Filed 4/30/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Lassen)
----
JAY DOW, as Trustee, etc., C090304
Plaintiff and Appellant, (Super. Ct. No. 4573)
v.
HONEY LAKE VALLEY RESOURCE
CONSERVATION DISTRICT et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Lassen County, David L.
DeVore, Judge. (Retired Judge of the Alpine Super. Ct. assigned by the Chief Justice
pursuant to art. VI, § 6 of the Cal. Const.). Affirmed.
Brownstein Hyatt Farber Schreck, Bradley J. Herrema and Brooke M. Wangsgard
for Plaintiff and Appellant.
Kronick, Moskovitz, Tiedemann & Girard, Scott A. Morris and William T.
Chisum for Defendant and Respondent Lassen Irrigation Company.
Lozano Smith and Mark W. Waterman; Harper & Burns and William P. Curley
for Defendant and Respondent Honey Lake Valley Resource Conservation District.
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
1
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.) 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.) Thus, the potential ambiguity created by “or” is not one-dimensional.
In Dow v. Lassen Irrigation Co. (2013) 216 Cal.App.4th 766 (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, 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.) 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
2
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.)
I
The 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
1 Cubic feet per second.
3
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
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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, 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
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paragraph 50 and one for direct diversion to beneficial use under schedule 6; (2) nothing
in the decree authorizes or empowers the Irrigation Company to divert its storage right
under paragraph 50 for direct application to beneficial use; and (3) each year the
Irrigation Company may fill each of its three reservoirs only once unless the Irrigation
Company uses water available under its schedule 6 rights or water determined to be
excess to the system. The main thrust of Dow’s argument was that the watermaster erred
in interpreting the decree to allow the Irrigation Company ‘to divert the continuous flow
equivalent of 31,500 [acre-feet] to be directly applied to a beneficial use.’
“The Irrigation Company opposed Dow’s motion, contending that the decree
‘expressly allows [the Irrigation Company] to both divert or store Susan River water as
long as certain flows are maintained in the Susan River.’ [¶] The trial court sided with
the Irrigation Company, concluding that the word ‘divert,’ as used in paragraph 21,
means ‘diversion for direct application [to] beneficial use as opposed to storage.’ Based
on this interpretation, the court concluded that paragraph 21 allows the Irrigation
Company to either divert for direct application to beneficial use or store up to 31,500
acre-feet of water annually, subject to the minimum flow requirements immediately
above Willow Creek. [¶] Dow filed a timely notice of appeal from the order interpreting
the decree.” (Dow I, supra, 216 Cal.App.4th at p. 780.)
We disagreed with the trial court’s interpretation of the paragraph 21 exception.
(Dow I, supra, 216 Cal.App.4th at p. 768.) In reaching that conclusion, we conducted an
in-depth analysis of various provisions of and the history leading up to the adoption of
the decree to ascertain the meaning of “or.” (Id. at pp. 782-789.) We noted that the
paragraph 21 exception originated from the prior stipulation for judgment and was
drafted by the Irrigation Company as a reservation to paragraph 12 of that stipulation.
(Id. at pp. 775-776.)
We explained paragraph 21 “was intended to qualify or limit rights granted
elsewhere in the decree -- particularly by specifying when those rights can be exercised.”
(Dow I, supra, 216 Cal.App.4th at p. 782.) We concluded that, by giving the word “or”
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its ordinary meaning (i.e., “as a choice between alternatives”) and giving effect to the two
commas creating a parenthetical phrase, the paragraph 21 exception provides:
“ ‘[B]etween March 1 and July 1 of each year when the flow of [the] 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,’ 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.) “Understood in this manner, the exception in paragraph 21
under consideration serves to specify when the Irrigation Company may exercise its
water rights under both schedule 6 and paragraph 50 of the decree.” (Id. at p. 785.)
In that regard, paragraph 21 gives “the Irrigation Company’s schedule 6 right
greater priority than it would otherwise have. For example, as long as the minimum flow
requirements immediately above Willow Creek are satisfied and the Irrigation Company
leaves enough additional water in the river to satisfy the users on the river above the
confluence with Willow Creek, the Irrigation Company can directly divert up to 36.65 cfs
under its schedule 6 right irrespective of other users like Dow with rights under the third
priority class in schedule 5 and the first priority class in schedule 6. And this is true even
if the Irrigation Company has already stored all the water it is entitled to store under
paragraph 50 of the decree. That means there may be times when Dow is not receiving
all of the water to which he is entitled under schedules 5 and 6 but the Irrigation
Company is able to divert water into an otherwise full Lake Leavitt at the same time it is
simultaneously releasing water from the reservoir for use by its shareholders. In such an
instance, the water passing through the lake is water available to the Irrigation Company
under its schedule 6 right, which by the terms of paragraph 21 takes priority over Dow’s
rights.” (Dow I, supra, 216 Cal.App.4th at pp. 789-790.) We will refer to the foregoing
example as the example in the remainder of this opinion.
