Whitaker, Judge,
delivered the opinion of the court:
Plaintiffs are the owners of certain tracts of land in Mer-ced County, California, most of which are riparian to Salt Slough, which is a branch channel of the San Joaquin River. They allege that they have been deprived of their water rights by the construction and operation by the defendant of the Central Yalley Project in California. They sue for just compensation.
The physical characteristics of the San Joaquin River, its watershed and drainage basin, the historic development of the San Joaquin Yalley, and the origin, construction, and operation of the Central Yalley Project (including the operation of Friant Dam prior to integrated operation of the Central Yalley Project) are fully set forth in our findings of fact. Findings and summaries of many of the same facts have been made in earlier cases before this court. Gerlach Live Stock Company v. United States, 111 C. Cls. 1 (1948), affirmed 339 U. S. 725; James J. Stevinson v. United States, 111 C. Cls. 89 (1948); East Side Canal Company, et al. v. United States, 111 C. Cls. 124 (1948).
Plaintiffs acquired their property in 1940 from one Sheppard who had acquired it from Miller & Lux in 1933. Both deeds (Miller & Lux to Sheppard and Sheppard to plaintiffs) contained reservations of water rights in the nature of covenants running with the land. The text of these reservations appears in finding 35.
The reservations made the riparian rights of the land conveyed subordinate to the water rights of the grantor, whether riparian, appropriative, or prescriptive. Plaintiffs’ riparian rights were not extinguished, but the covenants were to act as an estoppel in favor of the grantor to the extent of the reservations.
In prior years Miller & Lux and its subsidiary and affiliated companies had built a series of irrigation works up[385] stream from plaintiffs’ lands. By virtue of litigation concluded before tbe conveyance to Sbeppard, the appropriations of Miller & Lux and their affiliates had been validated by court decrees. The rights of both Sheppard and the plaintiffs were therefore subordinate to these appropriative and prescriptive rights.
The owners of the prior appropriative and prescriptive rights were entitled to use in one year a maximum of 1,428,074 acre-feet of water. Actually, their highest diversion during the years 1932-1951 was 1,027,180 acre-feet, and the average of their annual diversions during the same period was 870,834 acre-feet. While the flow of the river varied widely from year to year, it usually exceeded the volume of the possible maximum demand. Consequently, there was usually some excess over the water the prior appropriators had any right to demand, and almost always an excess over the actual use of the prior appropriators.
The flow of the river in its natural state has been defined (finding 5) in terms of low, high, and flood stages. During the flood stages of winter and spring the river overflowed even the high channel banks to spread over the upland area. During the river’s high stages, but below flood stage, the water was confined to the banks of the high channel. A distinguishable sandy channel marked the flow of the river during its lowest stages. These stages of the river’s flow continued to be factors in the diversion and use of the water after the construction of canals and irrigation works by Miller & Lux and others and until the completion of Friant Dam in 1947.
Prior to the construction of Friant Dam, therefore, water from the San Joaquin River reached the lands of plaintiffs in three ways: (1) through the overflow channel, when some of the lands were submerged by flood waters; (2) through the surface flow of water into the sloughs as part of the high channel of the river during its higher, but not flood stages; and (3) through the underground flow of the alluvial cone, some of which surfaced into and flowed through Salt Slough. At all times material here the only water in Salt Slough during the crucial summer months was return flow of irri[386] gation water that had been distributed to lands upstream during the crop season.
Plaintiffs are not now demanding compensation for loss of either the overflow or the surface flow, as above defined. Their lands were wholly deprived of the overflow in 194-7, when Friant Dam was placed in operation. The surface flows were interrupted by the construction of the dam as early as 1944. When the dam was completed, the surface flows, although not stopped entirely until 1951, became dependent upon the timing and quantity of releases by defendant from Friant Reservoir. Ten years elapsed between the completion of Friant Dam and the filing of this action.
Plaintiff’s claims in this action are for the alleged loss, in 1951, of rights in the return flow of irrigation water.
This flow was never stopped. On the contrary, its volume and dependability were enhanced by defendant’s substitution in 1951 of the waters of the Sacramento River for San Joaquin waters.
Up to 1951 plaintiffs continued to receive waters from the San Joaquin River. The year 1951 marked the completion of the Delta-Mendota Canal and the beginning of the integrated operation of the Ceneral Valley Project. Whereas Friant Dam had been placed in operation in 1947, and was thereafter used to store waters in Friant Reservoir and to control releases of flows down the San Joaquin River, the integrated operation of the Central Valley Project had to await completion of the Delta-Mendota Canal and its auxiliary pumping stations, so that water from the Sacramento River could be introduced into Mendota pool to substitute for water from the San Joaquin River, which was thereafter directed to other uses. As a consequence of the substitution, the return flow in Salt Slough after August 1951 consisted of water from the Sacramento River rather than water from the San Joaquin River.
It is this deprivation of San Joaquin water of which plaintiffs complain. Their contention is that their riparian rights depended on San Joaquin water; that the substitution of exchange waters extinguished their riparian rights; and that without such rights, the potential use of their lands was re[387] duced from wet (irrigated farming) to dry (native pasture), with consequent loss of value.
