TULARE SUPERIOR COURT
RULING ON THE MATTER OF HUTCHESON, ET. AL. V. TULARE IRRIGATION DISTRICT
Superior Court Case No.: 00-0192130
October 11, 2000
First, the court allows the filing of the Amicus Curiae brief by Tulare County Audubon Society, Sierra Club.
The court issues a Temporary Restraining Order and sets this matter for an Order to Show Cause (OSC) Why a Preliminary Injunction Should Not Issue, to be heard on Tuesday, October 24, 2000, at 8:15 a.m. in Department 6. The court orders the Plaintiffs to post a bond in the amount of $50,000.
GENERAL LAW OF EASEMENTS
"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.
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.
ANALYSIS
The court finds that during the two week interval before this matter can be heard on full motion, the greater harm to be incurred by Plaintiffs who would lose the oak trees contemplated to be destroyed by the irrigation district, and which because of age are irreplaceable and cannot be compensated for in damages or in replanting. As to the likelihood of Plaintiff's to prevail on the merits, the question is not as easy. The court finds that the easements granted to the Tulare Irrigation District (TID), are express, but the grants do not define the easement as an earthen canal. TID argues therefore, that it may line the canal to protect TID's water, which it purchases from other districts and transports over Plaintiffs' land, from seepage while the water is being conveyed over the land. However, Plaintiffs argue that TID is attempting to re-align the canal, taking property interests in excess of the express grant. TID now states in its opposition papers that although it surveyed the land to determine realignment, and whether or not to acquire those property interests, it has now determined to line the existing easement only. Plaintiffs argue that even lining the existing canal is an increased burden upon the servient tenements that was not contemplated at the time of the grant.
In this case, the easements granted did not specify that the canal is earthen, therefore, the law governing easements by implication is instructive. For more than 100 years the canal has remained earthen, lined by oak trees. Plaintiffs argue that the TID canal was originally a natural slough. Thus, the property owners argue that some water, even if TID had not improved the slough to a canal and did not transport its water across this natural slough, would naturally flow to these landowners, and maintain the oak trees which help define the area for the entire public's enjoyment. This is the argument of Amicus Curiae Applicants. There is also the argument that Plaintiff Lyles owns a 1/9-fee interest in the canal with TID, which has not been acquired. Therefore, the court finds that Plaintiffs have shown the likelihood of prevailing on the merits for purposes of the temporary restraining order.
Prior to the OSC, the Court wants the parties to brief the following issues, to be submitted by Thursday, October 20th:
1. The authority of the applicability and/or non-applicability of a preliminary injunction to the property owners who have not filed suit with this court.
How the TID plans to proceed with the project if the 1/9 interest of Plaintiff Lyles has not been acquired, and/or for that matter what about all the other property owners who may now object and halt the project since TID has not gone through condemnation proceedings?
3. How the Plaintiffs can be assured TID does not exceed the boundaries of the easement granted if the preliminary injunction is not granted.