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111 C. Cls.

EMINENT DOMAIN-Continued

Held

(a) Since the deed to plaintiff Potter was subject
only to the "existing water rights” of Miller & Lux,
who did not have the right to store water at Friant
Dam, plaintiff Potter is entitled to recover from the
defendant the value of the water rights appurtenant
to the Potter lands, of which he was deprived by the
erection of the Friant Dam (Case No. 46245).

(b) In the deed from Miller & Lux to plaintiffs
Martin Erreca, et al., where the reservation went
beyond the existing rights of Miller & Lux and pro-
vided that the rights reserved included the right “to
store, impound, divert and use all or any part of the
waters of the San Joaquin River” and should be an
easement on the lands conveyed and the riparian
rights thereto; the grantor intended to retain not only
the rights it had already acquired but also the right,
as against the grantee, to appropriate additional water
in the river, and plaintiffs are not entitled to recover
(Case No. 46247).

(c) In the deeds to the Gerlach Live Stock Company
and Martin Erreca, sole, which are identical in their
terms, where the grantor intended to reserve its
existing water rights, “including the right to contract
for or to permit storage on the upper reaches of the
San Joaquin River”; the quoted language related to
certain preexisting contracts for storage of water for
hydroelectric power production only, and the right
was not reserved to contract for or to permit diversion
of the waters of the river, and plaintiffs are entitled to

recover (Cases Nos. 46009 and 46244). Id.
IV. Under the decisions of the courts of California, it is

held that plaintiffs were not deprived of all of their
rights as riparian owners by the amendment to the
California Constitution adopted in 1928 (Article
XIV, Section 3) which preserves in an owner the
right to use the waters of the stream to which his
lands are riparian only to the extent that he can
beneficially use them without unnecessary waste,
since plaintiffs had the right to demand that de-
fendant provide such a physical solution as would
permit plaintiffs to receive so much of the waters as
plaintiffs could beneficially use, or in the alternative
to compensate plaintiffs for the deprivation of their

rights. Id.
V. Where defendant entered into a contract with Miller

& Lux, former owner of plaintiffs' lands, under

111 C. Cls.

recover.

EMINENT DOMAIN —Continued

which defendant agreed to pay $9 per acre for the
taking of the water rights involved in the instant
cases; and where defendant placed in escrow a sum
to be disbursed upon the determination of the
respective claims herein; it is held that this was
recognition on the part of defendant that plaintiffs'

rights were worth at least that amount. Id.
VI. Under the decisions of the courts, it is held that the

time of taking, as in the erection of a dam, comes
whenever the Government's intention to take has
been definitely asserted and begins to carry out that

intent. Id.
VII. In the case at bar there can be no doubt that the

Government intended to deprive plaintiffs of
whatever water rights they had in their lands, and
upon the facts and circumstances of the case it is
held that the taking occurred not later than October

20, 1941. Id.
VIII. In a suit for alleged taking of the appropriative rights

of plaintiffs to certain waters of the San Joaquin
River by the building of the Friant Dam in Cal-
ifornia, it is held that the plaintiffs are entitled to

See Gerlach Live Stock Co. v. United
States, and other similar cases, Nos. 46009, 46245,
46247, Ante, p. 1. East Side Canal & Irrigation

Co., 124.
IX. On January 21, 1929, James J. Stevinson, a corpora-

tion, which owns all the land, with minor and
unimportant exceptions, within the Stevinson
Water District, entered into a contract with
Miller & Lux, Inc. One of the provisions of the
contract required the East Side Canal & Irrigation
Company, a corporation affiliated with the Stevin-
son corporation, to dismiss suits which the Canal
Company had brought against the Miller & Lux
interests over their respective water rights, and
this was done. It is held that while by its contract
with Miller & Lux, Inc., the East Side Canal &
Irrigation Company rendered itself incapable of
carrying out its contract, or contracts, to furnish
another with water throughout the irrigation
season, the Canal Company did not, by the con-
tract, alienate the right to receive water from the

San Joaquin River. Id.
X. A decision of the Court of Appeals of California

(Crane v. East Side Canal & Irrigation Co., 6 Cal.
App. (2d) 361) in a suit brought against the East

111 C. Cls.

EMINENT DOMAIN -Continued

Side Canal & Irrigation Company by an individual
with whom the Canal Company had contracted to
furnish water for irrigation purposes is not binding
on the Court of Claims as to the rights of the

respective parties in the instant case. Id.
XI. The evidence shows that the Miller & Lux interests

did not at any time after the contract of 1929 insist
that they had the right to deprive the East Side
Canal & Irrigation Company of the appropriative
right to receive water of the San Joaquin River
in times of spring high water, ordinarily occurring

in the months of April, May, and June. Id.
XII. The plaintiffs had the right, during the periods of

high water on the San Joaquin River, not only to
receive water from that river but from streams and
man-made laterals that flowed into the canal from
the east, below the points where water from the
San Joaquin emptied into the canal, all these
streams flowing into the canal above the lands
irrigated by the canal. Under a contract the
Merced Irrigation District was required to spill into
the channels leading into the canal not less than
24,000 acre-feet of water per year, and the plaintiffs
were also privileged to use any excess water above
the stipulated amount. During periods of high
water plaintiffs' needs usually exceeded the monthly
quantities demandable under the Merced Irrigation
District contract, but the excess requirements were
made up by additional spill from the District.
The court held that, having no right to require such
additional spill, plaintiffs retained and held in
reserve and had not abandoned so much of the
right to the San Joaquin River water as might be
required to supply such additional requirements,
in event of failure to receive the additional Merced
District spill.

