TULARE SUPERIOR COURT
HUTCHESON, ET. AL. V. TULARE IRRIGATION DISTRICT
Superior Court Case No.: 00-0192130
THE COURT'S RULING ON PRELIMINARY INJUNCTION
Otober 27, 2000
The court grants a preliminary injunction to prevent Tulare Irrigation District (hereinafter TID) from going forward with any aspect of its project to line the canal as to any of the 9.7 mile footage unless TID has a fee simple interest in the property that the canal traverses until this matter is determined at trial; TID may continue to do its normal maintenance of the canal; and the court orders the property owners to increase their bond to $100,000, which the court deems is reasonable for the damage likely to be caused by these property owners for the delay imposed by the preliminary injunction if TID prevails at trial.
There has been a lot of discussion in both the hearing on the Temporary Restraining Order and in this hearing on the Preliminary Injunction as to two other lawsuits involving Defendant TID's alleged right to line the irrigation canal. Neither of those cases has any bearing on this case because different issues were being decided.
The case referred to by Defendant, which was heard in Sacramento, involved the issue of whether TID had complied with the California Environmental Quality Act (CEQA) prior to commencing with the project of lining the canal. In the case that Judge Paul Vortmann heard in our court involving landowner Mitts, the first issue was what interest in the canal was retained by Mitts because of the wording of his deed. The court decided that Mitts owned a 1/9 fee interest in the canal along with TID, which owned an 8/9's fee interest. Therefore, the court determined that Mitt's and TID were co-owners and thus co-tenants of the property; therefore, the court determine that one party could not do anything which would damage the interest of the other party. Also, Mitt's deed specifically gave him certain rights to take water from the canal. Once the court made this determination, TID began a condemnation action against Mitts to acquire the 1/9 interest retained by Mitts. In the condemnation action, TID moved to take prejudgment possession of the land in order to start lining the canal before the condemnation case could be heard at trial. Very specific issues pertaining to a condemnation action had to be decided in order for the court to determine whether TID was entitled to prejudgment possession. The court decided TID was not entitled to possession before the trial.
We are not here today to address either of those two issues. We are here today to decide whether a preliminary injunction should be issued.
LAW REGARDING TEMPORARY RESTRAINING ORDERS AND/OR PRELIMINARY INJUNCTIONS
In granting a temporary restraining order and/or injunction, the court, in its sound discretion, must evaluate the following two factors: (1) the likelihood that the applicant will prevail on the merits at trial; and (2) the balance of any interim harm to the applicant if the injunction is denied compared with the harm to the responding party if the injunction is issued. Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 441-442.
Thus, the court today, in this hearing on a preliminary injunction, must decide (1) if the property owners are likely to prevail on the merits at trial; and (2) the balance of any interim harm to the property owners if the injunction is denied compared with the harm to TID if the injunction is issued. To decide the likelihood of the property owners prevailing at trial, the court is considering the following issue: When TID has an easement interest for a canal in the land of these property owners, does it have the right under the Water Code section 20500, et. seq., and the law of real property easements, to take out over 200 oak trees existing in the easement and line the canal with cement?
First, in the court's mind there is no question that the greater harm will be suffered by the landowners if TID is allowed to go forward with their project. Once the oak trees are destroyed they cannot be replaced even if the landowners ultimately prevail at trial. TID has potential money damages only.
When the court considers the likelihood of the property owners prevailing on the merit at trial, the analysis becomes more complex. At trial these property owners want the court to decide that TID does not have the right to line the canal unless TID takes their property through a condemnation action, as it is attempting to do in the Mitts case. Then TID would own the property outright, having a fee simple interest in the property rather than only an easement interest. In order for the court to make this determination, the court must review extensive case law on real property rights involving easements.
