Dow v. Honey Lake Valley Res. Conservation Dist.

• Decision Date: 30 April 2021
• Docket Number: C090304
• Citation: 63 Cal.App.5th 901,278 Cal.Rptr.3d 259
• Court: California Court of Appeals Court of Appeals
• Parties: Jay DOW, as Trustee, etc., Plaintiff and Appellant, v. HONEY LAKE VALLEY RESOURCE CONSERVATION DISTRICT et al., Defendants and Respondents.

63 Cal.App.5th 901

278 Cal.Rptr.3d 259

Jay DOW, as Trustee, etc., Plaintiff and Appellant,

v.HONEY LAKE VALLEY RESOURCE CONSERVATION DISTRICT et al., Defendants and Respondents.

C090304

Court of Appeal, Third District, California.

Filed April 30, 2021

Brownstein Hyatt Farber Schreck, Bradley J. Herrema and Brooke M. Wangsgard, Los Angeles, for Plaintiff and Appellant.

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

Lozano Smith and Mark W. Waterman ; Harper & Burns and William P. Curley, Orange, for Defendant and Respondent Honey Lake Valley Resource Conservation District.

Robie, J.

In law, semantics matter. Courts must frequently ascertain the meaning of words and phrases in writings. The use of the word "or" often presents an especially treacherous lexical conundrum due to its high risk of ambiguity. (See South Trust Bank v. Copeland One, L.L.C. (Ala. 2003) 886 So.2d 38, 42 [" ‘ "Every use of ‘and’ or ‘or’ as a conjunction involves some risk of ambiguity." [Citation.] Thus, in the main text of Words and Phrases (1953) -- excluding pocket parts -- the word "and" takes up 61 pages of digested cases interpreting it in myriad ways, and the word "or" takes up another 84 pages of digested cases interpreting it in an equally broad array of senses’ "].) "The fact is that there is nothing very plain about the use of the connective ‘or’ in legal drafting." ( Burke v. State (2012) 352 Ore. 428, 435, 290 P.3d 790, 793, italics added.) " ‘Sometimes it joins alternatives; sometimes it doesn't. Sometimes or means and ; sometimes it doesn't[ ].’ " ( Id . at pp. 793-794, 290 P.3d 790.) Additionally, if "or" is a disjunctive connector, sometimes it connects words in the inclusive sense (i.e., A or B, or both); other times, it connects words in the exclusive sense (i.e., A or B, but not both). ( Id . at p. 794, 290 P.3d 790.) Thus, the potential ambiguity created by "or" is not one-dimensional.

In Dow v. Lassen Irrigation Co. (2013) 216 Cal.App.4th 766, 170 Cal.Rptr.3d 252 ( Dow I ), we resolved one of the foregoing ambiguities as to "or" in the following portion of paragraph 21 of the 1940 Susan River Water Right Decree (decree) (the paragraph 21 exception): "except further, that Lassen Irrigation Company shall be entitled to divert, or store up to the present capacity of its reservoirs, estimated at 31,500 acre-feet, from the natural flow of Susan River between March 1 and July 1 of each year when the flow of said Susan River is in excess of 20 cubic feet per second ...." ( Id . at p. 778, 170 Cal.Rptr.3d 252, italics added.) We concluded, by recognizing the use of the two commas created a parenthetical phrase and giving the "or" its more ordinary meaning (as a choice between alternatives), that portion of paragraph 21 means, subject to the limitations set forth therein, "the Irrigation Company ‘shall be entitled to’ (1) ‘divert ... from the natural flow of Susan River’ ‘or’ (2) ‘store up to the present capacity of its reservoirs, estimated at 31,500 acre-feet’ ‘from the natural flow of Susan River.’ " ( Id . at p. 784, 170 Cal.Rptr.3d 252.) In other words, we concluded the "or" was intended to function as a disjunctive connector. We are now called upon to address a second ambiguity created by the same "or."

Jay Dow, as trustee for the Dow-Bonomini 2013 Family Trust (the trust), appeals from the trial court's denial of the trust's motion challenging the decision of Honey Lake Valley Resources Conservation District, serving as the watermaster administering the decree (the watermaster), finding Lassen Irrigation Company (the Irrigation Company) may simultaneously exercise its rights to divert and store water, as provided in the paragraph 21 exception. The trust asserts the watermaster's and trial court's interpretation of the paragraph 21 exception conflicts with the principles of law espoused in Dow I and is unreasonable given the plain language of the decree, resulting in absurdity and unfairness. In sum, the trust believes the "or" must be read in the exclusive sense such that the Irrigation Company may exercise only one of its rights at a time.

We conclude the "or" in the paragraph 21 exception is appropriately interpreted to apply in the inclusive sense. We thus affirm.

