McFarland v. Superior Court

This is an application for a writ of review of an order adjudging petitioners, who are, respectively, the officers and attorney of the Tranquility Irrigation District, guilty of contempt of court for the violation of a judgment of injunction issued by respondent court in a proceeding instituted therein and entitled “Miller & Lux Incorporated, a corporation, and the San Joaquin & Kings River Canal & Irrigation Company Incorporated, a corporation, v. J. G. James Company, a corporation, and the San Joaquin Valley Farm Lands Company, a corporation, No. 2006 of the files of said court.”

On August 14, 1923, the affidavit of W. H. Trump, the secretary of the San Joaquin & Kings River Canal & Irrigation Company, a corporation, was filed in the superior court of the state of California, in and for the county of Merced. This affidavit alleged that on the eighth day of January, 1917, the above-entitled court made and entered its final judgment in an action in which Miller & Lux Incorporated, a corporation, and the San Joaquin & Kings River Canal & Irrigation Company Incorporated, a corporation, were plaintiffs and J. G. James Company and the San Joaquin Valley Farm Lands Company, a corporation, were defendants; that said judgment has ever since said day been and now is in full force and effect; that by said judgment the San Joaquin & Kings River Canal & Irrigation Company Incorporated, a corporation, was entitled to take and divert from the San Joaquin River thirteen hundred and sixty (1360) cubic feet of water flowing therein per second at the head of its main and outside canals situated in the county of Fresno near the confluence of the San Joaquin River and Fresno Slough, and that by said judgment the defendants

Upon this affidavit the trial court issued an order to show cause and ordering the Tranquility Irrigation District and its officers and attorney to appear before the court on September 4, 1923, to show cause why they should not be adjudged guilty of contempt and punished accordingly.

On September 4, 1923, the said R. C. McFarland, the engineer and superintendent of the Tranquility Irrigation District, filed his affidavit stating that the Tranquility Irrigation District takes its water from the Kings River and from the Fresno Slough; that the water diverted from the Kings River during a portion of the season is diverted by gravity,

The answer of the said R. C. McFarland, W. A. Draper, the general manager and a member of the board of directors, respectively, of the district, and L. L. Dennett, the attorney thereof, denies that the district or the officers or attorney thereof violated the decree of the court, that the pumping by the district has in any way affected the flow of water to the canal of the San Joaquin & Kings River

In the order for judgment the court found that “The evidence shows that the parties and persons cited to show cause in the above entitled action are in contempt of the order and judgment of the court by reason of the fact that they knowingly took in excess of thirty cubic feet of water per second more than the judgment herein permitted them. According to their own evidence they could not take as much as ten cubic feet of seepage water per second from Fresno Slough when there was less than 1360 cubic feet flowing at the head of plaintiff’s canal. They could take seepage water only at that stage of river flow.” On February 8, 1924, the defendants, R. O. McFarland, W. A. Draper, and L. L. Dennett, were each adjudged guilty of contempt of court and fined in the sum of fifty dollars each.

The judgment which the court found to be in full force and effect, the violation of which constituted the contempt, is as follows:

11 That the .plaintiff, The San Joaquin & Kings River Canal & Irrigation Company Incorporated, is entitled to take and divert from the San Joaquin river thirteen hundred and sixty (1360) cubic feet of water flowing therein per second at the head of its main and outside canals, situated in the County of Fresno near the confluence of the San Joaquin River and Fresno Slough, . . . and the right . . . is prior and superior to any right of the defendants to take or divert any of the water of the San Joaquin River or any water of the San Joaquin River being or flowing in the Fresno Slough and the said defendants . . . are forever enjoined, restrained and strictly prohibited from pumping, taking or diverting, or otherwise removing any of' the waters of the San Joaquin River, or any of the waters of the San Joaquin River .being or flowing in Fresno Slough from the channels of the said river or slough until the said plaintiff, the San Joaquin & Kings River Canal & Irrigation Company Incorporated, shall have received into the head of its said canals thirteen hundred and sixty (1360) cubic feet of the water of the San Joaquin River flowing therein per second, or so as to in any manner interfere with the flow of the water of the said San Joaquin River to the heads of said canals of the said plaintiff, or so as to in any way interfere with the diversion of said quantity of water by the said plaintiff.”

