif. 255, 340- 341, 368-376, 4 Pac. 919 (1884), 10 Pac. 674 (1886). Modoc Land & Live Stock Co. v. Booth, 102 Calif. 151, 152-154, 156-158, 36 Pac. 431 (1894).
F61:
In Anaheim Union Water Co. v. Fuller, 150 Calif. 327, 330, 88 Pac. 978 (1907), the court stated; “Land which is not within the watershed of the river is not riparian thereto, and is not entitled, as riparian land, to the use or benefit of the water from the river, although it may be part of an entire tract which does extend to the river.” The “rules” regarding watershed of a main stream and those of its tributaries are that each tributary is considered a separate stream with regard to lands contiguous thereto above the junction, so that land lying within the watershed of one tributary above that joint is not riparian to the other stream. As against lower reparians located below the confluence of a main stream and tributary, the watersheds of the main stream and the tributary constitute parts of a single watershed. American Union Water Co. v. Fuller, 150 Calif. 327, 330-331, 88 Pac. 978 (1907). Holmes v. Nay, 186 Calif. 231, 240-241, 199 Pac. 325 (1921). Crane v. Stevinson, 5 Calif. (2d) 387, 399-400, 54 Pac. (2d) 1100 (1936). Siskiyou County Comprehensive Land & Resource Management Plan February 1996 `
F62:
Rancho Santa Margarita v. Vail, 11 Calif. (2d) 501, 561, 81 Pac. (2d) 533 (1938), Bathgate v. Irvine, 126 Calif. 135, 142, 58 Pac. 442 (1899). Ferrera v. Knipe, 28 Calif. 340, 343-344 (1865). Hale v. Mclea, 53 Calif. 578, 584 (1879). Smith v. Corbitt, 116 Calif. 587, 592, 48 Pac. 725 (1897). Cowell v. Armstrong, 210 Calif. 218, 224-225, 290 Pac. 1036 (1930). Lux v Haggin, 69 Calif. 255, 395, 4 Pac. 919 (1884), 10 Pac. 674 (1886). Stanford v. Felt, 71 Calif. 249, 250, 16 Pac. 900 (1886). Drake v. Tucker, 43 Calif. App. 53, 58, 184 Pac. 502 (1919).
F63:
Cowell v. Armstrong, 210 Calif. 218, 224-226, 290 Pac. 1036 (1930), the court stated; “In none of the cases relied upon do the facts disclose that any more than the ordinary number of domestic animals are involved; and the statements of the court in those cases in recognizing the distinction made by the common law between the right to the ordinary use of the water for man’s natural wants, i.e., for domestic uses and for cattle, and the right to its use for his extraordinary or artificial wants…among which is its use for irrigation…in the absence of authority directly in point, must apply to the factors to which they were obviously intended to apply, vis., for the use of stock and animals ordinarily kept to sustain the domestic needs of man. There is no indication in the cases relied upon that if the stock exceeded those necessary for the ordinary domestic uses, and increased to the proportions of an industry so that the primary object of the owner was to raise stock in large herds for the market, the common-law rule of preference would still apply.”
F64:
In Ellis v. Tone, 58 Calif. 289, 300 (1881), the court instructed the jury; “Every riparian owner upon a stream has the right to use in a reasonable way, the water of said stream for domestic purposes, for irrigation of his land, or for propelling machinery, if the quantity of water will warrant such use above the amount required for domestic purposes. In Mentone Irr. Co. v. Redlands Electric Light & Power Co., 155 Calif. 323, 327, 100 Pac 1082 (1909), the court held that the use of water by a riparian owner in its passage through his land to operate a power plant thereon “is clearly within his rights as is his right to operate a mill thereon with which to grind grain or to operate any other machinery, than which there is no more ancient or well-established feature of riparian rights.” (See Herminghaus v. Southern California Edison Co., 200 Calif. 81, 109, 252 Pac. 607 (1926). Fall River Irr. Dist. V. Mt. Shasta Power Corpn., 202 Calif. 56, 71-72, 259 Pac. 444 (1927), Miller & Lux v. San Joaquin Light & power Corpn., 120 Calif. App. 589, 609, S. ac. (2d) 560 (1932). Crum v. Mt. Shasta Power Corpn., 124 Calif. App. 90, 94, 12 Pac. (2d) 134 (1832). Moore v. California Oregon Power Co., 22 Calif (2d) 725, 730, 140 Pac. (2d) 798 (1943). Seneca Consolidated Gold Mines Co. v. Great Western Power Co., 209 Calif. 206, 215, 219, 287 Pac. 93 (1930). The court held in Callison v. Mt. Shasta Power Corpn., 123 Calif. App. 247, 252, 11 Pac. (2d) 60 (1932), that the generation of hydroelectric energy is not a “natural” use of the water, such as domestic use and the watering of farm animals; it is an “artificial” use. Hence, for such purpose, the right of the landowner is limited to use of his reasonable proportion of the water of the stream. (See also Joeger v. Mt. Shasta Power Corpn., 214 Calif. 630, 636-637, 7 Pac. (2d) 706 (1932). Crum v. Mt. Shasta Power Corpn., 220 Calif. 295, 306-307, 30 Pac. (2d) 30 (1934.) Siskiyou County Comprehensive Land & Resource Management Plan February 1996 `
F65:
The use of a stream by a riparian owner for recovery of rock, sand and gravel deposited by the stream on his land for sale as building material is a beneficial use within the riparian right. Los Angeles County Flood Control District v. Abbot, 24 Calif. App. (2d) 728, 734, 76 Pac. (2d) 188 (1938).