In anticipation of tbe eventual substitution of waters, defendant, in 1939, bad entered into an agreement with Miller & Lux and its subsidiaries providing in detail, first, for the release of water from Friant Reservoir, after the Friant Dam had been completed and until the delivery of substitute water through the Delta-Mendota Canal when that system would become operative, and for continued delivery of this substitute water thereafter. This contract granted defendant the right to continue to store, divert, dispose of and otherwise use the San Joaquin waters theretofore reserved so long as substitute water is delivered in conformity with the contract.
Defendant has faithfully and fully delivered the substitute waters. In fact, the parties have by stipulation agreed that “the supply of substitute water guaranteed to Miller & Lux and its affiliated companies under the exchange contract is far better than the supply * * * prior to the construction of the Central Valley Project.”
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Whitaker, Judge,
delivered the opinion of the court:
Plaintiffs are the owners of certain tracts of land in Mer-ced County, California, most of which are riparian to Salt Slough, which is a branch channel of the San Joaquin River. They allege that they have been deprived of their water rights by the construction and operation by the defendant of the Central Yalley Project in California. They sue for just compensation.
The physical characteristics of the San Joaquin River, its watershed and drainage basin, the historic development of the San Joaquin Yalley, and the origin, construction, and operation of the Central Yalley Project (including the operation of Friant Dam prior to integrated operation of the Central Yalley Project) are fully set forth in our findings of fact. Findings and summaries of many of the same facts have been made in earlier cases before this court. Gerlach Live Stock Company v. United States, 111 C. Cls. 1 (1948), affirmed 339 U. S. 725; James J. Stevinson v. United States, 111 C. Cls. 89 (1948); East Side Canal Company, et al. v. United States, 111 C. Cls. 124 (1948).
Plaintiffs acquired their property in 1940 from one Sheppard who had acquired it from Miller & Lux in 1933. Both deeds (Miller & Lux to Sheppard and Sheppard to plaintiffs) contained reservations of water rights in the nature of covenants running with the land. The text of these reservations appears in finding 35.
The reservations made the riparian rights of the land conveyed subordinate to the water rights of the grantor, whether riparian, appropriative, or prescriptive. Plaintiffs’ riparian rights were not extinguished, but the covenants were to act as an estoppel in favor of the grantor to the extent of the reservations.
In prior years Miller & Lux and its subsidiary and affiliated companies had built a series of irrigation works up[385] stream from plaintiffs’ lands. By virtue of litigation concluded before tbe conveyance to Sbeppard, the appropriations of Miller & Lux and their affiliates had been validated by court decrees. The rights of both Sheppard and the plaintiffs were therefore subordinate to these appropriative and prescriptive rights.
The owners of the prior appropriative and prescriptive rights were entitled to use in one year a maximum of 1,428,074 acre-feet of water. Actually, their highest diversion during the years 1932-1951 was 1,027,180 acre-feet, and the average of their annual diversions during the same period was 870,834 acre-feet. While the flow of the river varied widely from year to year, it usually exceeded the volume of the possible maximum demand. Consequently, there was usually some excess over the water the prior appropriators had any right to demand, and almost always an excess over the actual use of the prior appropriators.
The flow of the river in its natural state has been defined (finding 5) in terms of low, high, and flood stages. During the flood stages of winter and spring the river overflowed even the high channel banks to spread over the upland area. During the river’s high stages, but below flood stage, the water was confined to the banks of the high channel. A distinguishable sandy channel marked the flow of the river during its lowest stages. These stages of the river’s flow continued to be factors in the diversion and use of the water after the construction of canals and irrigation works by Miller & Lux and others and until the completion of Friant Dam in 1947.
Prior to the construction of Friant Dam, therefore, water from the San Joaquin River reached the lands of plaintiffs in three ways: (1) through the overflow channel, when some of the lands were submerged by flood waters; (2) through the surface flow of water into the sloughs as part of the high channel of the river during its higher, but not flood stages; and (3) through the underground flow of the alluvial cone, some of which surfaced into and flowed through Salt Slough. At all times material here the only water in Salt Slough during the crucial summer months was return flow of irri[386] gation water that had been distributed to lands upstream during the crop season.
Plaintiffs are not now demanding compensation for loss of either the overflow or the surface flow, as above defined. Their lands were wholly deprived of the overflow in 194-7, when Friant Dam was placed in operation. The surface flows were interrupted by the construction of the dam as early as 1944. When the dam was completed, the surface flows, although not stopped entirely until 1951, became dependent upon the timing and quantity of releases by defendant from Friant Reservoir. Ten years elapsed between the completion of Friant Dam and the filing of this action.
Plaintiff’s claims in this action are for the alleged loss, in 1951, of rights in the return flow of irrigation water.
This flow was never stopped. On the contrary, its volume and dependability were enhanced by defendant’s substitution in 1951 of the waters of the Sacramento River for San Joaquin waters.
