Brasher v. Gibson
Decision Date | 24 January 1966 |
Docket Number | CA-CIV,No. 1,1 |
Citation | 410 P.2d 129,2 Ariz.App. 507 |
Parties | Charles BRASHER and Bessie Brasher, husband and wife, Byrt M. Waller and Lucille M. Waller, husband and wife, Appellants, v. Keaton GIBSON, Appellee. 76. |
Court | Arizona Court of Appeals |
Westover, Copple, Keddie & Choules, by William H. Westover, Yuma, for appellants.
Brandt & Baker, by Thadd G. Baker, Yuma, for appellee.
Ozell M. Trask, John Geoffrey Will, Phoenix, for Arizona Interestate Stream Commission, amici curiae.
On October 18, 1965 we filed our opinion in Brasher v. Gibson, 2 Ariz.App. 91, 406 P.2d 441, to which a motion for rehearing was timely filed. This motion was resisted by the appellants. The Arizona Interstate Stream Commission was allowed to file a motion for rehearing as Amicus Curiae.
Both motions for rehearing are in part concerned with the application of a rule of riparian rights in Arizona. We again expressly state that a private individual can acquire no right to make a beneficial use of water under any theory of riparian rights. The rule applied will exist only in very limited circumstances. Specifically, the rule involved in this case is that the defendant, who has without right built structures upon public waters, cannot do so to the detriment of the plaintiff in the use of the waters by himself and his customers. This will not prevent a person from acquiring a water right in compliance with the Arizona Statutory procedures or acquiring a water right by a contract with the Secreatary of Interior under the procedures set forth in State of Arizona v. State of California, 373 U.S. 546, 83 S.Ct. 1468, 10 L.Ed.2d 542 (1963); 376 U.S. 340, 84 S.Ct. 755, 11 L.Ed.2d 757 (1964) for obtaining a water right to the mainstream waters of the Colorado River.
The Arizona Interstate Stream Commission as Amicus Curiae has also directed our attention to the possible confusion that may result from a cursory perusal of the opinion. The Commission points to the opinion as leading an untutored reader into believing the opinion stands for the proposition that the mainstream waters of the Colorado River are subject to appropriation under the Arizona Water Code. Such is not the law. The mainstream waters of the Colorado River are controlled by the Boulder Canyon Project Act as set forth in State of Arizona v. State of California (supra).
With the above explanation the opinion is reaffirmed as written.
I regret that I must dissent. It must be kept in mind that this is an action by the plaintiffs below to enjoin the defendant below from diverting water from the Colorado River and restricting its flow through a slough known as Cibola Lake. We are concerned here only with the bare rights of the two parties as between each other. We are not concerned with the public, or with the State of Arizona, the United States, or any of their administrative or political subdivisions. It is generally condeded that the proper governmental agency may assert rights against either party at any time that may well be inconsistent with the claims the parties have against each other.
The trial court below was requested to make findings of fact and conclusions of law as provided by Rule 52(a), Rules of Civil Procedure, 16 A.R.S. The findings of fact 3 through 11 are as follows:
The court went on to find under Conclusion of Law Number 8:
'That no lawful grounds exist for injunctive proceedings, and plaintiffs are not entitled to an injunction under the facts of this case.'
Rule 52(a) states in part as follows:
'Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.'
Although a finding of fact by the court below based on an erroneous view of the law may set...
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Brasher v. Gibson, 8058--PR
...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 The area in dispute concerns a portion of the bottom lands adjacent to the Colorado River, c......
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