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We further explained that “we believe the history of the operative language [in
paragraph 21] shows that that language was inserted into the seasons of use paragraph at
the behest of the Irrigation Company to clarify that it could exercise its right to
direct diversion under schedule 6 and/or its right to storage under paragraph 50 as long as
the minimum flow requirements were met immediately above Willow Creek, subject only
to the rights under the first and second priority classes in schedule 5.” (Dow I, supra, 216
Cal.App.4th at pp. 792-793.)
III
The Current Dispute
Dow, on behalf of the trust, filed a water rights dispute form with the watermaster
in 2018, stating the watermaster proceeded in contravention of Dow I when it allowed the
Irrigation Company to concurrently divert under its schedule 6 right and store water
under its paragraph 50 right in April and May 2018. This, the trust argued, reduced the
water available to the trust for use on its ranches.
The watermaster read Dow I “as granting [the Irrigation Company] the right to
exercise all its rights,” relying on our disjunctive interpretation of “or” in the paragraph
21 exception and the example we provided. The watermaster concluded: “Despite other
interpretations being possible under the Decree, as interpreted, the simultaneous drawing
down and recharging of the storage facilities, while it could be done in an ‘on-off’ basis,
is not prohibited under the Decree, as interpreted. Further, nothing expressly prohibits
the simultaneous application of all available water rights held by a party to the Decree.
Therefore, Mr. Dow’s suggested solution/relief that the [Irrigation Company], under the
supervision of the [watermaster], release into the Susan River an amount of water equal
to what was diverted into Leavit Lake in April and May of 2018, for use by Schedule 3,
Schedule 5 priority 3, and Schedule 6 users, which is requested in Mr. Dow’s June 6,
2018 Complaint (‘Complaint’), is hereby denied.”
Dow, on behalf of the trust, filed a motion in the trial court (subject to the court’s
continuing jurisdiction as provided in the decree), challenging the watermaster’s decision.
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In his accompanying declaration, Dow declared that, “[i]f [the Irrigation Company] is
permitted to simultaneously exercise its Schedule 6 and Paragraph [50] rights, I, and
other water users, will not receive a majority of the Schedule 5 (Priority 3) or Schedule 6
water rights. Under this scenario, I will only receive water in these schedules in
extremely high flows such as flood flows.”
The trial court denied the trust’s motion. The court found Dow I “addressed the
issue here at great length,” having “exclusively dealt with the language of Paragraph 21,
examining the Decree as a whole to ascertain the drafters’ intent and delving into the
weeds of grammatical construction.” The trial court looked to our disjunctive
interpretation of “or” and the example. As to the example, the trial court said: “It
appears that the Trust misconstrues the court’s example, or chooses to ignore the full text
of the example by omitting the entirety of the line beginning ‘And this is true even
if . . .’ . The true meaning seems to be that simultaneous exercise of schedule 6 and
paragraph 50 rights may be exercised by [the Irrigation Company] up to and including
when full storage capacity has been reached, not only if, or only after, full capacity has
been achieved, so long as the Willow Creek minimum flows are not impaired.”
The trial court reasoned: “It appears that the nut of the matter is ensuring
minimum flows at Willow Creek. The Trust has argued that it is entitled to more water
than would be available at minimum flows, but that does not mean that [the Irrigation
Company] is restricted in the exercise of its rights to see that that happens. It does not
appear that [the Irrigation Company] has an obligation to the Trust other than to ensure
the exercise of its rights do not result in impairment of the 20/5 minimum flow
requirements. In a year of abundant water it may be that even with [the Irrigation
Company] fully exercising its rights there would be sufficient water at and beyond
Willow Creek for users like the Trust to fully enjoy their entitlements. Conversely, in
harsher conditions there may not be such excess water passing Willow Creek and
downstream users like the Trust may be affected. As the Dow court said ‘. . . there may
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be times when Dow (the Trust) is not receiving all of the water to which he (it) is
entitled . . . .’ ”
DISCUSSION2
The trust raises two arguments. First, it asserts Dow I squarely states the “or” in
the paragraph 21 exception must be read in the exclusive sense and, thus, the watermaster
and trial court failed to follow the law of the case. Second, in the alternative and if Dow I
did not address the issue, the trust believes the plain language of the decree dictates that
the “or” be read in the exclusive sense. We disagree with both arguments. Before we
delve into the analysis of the trust’s arguments, however, we address the parties’
disagreement as to the appropriate standard of review.