F66:
Hilbert v. Vallejo, 19 Fed (2d) 510, 513 (C.C.A. 9th, 1927): “The rule [right to full flow] is evidently not suited to the conditions of a dry climate such as we have in this state. It is accordingly well settled here that each riparian owner has a right to a reasonable use of the water on his riparian land for the irrigation thereof, and that the so-called common-law right of each to have the stream flow by his land without diminution is subject to the common right to all to a reasonable share of the water.” In Harris v. Harrison, 93 Calif. 676, 683, 29 Pac. 325 (1892), the court stated, “the doctrine of riparian ownership has by judicial decision been modified, or rather enlarged, so as to include the reasonable use of natural water for irrigating the riparian land, although such may appreciably diminish the flow down to the lower riparian proprietor. And must be taken to be the established rule in California, at least, where irrigation is thus necessary.” (See also, Bathgate v. Irvine, 126 Calif. 135, 142, 58 Pac. 442 (1899).
F67:
In Alta Land & Water Co. v. Hancock, 85 Calif. 219, 230, 24 Pac. 645 (1890), the court stated that irrigation had never been held to be a natural use of water in California and was subordinate to the use of water for domestic uses and the watering of farm livestock. The right of irrigation applies only to the surplus waters over and above those needed for natural uses. (see also Drake v. Tucker, 43 Calif. App. 53, 58, 184 Pac. 502 (1919).) In Gould v. Stafford, 77 Calif. 66, 67-68, 18 Pac. 870 (1888), the court held that it is after the natural wants of the riparian owners for strictly domestic purposes and watering of domestic animals that the several riparian owners are entitled to a reasonable use of the remaining water for irrigation. It was determined in Lux v. Haggin, 69 Calif. 255, 408-409, 4 Pac. 919 (1884), 10 Pac. 674 (1886) that the riparian owner is entitled to a reasonable use of the water of a stream for the purposes of irrigation.
F68:
The riparian user does not have the right to insist upon full flow for aesthetic reasons. The court in Rose v. Mesmer, 142 Calif. 322, 330, 75 Pac. 905 (1904) stated; “A riparian owner, under the circumstances of scarcity such as here existed, and in view of the prevailing understanding and custom, would have no right, as against other owners in common of the same land and of a part of the same water- right, to insist on the full flow of the stream over his land for the mere pleasure of looking at it as a feature of the landscape.” His right would be limited to so much of the water as should be reasonably necessary for use on his riparian land.
F69:
It was held in Modoc Land & Stock Co. v. Booth, 102 Calif.. 151, 156-157, 36 Pac. 431 (1894) that in no case should a riparian owner be allowed, as of right, to restrain nonriparian owners from diverting any water upstream simply because he wishes the stream to flow by or through his land undiminished. Siskiyou County Comprehensive Land & Resource Management Plan February 1996 ` The court stated in Crum v. Mt. Shasta Power Corpn., 117 Calif. App. 586, 601, 4 Pac. 92d) 564 (1931), “It is incompatible with the interests of modern agricultural and industrial conditions in this state that a riparian land owner be permitted to watch a stream flow uselessly past his premises to the sea while upper riparian owners are deprived of their reasonable share of the water for beneficial purposes.” (See also Lux v. Haggin, 69 Calif. 255, 396, 4 Pac. 919 (1884), 10 Pac. 674 (1886). Rose v. Mesmer, 142 Calif. 322, 330, 75 Pac. 905 91904). San Joaquin & Kings River Canal & Irr. Co. v. Fresno Flume & Irr. Co., 158 Calif. 626, 629, 112 Pac. 182 (1910).
F70:
A “nuisance” use is defined as posing a real and substantial injury to the property (or beneficial use) of the lower user. The upstream user cannot be prevented from use because of the fact that necessarily some such use may somewhat impair the quality of the water, but he cannot exercise his right in such a manner as to injure those below him maliciously and unnecessarily. Whether or not the upstream use substantially injures the downstream right of use is the essential consideration. Rose v. Mesmer, 142 Calif. 322, 330, 75 Pac. 905 (1904) and Homes v. Nay, 180 Calif. 231, 241, 199 Pac. 325 (1921). In Wright v. Best, 19 Calif. (2d) 368, 382, 121 Pac. (2d) 702 (1942), the court stated in regards to an upstream mining operation; “A prescriptive right to pollute a watercourse may be acquired as against lower riparian users and their successors in interest provided the deterioration in quality is not so great as to constitute a public nuisance.” In San Joaquin & Kings River Canal & Irr. Co. v. James J. Stevenson, 164 Calif. 221, 241,128 Pac. 924 (1912), the court stated; “The riparian right is parcel of the land to which it attaches. It is local in nature. It enables the owner to enjoin an injurious interference with the stream, but it does so only when such interference affects the river where it passes by his land. If he cannot show this, he cannot complain of the interference. A use of the stream above, if it does not affect it where it passes his land, is no violation of his right.”
F71:
The right of the riparian owners to have the stream flow to his land is obviously necessary to the enjoyment of its benefits, but his right of possession and use of the water does not begin until it actually reaches the riparian land. As a result of natural flow conditions, a riparian right may be in suspense during certain periods. Duckworth v. Watsonville Water & Light Co., 150 Calif. 520, 526, 89 Pac. 338 (1907). Drake v. Tucker, 43 Calif. App. 53, 58, 184 Pac. 502 (1919). Crum v. Mt. Shasta Power Corpn., 117 Calif. App. 586, 591 (1931), Crum v. Mt. Shasta Power Corpn., 220 Calif. 295, 299-302, 30 Pac. (2d) 30 (1934). McArthur v. Mt. Shasta Power Corpn., 3 Calif. (2d) 702, 711-712, 45 Pac. (2d) 807 (1935). In Miller & Lux v. Enterprise Canal & Land Co., 169 Calif. 415, 441, 147 Pac. 567 (1915), the court stated “it is to be remembered that a riparian proprietor’s title to the water begins only when it reaches his land and less only so long as it is flowing past his land. Until it reaches his land he has no title whatsoever and no right other than the protective right to see that the full flow past his land to which he is entitled is not illegally diminished.” Siskiyou County Comprehensive Land & Resource Management Plan February 1996 ` The riparian user also has no right to the water once it has left his premises and is powerless to prevent downstream use. Hargrave v. Cook, 108 Calif. 72, 77-79, 41 Pac. 18 (1895). Holmes v. Nay, 186 Calif. 231, 234, 235-237, 242, 199 Pac. 325 (1921). United States v. Central Stockholder’s Corporation of Vallejo, 52 Fed. (2d) 322, 339 (C.C.A. 9th 1931). Akin v. Spencer, 21 Calif. App. (2d) 325, 327-328, 69 Pac. (2d) 430 (1937).
