# City of San Luis Obispo v. San Luis Obispo Sportsman's Ass'n

> California Supreme Court · October 13, 1978 · 22 Cal. 3d 440

URL: https://www.frixlaw.com/law-library/cases/9542163

## Case

- **Full name:** The STATE OF CALIFORNIA, Plaintiff and Respondent; CITY OF SAN LUIS OBISPO, Plaintiff and Appellant, v. SAN LUIS OBISPO SPORTSMAN’S ASSOCIATION Et Al., Defendants, Cross-Complainants and Respondents; STATE DEPARTMENT OF PUBLIC HEALTH Et Al., Cross-Defendants and Respondents; BOARD OF TRUSTEES OF CALIFORNIA STATE UNIVERSITY AND COLLEGES, Cross-Defendant and Appellant; WHALE ROCK COMMISSION, Cross-Defendant, Cross-Complainant and Appellant
- **Court:** California Supreme Court
- **Decided:** October 13, 1978
- **Citations:** 22 Cal. 3d 440; 149 Cal. Rptr. 482; 584 P.2d 1088; 9 Envtl. L. Rep. (Envtl. Law Inst.) 20012; 1978 Cal. LEXIS 297
- **Precedential status:** Published
- **Opinion:** Concurring in part by Auerbach
- **Judges:** Manuel, Auerbach
- **Cited by:** 14 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9542163

## Opinion text

AUERBACH, J., * Concurring and Dissenting.
I concur in the affirmance of the judgment.
I am constrained, however, to express my disagreement with the majority’s determination that the Fish and Game Agreement did not create a consensual basis for public fishing in the reservoir.
The trial court found “The plain meaning of this agreement was that the permit applicants would provide for recreational use of Whale Rock Reservoir, which would in this case be fishing.” I am in accord with that interpretation. It harmonizes with the principle that the intention of the parties must be ascertained from a consideration of the instrument as a whole (Civ. Code, § 1641), and the rule that a contract must be interpreted so as to give effect to the mutual intention of the parties as it existed at the time of the contract (see Civ. Code, § 1636).
These canons of construction make it reasonably apparent that the parties envisaged that recreational fishing was to be provided in the Whale Rock Reservoir.
*455 The agreement was engendered in the context of the withdrawal of protests by the California Fish and Game Commission to anterior applications by the appellants for permits to appropriate water from the Old Creek waterway for the Whale Rock project. As derived from the language of the 1957 agreement, the protests of the Fish and Game Commission to the respective applications were “in the interest of the protection, propagation and preservation of the fisheries and recreational resources afforded the public of this State in Old Creek . . . .”
The agreement embodies the following preambulatory clauses:
“Whereas, the California Department of Fish and Game has filed a protest to each of said applications in the interest of the protection, propagation and preservation of the fisheries and recreational resources afforded the People of this State in Old Creek\ and
“Whereas, the California Department of Fish and Game has determined that, if the Applicants agree to maintain the pool in the proposed Whale Rock Reservoir, as hereinafter provided, for the habitation of fish life and related recreation, and if the proposed condition herein agreed upon is inserted in the permits and licenses issued pursuant to the above identified applications, the interest of the People of this State in the fisheries and recreational resources involved will be adequately protected and the protest of the California Department of Fish and Game to the above identified applications may be considered withdrawn and may be disregarded; and
“Whereas, the applicants have determined that such a pool can be maintained as hereinafter described without diminution in the firm quantity of water that can be obtained from the Whale Rock Project for other beneficial uses and are willing to cooperate with the California Department of Fish and Game in the interest of maintaining the fisheries and recreational resources for the People of this State:” (Italics added.)
“Now Therefore It Is Agreed That:”
(here follows language involving an agreement for maintenance of the pool conditions of the reservoir under varying meterological circumstances to minimize damage to the fishlife.)
*456 The recitals quoted unequivocally explain the objectives of the agreement and the commitments undertaken. The iteration and reiteration of the italicized phrases in the recitals manifest the intention of the signatories to maintain “fisheries” and “related recreation.” The juxtaposition of the terms “fisheries” and “related recreation” is of compelling significance. It suggests, beyond peradventure, that the recreation contemplated by the parties was the public pursuit of piscatorial pleasures.
The word “fisheries” is a term of art. It is the plural of fishery and is the semantic and legal equivalent of the word fishing. The cases which refer to and discuss “fishery” and “fisheries” do so in the connotation of established common law rights to catch or take fish at a certain place or in particular waters. See Ex Parte Bailey (1909) 155 Cal. 472, 475 [ 101 P. 441 ]; Pacific etc. Co. v. Packers’Assn. (1909) 138 Cal. 632, 636-637 [ 72 P. 161 ]; Bohn v. Albertson (1951) 107 Cal.App.2d 738, 753 [ 238 P.2d 128 ].
Thus the nexus of “fisheries” and “related recreation” negates any reasonable interpretation of the agreement as providing merely for an aquarium ancillary to the reservoir.
Recitals in a covenant have binding force when it is shown that they form part of the underlying agreement. Hunt v. United Bank & Trust Co. (1910) 210 Cal. 108, 115 [ 291 P. 184 ], The instrument taken as a whole operates to effectuate the unambiguous intent of the parties to perpetuate the indigenous fishlife for fishing and for recreation related to that activity.
The agreement, being instinct with the obligation of appellants to maintain the recreational resources of the reservoir, cannot be construed to relieve appellants of responsibility for financing the fishing program. Such a construction would render their commitment nugatory and would emasculate the public’s right of access to the reservoir for fishing purposes. The allocation of financing costs under the equitable formula adopted by the trial court is thus predicated on the implications of the agreement, as supplemented by a later contract apportioning the operational and maintenance costs of the project.
I would affirm the judgment on the additional ground expressed herein.
Assigned by the Chairperson of the Judicial Council.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9542163. Public record. Not legal advice.