Brasher v. Gibson

• Citation: 406 P.2d 441,2 Ariz.App. 91
• Decision Date: 18 October 1965
• Docket Number: CA-CIV
• Parties: Charles BRASHER and Bessie Brasher, husband and wife, Byrt M. Waller and Lucille M. Waller, husband and wife, Appellants, v. Keaton GIBSON, Appellee. * 176.
• Court: Court of Appeals of Arizona

Page 441

406 P.2d 441

2 Ariz.App. 91

Charles BRASHER and Bessie Brasher, husband and wife, Byrt M. Waller and Lucille M. Waller, husband and wife, Appellants, v. Keaton GIBSON, Appellee. ^*

1 CA-CIV 76.

Court of Appeals of Arizona.

Oct. 18, 1965.

Westover, Copple, Keddie & Choules, by William H. Westover, Yuma, for appellants.

Brandt & Baker, by Thadd G. Baker, Yuma, for appellee.

DONOFRIO, Judge.

This is an appeal from a judgment rendered in favor of the defendant in a trial to the court. The appellants, plaintiffs in the court below brought action against defendant, appellee herein, claiming that defendant was wrongfully obstructing and dividing what is known as 'Cibola Slough' or 'Cibola Lake', hereinafter referred to as Cibola Slough, and was wrongfully controlling the natural flow of water into Cibola Slough to the injury of plaintiffs' property which is riparian to Cibola Slough. Plaintiffs' claims were denied by defendant.

The main issue to be resolved is whether or not the waters of Cibola Slough are private or public. A brief statement of the facts is necessary in determining this issue.

Cibola Slough is located contiguous to the Colorado River in Yuma County, Arizona. It is approximately three miles long and one-half mile wide. Its water is supplied from the Colorado River. The Slough is used primarily for hunting and fishing. The Plaintiffs and defendant both own property riparian to Cibola Slough on which they have established lodges to accommodate the public in its use of Cibola Slough. The plaintiffs' property is located to the north of defendant's property. The United States Government owns the land riparian to the last 400 or 500 feet of the slough from the south end of the defendant's property and also land at the inlet.

It is not clear how long Cibola Slough has been in existence. Prior to the construction of Boulder Dam in 1935, the land in question was used for farming and was irrigated from overflow water during flood seasons and there had been intermittently a slough or dry, depending on the condition of the Colorado River. In 1935 water was first impounded behind Boulder Dam causing the Cibola Slough area to dry up completely. The area remained dry until the completion of Imperial Dam in 1938 when, due to the impounding of the water behind the dam which was to the south of and downstream from the land in question, the river backed up into the area known as Cibola Slough. How long the area remained completely inundated is not shown from the record but apparently after both dams were filled the level of the slough would vary directly with the level of the river. Since 1938, the original slough, prior to any turnout structures or dikes being placed on the land by defendant, contained an inlet from, and an outlet to, the Colorado River and sufficient water to be designated as a slough on maps of the area and to be used for recreation by the general public.

Cibola Slough is fed from the waters of the Colorado River, by a wash or channel. The record is replete with testimony to the fact that it is a natural channel and that it has been in existence for many years. The water enters this channel at the north from the Colorado River and flows for about one-half mile in an Easterly direction and then it turns and flows South for about two-thirds mile where the water begins to spread out and form the slough which extends on down for about three miles to where it empties back into the Colorado River over a spillway.

The Colorado River fluctuates during each 24 hour period. It starts rising about 4:00 P.M. and stays high until about 7:00 A.M. After 7:00 A.M. it begins receding. More water will flow in during the rising river than during the receding river. This appears to be the River cycle each 24 hour period.

The River also fluctuates over different periods of the year. There is generally sufficient water in the river to cause a continuous flow in the channel from February to October of each year. The reason for it being higher during this period is due to the water needed for irrigation that is released from the dams above. From October to February there is only a flow when the River is high.