F72:
Mentone Irr. Co. v. Redlands Electric Light & Power Co., 155 Calif. 323, 328, 100 Pac. 1082 (1909). Joerger v. Mt. Shasta Power Corpn., 214 Calif. 630, 638, 7 Pac. (2d) 706 (1932.)
F73:
The California Supreme Court in Vernon Ir. Co. v. Los Angeles, 106 Calif. 237, 256, 39 Pac. 762 (1895), stated that the riparian owner may exercise his usufructuary right in the water of the stream “provided he returns it to the stream above his lower boundary.” This was further clarified in Bathgate v. Irvine, 126 Calif. 135, 144, 58 Pac. 442 (1899) that the riparian owner could not divert the water to a point where it would not flow back into the channel at a point above his lower boundary line.
F74:
Pabst v. Fimmand, 190 Calif. 124, 137, 138, 211 Pac. 11 (1922). Holmes v. Nay, 186 Calif. 231, 240, 199 Pac. 325 (1921). Turner v. James Canal Co., 155 Calif. 82, 92, 99 Pac. 520 (1909). Rose v. Mesmer, 142 Calif. 322, 329, 75 Pac. Turner v. Eastside Canal & Irr. Co., 168 Calif. 103, 108, 142 Pac. 69 (194). Miller & Lux v. Enterprise Canal & Land Co., 169 Calif. 103, 108, 142 Pqc. 69 (1914). Miller & Lux v. Enterprise Canal & Land Co., 169 Calif. 415, 440, 444-445, 147 Pac. 567 (1915). Drake v. Tucker, 43 Calif. App 53, 58, 184 Pac. 502 (1919). Smith v. Corbit, 116 Calif. 587, 591-592, 48 Pac. 725 (1897).
F75:
Charnock v. Higuerra, 111 Calif. 473, 480-481, 44 Pac. 171 (1896). Walker v. Lillingston, 137 Calif. 401, 403, 70 Pac. 282 (1902). Turner v. James Canal Co., 155 Calif. 82, 92, 99 Pac. 520 91909). Rose v. Mesmer, 142 Calif. 322, 329, 75 PAC. 905 (1904).
F76:
In Heilbron v. The 76 Land & Water Co., 80 Calif. 189, 194, 22 Pac. 62 (1880), the court held that the riparian owner has no right to convey the waters elsewhere to the detriment of the lower riparian owner. (See also Gutierrez v. Wege, 145 Calif. 730, 733, 79 Pac. 449 (1905). In Miller v. Bay Cities Water Co., 157 Calif. 256, 278, 107 Pac. 115 (1910), the court held that the riparian owner could not divert waters to nonriparian lands in such a manner, “so as to prevent another riparian owner to who they would otherwise be available, from using them on his lands.” In Gould v. Stafford, 77 Calif. 66, 68, 18 Pac. 879 (1888), it was held that the riparian right does not entitle the proprietor to take any water away to other lands not riparian to the stream. See also, Holmes v. Nay, 150 Calif 231, 285, 199 Pac. 325 (1921). Senior v. Anderson, 130 Calif. 290, 296, 62 Pac. 563, (1900). Anaheim Union Water Co. v. Fuller, 150 Calif. 327, 335, 88 Pac. 978 (1907). Turner v. James Canal co., 155 Calif. 82, 91-92, 99 Pac. 520 (1909). Mentone Irr. Co. v. Redlands Electric Light & Power Co., 155 Calif. 323, 327, 100 Pac. 1082 (1909). Turner v. Eastside Canal & Siskiyou County Comprehensive Land & Resource Management Plan February 1996 ` Irr. Co., 168 Calif. 103, 108, 142 Pac. 69 (1914). Joerger v. Mt. Shasta Power Corpn., 214 Calif. 630, 637-638, 7 Pac. (2d) 706 (1932). Morgan v. Walter, 217 Calif. 607, 615, 20 Pac. 92d) 660 (1933). Parker v. Swett, 188 Calif. 474, 485-486, 205 Pac. 1065 (1922). Alta Land and Water Co. v. Hancock, 85 Calif. 219, 229-230, 24 Pac. 645 (1890). Duckworth v. Watsonville Water & Light Co., 250 Calif. 520, 526, 89 Pac. 338 (1907). Antioch v. Williams Irr. Dist., 188 Calif. 451, 456, 205 Pac. 688 (1922). Moore v. California Oregon power Co., 22 Calif. (2d) 725, 734, 140 Pac. (2d) 798 (1943). Anaheim Union Water Co. v. Fuller, 150 Calif. 327, 334-335, 88 Pac. 978 (1907). Pabst v. Finmand, 10 Calif. 124, 137, 211 Pac. 11 (1922). Gould v. Eaton, 117 Calif. 539, 543, 49 Pac. 577 (1897).
F77:
Hill v. Newman, 5 Calif. 445, 446 (1855).