Up to 1951 plaintiffs continued to receive waters from the San Joaquin River. The year 1951 marked the completion of the Delta-Mendota Canal and the beginning of the integrated operation of the Ceneral Valley Project. Whereas Friant Dam had been placed in operation in 1947, and was thereafter used to store waters in Friant Reservoir and to control releases of flows down the San Joaquin River, the integrated operation of the Central Valley Project had to await completion of the Delta-Mendota Canal and its auxiliary pumping stations, so that water from the Sacramento River could be introduced into Mendota pool to substitute for water from the San Joaquin River, which was thereafter directed to other uses. As a consequence of the substitution, the return flow in Salt Slough after August 1951 consisted of water from the Sacramento River rather than water from the San Joaquin River.
It is this deprivation of San Joaquin water of which plaintiffs complain. Their contention is that their riparian rights depended on San Joaquin water; that the substitution of exchange waters extinguished their riparian rights; and that without such rights, the potential use of their lands was re[387] duced from wet (irrigated farming) to dry (native pasture), with consequent loss of value.
In anticipation of tbe eventual substitution of waters, defendant, in 1939, bad entered into an agreement with Miller & Lux and its subsidiaries providing in detail, first, for the release of water from Friant Reservoir, after the Friant Dam had been completed and until the delivery of substitute water through the Delta-Mendota Canal when that system would become operative, and for continued delivery of this substitute water thereafter. This contract granted defendant the right to continue to store, divert, dispose of and otherwise use the San Joaquin waters theretofore reserved so long as substitute water is delivered in conformity with the contract.
Defendant has faithfully and fully delivered the substitute waters. In fact, the parties have by stipulation agreed that “the supply of substitute water guaranteed to Miller & Lux and its affiliated companies under the exchange contract is far better than the supply * * * prior to the construction of the Central Valley Project.”
The parties have further agreed by stipulation that “so long as the great'area of cropland lying generally to the southeast of plaintiffs’ land continues to be irrigated, it is virtually certain that the flows in Salt Slough, [which is upstream from plaintiffs’ land] during the irrigation season, will be of the same order of magnitude * * *” as previously. Consequently, there is no foreseeable prospect of loss by plaintiffs of the physical supply of water, unless, under superior right, the return flow can be diverted or required for other uses.
No such superior right has been asserted against plaintiffs. None has been established under California law. We believe none exists. We conclude, therefore, that plaintiffs are not entitled to recover. On the basis of the evidence in the case and the California cases cited, nothing of substance has been taken from plaintiffs.
Plaintiffs rest their case on the thesis that, whereas they had riparian rights as long as the water came from the San Joaquin River, water from the Sacramento River was foreign water; and under California law, they say, he who dis[388] charges foreign waters into a stream may take them away with impunity.
The facts in the California cases cited in support of this foreign waters doctrine are not parallel to those in the instant case. In none of them was there a complete diversion of the natural waters of a stream accompanied by a guaranteed substitution of an equal amount of other waters.
In the absence of a specific ruling by a California court, we cannot accept the application of the foreign water doctrine to the exchange waters of the Sacramento flowing down the channels of the San Joaquin from Mendota pool. These waters of the Sacramento were substituted in consideration of the diversion of the San Joaquin waters. Their substitution was a part of the whole plan proposed by the Secretary of Interior and approved by the President and authorized by Congress. The diversion of San Joaquin waters was authorized only because of the commitment to substitute water from the Sacramento River. We do not believe that the United States could, with impunity, take away the substituted waters.
If, on the facts of the case, the return flow of irrigation water in Salt Slough remains unimpaired in quality and undiminished in quantity and there is no foreseeable prospect of change in that situation as long as the economy of the region continues to obtain; and if, by contract, as well as by law, defendant is committed to supply water to the holders of superior rights from whom plaintiffs derive their return flow, how can they have been damaged?
The trial commissioner of this court, to whom this case was referred for trial, submitted a recommendation for conclusions of law with his report of the facts. In an opinion in support of his recommendation he reasoned that plaintiffs had shown a right to recover because of impairment of the status of their riparian rights, in that “no case has been cited (or found) in which rights in water other than the natural flow have been declared to be riparian.” While he questioned whether “plaintiffs, riparians yesterday, are trespassers today, simply because the substitution of waters had the effect of removing one of the traditional ingredients of the legal concept of riparian,” he would have given plaintiffs [389] the opportunity to prove, if they could, a diminution of the market value of their lands as a result of this technical impairment.
Plaintiffs are not entitled to compensation for a legal technicality. They must first show that something of substance has been taken from them. Plaintiffs themselves concede as much in their exceptions to the trial commissioner’s recommendation. They decline the opportunity the commissioner’s solution would have afforded them, to try to prove actual, as distinguished from nominal damages as a result of the substitution of waters. They insist (1) that their riparian rights have been extinguished, and (2) that the measure of compensation is not the diminution in market value resulting from the substitution, but the difference in value between the lands wet and the lands dry.
If they had riparian rights in the return flow,