FACTUAL AND PROCEDURAL BACKGROUND

We recite only the facts pertinent to the disposition of this appeal. Additional background facts are set forth in Dow I . ( Dow I, supra , 216 Cal.App.4th at pp. 768-780, 170 Cal.Rptr.3d 252.)

IThe Irrigation Company's Rights Under The Decree

"The Irrigation Company has a first priority class right under schedule 6 of the decree. That schedule gives the Irrigation Company the right to divert 36.65 cfs^{[1 ]} at Diversions 6, 7, 41, 55, and 239 to supply the company's 5,864.7 acres. Regarding that schedule 6 right, paragraph 48 of the decree provides in relevant part as follows: ‘Subject to all of the foregoing rights and provisions, the various parties hereinafter enumerated in Schedule 6 are entitled to rights in and to the use of the natural flow of Susan River and its tributaries during the seasons hereinbefore defined in paragraph 21, for domestic, stock-watering and irrigation purposes upon their respective lands as shown on said Division of Water Resources Map, and as hereinafter described under their respective names in Schedule 1, in accordance with the acreages to be supplied, priorities and quantities of water allotted, and through the diversions as set forth in said Schedule 6; ... provided however, that diversion of all allotments set forth in said Schedule 6 shall be limited to the amounts directly applied to beneficial use with the exception of the allotments to Lassen Irrigation Company [and certain others] which may be diverted to storage.’

"Among other things, paragraph 49 of the decree explains that ‘[a]ll rights in first priority class hereinafter set forth in said Schedule 6 are subject and inferior to all rights set forth in said Schedules 3, 4 and 5, but are superior in priority and in right to all other rights set forth in said Schedule 6 ....’

"In addition to its right to divert under schedule 6, the Irrigation Company has a right to store water under paragraph 50 of the decree, as follows: ‘Subject to the foregoing rights and provisions, Lassen Irrigation Company is entitled to impound the natural flow of Susan River and its tributaries in the McCoy Flat, Hog Flat, and Lake Leavitt Reservoirs at points designated respectively on Division of Water Resources Map as Diversions 6, 7 and 239 as hereinafter described in Schedule 2, in an amount equal to the present combined capacity of said reservoirs, or approximately 31,500 acre-feet per annum, during the season hereinbefore stated in paragraph 21, or as much of said amount of water as is impounded in said reservoirs ... and thereafter withdrawn from said reservoirs during the period from January 1 to December 31 of each year and applied to beneficial use for domestic and stock-watering purposes and for the irrigation of the lands of the stockholders of said company as hereinafter described under the name of said company in Schedule 1.’

"Paragraph 21 of the decree, which is referenced in both paragraph 48 and paragraph 50 (and all of the other paragraphs in the decree granting water rights), and which lies at the heart of the dispute in this case, provides as follows: ‘All diversions for domestic, stock-watering, municipal and industrial purposes under the rights hereinafter provided and for irrigation purposes under the rights of "special class" hereinafter set forth in paragraphs 22 to 40, inclusive, shall be for continuous usage without regard to season; the season of diversion of water for general irrigation purposes under the rights hereinafter set forth in Schedules 3, 4, 5 and 6, shall be for continuous usage during the period from March 1, to October 31, both dates inclusive, of each and every year and during said period all rights set forth in said schedules shall be superior to the storage rights hereinafter provided in paragraphs 41, 42, 43, 44, 50, 51 and 52; except that no water shall be diverted through Diversions 106 to 114, inclusive, (said diversions being located as hereinafter described in Schedule 2) between June 20 and August 1 of each and every year; except further, that Lassen Irrigation Company shall be entitled to divert, or store up to the present capacity of its reservoirs, estimated at 31,500 acre-feet, from the natural flow of Susan River between March 1 and July 1 of each year when the flow of said Susan River is in excess of 20 cubic feet per second, measured immediately above the confluence of said river with Willow Creek, and at all other times when the flow of said river is in excess of 5 cubic feet per second measured at said point, irrespective of and notwithstanding the allotments granted to users in said Schedules 3 and 6 and to users of third priority class in said Schedule 5 ... and that during the period from November 1 of each and every year to the last day of February of the succeeding year, both dates inclusive, the rights hereinafter provided for the storage of the waters of said Susan River and its tributaries shall be superior to all irrigation rights, from said stream system, but said storage rights shall at all times be inferior and subject to the rights from said stream system for domestic, stock-watering, municipal and industrial purposes of the parties hereto, who require water from said stream system for said domestic, stock-watering, municipal and industrial purposes.’ " ( Dow I, supra , 216 Cal.App.4th at pp. 777-779, 170 Cal.Rptr.3d 252, fn. omitted.)

II Dow I

In Dow I , "Dow filed a motion in the Fleming case (No. 4573) to interpret and enforce the decree. By his motion, Dow asked the court to confirm that (1) the Susan River decree gives the Irrigation Company only two water rights, one for storage under ...