F78:
St. Helena Water Co. vs. Forbes, 62 Calif. 182, 183, 184 (1882). Lux v. Haggin, 69 Calif. 255, 391, 4 Pac. 919 (1884), 10 Pac. 674 (1886). Heilbron v. Last Chance Water Ditch Co., 75 Calif. 117, 123-4, 17 Pac. 65 (1888). Shurtleff v. Bracken, 163 Calif. 24, 26, 124 Pac 724 (1912). Palmer v. Railroad Commission, 167 Calif. 163, 173, 138 Pac. 997 (1914).
F79:
The riparian right passes with a grant of the land, not as an easement or appurtenance, but as a parcel of the land – St. Helena Water Co. v. Forbes, 62 Calif. 182, 184 (1882) [See also, Lux v. Haggin, 69 Calif. 225, 391, 4 Pac. 919 (1884), 10 Pac. 674 (1886); Stanford v. Felt, 71 Calif. 249, 16 Pac 900 (1886); Hargrave v. Cook, 108 Calif. 72, 77, 41 Pac. 18 (1895); San Francisco v. Alameda County, 5 Calif. (2d) 243, 246, 54 Pac. (2d) 462 (1936); Copeland v. Fairview Land & Water Co.,, 165 Calif. 148, 161, 131 Pac. 119 (1913)]…provided that the deed to the land does not reserve from its operation any riparian rights incident thereto – Holmes v. Nay, 186 Calif. 231, 236, 1099 pac. 325 (1921). The grantor of the right in conveyance of the land through which a stream of water flows may reserve the riparian right from conveyance – Doyle v. San Diego Land & Town Co., 46 Fed. 709, 711 (S.D. Calif 1891). Walker v. Lillingston, 137 Calif. 401, 402-404, 70 Pac. 282 (1902). If the deed of conveyance does not reserve from its operation any riparian rights incident to the land conveyed, “on the face of the deed” such rights are conveyed as a part of the land – Holmes v. Nay, 186 Calif. 231, 236, 199 Pac. 325 (1921). However, “severed” riparian rights may not be used on non- riparian lands or convey the right to another to the detriment of a downstream user – Anaheim Water Co. v. Semi-Tropic Water Co., 64 Calif. 185, 189, 30 Pac. 623 (1993). Duckworth v. Watsonville Water & Light Co., 150 Calif. 520, 526, 89 Pac. 338 (1907). Gould v. Eaton, 117 Calif. 539, 543, 49 Pac. 577 (1897). Where the owner of a riparian tract conveys away a noncontiguous portion of the tract by a deed that is silent as to riparian rights, the conveyed parcel is forever deprived of its riparian status. Ranch Santa Margarita v. Vail, 11 Calif. (2d) 501, 538, 81 Pac. (2d) 533 (1938). In Anaheim Union Water co. v. Fuller, 150 Calif. 327, 331- 332, 88 Pac. 978 (1907) the court further stated: “If the owner of a tract abutting on a stream conveys to another a part of the land not contiguous to the stream, he hereby cuts off the part so conveyed from all participation in the use of the stream and riparian rights therein, unless the Siskiyou County Comprehensive Land & Resource Management Plan February 1996 ` conveyance declares the contrary. Land thus conveyed and severed from the stream can never regain the riparian right, although it may be thereafter be reconveyed to the person who owns the part abutting on the stream, so that the two tracts are again held in one ownership.” In the subdivision of tracts of riparian land, parcels are often so located as to be left without physical continuity with the stream. Nevertheless, the original riparian right can be preserved in the detached parcels so severed from the stream if the parties to the conveyance so intend. In Anaheim Union Water Co. v. Fuller, 150 Calif. 327, 331, 88 pac. 978 (1907) it was said that the conveyance of part of a riparian tract not contiguous to the stream deprives the part so conveyed of riparian rights to the stream “unless the conveyance declares the contrary.” (See also Strong v. Baldwin, 154 Calif. 150, 156-157, 97 Pac. 178 (1908). Miller & Lux v. J.G. James Co., 179 Calif. 689, 690-692, 178 Pac. 716 (1919).
F80:
In Gould v. Stafford, 91 Calif. 146, 155, 27 Pac. 543 (1891), it was aid that the riparian right, while part and parcel of the land, may be severed or aggregated from it by grant, condemnation or prescription. In Lux v. Haggin, 69 Calif. 255, 392, 4 Pac. 919 (1884), 10 Pac. 674 (1886), the court stated; “We need not add that rights to the use of water may be acquired by grant, under some circumstances by assent, and by adverse user and possession.”
F81:
Lux v. Haggin, 69 Calif. 255, 391, 4 Pac. 919 (1884), 10 Pac. 674 (1886). Stafford v. Felt, 71 Calif. 249, 16 Pac. 900 (1886). Half Moon Bay Land Co. v. Cowell, 173 Calif 543, 551, 160 Pac. 675 (1916). Fall River Valley Irr. Dist. V. Mt. Shasta Power Corpn., 202 Calif. 56, 65, 259 Pac. 444 (1927). Hargrave v. Cook, 108 Calif. 72, 77, 41 Pac. 18 (1895). Bathgate v. Irvine, 126 Calif. 135, 141, 58 Pac. 442 (1899).
