TULARE IRRIGATION DISTRICT et al.

VS.

LINDSAY - STRATHMORE IRRIGATION DISTRICT SUPERIOR COURT, COUNTY OF TULARE. (Visalia Water Case)

1924.

Suit by the Tulare Irrigation District and others against the Lindsay-Strathmore Irrigation District. Stay of judg-. ment and continuation of temporary injunction with full pro-. tection to the parties for five years granted, provided, they notify the court within two weeks of intention to try to work out plan for adequate supply of water for both plaintiffs and defendant as suggested by the opinion.

1. WATERS AND WATERCOURSES POLICY OF DISTRIBUTION.

IRRIGATION

The declared policy of the state strongly favors the use of its waters over as great an area of its arid sections as is consistent with economical practices.

2. WATERS AND WATERCOURSES SUPPLY EVIDENCE.

IRRIGATION

Evidence held to show that a watergathering area supplemented by rainfall of the valley territory affords sufficient water for both plaintiffs and defendants except in very dry years.

3. WATERS AND WATERCOURSES IRRIGATION DEFENDANT'S PUMPING HELD TO DEPLETE PLAIN

TIFFS' SUPPLY.

In a proceeding to enjoin defendant irrigation district from pumping water, facts held to show that such pumping caused seepage depriving plaintiffs of needed water.

In an injunction suit evidence held to show that defendant's pumping water at the place in question would secure to the defendant the first and only certain water right to a varying supply at the expense of plaintiffs, who are prior appropriators,

without furnishing any practical method of diverting water to defendant when not needed by plaintiffs, making such pumping unlawful.

5. WATERS AND WATERCOURSES

IRRIGATION

The court will not require or permit one fairly irrigated section to. yield water to another section in such manner or at such times as to make two poorly or scantly irrigated sections, but will stay proceedings with full protection to the parties and continue a temporary injunction to permit the parties to work out a plan suggested by the court to furnish both, if possible, with an adequate water supply.

BRYKA

Albert Lee Stephens, Judge.

In the Superior Court of the State of California
In and for the County of Tulare.

Tulare Irrigation District, et al. vs. Lindsay-Strathmore Irrigation District.

Kaweah River watershed is a broad section of the western slope of the Sierra Nevada Mountains, consisting of about 600 square miles. The river by that name becomes a considerable stream at a small, low elevation mountain settlement, called Three Rivers, about 35 miles easterly of Visalia in Tulare County, and runs about 10 miles westerly through a wide, rocky canyon and a short distance beyond the foothills to McKay Point, where it divides over a cement weir. It is a typical California torrential stream, running low in late summer and winter, and high with great fluctuation with snow-melting weather in the spring months. The Kaweah (by that name) continues in a southwesterly direction and at about 4 or 5 miles east of Visalia assumes the name of Mill Creek.

The St. Johns, the other branch, was cut off the main river about the year 1862, by an accidental obstruction. It flows a little north of westerly and hugs closely the red tight soils that extend westerly

from the foothills by the Kaweah River. The St. Johns changes its name just east of where it is crossed by the S. P. R. R. near Goshen, becoming Cross Creek, continues to flow westerly a short distance, then flows southerly into what is called the Lakeside country and in flood periods reaches Tulare Lake.

Outside Creek takes out of the Kaweah west of McKay Point, flows southwesterly, hugging the red soils on the south, though not so closely as does the St. Johns on the north. It takes but little imagination to see the space between the St. Johns and Outside Creek as a fan spreading from a narrow handle (about 2 miles across) above McKay Point to the shores of Tulare Lake, thirty miles to the west of McKay Point. The extreme breadth of this plain is about 20 miles. This territory is a very productive agricultural, stock and dairy country, and a large portion is irrigated from the natural streams and the ditches running from these two main branches of Kaweah River.

The owners of some of these ditches, riparian land owners, and overlaying land owners are the plaintiffs herein. Then there are some riparian intervenors, and Mrs. M. R. Gray with her complaint, and all of these, for convenience, may be generally referred to as plaintiffs.

Southerly about 15 or 20 miles from The Rancho, and situated on the red lands out of the Kaweah gathering and distributing watershed, is the LindsayStrathmore Irrigation District, consisting of about 15,000 acres, more than half of which is now planted to producing citrus orchard. This is an incorporated irrigation district and is the defendant herein.

In 1916 when the construction on the project to take water from The Rancho to the District was started, there were about 7000 acres of citrus fruits planted in the District, and the depth of water from the surface of the ground was becoming greater, the

quantity of water was lessening and when pumped from considerable depth was so saline as to be deleterious to the trees. For the District to progress, or even to continue as a fruit locality, it must secure a dependable source of water. It proceeded therefore, to purchase about 1100 acres of ground riparian to the Kaweah River, and about 5 miles west of McKay Point and this tract was and is throughout the case designated as "The Rancho de Kaweah," or "The Rancho." The St.Johns River runs slightly less than a mile north, the Kaweah River runs through, and a number of plaintiff's ditches run across or near this ranch.

A short distance below The Rancho the Venice Hills, a few foothill peaks and ridges situated westerly from the regular foothill range, serve to divide the delta into what is called the upper delta or basin and the lower delta. The Kaweah River breaks through these hills in a gap about a mile wide. The St. Johns through a gap about 300 feet wide, the sandy, gravelly and clay patch soils of the upper basin are about 300 or 400 feet to bedrock.

On this ranch defendant, in 1916, began sinking wells, and at the beginning of this trial, 39 wells had been sunk. Nearly all of these wells are equipped with electrically operated pumps. Water is extracted from the soil by the pumps and transported through a pipeline and conduit to the defendant district and there used to supplement the failing water supply for irrigation and domestic uses. But this expensive outlay was not accomplished without protest before it had begun, for a number of the plaintiff waterusers on the delta, fearing that the taking of water by defendant would deplete their supply, signed and served a written notice of protest.

This is a rough outline of this great legal battle.

The declared policy of the State strongly favors the use of its waters over as great an area of its arid sections as is consistent with economical practices. It abhors waste.

The following then is the real issue of the case.

If the Defendant's taking does not seriously injure plaintiffs, the law looks with approval upon defendant's enterprise in putting water that would otherwise be wasted, to a beneficial use, thus transforming a large area of dry farming country providing homes for comparatively few families, into a highly developed horticultural district with homes on every few acres.

But on the other hand, if this act, so commendable in the abstract, is accomplished only by taking needed water away from an established district, (and it might with propriety be added, that district being almost wholly within the natural catchment basin of the water taken) surely the law and reason must run along parallel lines in prohibiting the act. The problem is simple of understanding but the elements necessary to a solution are surprisingly numerous and intricate. In this Memo-Opinion, I am mentioning only the controlling points of the case supporting my conclusions with little or no detail or argument.

In preparing the formal findings of fact upon which the judgment will be based, I shall incorporate as much detail as may appear to be useful to the parties. And I shall invite full suggestions from all parties.

I have concluded as follows:

The mountain watergathering area of the Kaweah River, supplemented by the rainfall of the valley territories, affords sufficient water in annual quantities for the uses of both plaintiffs and defendant except in very dry years. I have been unable to discover any plan whereby it may be made available to defendant for the following reasons:

1st. The taking of water by defendant depletes the sands underlying The Rancho de Kaweah and the territory immediately surrounding the wells to such an extent that the flow of the St. Johns River, the Kaweah River, the Peoples Ditch, Ketchum Ditch and Lane Slough are substantially lessened through ex