Southwest Engineering Co. v. Ernst

• Citation: 291 P.2d 764,79 Ariz. 403
• Decision Date: 20 December 1955
• Docket Number: No. 5881,5881
• Parties: SOUTHWEST ENGINEERING CO., a Nevada corporation authorized to do business in the State of Arizona, Appellant and Cross-Appellee, v. Rogert ERNST, State Land Commissioner of the State of Arizona; The State Land Department of the State of Arizona; and the State of Arizona, Appellees and Cross-Appellants.
• Court: Arizona Supreme Court

Page 764

291 P.2d 764

79 Ariz. 403

SOUTHWEST ENGINEERING CO., a Nevada corporation authorized to do business in the State of Arizona, Appellant and Cross-Appellee, v. Rogert ERNST, State Land Commissioner of the State of Arizona; The State Land Department of the State of Arizona; and the State of Arizona, Appellees and Cross-Appellants.

No. 5881.

Supreme Court of Arizona.

Dec. 20, 1955.

Peterson & Karman, Casa Grande, for appellant and cross-appellee.

Ross F. Jones, Atty. Gen., Robert W. Pickrell, Asst. Atty. Gen., Perry M. Ling, Special Counsel, Phoenix, for appellees and cross-appellants.

STRUCKMEYER, Justice.

This action was commenced by appellant, Southwest Engineering Co., a corporation, against the State of Arizona and the State Land Commissioner to determine appellant's rights to the use of the subterranean water underlying its lands. The Superior Court found and so held that of the two legislative acts controlling the use of ground water, the Groundwater Code ¹ of 1948 was constitutional but that Sections 2, 3, 4 and 5 of the Act of 1953 ² were invalid and unconstitutional. The Southwest Engineering Co. appealed from the judgment declaring the Act of 1948 constitutional, and the State of Arizona and the State Land Commissioner cross-appealed from the judgment declaring that those stated portions of the Act of 1953 were unconstitutional.

The Act of 1953. This Act established an area within the state in which the drilling of irrigation wells except replacement wells was absolutely prohibited for a period of one year. The prohibition was extented one additional year by the legislature in 1954 ³ to March 31, 1955; at that time it expired by virtue of the termination date therein expressed. Since the relief initially sought was a declaration that the prohibition against the drilling of new irrigation wells was unconstitutional and since by lapse of time between the rendition of the judgment of the lower court and the opinion of his court there is not now pending for determination an actual controversy, the cross-appeal is dismissed. Harrison v. Hunt, 28 Ariz. 75, 235 P. 158; Gibson v. Board of Supervisors, 20 Ariz. 222, 179 P. 640.

The Act of 1948. The significant facts alleged in the complaint and admitted by the answer establish that appellant is the owner, or has an interest in certain lands lying within the boundaries of the Gila-Santa Cruz Subdivision of the Santa Cruz and the Gila and Salt River groundwater ⁴ basins or subdivisions thereof, basins designated by the State Land Commissioner as critical groundwater areas pursuant to the authority conferred by the Act; that appellant drilled an irrigation well on its land but was notified by the State Land Commissioner that an attempt to irrigate lands from such well would be a violation of the penal provisions of the Act; that appellant intends to drill an additional irrigation well but has been denied a permit therefor and is now threatened with criminal prosecution unless the whole of the Act is decreed unconstitutional and void.

Before considering the problems raised by the appeal it should be stated that much of the land in the State of Arizona is desert, capable of sustaining human life only if there is available a supply of water for irrigation. Agricultural development in the desert and semi-arid portions of the state has taken three forms. First, and in the earliest days, by the diversion of water from running streams and rivers having their sources in mountain springs; second, by the impounding of excess waters from floods and rains by dams and in reservoirs and their subsequent release through canals and ditches in time of need; and third, as these sources became inadequate or nearly so, by the pumping of waters lying or moving beneath the surface of the earth. It is to be recognized that from the time of the earliest settlers there has been some use of ground waters through artesian wells, windmills and centrifugal pumps set at or near the water table, but that deepwell pumping of waters in substantial quantities is a comparatively recent development.