F83:
McKinley Bros. v. McCauley, 215 Calif. 229, 231, 9 Pac. (2d) 298 (1932). It is settled, said the Supreme Court, “that riparian rights do not attach to lands held by the government until such land has been transmitted to Private ownership. Rindge v. Crags Land Co., 56 Calif. App 247, 252, 205 Pac. 36 (1922) 84. (Federal) Peck v. Howard, 73 Calif. App. (2d) 308, 318, 167 Pac. (2d) 753 (1946). Haight v. Constanich, 184 Calif. 426, 430, 194 Pac. 26 (1926). (State) Shenandoah Min. & Miller Co. v. Morgan, 106 Calif. 409, 416, 39 Pac. 802 (1895). Siskiyou County Comprehensive Land & Resource Management Plan February 1996 `
F84:
(Federal) Peck v. Howard, 73 Calif. App. (2d) 308, 318, 167 Pac. (2d) 753 (1946). Haight v. Constanich, 184 Calif. 426, 430, 194 Pac. 26 (1926). (State) Shenandoah Min. & Miller Co. v. Morgan, 106 Calif. 409, 416, 39 Pac. 802 (1895).
F85:
INDIAN RESERVATIONS – In Winters v. U.S., 207 U.S. 564, (1908), the court held that all federal Indian Reservations carry an implied right to water sufficient for the purpose that the reservation was created. The priority of right dates back to the date that the reservation was created and is not subject to requirements of beneficial use or “due diligence” in developing the water source. NATIONAL FORESTS – In the case of Kansas v. Colorado, (1902 – 185 U.S. 143, 1907 – 206 U.S. 46), the federal government argued that the amount of the flow of an interstate river was “subject to the superior authority and supervisory control of the United States” by virtue of its ownership of substantial national “territories” through which the river passed, and its powers under: (1) Article IV, Section 3 – “…the power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States,” and (2) the power vested in the national government to acquire territory by treaty. The Court agreed that the federal government did have full power of legislation in respect to all Territories, subject to no restrictions other than those expressly named in the Constitution. The right to dispose of and make all necessary rules and regulations on federal “properties” located within the States were, however, severely circumscribed. The Court found that the powers of the national government within the geographical limits of the states was the same as those within the limits of the original thirteen states. Absent a definite power enumerated in the Constitution, the federal government could not legislate in respect to lands within state borders. The Court concluded “…It is enough for the purpose of this case that each state has full jurisdiction over the lands within its borders, including the beds of streams and other waters.” In 1978, the U.S. Supreme Court rules in U.S. v. New Mexico, 438 U.S. 696, that state law applies to the right to use of water in national forests unless the right to use the water was reserved to the United States at the time of withdrawal of the federal lands from the public domain. The court ruled that such implied water rights attaching to federal reservations extends only to such water necessary to accomplish the primary purpose of that reservation – which in the case of forest reserves were limited to: 1) insuring “a continuous supply of timber for the use and necessities of United States citizens”; and 2) securing favorable conditions of water flows.” The court rejected assertions that the Act established a third purpose for which forests could be created – “to improve and protect the forest within the boundaries.” The Supreme Court, however, made it clear that the existence of implied federal water rights depends on a finding of congressional intent to reserve such rights, either expressly or by necessary implication. The Court declared that “the reserved rights doctrine” is a doctrine built on implication and is an exception to Congress’ explicit deference to state water law in other areas.” Id., at 715. Siskiyou County Comprehensive Land & Resource Management Plan February 1996 ` This presumption of deference to state water law may be overcome by a finding of congressional intent to impliedly reserve water rights only after a “careful examination” of “both the assorted water right and the specific purposes for which the land was reserved” – and then only if it can be concluded that “without the water the purposes of the reservation would be entirely defeated.” Id., at 700-702 When the assessed water right is necessary only to fulfill purposes other than the primary purposes for which the land was reserved, the contrary inference arises that Congress intended federal agencies to acquire water for such secondary purposes in accordance with state law. Id., at 702. The 1988 determination in Re Waters of Hallet Creek System, 44 Cal. 3d 424, affirmed that the U.S. may assert riparian rights for California lands held in federal reservations, subject to the laws and jurisdiction of the State. BUREAU OF LAND MANAGEMENT ADMINISTERED LANDS – Under Sierra Club v. Watt, 659 F.2d 203, the District of Columbia Circuit rejected an argument in 1981 by the Sierra Club that the management objectives set out in the Federal Land Policy and Management Act at 43 U.S.C. 1701(a)(8) effected a reservation of land that conferred by implication federal reserved water rights in waters appurtenant to BLM lands. Specifically, the Circuit Court found that FLPMA, set forth the “purposes, goals and authority for the use of public domain,” and did not establish a reservation from the public domain that brought with it reserved water rights, Id., at 206. WILDERNESS AREAS – Congress’s intent not to create federally reserved water rights by wilderness designation is evidenced by the Wilderness Act’s express disclaimer of any intent to preempt state water laws. Section 4(d)(7), 16U.S.C. 1133(d)(6), provides: “Nothing in this chapter shall constitute an express or implied claim or denial on the part of the Federal Government as to exemption from State water laws.” The intent of Congress is further illustrated in the specific language used in establishing the Mon Basin National Forest Scenic Area under Title III, Paragraph (bx1) under the California Wilderness Act of 1984 to confirm that it is also subject to State water law. “Paragraph (bx1) provides that, in a manner consistent with the protection of the water rights of the State of California, the Secretary will manage the scenic area to protect its geologic, ecologic, and cultural resources and will provide for recreational and interpretive use and for scientific research…” “The Secretary is directed to manage the scenic area in a manner consistent with the protection of water rights of the State of California or any political subdivision thereof including the City of Los Angeles and that such management, under provisions of this Act, shall not affect or impair the operation of any water diversion activity in the Mono Basin or the scenic area granted under the laws of the State of California. Mono Siskiyou County Comprehensive Land & Resource Management Plan February 1996 ` Lake is within the scenic area. The rights to use water tributary to Mono Lake, and the manner of exercise of such rights is a matter to be administered by the State of California pursuant to State law.” GENERAL – In United States v. General Stockholders’ Corporation of Vallejo, 43 Fed (2d) 977, 980 (S.D. Calif. 1930) the court stated: “Plainly, the United States can have no different nor superior right as a riparian proprietor to that assigned to private ownership.” In the appeal, United States v. Central Stockholders’ Corporation of Vallejo, 52 Fed. (2d) 322, 329 (C.C.A. 9th, 1931), the court stated: “…the federal government cannot maintain an action to quiet title to its riparian rights in the public domain as against lower land owners of the stream and claimants of water flowing therein merely because under the laws of the state they may claim, and they do claim, rights inconsistent with the rights claimed by the federal government in and to the waters of such stream as a part and parcel of its public land…”
F86:
In 1921, San Bernardino v. Riverside (186 Calif. 7, 29-30, 198 Pac. 784,) the court again clarified the 1911 amendment stating: “Taken literally, this would include all the water in the state privately owned and that pertaining to the lands of the United States, as well as that owned by the state. It should not require discussion or authority to demonstrate that the state cannot in this manner take private property for public use…The constitution expressly forbids it…” In 1914 Palmer v. Railroad Commission, 167 Calif. 138, 163, 168, 170-173, 138 Pac. 997, the Court ruled that this Amendment was not and could not be retroactive and could not operate to divest private property rights already vested at the time it was enacted. The only effect it could have would be as a dedication to the general public use of any riparian rights which the State at the time it was enacted might still have retained by virtue of its ownership of lands bordering upon a stream.