GENERAL LAW OF EASEMENTS
Although there are many cases on real property rights involving easements, the court is only going to give a succinct statement of the law of easements, which it feels reflects the majority of case law. "An easement is a restricted right to specific, limited, definable use or activity upon another's property, which right must be less than the right of ownership." [cites omitted.] In construing an instrument conveying an easement, the rules applicable to the construction of deeds generally apply. If the language is clear and explicit in the conveyance, there is no occasion for the use of parol evidence to show the nature and extent of the rights acquired. [cites omitted.] If the language is ambiguous, extrinsic evidence may be used as an aid to interpretation unless such evidence imparts a meaning to which the instrument creating the easement is not reasonably susceptible. [cites omitted.]" Scruby v. Vintage Grapevine, Inc. (1995) 37 Cal.app.4th 697, 702. The extent of the servitude is determined by the terms of the grant, or the nature of the enjoyment by which it was acquired. Civil Code section 806. Although an express easement is not limited by Civil Code section 1104 to uses in existence at the time of the agreement and/or conveyance, the well established law governing easements by implication is instructive when the deed does not describe the extent of the easement it conveys. Camp Meeker Water System, Inc. v. Public Utilities Commission (1990) 51 Cal.3d 845, 866. The owner of the dominant tenement must use his or her easements and rights in such a way as to impose as slight a burden as possible on the servient tenement. The owner of the servient estate may make continued use of the area the easement covers so long as the use does not "interfere unreasonably" with the easement's purpose. Scruby v. Vintage Grapevine, Inc. (1995) 37 Cal.App.4th 697, 702-703. TID is the owner of the dominant tenement because it is the owner of the easement right. The property owners are the servient tenements because it is their land that serves TID, the owner of the easement.
ANALYSIS
TID would have the court determine that several of the deeds grant a fee interest to TID rather than an easement by the court interpreting the words of the grant. This is alleged as to only five property owners. A fee interest in the property would give TID the right to do whatever they want, as the property would be theirs. TID makes this argument based upon Basin Oil Co. v. City of Inglewood (1954) 125 Cal.App.2d 661. This case was a grant for a street dedication, and the issue in the case was not whether the burden was greater on the servient tenement, etc., but was a decision to determine the ownership interest to be able to distribute royalty rights of an oil lease, and is not on point. But in any event, TID would have the court determine it holds a fee interest in the land of Hutcheson. However, in submitted evidence TID admitted in a prior trial in the 1980's that it only had an easement interest in Hutcheson's property. This court is not here today to quiet title to any of these lands. Also, TID admits that it has no rights over Slovers' property but alleges it simply needs to reform a deed to obtain the rights to the property because of an inadvertent error that was made in the legal description. In this action, the court is not going to reform a deed.
Therefore, the court is here today to determine the likelihood of the property owners prevailing at trial to stop TID from lining the canal on property that TID has easement rights.
TID, in its oral argument, stated the argument from the Plaintiff ignores the clear rulings in several cases. TID then cited cases, Faus, Norris, Wall, and Campmaker, and stated: "With regard to all of these cases, and all of what they clearly held, the district is proposing to do exactly that what is contemplated in the original deeds which is to transport water. It is a different means of transportation. The cases we cite talk about changes in the means of transportation, a grant for the use of a railway. Railways are no longer in vogue, cars are in vogue, take out the railways, pave it. Grantor successors complained that isn't what we intended. We didn't have cars, we didn't have roads, we want rail ways." The court is consistent in these cases and other cases I cite in the brief, consistent whether I held that the grant was made to transport, they are still transporting, it is allowed with no concern over the impact on the servient tenement. TID prior to this statement gave what it said was the holding in each of these four cases.
A quick look at these cases in their entirety is very helpful to the court. In Faus v. City of Los Angeles (1967) 67 Cal.2d 350, the facts were that the City of Los Angeles had taken the property over which the easements existed by condemnation. However, the City failed to name the original grantors in that action. Plaintiff Faus located the heirs of the original grantors of the easements and obtained from them an assignment of all interest that they might have in the subject parcels. Then plaintiff commenced the action against the City of Los Angeles urging that the city's use of the land violated the conditions contained in the original deeds and thus he was entitled to an award for the taking of the property. Although the case did discuss whether the use now contemplated was inconsistent with the terms of the original grant, this case is clearly not on point. The grant was for public transportation, and was deemed to be an easement for street purposes. Second, this case did discuss the burden on the servient tenement. This case cited Montgomery v. Santa Ana (1894) 104 Cal.186, for the following: "As early as 1894, this court was prepared to rule, contrary to the then prevailing authorities, that land subject to an easement for street purposes could be used for a passenger or freight railway without thereby surcharging the easement." Therefore, since this was a street dedication case, the court determined that the burden of the servient tenement was not increased. Our case is not a street dedication case, so this case is not helpful.
