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Dow v. Lassen Irrigation Co.

California Court of Appeals, Third District, Lassen

May 22, 2013

JAY DOW, Plaintiff and Appellant,
v.
LASSEN IRRIGATION COMPANY, Defendant and Respondent.

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

Mennemeier, Glassman & Stroud and Margaret Carew Toledo and Stephen Lau; O’Laughlin & Paris and William Paris for Plaintiff and Appellant.

Kronick, Moskovitz, Tiedemann & Girard and Scott A. Morris and William T. Chisum for Defendant and Respondent.

Kamala D. Harris, Attorney General, Kathleen A. Kenealy, Assistant Attorney General, Joseph Barbieri, Deputy Attorney General; Michael A.M. Laufer, Andrew H. Sawyer, and Marianna Aue, for State Water Resources Control Board as Amicus Curiae, upon request of the Court of Appeal.

ROBIE, Acting P. J.

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 in a different part of the decree and is measured in cubic feet per second (cfs), not acre-feet.[1] 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[2]

The Susan River System

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.”[3]

“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

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.[4] 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).[5] 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.”[6]

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, ” and “[a] number of laterals tap the main ditch along its course.”[7] At the time of the investigation leading to the Susan River decree, “[t]he maximum capacity of the ditch was measured as 195.0 cubic feet per second and the normal diversion as about 130.0 cubic feet per second.”

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 remaining 5, 569 acres of land receiving water from the Irrigation Company are irrigated with water released from Lake Leavitt into an outlet canal that is about eight miles long. Thus, nearly 95 percent of the land irrigated by the Irrigation Company is served exclusively by water that passes through Lake Leavitt.

The Irrigation Company also 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.”[8] At the time of the hydrographic 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

Before the litigation that led directly to the Susan River decree, there was a history of “[t]rouble” involving “the use of water and ditches diverting [water] from Susan River.” In 1893, a judgment was entered in a case involving water from the Susan River entitled J.D. Byers et al. v. Chas. K. Hartson, B. H. Leavitt, C. C. Hutchinson, et al. (Super. Ct. Lassen County, 1893, No. 280). Defendants Leavitt and Hutchinson were the predecessors in interest to the Irrigation Company. The judgment in the Byers case gave Leavitt and Hutchinson, “as against the plaintiffs” in that case, “the right to divert the water of Susan River from the channel thereof for storage in their Lake Leavitt Reservoir, and in other reservoirs.” In particular, this storage right applied to “all water flowing [in the river] between the first day of March and the first day of July in each and every year in excess of 1000 inches of water measured under a four inch pressure, at a point immediately above the mouth of Willow Creek and in excess of 250 inches of water so measured at said point at all other times of each year.” The judgment specified that “[b]y 1000 inches of water measured under a four inch pressure is meant 20 cubic feet of water per second.” Thus, between March 1 and July 1, the predecessors of the Irrigation Company could divert to storage as long as they maintained a flow of 20 cfs in the river immediately above Willow Creek, and at all other times they could divert to storage as long as they maintained a flow of 5 cfs at that point.

From 1893 forward, “various groups of water right owners [were] 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. A conference of the water users and their representatives was held at Susanville on March 18, 1935 to acquaint them with the data that had been collected by the Division. A program of future action for expeditio[u]s conduct of the investigation of [the] referee was discussed with the water users at the conference.

“In order to expedite an investigation by the referee of the use of water on Susan River and its tributaries, a tentative schedule for the distribution of waters during the 1935 season was recommended to the water users. The plan of distribution... was agreed upon by all of the water users except the owners of the Ridenour, Satica, and Jenkins ranches.... The schedule of allotments was based upon an assumed duty of one cubic foot per second to eighty acres of irrigated land and the plan of distribution was to be operative during the 1935 season only.[9] The agreement contained a provision that the legal rights of the various parties should in no way be prejudiced by such distribution of water. It was further agreed that the conference with the Division should be continued until a date to be later fixed by the Division, said date to be subsequent to the end of the 1935 season, when the results of the distribution under the agreement would be available. Water master service was furnished as an incident of the investigation from March 23 to October 17, 1935.” The 1935 agreement was based in part on the fact that it “appear[ed] from the data collected by [the] Division that it m[ight] be possible to work out an allocation of the waters of [the Susan River] stream system... that w[ould] be acceptable to all of [the] parties [to the suit] and afford the basis for a consent judgment in [the] proceedings.”