F87:
In 1939 Meridian v. San Francisco (13 Calif.-2d-424, 445, 449, 90 Pac.-2d- 537,) the court clarified the assertion of State control over allocation of surplus or public waters of the State under the 1914 Water Commissions Act stating: “There are waters in the rivers and the streams of the state to which the riparian right first attaches. The rights of other lawful users on the stream also rightfully attach. In addition there are in many of the rivers and the streams of the state great volumes of water which pass on unused to the sea or to an inland drainage basin. In a real sense, the excess water is a great natural resource available for the benefit of this and future generations, as the occasion for its use may arise. These excess waters constitute the public waters of the state to be used, regulated and controlled by the state or under its direction.”
F88:
The California Court in Lux v. Haggin, 69 Calif. 225, 255, 338-339, 417-419, 4 Pac. 919, 1984; 10 Pac. 674, (1886), held that the water rights of the State of California as riparian owner of state lands were not reserved to it by Civil Code section 1422, stating: “Because the provisions of the code confer the state’s right to the flow on those appropriating water in a manner prescribed by the code.” Siskiyou County Comprehensive Land & Resource Management Plan February 1996 `
F89:
The court stated in Anaheim Union Water Co. v. Fuller, 150 Calif. 327, 335, 88 Pac. 978 (1907), “The theory of the law of riparian rights in the state is that the water of a stream belongs by a sort of common right to the several riparian owners along the stream, each being entitled to sever his share for use on his riparian land.” (See also Carlsbad Mutual Water Co. v. San Luis Rey Development Co., 78 Calif. App. (2d) 900, 911, 178 Pac. (2d) 844 (1947).
F90:
In Seneca Consolidated Gold Mines Co. v. Great Western Power Co., 209 Calif. 206, 219-221, 287 Pac. 93 (1930) a riparian owner claimed 475 cfs. The court stated “No stream in a state of nature would yield any such uniformity. Indeed, the riparian right is in its nature a tenancy in common and not a separate severable estate. The moment the right in a natural stream is specifically defined in a concrete inflexible amount, at that moment the right becomes one of priority and not riparian.” As a result the riparian right does not entitle the holder to the use of “a constant, invariable, specific quantity of water.” Gould v. Stafford, 91 Calif. 146, 152, 27 Pac. 543 (1891). Cowell v. Armstrong, 210 Calif. 218, 226, 290 Pac. 1036 (1930).
F91:
Pabst v. Finmand, 190 Calif. 124, 129, 211 Pac. 11 (1922). Lux v. Haggin, 69 Calif. 255, 408, 4 Pac. 919 (1884), 10 Pac. 674 (1880). Peake v. Harris, 48 Calif. App. 363, 381-382, 192 Pac. 310 (1920). Parker v. Swett, 188 Calif. 474, 485, 205 Pac. 1065 (1922).
F92:
Forest McDonald, Novus Ordo Seclorum, The Intellectual Origins of the Constitution, University Press of Kansas, c1985, pp. 34-35; citing – Blackstone, Commentaries, 2:18, 34, 39, 3:218, 219; Vattel, Law of Nations, bk. 1, chap. 22, secs. 266-278, pp. 124-125; Kent, Commentaries, 3:427-428; Sir Mathew Hale, A Treatise De Jure Maris (London, 1787), chaps. 4, 5; Anonymous, “The Law of Water Privilege,” American Jurist and Law Magazine 2 (1829): 25-38; Joseph K. Angell, A Treatise on the Law of Watercourses (Boston, 1854); Charles Molloy, De Jure Maritimo et Navali…(London 1676.)
F93:
Forest McDonald, Novus Ordo Seclorum, The Intellectual Origins of the Constitution, University Press of Kansas, c1985, p.35; citing – Kent, Commentaries, 3:427-432; Weeden, Economic and Social History, 1:102-103, 110, 134; Nelson, Americanization of the Common Law, 122, 160. McDonald notes; “The extension of public rights regarding waterways is illustrated by the experience of Pennsylvania. In that colony’s 1681 Concessions, landowners were given the sole and exclusive rights over rivers and waterways that crossed their land, but the legislature subsequently whittled away at those rights; by an act of 1771, for instance, the Delaware and Lehigh rivers and parts of the Susquehanna and Juniata rivers were made public highways (Thorpe, Constitutions, 5:3045, Dunaway, History of Pennsylvania, 292- 295). Similarly, the Northwest Ordinance of 1787 specified that ‘the navigable waters leading into the Mississippi and Saint Lawrence…shall be common highways and forever free.”