In Norris v. State of California (1968) 261 Cal.App.2d 41, the issue was whether the grant of the easement gave the State a right to maintain a "vista point" and "roadside rest" on the property. The court determined that the discussion was limited to the question of the surcharging of the easement. In reviewing the grant, the court found that the lakeside property where the rest stop was constructed was expressly within the terms of the grant. Again, this case is not on point in our case. This was a road dedication easement once again, which expressly granted the rights. This court is being asked to determine rights pursuant to grants that do not specify what type of "ditch" or "canal."
TID cites Wall v. Rudolph (1961) 198 Cal.App.2d 684, for the proposition that, if the grant is in broad terms, it has been held that such phrasing creates a general right of way capable of use in connection with the dominant tenement for all reasonable purposes limited only by the requirement that it be reasonably necessary and consistent with the purposes for which the easement was granted. This case cites another case that says this reasonable contemplation presumptively includes normal future development within the scope of the basic purpose. Thus, TID argues lining the canal is their right under the Water Code and within their easement rights since lining the canal is a normal future development of the canal within the scope of the basic purpose of the grant of the easement. Again, this is another road dedication case, and the facts are nowhere near the facts in our case. Additionally, what TID failed to mention is all the other case law cited within Wall. The court in Wall also stated:
"California courts have set their faces firmly against such increases in the burden upon the servient tenement. [cites omitted]. "Section 806 of the Civil Code provides that the extent of a servitude is determined by the terms of the grant, or the nature of the enjoyment by which it was acquired; and it is well settled that "both parties have the right to insist that so long as the easement is enjoyed it shall remain substantially the same as it was at the time the right accrued, entirely regardless of the question as to the relative benefit and damage that would ensure to the parties by reason of a change in the mode and manner of its enjoyment. [cites omitted.]" Wall v. Randolph (1961) 198 Cal.App.2d 684, 694.
Finally, TID cites Camp Meeker Water System, Inc. v. Public Utilities Commission (1990) 51 Cal.3d 845, a California Supreme Court case. The only issue before the Supreme Court involved the Public Utilities Commission's right to raise the rates. Once again, this case is not on point with the facts in our case.
The property owners have cited to one case that they argued is controlling because they argue the facts are identical to our facts. In Krieger v. Pacific Gas & Electric Co. (1981) 119 Cal.App.3d 137, the essential controversy was whether P,G, & E's easement rights to an earthen water ditch traversing Krieger's land encompassed the right to line the earthen ditch with concrete-like gunite. Prior to Krieger purchasing the property, part of the canal on his property had been lined with gunite. The appellate court stated the easement granted did not give P, G, & E this right because it increased the burden upon the servient tenement.
TID argues Kreiger is not on point because this is a prescriptive easement case, not an express grant of an easement by deed as we have in our case. This is true to a certain extent. However, the easement for the man-made ditch was made an express easement by virtue of a July 26, 1866, Act of Congress. From its inception and at the time Krieger's property was patented in 1914, the ditch was open and earthen. Although the facts are not technically identical, this court finds this case very persuasive, and the closest on point of any case cited to the court. This case, citing another case, stated: "Whether respondent's title to a right of way for a ditch be regarded as one resting upon an express grant from the government under the act of July 26, 1866, . . .or upon prescription an implied grant--the result is the same. If regarded as an express grant from the government, it was a grant that did not specifically bound or define the right of way. While the land was still a part of the public domain, the way became definitely fixed and located along a certain line by the conduct of the grantees, the respondents here [citation]; and when appellant's land acquired the impress of private property, the terms of the grant could not be changed, without his consent, so as to change the character of the easement or materially increase the burden on the servient estate. [Citation.] . . .The nature of respondents' enjoyment of the servitude consisted in conducting water in an open earthen ditch that followed a certain well-defined and established course over appellant's land--a line that had been established for many years." Krieger v. Pacific Gas & Electric Co. (1981) 119 Cal.App.3d 137, 144.