I
Standard Of Review
The Irrigation Company argues we should give deference to the watermaster’s
interpretation of the decree because, by appointing the watermaster, “the Court has
entrusted administration of the 1940 Decree with the [watermaster] by presumably
acknowledging it has the competence and expertise to perform this function, and no basis
exists for not deferring to such expertise.” The Irrigation Company relies on deferential
review principles generally extended to review of an administrative agency’s
interpretation of a statute or regulation involving its area of expertise. (Citing
2 We do not consider the Irrigation Company’s argument that the trust is seeking an
advisory opinion. The argument is based on the premise that Dow’s declaration lacked
foundation establishing personal knowledge of the facts attested to therein and was likely
based on improper hearsay. The Irrigation Company objected to Dow’s declaration in the
trial court on those very grounds. The trial court overruled the objections and the
Irrigation Company did not file a cross-appeal. A respondent who fails to file a cross-
appeal cannot urge error on appeal. (California State Employees’ Assn. v. State
Personnel Bd. (1986) 178 Cal.App.3d 372, 382, fn. 7.) We thus do not consider the
Irrigation Company’s evidentiary objections to Dow’s declaration in this appeal.
10
Communities for a Better Environment v. State Water Resources Control Bd. (2003) 109
Cal.App.4th 1089, 1103-1104.)
The watermaster argues “this Court should apply a standard of review in which it
considers whether the 1940 Decree can be reasonably understood in the manner in which
it was interpreted by the superior court and by [the watermaster],” placing the burden of
proving error on the trust.
The trust asserts we should review the watermaster’s decision de novo because the
issue presented is a question of law and the watermaster “is not a separate branch of
government” but instead “considered an arm of the Court.”
We apply de novo review, exercising our independent judgment as to the inclusive
or exclusive sense of the “or” in the paragraph 21 exception because the question does
not turn upon the credibility of extrinsic evidence. (See Quantification Settlement
Agreement Cases (2011) 201 Cal.App.4th 758, 797-798.) Further, even if deferential
review applies to some watermaster decisions, the question of law as to the interpretation
of the decree presented here falls within the court’s and not the watermaster’s area of
expertise. (See City of Brentwood v. Dept. of Finance (2020) 54 Cal.App.5th 418, 428.)
II
The Watermaster And The Trial Court Did Not
Fail To Follow The Law Of The Case
The trust asserts the watermaster and the trial court erred in failing to apply the
law of the case because they interpreted the paragraph 21 exception in a manner
inconsistent with Dow I by reading the “or” as a conjunctive rather than disjunctive
connector and misapprehending the meaning of the example. It appears the trust believes
our conclusion that the “or” is a disjunctive connector necessarily means it applies in the
exclusive sense. The trust is mistaken.
“The law of the case doctrine states that when, in deciding an appeal, an appellate
court ‘states in its opinion a principle or rule of law necessary to the decision, that
principle or rule becomes the law of the case and must be adhered to throughout its
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subsequent progress, both in the lower court and upon subsequent appeal . . . , and this
although in its subsequent consideration th[e appellate] court may be clearly of the
opinion that the former decision is erroneous in that particular.’ ” (Kowis v. Howard
(1992) 3 Cal.4th 888, 892-893.) The doctrine applies only if the point of law was
necessary to the prior decision, and it was a matter actually presented to and determined
by the reviewing court. (People v. Shuey (1975) 13 Cal.3d 835, 842.)
The only rule established in Dow I as to the “or” in the paragraph 21 exception
was regarding its disjunctive nature. We did not consider whether the disjunctive
connector is inclusive or exclusive because it was not an issue presented in that appeal.
(See Burke v. State, supra, 290 P.3d at p. 794 [“To say that ‘or’ is ‘disjunctive’ is true
enough. But authorities agree that a disjunctive connector can have either an ‘inclusive’
or an ‘exclusive’ sense. Thus ‘A or B’ can mean one or the other, but not both. But it
can also mean one or the other, or both”].) Indeed, the trust acknowledges as much,
stating “the precise issue presented in this appeal is distinct from the issue before the
Court in 2012.”