F94:
Under colonial rule, land grants commonly included the ownership of streams and marshlands: Siskiyou County Comprehensive Land & Resource Management Plan February 1996 ` (The following information and excerpts were taken from an abstract by Neil Marion Nugent, Cavaliers and Pioneers: Abstracts of Virginal Land Patents and Grants, Vol. 3, 1695-1732. Virginia State library, c1979.) – Form used in granting new lands in Spotsylvania and Brunswick Counties: “GEORGE by the Grace of God of Great Britain France and Ireland King Defender of the Faith & c. TO ALL TO WHOM These presents shall come Greeting. WHEREAS on the humble petition of the General Assembly of our Colony and Dominion of Virginia We have been graciously pleased to grant unto Each of our Subjects which shall go to settle in the County of Spotsylvania before the first day of May which shall be in the Year of Our Lord One thousand Seven hundred and Twenty Eight the Liberty of taking up any Quantity of Land not Exceeding One Thousand Acres free & discharged of the Duty of purchasing Rights for the same WE HAVE given granted and confirmed and by these presents for us our Heirs and Successors do give grant and confirm unto _______________, one certain Tract or parcel of Land containing - ______________ acres, &c. WITH ALL woods Underwoods Swamps Marshes Low grounds Meadows Feedings and his due share of all Veins Mines and Quarries as well discovered as not discovered within the bounds aforesaid and being part of the said Quantity of ___________acres of land and the Rivers Waters and Water courses therein contained Together with the privileges of hunting hawking fishing and fowling and all other profits commodities and hereditaments whatsoever to the same or any part thereof belonging or in any wise appertaining. TO HAVE HOLD possess and enjoy the said tract or parcel of land and all other the before granted premises and every part thereof with their and every of their appurtenances unto the said ______________ his heirs and assigns forever. TO BE HELD of us our Heirs and Successors as of our Manor of East Greenwich in the County of Kent in free and common soccage and not in Capite or by Knights Service YIELDING AND PAYING (after the first day of May One Thousand Seven Hundred and Twenty Eight) UNTO Us our Heirs and Successors for every fifty acres of land (and so proportionably for a lesser or greater quantity than fifty acres) the fee rent of One Shilling yearly to be paid upon the Feast of Saint Michael the Archangell and also Cultivating and Improving Three Acres part of every fifty of the tract abovementioned within Three Years after the date of these present.”
F95:
Rubel v. Peckham, 94 Calif. App.-2d-834, 837, 211 Pac.-2d-883 (1949); (hearing denied by Supreme Ct. in 1950) referred to Lux v. Haggin (1886) that it had been held that a grant to a tract of land bounded by a nonnavigable river or creek conveyed the land to the thread of the stream. The appellate court stated: “It is sufficient to observe that a conveyance of land which refers to and uses a nonnavigable water course as one of its boundaries conveys the rights of the grantor to the center line of such water course unless such conveyance indicates a different intention by terms expressly limiting the grant.” The State of California is the owner of all land below the tidewater within the state; likewise, of all the land below the water of a navigable lake or stream; (Calif. Civil Code Sec 26 Calif. Jur 315-316, sec. 532.) (1) When the upland borders on tidewater, the owner takes to ordinary high-water mark; (2) when it borders on a Siskiyou County Comprehensive Land & Resource Management Plan February 1996 ` navigable lake or stream, at low-water mark; (3) when it borders on any other water, the owner takes to the middle of the lake or stream. (Calif. Civ. Code sec. 830) The U.S. Army Corps of Engineers, the California Department of Fish and Game and the Siskiyou County Sheriff’s Department consider the Scott and the Shasta rivers and their tributaries to be nonnavigable. There is no differentiation made between high and low water marks for the purpose of public easement; and the banks, as well as the bed of these rivers, are considered private property and subject to prohibitions from unauthorized trespass.
F96:
In National Audubon Society v. Superior Court of Alpine County, (1983), the California Supreme Court held that the public trust doctrine protects not only navigation, commerce, wildlife and fishing, but also “changing public needs of ecological preservation, open space maintenance and scenic and wildlife preservation.”
F97:
Under Pollard’s Lessee v. Hagan, 44 U.S. at 225 11 L. Ed at 572, the Court made it clear that the transfer of legal title from nation to nation did not supersede the essence and distinct forms of sovereignty as established by the people and their Constitutional form of government. In the United States, the individual is sovereign (“sovereign people”) and delegates only that portion of his sovereignty as specified through the various constitutions of government. He retains all remaining sovereignty. “It cannot be admitted that the King of Spain could, by treaty or otherwise, impact to the United States any of his royal prerogatives; and much less can it be admitted that they have capacity to receive or power to exercise them. Every nation acquiring territory, by treaty or otherwise, must hold it subject to the constitution and laws of its own government, and not according to those of the government ceding it. (Vat. Law of Nations. Bk. 1, ch. 19, sec. 210, 244, 245, and bk. 2, ch. 7, sec. 80.) The sovereign prerogatives of the king included: TIDELANDS & SUBMERGED LANDS – Under English admiralty law, the jurisdiction of “admiralty droits” was to protect certain prerogative rights of ownership in the crown in areas between the high tide mark and navigable water. All great fish found within the zone were the property of the Crown. All beach “deodands” went to the ruler, as did “wreck of the sea,” “flotsam” (goods floating on the water,) “jetsam” (goods jettisoned by a crew) and “lagan” (jettisoned goods tied with buoys.) WASTE OR VACANT LANDS, NAVIGABLE WATER AND THE SOIL BENEATH – “According to the theory of the British constitution all vacant lands are vested in the Crown as representing the nation, and the exclusive power is admitted to reside in the crown, as a branch of the royal prerogative. It has been already shown that this principle was as fully recognized in America as in the Island of Great Britain…[W]hen the Revolution took place the people of each State became themselves sovereign; and in that character hold the absolute right to all their navigable water and the soils under them for their own common use, subject only to the rights since surrendered by the Constitution to the general government.” Martin v. Waddell’s Lessee (also known as Martin v. Waddell), 41 U.S. (16 pet.) 367, 410, 10 L.Ed. 997, 1012-1013 (1842); Siskiyou County Comprehensive Land & Resource Management Plan February 1996 ` quoting Johnson and Graham’s Lessee v. M’Intosh, (also known as Johnson v. M’Intosh), 21 U.S. (8 Wheat.) 543, 595, 5 L.Ed. 694 (1823).
