Turlock Inrrigation Dist. v. Modesto Irrigation Dist.

Filed 8/17/06 Turlock Inrrigation Dist. v. Modesto Irrigation Dist. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Stanislaus County. Kenneth Andreen, Judge. (Retired Associate Justice of the Court of Appeal, Fifth District, assigned by the Chief Justice pursuant to art. VI, § 1 of the Cal. Const.)

Somach, Simmons & Dunn, Michael E. Vergara and Stuart L. Somach for Plaintiff, Cross-defendant and Appellant.

Moskowitz, Brestoff, Winston & Blinderman, Joel S. Moskowitz; and Joy A. Warren for Defendant, Cross-complainant and Appellant.

These consolidated appeals arise from a judgment granting declaratory and injunctive relief. The parties are neighboring irrigation districts that have been working together since 1890. The current controversy arises from the 1977 annexation by Modesto Irrigation District (MID) of Waterford Irrigation District (Waterford) and MID's accession to certain water rights of Waterford. (We will refer to the water right, described below, as the Waterford right and the water delivered pursuant to that right as the Waterford water.) Appellant Turlock Irrigation District (TID) contends that certain restrictions should be imposed on MID's use of the Waterford water or, in the alternative, that TID is entitled to a share of that water. Appellant MID contends the court erred in granting injunctive relief and in its declaration of the parties' proportionate shares of appropriated water. We will affirm the judgment insofar as it grants declaratory relief and reverse the judgment insofar as it grants injunctive relief.

FACTS AND PROCEDURAL HISTORY

TID and MID are irrigation districts (see Wat. Code, § 20500 et seq.) taking water from the Tuolumne River. In 1890, they entered into a written agreement to build a diversion dam on the river and to share water appropriated from the river in proportion to the acreage in each district. In addition, the agreement stated that if either party acquired additional water rights above the dam, the other party could buy a share of that water right within 60 days of notice of intent to purchase or 60 days from the purchase of the water right; â€