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May 20, 2020  |  Written by Kyler C. Rayden

California’s Court of Appeal Holds Noncontiguous Landowner Has a Riparian Right to Middle River Based on Extrinsic Evidence

On May 7, 2020, the Third District Court of Appeal issued a much-anticipated ruling in Modesto Irrigation District (MID) v. Tanaka, (Super. Ct. No. 34-2011-00112886-CU-JR-GDS) holding that the question of whether a landowner of noncontiguous real property has a riparian right depends upon the intent of the parties at the time of conveyance of the land, and such intent may be inferred from extrinsic evidence.

Timing, property location, and social circumstances are relevant to determining whether the parties intended to convey a riparian right. Those researching potential riparian rights would be wise to undertake a similarly expansive approach to identifying factors that could support a claim.
Aaron Ferguson, Shareholder

The basis of the suit arose in 2011 when MID filed an action seeking declaratory and injunctive relief to enjoin a landowner (Tanaka) from diverting water from Middle River to her farm for irrigation.  In the mid-19th century, Tanaka’s property was part of a 250,000‑acre land holding abutting Middle River; however, the property was later conveyed by grant deed so that it was no longer contiguous to Middle River.  The trial court entered judgment in favor of MID and declared Tanaka did not have a riparian right to divert water from Middle River and enjoined her from making such diversions.  Tanaka subsequently appealed.

On appeal, the Court first examined the express language of the grant deed and construed it in light of the surrounding circumstances at the time of conveyance to determine whether the parties intended that the property retain a riparian water right.  The Court held that because the terms used in the grant such as “all,” “hereditaments,” and “appurtenances” were broad and expansive, it was clear that in light of the ordinary and popular sense of those words at the time of conveyance, the grantor intended to transfer everything belonging to the subject property to the grantee, including a riparian right to Middle River.

The Court then considered extrinsic evidence surrounding the conveyance since the grant itself was ambiguous as to whether the property retained a riparian right.  First, the Court explained that Tanaka’s predecessor purchased the property in 1890 at the height of an agricultural boom, and it was hard to imagine that someone purchasing land on Roberts Island would buy property without access to water for irrigation.  The Court also looked at the Grantee’s and Grantor’s intent at the time of conveyance and determined that it was unlikely either party intended to cut off the riparian right when the intended use of the land was solely agricultural.  Ultimately, the Court reversed the trial court and held that Tanaka has a riparian right to water from Middle River.

On May 13, 2020, MID issued a press release indicating that MID’s board of directors unanimously agreed to continue the MID v. Tanaka lawsuit, including pursuing a petition for review by the California Supreme Court.

For more information, contact Kyler Rayden at

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