On May 12th, the Modesto Irrigation District (“MID”) Board of Directors approved ongoing legal action in the recent riparian rights case Modesto Irrigation District v. Heather Robinson Tanaka (“MID v. Tanaka”) in which MID asserted unauthorized water diversions by Tanaka from the Middle River in the Delta. MID’s Board authorized staff to explore legal options, up to and including a petition for review of the case by the California Supreme Court.
MID v. Tanaka concerns islands in the middle of the California Delta which were converted via drainage and reclamation works from marsh and swampland into agricultural land in the latter half of the 19th century. Morton Fisher purchased part of one such island, Roberts Island, in 1877. The Third District Court of Appeal (“DCA”) described the pertinent land and river system thus: “The largest island in the state, Roberts Island, consisted of 67,000 acres and was primarily marsh and swampland. Duck Slough was a large body of water that shifted in size and location depending on how much water was coming down the river at any time in a given year… Middle River breaks off from the San Joaquin River and flows along the western side of Roberts Island. On some 19th century maps, Duck Slough flowed almost all the way to the Middle River. On others, they were connected.” (MID v. Tanaka) at p. 3). The DCA noted that MID’s historian gave “extensive testimony about the location of Duck Slough, its connection to Middle River, and whether it was used as a water conveyance to bring surface water into Roberts Island for irrigation.” (Id.) However, the DCA focused on contract analysis to decide the case and did not reach the issues involving Duck Slough.
Fisher financed and mortgaged his property to British investors for cash to continue reclamation work converting Roberts Island into farmland. In 1883 Fisher subdivided his land holdings on Roberts Island and began selling large lots. By May of 1888, Fisher was unable to make his mortgage payments. The mortgage holders then bought the property and retained a real estate company to sell the land quickly with advertisements about the productivity of the farmland. “In the present case, appellant Heather Robinson-Tanaka’s great-grandfather Isaac Robinson Sr. purchased a subdivided parcel that had been part of a larger riparian tract but was no longer contiguous to water.” (MID v. Tanaka at p. 2) The Robinson farm was purchased from the mortgage company, via the real estate company that was selling the tracts of reclaimed farmland on Roberts Island. It is this deed from 1890 between the mortgage company and Mr. Robinson which the court analyzed in MID v. Tanaka.
The trial court found that Tanaka’s lands had lost their riparian rights, where the contiguity of the lands was severed in an 1890 conveyance which did not explicitly retain the riparian rights, and evidence did not imply intent to retain the rights at the time of conveyance. The DCA reversed, finding that the express language of the conveyance and extrinsic evidence supported the inference that the parties to the 1890 conveyance intended the lands to retain their riparian rights.
The DCA’s analysis was based on interpretation of the conveyance document to determine the intent of the parties as a question of law. Because the extrinsic evidence used to evaluate the conveyance was not in conflict, the DCA’s review was de novo, rather than the substantial evidence standard urged by MID.
The 1890 conveyance did not explicitly state that riparian rights were conveyed. Instead, it used the more general language that the conveyance included “all and singular the tenements, hereditaments and appurtenances thereunto belonging, or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof.” The court analyzed the words “hereditaments” and “appurtenances” at length, in the context of what those words would have meant to a land seller and a land purchaser in a farming community in the 1890’s, and concluded the words “hereditaments” and appurtenances” encompassed riparian rights at that time.
That same language had been considered in an earlier case (Murphy Slough Assn. v. Avila (1972) 27 Cal.App.3d 649, 652), where the court had concluded riparian rights had been lost. The DCA distinguished Murphy Slough from MID v. Tanaka because the circumstances did not demonstrate that “hereditaments: and “appurtenances” did not encompass riparian rights.
The DCA also considered extrinsic evidence to evaluate “whether the circumstances surrounding the sale suggest that the grantors’ and grantee’s intention was consistent with the inclusive language they used to express their intent to retain the riparian rights in the grant deed.” The DCA found no evidence that the Grantee intended to give up his right to water that was essential to sustaining and improving the farm, and no evidence that the Grantors (who were mortgage holders) would have undermined their marketing plan by cutting off riparian rights.
Questions
Water rights practitioners, agricultural interests, environmental plaintiffs, and tribal water rights holders will all be interested to see whether this case is granted cert by the California Supreme Court. To discuss riparian rights issues or any related water or land use matter, please contact one of the following:
Scott Morris, Managing Shareholder
smorris@kmtg.com | 916.321.4578
Holly Roberson, Shareholder
hroberson@kmtg.com | 916.321.4517
Stan Powell, Senior Counsel
spowell@kmtg.com | 916.321-4214