The trust’s reliance on our use of “either/or” in Dow I (to explain the disjunctive
nature of the “or”) for the proposition that we gave the connector a disjunctive exclusive
interpretation is misplaced. It is clear from the context of the analysis that we did not use
the language to denote the “or” as exclusive. We merely said that the “or” was used as a
disjunctive connector indicating an alternative “ ‘such as “either this or that.” ’ ” (Dow I,
supra, 216 Cal.App.4th at p. 783.) The use of “or” in that context (as either this or that)
does not necessarily mean the “or” is exclusive. (See, e.g., Barker Bros., Inc. v. Los
Angeles (1938) 10 Cal.2d 603, 606 [“The ordinance in controversy requires a license for
any department store or any store where a variety of goods, wares and merchandise are
offered for sale from several departments or sections. The word ‘or’ is ordinarily used as
a disjunctive ‘that marks an alternative generally corresponding to “either” as “to either
this or that” ’. [Citations.] As so understood the ordinance brings within the scope of its
provisions both department stores and those which may not be ‘commonly known’ as
12
such but offer their goods for sale from several departments or sections”], first italics in
original, second italics added.)
The example in Dow I does not support the trust’s position either. The example
merely illustrated how the terms of paragraph 21 gave the Irrigation Company’s right to
divert under schedule 6 greater priority than it would otherwise have under the decree.
(Dow I, supra, 216 Cal.App.4th at p. 789.) Nothing in the example could be read to
support the proposition that the Irrigation Company may exercise only one of its
“ ‘altered priority’ rights,” as the trust calls them, at a time. The trust’s tortured reading
of the example is simply wrong.
We conclude the watermaster and the trial court followed the law of the case by
treating the “or” in the paragraph 21 exception as a disjunctive connector. The question
is whether they erred in further interpreting the “or” in the inclusive sense.
III
The “Or” Is Disjunctive In The Inclusive Sense
The trust asserts “the plain language of the Decree itself leads to one reasonable
conclusion: that [the Irrigation Company] can only exercise one right, or the other -- it
may not exercise the rights concurrently.” The trust relies on various dictionary
definitions of “or” as indicating an alternative and demonstrating alternative possibilities,
and California cases interpreting “or” as a disjunctive term and to denote an alternative
such as “either this or that.” The trust further argues an inclusive interpretation would
result in absurdity and unfairness.
The dictionary definitions and cases upon which the trust relies address only the
disjunctive nature of “or.” But, of course, there is no quibble with that; that issue was
addressed and decided in Dow I. None of the authorities cited by the trust address the
exclusive and inclusive sense of the word or inform our inquiry in that regard.
“Legal sources differ on which meaning of ‘or’ [(as inclusive or exclusive)] is
authoritative. In the realm of symbolic logic, the exclusive ‘or,’ otherwise known as
the exclusive disjunction, means that only one of the propositions or terms joined by the
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disjunction can be true. ‘Jim is eight or nine years old’ is exemplary of
an exclusive disjunction because only one proposition in the disjunction can be true. On
the other hand, an inclusive disjunction assumes that either one or both of the
terms or propositions on either side of the disjunction are true. A sentence like, ‘X will
call or email Y,’ does not necessarily denote an exclusive disjunction, but rather, it leaves
open the possibility that X could call and email Y. Essentially, an inclusive disjunction
allows the possibility of either option, or both, which is also the literal meaning
of and/or.” (Commonwealth v. Griffin (Pa. 2019) 207 A.3d 827, 831, fn. 4.) “[I]t has
been asserted that, in legal drafting, it is more often the case that the connective ‘or’ is
used in the inclusive sense” (Burke v. State, supra, 290 P.3d at p. 794) and “[i]n ordinary
English, the phrase ‘P or Q’ on its own often suggests the inclusive sense of ‘or’ ”
(Gonzalez v. State (Del. 2019) 207 A.3d 147, 156).
We agree with other courts that “[w]hether the disjunctive ‘or’ is inclusive or
exclusive will depend on its context.” (Burke v. State, supra, 290 P.3d at p. 794; see
Lake v. Woodcreek Homeowners Assn. (2010) 169 Wn.2d 516, 528 [243 P.3d 1283,
1289] [same]; see Hennigan v. United Pacific Ins. Co. (1975) 53 Cal.App.3d 1, 5-6
[meaning of “or” and “and” depends on the context within which the word appears, the
reason for the writing, and what interpretation comports with the drafter’s intent].) In
that regard, we observe the Irrigation Company’s diversion and storage rights are not
mutually exclusive rights, i.e., the very nature of the alternatives created by the “or” is
not such that only one alternative may possibly apply at a time. The trust agrees, stating
it “is not arguing that [the Irrigation Company’s] rights are mutually exclusive pursuant
to their defining terms.” Indeed, this dispute arose because the Irrigation Company
exercised both of its rights simultaneously.