F98:
In Lux v. Haggin, 69 Calif. 225, 255, 338-339, 417-419, 4 Pac. 919, 1984; 10 Pac 674, (1886), the court stated: “It has often been held by the court and its predecessors that a grant of a tract of land bounded by a river or creek not navigable conveys the land to the thread of the stream. And from a very early day the courts of this state have considered the United States government as the owner of such running waters on public lands of the United States and of their beds…It has never been hld that the right to appropriate waters on the public lands of the United States was derived directly from the State of California as the owner of innavigable streams and their beds…”
F99:
A patent to land is the judgment of the Land Department and the conveyance of the title in execution of it to the party adjudged entitled, and, when the land described was in the jurisdiction and subject to the disposition of the Land Department, it is impervious to collateral attack; Neff v. United States, 165 F. 273, 277, 91 C.C.A. 241. A patent is recognized as the highest evidence of title, conclusive against the government and all claiming under junior patents or treaties until it set aside or annulled by some judicial tribunal; United States v. Mullan, 10 F. 785, 792; Bayner v. Stanly, 13 F. 217, 223. After issuance of a patent, any subsequent claim of the United States to titles therein or other disputes between private claimants must be determined by the courts; U.S. v. McKenzie County, North Dakota, D.C.N.D., 187 F.Supp., 470 affirmed Murray v. U.S., 291 F.2d 161. Suites to cancel a patent could only be brought within the statute of limitations, except for actions brought by the U.S. government (1) to recover the value of lands fraudulently obtained; (2) to construe and enforce a patent as construed; and (3) to impress a trust of the lands for the rightful owner – U.S. v. Whited, 38 S.Ct. 367, 246 U.S. 552, 62 L.Ed. 879; Issac Walton league of America v. St. Claire, D.C. Minn, 55 F.R.D. 139, affirmed 497 F 2d, 849, certiorari denied 95 S.Ct. 329, 419 U.S. 1009, 42 .Ed.2d 284. The expression “patent,” used in Act of March 3, 1891, Section 8, 43 U.S.C.A. Section 1166, requiring suits to annual patents to be brought within six years after issuance, means a grant of land from the government. (United States v. La Goque, 198 F. 615, 648, 117 C.C.A. 349.) A suite to cancel a patent must be brought by the United States, and, unless by virtue of an act of Congress, no one but the attorney general or someone authorized to use his name, can initiate the proceeding, (U.S. – U.S. v. Throckmorton, Cal. U.S. 61, 25 L. Ed. 93.) A patent conveying land which was a part of the public domain cannot be attached or impeached by a person having no interest in the land, (U.S. – Roberts v. Southern Pacific Co., 185 P. 934, affirmed 219 1022, 134 C.C.A. 685; see also Issac Walton Siskiyou County Comprehensive Land & Resource Management Plan February 1996 ` league v. St. Claire.) Such a patent is subject to impeachment only by the United States, or its grantee, (Idaho – Johnson v. Hurst, 77 P. 784, 10 Idaho 308,) or a person who has succeeded to its rights, (Utah – Ferry v. Street, 7 P. 712, 11, P. 571, 4 Utah 521,) or by a person who was defrauded or deprived of his rights by the issuance of a patent to another, (Cal. – Mery v. Brodt, 53 P. 818, 121 Cal. 332.). In the 1984 case of Summa Corporation v. California ex. Rel. State Lands Commission and City of Los Angeles, 104 S.CT 1751, review of Cal.S. Ct. Cal.3d 288, 182 Cal. Rptr, 599, 644 P.2d 792, vacating 117 Cal.App. 3d 385, 172 Cal. Rptr. 619 the California Supreme Court held that California could not, at this late date, assert public trust easement over property where the predecessors-in-interest had their interests confirmed without mention of such easement in federal patent proceedings. The court ruled that interest claimed by California was of such magnitude that regardless of the fact that the claim was asserted by the state under its claimed sovereign capacity, the interest must have been presented in the patent proceedings or be barred. –See also: Barker v. Harvey, 181 U.S. 481, 21 S.Ct. 690, 45 L.Ed. 963; United States v. Title Ins. & Trust Co., 265 U.S. 472, 44 S.Ct. 621, 68 l.Ed. 1110.
F100:
In Joerger v. Pacific Gas & Electric Co., 207 Calif. 8, 23, 24, 276 Pac. 1017; (1929,) the court stated that: “An enlargement of a water right may be made in the same manner as a new appropriation.” An increase over the scope of the original appropriation as distinguished from progressive development originally contemplated and consummated with due diligence is subject to rights intervening between the making of the original appropriation and that of the enlargement. The court stated: “One of the essential elements of a valid appropriation is that of priority over others. Under this doctrine he who is first in time is first in right, and so long as he continues to apply water to a beneficial use, subsequent appropriators may not deprive him of the rights his appropriation gives him by diminishing the quantity or deteriorating the quality of the water.