The petition for a writ of review is based upon the contention that the judgment of the court was in excess of the jurisdiction thereof. In paragraph VII of the petition fifteen particulars are specified in which the excess of jurisdiction is claimed to appear. The argument is “that there was a complete lack of evidence that the Tranquility Irrigation District was taking any water from the San Joaquin River” and “that the Canal Company is entitled not to thirteen hundred and sixty (1360) cubic feet of water to do with as it wishes, but to thirteen hundred and sixty (1360) cubic feet of water for the purposes which gave rise to the injunction, and that it cannot complain if the Tranquility Irrigation District was pumping water when less than thirteen hundred and sixty (1360) cubic feet of water came to the canals of the Canal Company, unless the Canal Company wished to put that water to the beneficial use authorized by the judgment.”

Respondents’ brief points out (I) that the affidavits charging a violation of the decree constitute the complaint and the counter-affidavits of defendants the answer; that the only denial of any of the allegations of the affidavit was “one to the effect that the pumping of the said Irrigation District had not in any way interfered with or affected the flow of water into the canals of the Canal Company”; that the answer “expressly admitted the pumping of large quantities of water by the said district^ from 47 to 53 second-feet continuously on the days in question, for which a violation of the injunction was claimed”; that the affirmative allegation in the answer that “by its pumping the Tranquility Irrigation District did not take out of Fresno Slough any more water than was coming into it from the Kings River and sources other than the San Joaquin River” was not supported by any evidence introduced by the defendants, and that the only issue was “whether under the circumstances the taking from Fresno Slough of the quantity of water (47 to 53 cubic feet per second), admittedly taken with the aid of the defendants with knowledge of the decree, was a violation of the injunction.” The brief further points out (II) “That the water in Fresno Slough comes from the San Joaquin River has been determined by this court in litigation between the canal company and the predecessors in interest of the Tranquility Irrigation District,” citing the two decisions in Miller & Lux v. Enterprise Co., 169 Cal. 415 [ 147 Pac. 567 ], and Miller & Lux v. James, 180 Cal. 38 [ 179 Pac. 174 ] ; (III) “The evidence independent of the decisions in the previous cases showed a willful and deliberate taking of water in violation of the decree”; (IV) “As there was no act in excess of jurisdiction on the part of the lower court its judgment is final,” and (V) “But one issue could be tried in the contempt case and the jurisdiction of the court concerning the same was beyond question,” there being no evidence to support the affirmative defenses set up by defendants in their counter-affidavits.

Petitioners’ reply is based on the ground of lack of jurisdiction as shown in the affidavit of contempt. First, that no demand was made upon the Tranquility Irrigation Dis

[1] The only question here is whether the evidence before the court is sufficient to sustain the adjudication of contempt. Regardless of the affirmative defenses and questions of fact raised by petitioners, if the affidavit of contempt was sufficient and there was sufficient evidence to support its allegations, the judgment of the lower court must be affirmed and the petition herein denied. (In re Brambini, 192 Cal. 19 [ 218 Pac. 569 ].)

The testimony taken upon the order to show cause is substantially as follows:

J. J. Hogue, a witness called on behalf of plaintiff, testified that he had been in the employ of the San Joaquin & Kings River Canal & Irrigation Company between three and four years, and was in charge of the water coming into the heads of plaintiff’s canals at a place called Mendota, where a dam is maintained across the river. He stated that the Fresno Sloug-h and Lone Willow Slough empty into the San Joaquin River near this dam and that the canals of the company take out above the dam, the effect of which

is to back up the water of the San Joaquin River into Fresno Slough. The White House gauge or measuring station is above the place where the. Lone Willow Slough takes out of the river and is equipped with an automatic gauge recorder and a staff gauge recorder. A gauge station is also maintained at the Lone Willow Slough. He testified further: “Q. Now, the measurements that you took, how did you go about it? A. Well, at each measuring point, we had a station and the station is divided off into sections, according to the width of the stream. Q. Now, a station, what do you mean by a station? A. At the point where I took the measurements and the station is divided off into different sections and the first cross-section is taken of the channel and then the meter is lowered to the standard method and measurements are taken, readings are taken. • Q. Did you lower the meter ? A. Yes, sir. Q. How many measurements did you take across the stream, how many times did you lower your meter in the stream ? A. At every section. Q. How far apart were those sections? A. Some of them were four and some ten, depending on the width of the stream. Q. You mean feet? A. Yes, sir. Q. What did you do then? A. Then, I took cross-sections, then I lowered the meter down. Q. What happened when you lowered the meter? A. See the revolutions. Q. What did those revolutions indicate? ... A. Well, it indicates the velocity. Q. Now, after having gotten the velocity, what did you do next? A. Well, compute out the discharge. Q. What is that? A. Compute out the discharge over the area. Q. How did you do that? A. The area of the different sections, times the velocity; it is done according to the standard method? Q. What had you done about the standard method? A. I am going according to one now.” He did not measure Fresno Slough but the measurements on the San Joaquin River, just above Lone Willow Slough, are as follows: “August 7th, 1420.91; August 8th, 1110; August 9th, 1000; August 10th, 1210; August 11th, 1300; August 12th, 1350; August 13th, 1090; August 14th, 986.04.” The measurements on Lone Willow Slough, which takes out immediately below the above point, are as follows: “August 7th, 160 feet; August 8th, 127; August 9th, 125; August 10th, 137; August 11th, 147; August 12th, 158; August 13th, 127; August 14th, 118.” No other water can come

