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Jay Dow v. Lassen Irrigation Company

November 19, 2012

JAY DOW, PLAINTIFF AND APPELLANT,
v.
LASSEN IRRIGATION COMPANY, DEFENDANT AND RESPONDENT.



APPEAL from a judgment of the Superior Court of Lassen County, F. Donald Sokol, Judge. (Super. Ct. No. 4573)

The opinion of the court was delivered by: Robie , Acting P. J.

CERTIFIED FOR PUBLICATION

Reversed with directions.

This water rights case involves the interpretation of a decree in a stream adjudication and, more particularly, the interplay between the right to divert water to storage in a reservoir and the right to divert water for direct application to beneficial use.

The specific issue here is whether the trial court correctly interpreted a 1940 judgment and decree in an adjudication of the water rights on the Susan River stream system (the Susan River decree). We conclude the court did not correctly interpret the decree. As we will explain, the trial court erred in determining that paragraph 21 of the decree gives defendant Lassen Irrigation Company (the Irrigation Company) a right to divert water from the Susan River for direct application to beneficial use that is measured by the capacity of the Irrigation Company's three reservoirs (estimated at 31,500 acre-feet). Properly interpreted, the Susan River decree does give the Irrigation Company a right to divert water for direct application to beneficial use, but that right is provided for in a different part of the decree and is measured in cubic feet per second (cfs), not acre-feet.*fn1 Paragraph 21 of the decree dictates when that right of direct diversion (and the Irrigation Company's right to store water) can be exercised, but it does not establish a right to direct diversion itself. Because the trial court erred in construing the decree, we will reverse the court's order and remand the case for the court to enter a new order consistent with this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

The Susan River System

As the report on which the Susan River decree was largely based explains,*fn2 the "Susan River has its source on the east slope of the Sierra Nevada . . . in the southwesterly portion of Lassen County . . . at an elevation of about 7,900 feet. Its channel follows a general easterly direction from Silver Lake through McCoy Flat Reservoir and through Susanville and on to Honey Lake to which it is tributary. . . ."

"Susan River has four important tributaries, namely, Piute Creek which comes in from the north at Susanville, Gold Run Creek and Lassen Creek which come in from the south between Susanville and Johnstonville, and Willow Creek which is tributary from the north above Standish."*fn3

"Under normal conditions the flows of Lassen and Gold Run Creeks and of Susan River above Susanville are fairly well sustained from melting snows until early in June."

The Irrigation Company's Use Of The River

With respect to the Irrigation Company's use of water from the Susan River, the report notes the following:

The Irrigation Company provides water from the Susan River to irrigate a total of 5,864.7 acres that lie south of the river to the southeast of Susanville.*fn4 The Irrigation Company owns and operates three reservoirs: McCoy Flat Reservoir (Diversion 6), Hog Flat Reservoir (Diversion 7), and the Leavitt Lake Reservoir (Diversion 239).*fn5 McCoy Flat Reservoir (which lies west of Susanville) "is situated on the main channel of Susan River and has a maximum capacity of about 13,000 acre feet." The water stored in McCoy Flat Reservoir is "released during the summer to supplement the water stored in Hog Flat and Leavitt Reservoirs" (described hereafter).

Hog Flat Reservoir (which lies east of McCoy Flat and west of Susanville) "is situated on Hog Flat Branch of Susan River and has a maximum capacity of about 6[,]400 acre feet." The water stored in Hog Flat Reservoir is "released during the summer to supplement the water stored in McCoy Flat and Leavitt Reservoirs."*fn6

Lake Leavitt (which lies east of Susanville) "is formed by an earth dam or levee about one and three-fourths miles in length which closes the open side of a natural basin." The lake "has a normal capacity of about 12,100 acre-feet and is filled by the diversion of water from Susan River through the A and B Canal." That canal (also known as the Adams and Batcheldor Ditch or A and B Ditch and identified as Diversion 41) runs "from the south side of Big Slough Channel of Susan River." The canal "consists of an earth ditch five and one-fourth miles in length to where it empties into Leavitt Reservoir."

A few shareholders of the Irrigation Company have land along the A and B Canal and receive some of their water directly from the canal. According to the report, that land amounts to 295.7 acres. The remainder of the 5,864.7 acres of land receiving water from the Irrigation Company is irrigated with water released from Lake Leavitt into an outlet canal that is about eight-miles long.

The report also notes that the Irrigation Company owns the Colony Dam, which is located on the Susan River at the junction with Willow Creek. The dam is "used primarily for regulatory purposes to maintain a steady flow of 20 cubic feet per second of Susan River water passing the dam when diversion of natural flow from the river is being made into Leavitt Lake Reservoir."*fn7 At the time of the report, water could also be diverted at the dam into the Colony Dam Ditch (Diversion 55), which was "used as a supplemental direct diversion supply to the water stored in the Leavitt Reservoir." It appears, however, that the Irrigation Company no longer uses this point of diversion at this time.

The Background Of The Susan River Decree

The report noted that from 1893 forward, "various groups of water right owners . . . ha[d] been involved in a number of cases of water right litigation on Willow Creek, Gold Run Creek, Lassen Creek, Upper Susan River, and on Piute Creek. The narrow scope of the issues involved rendered unsatisfactory results from the various cases, because as conditions changed different combinations of issues arose which threatened expensive and continued litigation. In view of this situation, more than ninety per cent of the water right owners entered into an agreement during the summer of 1934 to seek an adjudication of each right in respect to all other rights in the Susan River stream system under the court reference procedure of [former] Section 24 of the Water Commission Act.

"Following the above mentioned agreement, the case of J.J. Fleming etal. [sic] v. J. R. Bennett, etal. [sic], was instituted in the Superior Court of California, in and for the County of Lassen, on July 24, 1934. . . . The case was referred by said court to the [former] Division of Water Resources on August 21, 1934, under the provision of [former] section 24 of the Water Commission Act for investigation and report as referee.

"A survey and map of the diversions and irrigated lands in the Susan River stream system and an investigation of record facts were made by the referee between August 25, 1934 and March 15, 1935." As the California Supreme Court later explained in Fleming v. Bennett (1941) 18 Cal.2d 518, the resulting report was "comprehensive. It consist[ed] of 195 pages of findings and conclusions and as many or more pages of schedules, tables and plates. It deal[t] with and recommend[ed] findings with respect to 259 claimed rights of water users in the Susan River watershed." (Id. at p. 525.) "On April 18, 1940, the court rendered its final ...


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