Brasher v. Gibson
| Decision Date | 19 October 1966 |
| Docket Number | No. 8058--PR,8058--PR |
| Citation | 419 P.2d 505,101 Ariz. 326 |
| Parties | Charles BRASHER and Bessie Brasher, husband and wife, Byrt M. Waller and Lucille M. Waller, husband and wife, Appellants, v. Keaton GIBSON, Appellee. * |
| Court | Arizona Supreme Court |
Westover, Copple, Keddie & Choules, Yuma, for appellants.
Brandt & Baker, Yuma, for appellee.
Ozell M. Trask, John Geoffrey Will, Phoenix, for Arizona Interstate Stream Commission, amici curiae.
This is an action by Charles Brasher and Bessie Brasher, his wife, and Byrt M. Waller and Lucille M. Waller, his wife, against Keaton Gibson seeking an injunction to prevent the obstruction and diversion of waters of the Colorado River and to recover actual and punitive damages. The trial court entered judgment in favor of the defendant, denying plaintiffs all relief. The judgment was reversed in the Court of Appeals, 2 Ariz.App. 91, 406 P.2d 441, and 2 Ariz.App. 507, 410 P.2d 129. Opinions of the Court of Appeals ordered vacated.
The area in dispute concerns a portion of the bottom lands adjacent to the Colorado River, called by the parties Cibola Lake. Near Cibola Lake, the Colorado River, which in general runs in a northsouth direction, makes a U bend. The lake lies principally within this bend. See attached overlay to aerial photograph, plaintiffs' Exhibit 11. The land in the bend on both sides of the lake is owned by the United States Government with the exception of one lot and forty acres owned by defendant and forty acres leased by plaintiffs. Both plaintiffs and defendant are engaged in the businesses of trailer parks and fishing camp rentals.
Prior to the completion of Hoover Dam in 1935, the Colorado River overflowed the lands in the Cibola Lake area in the spring of the year. A series of washes and a slough, some three miles long, existed where the waters left the main channel. In the late spring or early summer, when the river ceased flooding, the water receded through the slough. Defendant's predecessors in interest, who acquired title in 1928 by patent from the United States Government under the Homestead Act of 1862, farmed the bottom lands.
In 1938, a diversion dam, the Imperial Dam, was completed downstream from the defendant's property. Its purpose is this: For irrigation, water is in demand in the spring, summer and early fall of the year. Accordingly, at that time of the year, water is released into the main channel of the Colorado River from Hoover Dam. The water is released in the daytime to generate electricity and it reaches the Imperial Dam at night, building up behind the dam until it is high enough to flood into the slough and overflow the lands formerly farmed during the summer. During the late fall and winter, the river is low because there is little release of water and, consequently, the water will not escape from the main stream. In recognition of the property rights invaded by the flooding, the United States Government, in 1944, purchased from the defendant's predecessors in interest a perpetual easement to overflow.
In 1955, defendant purchased the property and, the same year, approximately 400 yards south of his property line and on government lands, constructed a levee, now 600 feet across, 40 feet at the base and 7 feet at the top. This levee impounded the waters which flowed into the slough and overflowed onto the adjacent lands, thereby creating what is known as Cibola Lake. In the spring of 1958, following the washing out of the levee in the summer of 1957, defendant went north to the point marked C on the overlay and constructed an intake structure to control the waters flowing in and out of the bottom lands. This facility was rebuilt at a slightly different location in 1959, at which time defendant bulldozed a channel to permit the water to flow freely into the lake area. Thereafter, the lake was maintained at as uniformly a high level as possible. In the winter time, defendant has been unable to take water out of the river because of lack of sufficient flow and the lake gradually recedes from evaporation and seepage until the spring water deliveries commence.
The plaintiffs leased their land and commenced the operation of their trailer park and fishing camp in 1960. In the winter of 1961--1962, the water in the lake became so low that 'a person could wade across to the river' at the defendant's property. Accordingly, in January and February of 1962, defendant began the construction of a dike on the location of his north property line, running in an east-west direction across the lake. The avowed function of this dike is to permit the retention of water in the lower part of the lake during periods of low water delivery. It is acknowledged by the plaintiffs that the construction of the proposed dike would not prevent the flow of water into the north portion of the lake for the reason that the water flows from north to south, entering the lake principally through the turnout structure built by defendant. But the dike would prevent access to the south portion of the lake across-defendant's property.
As stated, plaintiffs sought to prevent the obstruction and diversion of the waters entering from the Colorado River; meaning, both the flow through the turnout and the dike which defendant was then building. The trial court found that the plaintiffs did not sustain any legal damage by reason of the construction and use of the turnout structure, nor by the construction of the dike upon the north property line of the defendant's patented lands. It concluded that, as a matter of law, the construction of the dike was lawful and that, accordingly, no grounds existed for injunctive relief.
Plaintiffs first urge that the slough and the washes here under consideration are natural water courses, a point we do not find necessary to decide since it does not control the disposition of this case.
Plaintiffs alleged in their complaint and assert on appeal that they are a riparian owner and that as a riparian owner they are entitled to enjoy the whole of the lake with all the owners in common. Plaintiffs err. The Constitution of the State of Arizona, A.R.S. is the fundamental law of this jurisdiction. It provides, by Article 17, that 'The common law doctrine of riparian water rights shall not obtain or be of any force or effect in the State.' This does not mean that...
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United States v. Alpine Land & Reservoir Co.
...Administration, 96 Idaho 440, 530 P.2d 924 (1974); Brasher v. Gibson, 2 Ariz. App. 91, 406 P.2d 441, vacated on other grds. 101 Ariz. 326, 419 P.2d 505 (1966); Clark "Waters and Water Rights" 1967 Ed. Vol. 1, p. 375. The Nevada legislature has expressly declared "any recreational purpose" t......
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Town of Chino Valley v. City of Prescott, 15501
...common law doctrine of riparian water rights "shall not obtain or be of any force or effect in the State." See Brasher v. Gibson, 101 Ariz. 326, 330, 419 P.2d 505, 509 (1966). Thereafter, in 1919, the Arizona Legislature provided that the water of all sources falling in streams, canyons, ra......
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State v. Bonelli Cattle Co., 1
...1, 14 S.Ct. 548, 38 L.Ed. 331 (1894). Although Arizona rejects absolutely the riparian doctrine as to use of water, Brasher v. Gibson, 101 Ariz. 326, 419 P.2d 505 (1966), riparian rights are recognized as far as land title is concerned, State of Arizona v. Gunther & Shirley Company, supra. ......
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Sherrill v. United States
...It means that the doctrine shall not obtain nor shall it be of any force or effect in the state. Ever. Brasher v. Gibson, 101 Ariz. 326, 330, 419 P.2d 505, 509 (1966). Plaintiffs assert that these authorities are applicable only to riparian rights to the use of the water itself and that the......