In 1945 the legislature of this state, recognizing that the withdrawal of ground water beyond the rate of natural replacement threatened the economic stability of one of the state's most profitable industries, adopted an act ⁵ providing for the cooperation of the State Land Commissioner with the United States Geological Survey 'for the purpose of gathering such information as may aid the legislature in considering the subject of a Ground Water Code', and appropriating funds to carry out the purposes thereof. Presumptively the information so obtained was used by the legislature in drafting the Act of 1948. The Act itself is detailed and comprehensive and does not require minute analysis herein. Essentially it provides a method for determining the areas within the state which do not have sufficient ground water to provide a reasonably safe supply for irrigation at the current rates of withdrawal. These areas are designated as 'critical groundwater areas'. After a groundwater area is designated as critical, the construction of new irrigation wells therein is prohibited with certain exceptions, i. e., domestic and replacement wells. Those who are pumping from existing wells are allowed to continue to the full capacity of such wells. It should be emphasized that in critical areas the Act does not purport to regulate the use of ground water between owners of land in cultivation, nor does it regulate the use of ground water outside of critical areas with exception that waste as defined is universally prohibited. By prohibiting the drilling of new wells in critical areas, the Act limits the use of water to present facilities thereby preventing additional withdrawals from underground supplies which are determined to be inadequate.

Ground water has been the subject of numerous decisions of this court, culminating in the decision on rehearing in Bristor v. Cheatham, 75 Ariz. 227, 255 P.2d 173, in which this court reaffirmed in a divided opinion its previously adopted rule that the doctrine of prior appropriation does not apply to water percolating generally beneath the soil without ascertainable beds and banks. The majority held that the decision in Maricopa County Municipal Water Conservation District No. 1 v. Southwest Cotton Co., 39 Ariz. 65, 4 P.2d 369, became a rule of property in that by large investments in the reclamation of desert lands, rights had been acquired which were entitled to protection under the law as declared, and that as between users of water the doctrine of reasonable use applied, that is to say, as between individual rights this court would apply the doctrine of reasonable use so far as found applicable to conditions in Arizona. Specifically the question was left open as to the right of the state against individuals to regulate the consumption of ground water in the interest of the general welfare.

The purpose of the Act is set forth in Section 3 thereof:

'* * * that large areas of rich agricultural lands in Arizona are dependent, in whole or in part, upon ground water basins underlying such lands for their water supply, and that in a number of such basins withdrawals of ground water, greatly in excess of the safe annual yield thereof, is converting the lands of rich farming communities into critical groundwater areas, to the serious injury of the general economy and welfare of the state and its citizens. It is therefore declared to be the public policy of the state, in the interest of the agricultural stability, general economy and welfare of the state and its citizens to conserve and protect the water resources of the state from destruction, and for that purpose to provide reasonable regulations for the designation and establishment of such critical groundwater areas as may now or hereafter exist within the state.'

The legislative finding that the exhaustion of ground water by excessive withdrawals threatens to destroy one of the principal economic resources of the state to the consequential serious injury of all is not disputed. ⁶ Such a conclusion is obviously justified because unrestrained use must inevitably result either in complete exhaustion of the state's ground water so that in the end the lands dependent thereon will revert to their desert state or in the lowering of water tables so that the increased cost of pumping will reduce these lands to a marginal or submarginal condition.

It is appellant's position that it is the owner of the water underlying its land in that this court held as early as Howard v. Perrin, 8 Ariz. 347, 76 P. 460, 462, and repeatedly since, that 'waters percolating generally through the soil beneath the surface are the property of the owner of the soil.' As such, appellant argues, its property is protected against confiscation by the Constitution of the State of Arizona, Article 2, Section 4, and the nearly identical language of that portion of the Fourteenth Amendment to the Constitution of the United States declaring that no person shall 'be deprived of life, liberty, or property without due process of law.' ⁷

It can thus be seen that a conflict occurs between appellant and the state by reason of the interest of the public in the preservation from destruction of a resource essential to the sustenance of life. Where the public interest it thus significantly involved, the preferment of that interest over the property interest of the individual even to the extent of its destruction is a distinguishing characteristic of the exercise of the police power. The principle which we recognize here as controlling rests upon historic precedent extending back into the common law, Respublica v. Sparhawk, 1 Dall. 357, 1 L.Ed. 174, Bowditch v. City of Boston, 101 U.S. 16, 25 L.Ed. 980, and has had continuous recognition almost to the present moment. United States v. Caltex (Philippines), Inc., 344 U.S. 149, 73 S.Ct. 200, 97 L.Ed. 157.

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