Id.
XIII. After the building of the Friant Dam by the Govern-

ment this reserve supply was no longer available to
plaintiffs, and for the taking of the right to use
this water, if the right still existed, defendant is
liable. The right to use the water remained in

plaintiffs unless forfeited by nonuser. Id.
XIV. Under the applicable statute of California (Section

20a of Act 9091; Stats. 1917, p. 748) the court
concludes that the Canal Company for a period of
more than three years had not used the waters of
the San Joaquin River, except the amount held in

111 C. Cls.

EMINENT DOMAIN-Continued

reserve, and that the balance accordingly had re-
verted to the public. However, the Canal Com-
pany, by holding in reserve water sufficient to fill
its needs, did beneficially use it. Lindbloom v.
Round Valley Water Co., 178 Cal. 450; 173 P. 994;
Duckworth v. Watsonville Water & Light Co., 158

Cal. 206; 110 P. 927. Id.
XV. Where plaintiffs, who had for many years operated

an “automobile graveyard,” had on hand in 1942
1,257 units, from which many of the parts had been
removed and sold and other parts had been removed
and placed in storage, but still other usable parts
remained; it is held that plaintiffs were entitled to
more than the "scrap" value of their entire stock
of goods when they were requisitioned for Govern-
ment use on August 7, 1942, under the Act of

October 16, 1941 (55 Stat. 742). Williams, 356.
XVI. To treat as scrap automobiles in an "automobile

graveyard,” even though they had been highly
used and partially dismantled, when they repre-
sented a substantial portion of the business that
had been operated continuously for a number of
years, is not a reasonable basis for just compensa-

tion. Schaffer v. United States, 104 C. Cls. 229. Id.
XVII. The value of requisitioned property cannot always be

determined with mathematical precision, and in
such case the court must determine in the light of
the entire record its judgment as to the actual
value of the property, based on the testimony and

documents in the case. Id.
XVIII. Where during the year 1941 various agencies of the

Government acting under Executive Order No.
8832, terminating all commercial transactions with
Japan, including purchase of silk, forbade the proc-
essing of raw silk and authorized the delivery of
raw silk to, or pursuant to the instructions of, the
Defense Supplies Corporation; and where, subse-
quently, on October 16, 1941, an order of the War
Production Board provided that the order of con-
tractors having contracts with the Government for
the manufacture of parachutes or the orders of the
Defense Supplies Corporation had to be accepted
and filled by owners of silk; it is held that the silk
acquired from the respective plaintiffs by the
Government, under the various orders referred to,
was requisitioned for public use, in the constitu-
tional sense, as of October 16. Stahel, et al., 682.

111 C. Cls.

EMINENT DOMAIN-Continued

XIX. Where the respective plaintiffs were paid for their

silk on the basis of the ceiling price which had been
fixed for silk on August 2, 1941, by the Office of
Price Administration immediately after the issu-
ance of Executive Order No. 8832; and where, in
the conditions then existing, this ceiling price was
set for the normal purpose of protecting the public
economy against inflation and of protecting users of
silk, including the Government, from being charged
unduly high prices; it is held that in the circum-
stances and in the absence of a free market, the
ceiling price of $3.08 per pound paid to the plain-
tiffs constituted just compensation. See Walker

v. United States, 105 C. Cls. 553. Id.
XX. To say that when the Government forbids an owner

of property to make any other use of it, and requires
him to sell it upon request, to the Government or
its designee who will use it for a Government pur-
pose, is not a taking of the property for public use,
would be to make the constitutional right to just
compensation contingent upon the form by which
the Government chose to acquire the use of the

property. Id.
XXI. The taking of property by the sovereign for public

use, though unquestionably an act of sovereignty,
does not, under the Constitution, leave the sover-
eign immune from payment of compensation for
the taking. The Fifth Amendment expressly im-

poses liability. Id.
XXII. On the basis of the plaintiffs' practically unsupported

suggestion, and in the absence of briefing and argu-
ment upon the question, the court does not decide
whether or not the fixing of prices by the Office
of Price Administration and Civilian Supply, at
the time in question, was authorized by existing

legislation. Id.
XXIII. Where it is found that the Government took the

plaintiffs' silk on October 16, 1941, the court con-
cludes that the plaintiffs are entitled to interest,
not as interest, but as a part of just compensation,
for the period from that date until they were,
respectively, paid for their silk, since during that
period they had neither the use of the silk nor the

money value of it. Id.
XXIV. The Government having legally requisitioned the silk

on October 16, 1941, but not having actually taken
it out of the plaintiffs' possession until some months

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