Further, as the watermaster noted and the trust agrees, nothing in the decree
prevents any of the other parties from simultaneously exercising their water rights. Thus,
what the trust proposes is to read the “or” in the paragraph 21 exception as intending to
create an exception to the general rule of simultaneous use as to the Irrigation Company
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alone. But, we find no support for this interpretation in the history or language of the
decree. In fact, the history of the paragraph 21 exception indicates quite the opposite.
As we explained in Dow I, “we believe the history of the operative language
shows that that language was inserted into the seasons of use paragraph [(i.e., paragraph
21)] at the behest of the Irrigation Company to clarify that it could exercise its right to
direct diversion under schedule 6 and/or its right to storage under paragraph 50 as long as
the minimum flow requirements were met immediately above Willow Creek, subject only
to the rights under the first and second priority classes in schedule 5.” (Dow I, supra, 216
Cal.App.4th at pp. 792-793, italics added.) Thus, “the exception in paragraph 21 under
consideration serves to specify when the Irrigation Company may exercise its water
rights under both schedule 6 and paragraph 50 of the decree.” (Id. at p. 785, italics
added.)
In other words, the Irrigation Company’s reservation in the stipulation, which was
ultimately adopted almost verbatim in the decree as the paragraph 21 exception (Dow I,
supra, 216 Cal.App.4th at pp. 775-776), was self-serving in that the Irrigation Company
sought to ensure it had the ability to exercise both its diversion and storage rights. It
appears imminently reasonable that given the Irrigation Company’s proposed self-serving
language, one would expect that, if the parties to the decree intended to limit the
Irrigation Company’s rights as proposed by the trust, they would have done so by
conclusive and direct language rather than simply using an ambiguous “or,” as proposed
by the Irrigation Company.
We also note the paragraph 21 exception is not the only exception granted to the
Irrigation Company. In paragraph 48, the Irrigation Company is given the right to divert
36.65 cfs for either storage or for direct application to beneficial use, whereas other
parties are limited to diversion for direct application to beneficial use. As to schedule 5
rights, the Irrigation Company is given another exception in paragraph 47: “provided
further, that Lassen Irrigation Company shall be entitled to divert under their rights
hereinafter set forth in paragraph 50 from the flow of Susan River in excess of 20 cubic
15
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.”
Taken together, the exceptions in the decree indicate an intent to provide the
Irrigation Company with flexibility in exercising its rights. Construing the “or” in the
inclusive sense would carry out that purpose. (In re Reineger (1920) 184 Cal. 97, 103
[“A narrow or restricted meaning should not be given to a word, if it would result in an
evasion of the evident purpose of the act, when a permissible, but broader, meaning
would prevent the evasion and carry out that purpose”].)
As to the trust’s absurdity and unfairness argument, the trust asserts an inclusive
interpretation of “or” “virtually guarantees that Dow and other affected water users would
never receive their entire allotted rights in the absence of extremely high flows, such as
flood flows.” In the trust’s view, “[i]f this interpretation was actually intended by the
language in the Decree, no water user affected by Paragraph 21’s ‘altered priority’ would
have agreed to it.”
The question is whether the trust’s inability to receive its full allotment under the
decree at times renders the inclusive interpretation of the “or” absurd. It does not. The
very purpose of the decree is to establish priorities of water rights. Those with superior
priorities get access to water in scarce years when those with inferior priorities do not.
That is the nature of the beast; unfairness in that sense, as the trust describes it, is inherent
in the water rights system. As we explained in Dow I, the paragraph 21 exception
“give[s] the Irrigation Company’s schedule 6 right greater priority than it would
otherwise have,” “mean[ing] there may be times when Dow is not receiving all of the
water to which he is entitled under schedules 5 and 6” but the Irrigation Company may
nonetheless exercise its rights. (Dow I, supra, 216 Cal.App.4th at pp. 789, 790.) We do
not find such a result absurd or unfair given the nature of the rights at issue and that the
very purpose of the decree was to resolve the relative priorities of the parties’ water
rights.
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DISPOSITION
The order is affirmed. The parties shall bear their own costs on appeal. (Cal.
Rules of Court, rule 8.278(a)(5).)
/s/
Robie, J.
We concur:
/s/
Hull, Acting P. J.
/s/
Murray, J.
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