This court finds that the terms of the grant in the deeds to TID, did not specifically bound or define the right of way, as stated in Krieger. Going back to our law on easements, we are then able to look to parol evidence to determine the nature and extent of the rights acquired by the grant so long as it does not impart a meaning to which the instrument creating the easement is not reasonably susceptible. We are also able to look at the law regarding implied easements. Thus, we may look at the contemplation of the parties at the time of the grant. We may also look to the continued use and conduct of the parties.
Now we may begin our analysis. First, we know the canal has been earthen since its inception. Second, we know the property owners have benefited from the seepage of the water because the canal is earthen. We also know that some of the oak trees along the canal banks that will be destroyed by the lining of the canal were in existence at the inception of the canal, and the property owners as well as the community has benefited from them.
In looking at the seepage of water issue, the court is not here today to decide the issue of whether the property owners are entitled to the seepage of the water which naturally happens in an earthen canal, but this issue goes to the likelihood of the property owners prevailing at trial. This court does not find that the property owners are likely to be determined at trial to be entitled to the seepage of the water purchased by TID that it transports across the canal based upon any prescriptive rights. Property owners cannot obtain prescriptive rights to the water since TID is a public entity, no matter how long the property owners may have been enjoying these benefits. If TID decided to stop transporting water by means of this canal across the landowners' property, the landowners would not be able to complain. This is true even though the fact remains that TID knew that this seepage was going to happen when they built an earthen canal over a 100 years ago, and allowed it to continue for this amount of time.
However, that does not end the court's inquiry by any means, because the property owners may be entitled to the seepage of the water for other reasons. We know these property owners have been enjoying the benefits of the seepage of the water since its inception. And, by evidence of an 1890 TID report submitted by the property owners, we know that TID expected 12% seepage of the water in the canal. The property owners argue this evidence goes to what was contemplated at the time, and therefore, when these easements were granted, since the express grant did not specify the type of canal, and only earthen canals were being built at that time, the property owners expected to be benefited by the seepage of the water from the canal when they made the grant to TID. The property owners have been enjoying this benefit for all these years, and argue that the stoppage of this seepage would increase the burden on their land.
And there remains the question of whether the canal originally was a natural slough entitling these landowners to riparian rights to water which would have naturally flowed through the slough irregardless of whether TID was transporting water it buys from other districts across this land. The language in several of the deeds refers to a "slough." TID in its opposition papers would have the court find that this term was only used as a marker or monument. TID also argued that the property owners did not make a claim that this was a natural slough nor was there any competent evidence presented by the property owners for this fact. To the contrary, the property owners did make this argument in their request for a temporary restraining order, and submitted the declaration of expert Richard L. Schafer as evidence. Mr. Schafer gave his opinion that the evidence of the age of the oak trees along the banks of the canal indicates this was originally a natural waterway. Now, in their reply brief, the property owners submitted evidence that TID's own expert testified in a previous hearing that the canal was originally a natural waterway. TID countered at oral argument that the evidence submitted regarding the prior case only pertained to that one particular piece of property of the Hutcheson's, not the entire canal. However, this court finds it very difficult to imagine a natural slough on only one piece of property without any natural means of bringing the water to the natural slough, or a natural means of the water exiting the natural slough. If the trial court finds that the canal was originally a natural waterway, the property owners would have the rights to water that naturally flow across their land. Of course, there is no way to determine what amount this might be without TID shutting off its faucet.
