240 IRRIGATION INVESTIGATIONS IN CALIFORNIA. 



viduals. And here it raised a question of fact, denying that the plaintiffs. Miller & 

 Lux, and the San Joaquin and Kings River Canal and Irrigation Companj', had at 

 any times diverted or used 3,000 cubic feet of water per second from said river, or 

 an}^ amount in excess of 480 cubic feet of water per second, and denied the right ot 

 plaintifl's to divert more than 480 cubic feet of water per second; and further alleged 

 that there was at all times flowing in San Joaquin River water greatly in excess of 

 this amount, and sufficient to enable both plaintiffs and defendant to take out all the 

 water rightfully belonging to them. It admitted that it did construct said ditch or 

 canal, and did divert water through it, but declared that it had a right to do so, there 

 being in the river water in excess of the amount rightfully belonging to plaintiffs. 

 Of course the question of the amount of water rightfully to be claimed by either 

 party was largely to be answered by evidence. The plaintiffs, as prior appropriators, 

 were of course entitled to the full amount of water thej^ had claimed and actually 

 used; but if there had been water in excess of this amount it would seem that a later 

 appropriator would have the right to take that excess. But there, again, the 

 riparian rights of the plaintiffs came in and complicated the matter. Would the 

 taking out, through a canal above the lands of the plaintiffs, of these waters, have 

 so diminished the stream as to interfere with plaintiffs' riparian rights? This would 

 also seem to be a question to be answered by the evidence. But the matter of the 

 construction of the law came in on their claim to have their lands flooded yearly by 

 the surplus water of the river, without interference by other parties; and it was this 

 claim that the defendant most strongly contested. 



It further asserted that plaintiffs, as canal owners and irrigation companies, had 

 no right to engage in farming and cultivation of the soil, using thereon the waters 

 taken from the San Joaquin through their canals. It further averred that the dam 

 of the San Joaquin and Kings River Canal and Irrigation Company between the mouth 

 of San Joaquin River and Sycamore Point was a nuisance, and obstructed navigation. 

 Defendant claimed the right to divert 500,000 cubic inches of water, measured under 

 a 4-inch pressure, and also to receive into its canal or ditch all the overflow water of 

 the San Joaquin claimed by the plaintiffs as riparian to their lands. As will be seen, 

 this was a ver\' important suit, embracing a large number of perplexing questions; 

 yet, withdrawing the case fi'om its side issues, it resolved itself into a conflict between 

 certain riparian proprietors protesting against any diminution of the stream on which 

 their lands were situated, and claiming also as appropriators and actual users of the 

 water, and another appropriator who claimed the right to construct a canal and 

 take water from the stream at a point above the lands of the riparian owners, said 

 water to be used for the irrigation and reclamation of lands which probably could not 

 be otherwise irrigated, but which were not riparian lands.- The riparian owners and 

 first appropriators claimed that their necessities and rights cover the normal flow of 

 the stream. The second appropriators claimed that they did not. The riparian 

 owners and appropriators claimed that the overflowing of their lands by the flood 

 waters of the stream was a part of their riparian rights. The second appi"opriator 

 claimed his right to div^ert all this flood water into his ditch, to be carried on to certain 

 other lands, there to be used for irrigation. Another defendant sued herein, Jeffer- 

 son James, set up a similar defense, but in addition claimed riparian rights on 

 Fresno Slough, a natural water course flowing into the San Joaquin. A complaint 