into the San Joaquin River between the point of measurement above Lone Willow Slough and the place that the canals of the company take out at Mendota dam, and the amount of water flowing at the dam is the difference between these two streams. It appears, then, that on August 7th, at the head of the canal, there were 1260.91 second-feet; on August 8, 988; on August 9, 875; on August 10, 1073; on August 11, 1153; on August 12, 1192; on August 13, 963, and on August 14, 868.04. These figures represent the maximum amount of water that could possibly flow in the San Joaquin River at the head of the Canal Company’s diverting works. However, no allowance is made for evaporation and seepage between the point of measurement and the intake of the canal. The witness further testified that during the days between August 7th to the 14th, inclusive, the Tranquility Irrigation District was pumping water out of Fresno Slough and R. C. McFarland was notified to close down the pumps as soon as possible; that he said the court decision did not amount to very much and he did not think they would stop pumping. In a letter he said the matter would be taken up with the attorney of the Tranquility Irrigation District before the pumps would be closed. On August 11th further notice was given by Miller & Lux Incorporated to the Tranquility Irrigation District to shut down its pumps as the water at the White House measured only 1000 second-feet. On August 12th, in a conversation with R. C. McFarland, the district was requested to shut down the pumps immediately. On August 14th the Tranquility Irrigation District notified Miller & Lux that the pumps had been closed down. On cross-examination J. J. Hogue testified that he made measurements at the main, outside, and Helm canals every week. For the week of August 7th they were as follows: At the outside canal, 270 feet; at the Helm, 330 feet, and at the main, 750 feet. On August 13th the measurements were as follows: In 'the outside canal, 162 feet; in the main canal, 708 feet, and in the Helm, 207 feet. No measurements of the water coming from Fresno Slough into the San Joaquin River were made, nor were any taken of the amount of water going over the Mendota weir. The witness stated that he did not know whether any water was coming from the Fresno Slough into the San Joaquin River or from the San Joa

quin River into Fresno Slough or whether the water in Fresno Slough came from Kings River. However, from indications on the channel, there were about three feet of water in Fresno Slough for several weeks. The water that went over the Mendota weir was seepage through the boards. To explain the difference of 70.91 feet between the two figures given on August 7th, the witness said: “No doubt it was backed up at the weir; it was left above the weir as back water.”

C. L. Kaupke, a witness called on behalf of plaintiff, testified that he had been an engineer since June, 1909, and eonneeted with the state division of water rights since 1921; that on July 6, 1923, there was no water at Burrel, about twenty miles above the dam, in the Kings River that could flow into Fresno Slough to the head of the canals of the Tranquility Irrigation District; that the water ceased flowing at the head of the James Canal on June 11, 1923', and at the Beta’ main canal on July 16, 1923; that there is no source of supply of water for Fresno Slough other than San Joaquin River unless there is plenty of water in Kings River; that the only possibility is under surface streams and seepage water and that at McMullen, just above the diversion weir of the James Canal, there were not in excess of five or six second-feet of water on August 25, 1923.

E. T. A. Bartlett, a witness called on behalf of plaintiff, testified that he is a surveyor and since 1906 has been a civil engineer and in the employ of the San Joaquin & Kings River Canal & Irrigation Company for six and a half years; that the effect of the dam is to back up the water in Fresno Slough about 12' or 14 miles and that if the Tranquility Irrigation District operates its two pumps on Fresno Slough of approximately 50 second-feet capacity each, the water is withdrawn from the head of the canals of the San Joaquin & Kings River Canal & Irrigation Company.