The tentative allocation set forth in the 1935 agreement consisted primarily of water rights set forth in four schedules, each one of which was “[s]ubject to all of the foregoing rights and provisions” in the agreement.[10] (Schedule 1 addressed rights on Willow Creek and its tributaries. Schedule 2 addressed rights on Hills Creek, Gold Run Creek, Lassen Creek, and Piute Creek. Schedule 3 addressed rights on the Susan River and Willow Creek. As particularly pertinent here, the paragraph of the agreement describing the water rights available under Schedule 3 (paragraph 20) contained the following language with respect to the Irrigation Company: “provided further, that the Lassen Irrigation Company shall be entitled to divert under their right hereinafter provided from the flow of Susan River in excess of 20 cubic feet per second measured above the confluence of said river with Willow Creek during the period from March 1st to July 1st, and from the flow of said river in excess of 5 cubic feet per second measured at said point at all other times.” Thus, the rights on the Susan River provided in Schedule 3 were subject to the Irrigation Company’s right to divert, which was provided for later in the agreement. Although the 1935 agreement did not provide any detail on the origin of the minimum flow aspect of this provision, it appears the minimum flow requirements to which the Irrigation Company was subject in the 1935 agreement came from the 1893 judgment in the Byers case (discussed above).

Schedule 4 of the 1935 agreement addressed additional rights on the Susan River beyond those in Schedule 3. The Irrigation Company appeared as the first user listed in Schedule 4, with a right to 72.50 cfs under the first of three priority classes in Schedule 4. The 72.50 cfs figure appears to have been derived by dividing the total acreage attributed to the Irrigation Company in the 1935 agreement (5, 803.0) by the assumed duty of one cfs to 80 acres of irrigated land and rounding off to the nearest tenth. The paragraph of the agreement describing the water rights available under Schedule 4 (paragraph 21) specified that the “diversion of all allotments set forth in said Schedule 4 shall be limited to the amounts directly applied to beneficial use with the exception of the allotments to Lassen Irrigation Company, and to Clarence E. Dakin, et al., which may be diverted to storage.”

The next paragraph of the 1935 agreement (paragraph 22) then specified as follows:

“Subject to the foregoing rights and provisions, Lassen Irrigation Company shall be entitled to impound the natural flow of Susan River and its tributaries in the McCoy Flat, Hog Flat, and Lake Leavitt Reservoirs... in an amount equal to the present combined capacity of said reservoirs, or approximately [¶] 39, 290 acre feet per annum, [¶] said water to be used for domestic and stock watering purposes and for supplemental irrigation of the lands of the stockholders of said company....”

In February 1936, following the trial distribution under the 1935 agreement, the Division completed the hydrographic report. This 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.” (Fleming v. Bennett (1941) 18 Cal.2d 518, 525.)

As the Division explained to the court in June 1937 in its “Report of Referee, ” following the Division’s production of its comprehensive hydrographic report, “[a]nother conference of the parties to the action and their representatives was called by the Division of Water Resources on March 31, 1936, at Susanville. A stipulation for judgment containing a plan of settlement of all of the water rights in the Susan River stream system was presented by said Division at the conference. The stipulation was based upon the 1935 schedule of trial distribution with such modifications as appeared necessary from the additional information gathered in 1935.”

Paragraphs 14 through 36 of the stipulation for judgment dealt with the special class rights that are not at issue in this proceeding. Paragraphs 37 through 40 dealt with the four schedules of interrelated rights, now numbered three through six.[11] Schedule 3 addressed rights on Willow Creek and on the Susan River below Willow Creek. Like Schedule 2 in the 1935 agreement, Schedule 4 in the stipulation addressed rights on Hills Creek, Gold Run Creek, Lassen Creek, and Piute Creek. Like Schedule 3 in the 1935 agreement, Schedule 5 in the stipulation addressed rights on the Susan River and lower Willow Creek. The paragraph of the stipulation describing the water rights available under Schedule 5 (paragraph 39) contained the same language regarding the Irrigation Company’s right to divert that was previously contained in the paragraph governing Schedule 3 in the 1935 agreement. In other words, the stipulation recognized the Irrigation Company’s entitlement “to divert under their right hereinafter provided from the flow of Susan River in excess of 20 cubic feet per second measured above the confluence of said river with Willow Creek during the period from March 1st to July 1st, and from the flow of said river in excess of 5 cubic feet per second measured at said point at all other times.”

Like Schedule 4 in the 1935 agreement, Schedule 6 in the stipulation addressed additional rights on the Susan River. Again, the Irrigation Company appeared as the first user listed in this schedule. Now, however, the Irrigation Company’s right to divert under the schedule was limited to 36.65 cfs. (Indeed, the amounts of all the rights in Schedule 6 of the stipulation were reduced from the corresponding amounts in Schedule 4 of the 1935 agreement.) Paragraph 40 of the stipulation continued to provide that all diversions under what was now Schedule 6 were limited to amounts directly applied to beneficial use with the exception of the allotments to the Irrigation Company and several other users, which could be diverted to storage.

Like paragraph 22 of the 1935 agreement, paragraph 41 of the stipulation recognized the Irrigation Company’s right to impound water in its three reservoirs, although the total capacity of those reservoirs was now estimated at 31, 500 acre-feet.

Because the stipulation for judgment provided for allocation of the waters of the Susan River system year-round, and not simply during the irrigation season as the 1935 agreement had done, the stipulation contained a new paragraph (paragraph 12) governing seasons of use, to which each of the paragraphs discussing Schedules 3 ...


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