The natural channel when it is flowing water is sufficiently large enough to be navigable by small boats to the Colorado River from Cibola Slough, and from the River into the Cibola Slough area. This was no longer possible after 1958 when the defendant constructed an inlet turnout structure on the channel. This was dynamited out by an unknown agency and defendant then constructed the bridge turnout structure on the channel about 200 feet from the inlet. These two structures effectively prevented small boats from navigating from the slough to the River or from the River to the slough.

The first work done by defendant in connection with improving Cibola Slough was the construction of a dike at the south end of the slough in 1955. In early 1957 this was washed out completely by flood. The dike was rebuilt in the fall of 1957 but was considerably larger and higher than the original dike. The purpose of this dike is to impound more water. There is still an outlet at the lower end but the slough must reach a certain level before it will spill over and flow out.

The next work done by defendant was to widen and clean out a part of the inlet channel from the River down a short distance past the bridge turnout structure. This work was done at the same time the bridge turnout structure was put in. The only other work done on the inlet channel by defendant was in the latter part of February or 1st of March, 1964, when the defendant bulldozed a new channel for about 400 feet or 500 feet. This new channel starts some distance below the bridge turnout structure and by-passes a beaver pond and connects up again with the original channel. The purpose of this rechanneling was to allow the water to flow into the slough faster. The water was prevented from entering the channel for about 48 hours, while this work was being done. The water was about two feet deep in the channel, and was running so that it would have reached the slough had it not been blocked off. Earlier in May of 1960 there is testimony that defendant by closing the bridge control gate had prevented water from entering the slough. There were other occasions where it was reported that the bridge control gate was closed but it does not appear whether there was any water in the channel. There was no showing defendant substantially affected the water level in the slough by these obstructions.

The defendant prior to the rechanneling had started in December of 1961, to construct a dike along the northern boundary of his property to extend clear across the slough so as to divide the slough in half. Work was continued on this dike until February of 1962. The dike extends at this time about one third of the way across the slough.

Except for the boundary dike which is located on the defendant's land, all other structures and dikes constructed by defendant are located on United States Government land and that the only interest the defendant claims in these lands is one of possession.

Cibola Slough between the months of October through February in the past years has lost water through evaporation and seepage to cause the meander line at the north end to fluctuate as much as 1000 feet. This appears to be a recurring thing that happens each year though in some years it may dry up more than in others. The slough in February of 1962 was almost dry but by April 1 it was starting to fill. There is no showing that defendant's actions contributed in any measurable amount to the slough drying up.

The defendant on different occasions has prevented plaintiffs and plaintiffs' customers from using the lower part of the slough and has erected 'No Trespassing' signs on his north boundary.

The findings of the trial court were to the effect that the plaintiffs have sustained no legal damage by reason of the construction and use by the defendant of the turnout structures located upon the lands claimed by possessory right by the defendant nor have they sustained any legal damage by reason of the construction by defendant of a levy upon the northerly property line of the patented land owned by defendant; further that as between plaintiffs and defendant, defendant had a legal right to construct turnout structures and levies, and to fill and maintain the area known as Cibola Lake (Slough). In addition the court found that while the waters constituting what is referred to as Cibola Lake come from the Colorado River they are not public waters but constitute private waters as an artificial lake constructed by the defendant and that the defendant has appropriated the waters to a beneficial use.

The record does not show us the court's reasoning for its findings, however, we can surmize that it determined that the water forming the slough or lake was not any part of a stream but was a body of water such as is formed by the overflow of flood waters or diffused surface waters. A body of water can also be a slough which is a side-channel of a river with an entrance and an outlet. We believe the facts are uncontradicted that the waters herein involved are of this latter type.

Cibola Slough has its connection with the Colorado River in that it has its source and terminance in the Colorado River. The water enters the inlet channel and travels about 3 miles down through the slough and back into the river. The slough system is merely an arm and is part of the Colorado River. In Turner v. James Canal Co., 155 Cal. 82, 99 P. 520, 22 L.R.A.N.S., 401 (1909), the California Supreme Court considered a slough that had as its source of water two rivers:

'The court finds, however, that Fresno slough is always connected with the San Joaquin river so that water will flow from the river into the slough, or from the slough into the river, as one may be higher than the other at the particular...