R. C. McFarland, one of the petitioners, sought to show by illustrating a chart that the water pumped out of Fresno Slough by petitioners came from the Kings River. The chart indicated the constant increase of seepage from the Kings River, that is, that the water level had increased until it appeared at the time of the hearing that there is more water flowing in the Fresno Slough from seepage than is being pumped out. The witness declared that the chart showed

that the surface water in Fresno Slough was between one and two feet higher in 1923 than in 1922. The seepage water is claimed to come from the area of 27,000 acres in the Tranquility Irrigation District, the water level having raised “practically four feet and a half since last year.” The following measurements, taken between August 15 and September 15, 1923, after the affidavit in contempt was filed, were given: One and four-tenths second-feet of water flowing in from the James Irrigation District to Fresno Slough as drainage water, an average of two second-feet flowing into Fresno Slough from the Kings River by-pass and the final average about ten second-feet of actual flow to the Fresno Slough. It was shown that measurements for thirty days do not vary three per cent. As tending to show that the Canal Company did not use all the water flowing in the San Joaquin River, the witness testified that on August 16th there was considerable water flowing over the Mendota weir, “practically about 25 feet flowing over the weir.” On cross-examination he admitted that all he could show by the illustrated chart was .the elevation of the water plane and that it was merely his conclusion or guess as to what caused the water to rise in Fresno Slough—whether it was seepage or whether it came down the river.

Petitioners claim that the evidence establishes the following facts: That the Canal Company was not using even the water flowing in the river, that Miller & Lux was permitted to divert water through the Helm Canal, the Helm Ditch, Lone Willow Slough, and Aliso Ditch, that the Canal Company did not object to the diversion of the water, that on August 12th the record at Lone Willow weir shows there were 1350 second-feet of water and that “unquestionably there was a considerable additional source of supply from Fresno Slough,” that reservoirs on the San Joaquin River controlled by the Canal Company are storing water to which petitioners are entitled, that since the pumps of the Tranquility Irrigation District are practically at -the head of the Fresno Slough and since the drainage of the reclamation district and the James Irrigation District discharges water below the pumps, evidence as to the amount of water coming in above the pumps is relatively unimportant, that there was coming into the Fresno Slough from sources other than the San Joaquin River, water greater in quantity than

[2] But even if this appraisal of the evidence be correct it does not sustain the contention of petitioners that the court was without jurisdiction to pronounce a judgment of contempt. They tried to show by their testimony that the Fresno Slough had an independent source of supply as great, or greater, than was pumped out. This was a question of fact to be determined by the court and in the face of the evidence the determination became final.

It is clear from the import of the judgment of injunction that the San Joaquin & Kings River Canal & Irrigation Company is entitled to take 1360 cubic feet of water per second out of the San Joaquin River “near the confluence of the San Joaquin River and Fresno Slough” and that the Tranquility Irrigation District is enjoined from taking any water of the San Joaquin River being or flowing in Fresno Slough until the Canal Company shall have received 1360 cubic feet of water per second of the San Joaquin River into the head of its canals. No attack is made on the jurisdiction of the court to issue the injunction. It is shown that the decree is in full force and effect; that petitioners are the successors of the defendants, the J. G. James Company, Incorporated, and the San Joaquin Valley Farm Lands Company, Incorporated; that they had knowledge of the full force and effect of the judgment and decree of injunction; that the pumping operations of the Tranquility Irrigation District on Fresno Slough withdraw water from the head of the canals of the San Joaquin & Kings River Canal & Irrigation Company; and, finally, by their own testimony, that they pumped 47, 49, and 53 second-feet of water from Fresno Slough on- the ninth, tenth, and eleventh days of August when the water in the San Joaquin River measured, respectively, 1000, 1210, and 1300 cubic feet per second, and when on the said respective days only 875, 1073, and 1153 cubic feet per second of water were received into the canals of the company. The trial court declared that “ac

The other points raised by petitioners may be briefly discussed. Petitioners claim that due diligence in stopping pumping operations on August 14, 1923, was shown to have been exercised. [3] Section 1209, subdivision 5, of the

[9] The allegations of petitioners that conditions have changed and an additional supply of water developed and that water to which they are entitled is being impounded in reservoirs by the Canal Company are unsupported by evidence, and furthermore, if any testimony had been offered in support of the allegations it would clearly be

No attempt has been made herein to review the evidence so far as it affects or applies to the merits of the case; it has been considered solely for the purpose of ascertaining whether the court could have found the necessary jurisdictional facts therefrom. (Strain v. Superior Court, 168 Cal. 216 [Ann. Cas. 1915D, 702, 142 Pac. 62 ] ; White v. Superior Court, 110 Cal. 60 [ 42 Pac. 480 ]; Livingston v. Superior Court, 117 Cal. 633 [ 38 L. R. A. 175 , 49 Pac. 836 ].)

The order to show cause is discharged and the petition for a writ of review denied.

Eichards, J., Waste, J., Lennon, J., Seawell, J., Shenk, J., and Myers, C. J., concurred.

Eehearing denied.