(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
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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 recover. 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
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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.
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
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.
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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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