Now, to finish this analysis, taking the law of easements into consideration, and the Krieger case, the court finds that although TID has certain rights under the Water Code and its easement rights, it does not have the right to do whatever it decides is in its best interest to the detriment of the property owners that own the land. The language in the deeds does not limit what type of canal was to be constructed. An earthen canal was constructed. There is evidence of the known seepage of the water at the time of the inception of the canal. Certainly, some of the trees were a part of the easement at its inception. There is evidence that this canal was originally a natural slough, giving riparian rights to these landowners. Therefore, for purposes of the preliminary injunction, the court finds that the property owners are likely to prevail at trial because TID's lining the canal would increase the burden on the property owners by removing the oak trees, by taking the landowner's right to whatever water may have flowed across their property naturally, as well as the right to the seepage that was contemplated at the time of the grant and benefit which they have enjoyed since its inception. Therefore, the court issues a preliminary injunction for TID to stop all activity in connection with lining the canal until this matter can be fully decided at trial. TID may continue their regular maintenance of the canal.
Next, the question becomes, who is affected by the preliminary injunction? The property owners argue that this would be a public and private nuisance, cause a multiplicity of identical lawsuits and judicial proceedings, and that TID has admitted in evidence submitted it cannot proceed with lining the canal in part because partial lining would cause damage to the remaining unlined parts. The property owners submit the multiple declarations of other property owners over whose property the canal runs, who are not yet plaintiffs in this action, which support the granting of the preliminary injunction.
Under the provisions of Civil Code section 3479, a nuisance is anything injurious to health or indecent or offensive to the sense, or an obstruction of the free use of property, so as to interfere with the comfortable enjoyment of life or property; and under Civil Code section 3480 any such nuisance which affects at the same time an entire community or neighborhood is a public nuisance, then though individuals may be affect unequally.
TID argues it has the right to proceed to line the canal on the property of owners who are not plaintiffs in this case, alleging that the court may only grant a preliminary injunction against the parties in the lawsuit. TID also alleges since it is proceeding under its statutory right under the Water Code the court cannot deem its action a pubic nuisance pursuant to Civil Code section 3482. TID alleges this code states that actions undertaken by a public entity within its statutory rights and obligations cannot, as a matter of law, constitute a nuisance. Cases for this premise was cited by TID. Property owners cited other cases in noting this code section has been narrowly construed. The court finds that nothing in the Irrigation District Law provides the District the express authority to line a natural waterway. Therefore, Civil Code section 3482 is not applicable.
In addition, the court finds that a multiplicity of lawsuits and judicial proceedings may commence if TID is not enjoined from lining any part of the canal over which it only has an easement interest. The court also finds that lining parts of the canal would create a pubic and private nuisance that would affect the entire community because of the removal of the oak trees. Therefore, the court issues the preliminary injunction to prevent TID to go forward with any of its project along the 9.7-mile route of the canal on property over which it only has an easement interest until this matter can be heard at trial.
Finally, we come to the issue of the bond. TID argues its damages are the loss of water to seepage and the cost of delay in the contract it signed to have the canal lined. TID argues the damages will be somewhere between one to five million dollars based upon the testimony of their representatives for the delay until this can be heard at trial. The property owners argued that TID is not in a position to go forward for various reasons. The court agrees with the property owners. Therefore, the court finds that TID is not in a position to go forward with lining the canal because the District has admitted it has to reform the Slover's deed to have even an easement interest in their property. Additionally, TID may have to obtain a stream bed alteration permit as is required by section 1601 Fish and Game Code based upon the evidence the canal was originally a natural waterway. The District has not yet obtained the interests of property owner's Mitts. Therefore, this action by these property owners alone is not preventing TID from going forward.
Consequently, the court requires the property owners to increase its bond to $100,000, which the court deems is the reasonable damages for loss of the water through seepage lost during this interim time caused by these property owners if TID should ultimately be determined to be able to line the canal without obtaining fee simple interests in the land. The court does not find that these property owners would be responsible for damages arising from the contract issues between TID and the company with which it signed contract to line the canal. These property owners should not be held liable for the damages incurred by TID's failure to proceed to determine its property rights knowing the objections to this project prior to entering into the contract.
Patrick J. O'Hara
Judge, Tulare Superior Court