Bristor v. Cheatham

Decision Date12 January 1952
Docket NumberNo. 5334,5334
Citation240 P.2d 185,73 Ariz. 228
PartiesBRISTOR et al. v. CHEATHAM et al.
CourtArizona Supreme Court

Dwight L. Solomon, Phoenix, for appellants.

Cunningham, Carson, Messinger & Carson, Snell & Wilmer and Wilson & Wilson, Phoenix, for appellees.

Kramer, Morrison, Roche & Perry, Jennings, Strouss, Salmon & Trask, Moore & Romley, Scott & Green, Walton & Walton and Whitney, Ironside & Whitney, Phoenix, Reed & Wood, Coolidge, Fred O. Wilson, Atty. Gen., Perry M. Ling, Chief Asst. Atty. Gen., amici curiae.

PHELPS, Justice.

This is an appeal from a judgment of the trial court dismissing plaintiffs' cause of action in which plaintiffs sought to restrain defendants from abstracting and diverting or using any waters which plaintiffs were pumping from domestic wells on their respective properties and for damages sustained.

The complaint alleges that plaintiffs have been the owners of the properties upon which they reside for many years and have been in possession thereof and expended large sums of money improving their land by building homes thereon, boring wells for domestic purposes, and various other improvements.

They further allege there is a common supply of underground water underlying the premises of plaintiffs and defendants; that since 1916 their domestic supply of water has been, and is, derived exclusively from this underground water supply and that they have enjoyed the use of the same continuously since that time; these lands are located one and a half miles south and one mile east of Laveen; and that defendants' lands are west of plaintiffs' lands.

That in the years 1948 and 1949 defendants sank a number of large wells (eleven in all) to great depths and are taking the water by means of powerful pumps from this common water supply and are conveying it off the premises from which it is pumped to other lands owned by defendants, approximately three miles distant, where they are using it in reclaiming from the desert other lands not adjacent to the land from which water is being pumped.

They further allege that the withdrawal of such water from the common underground water supply has resulted in drying up the domestic wells of plaintiffs making it necessary in some cases for plaintiffs to haul their domestic water supply from other places and that as a result of defendants' action plaintiffs have been greatly damaged. In a second count they allege the waters from which their wells are supplied are taken from an underground stream. They prayed for an injunction against defendants enjoining them from further operation of said wells and for damages which they have thus far sustained.

Defendants moved to dismiss plaintiffs' complaint upon the ground that neither count therein stated a cause of action. The motion to dismiss was granted and judgment entered thereon. It is from this judgment that this appeal is being prosecuted.

Appellants claim that the court erred in dismissing their complaint and entering judgment thereon for the reason the complaint stated a cause of action in both its first and second counts. The allegations of the second cause of action though not artfully drawn are sufficient to inform defendants that plaintiffs claim the existence of an underground stream of water flowing beneath their soil from which they had taken water for many years and used it for domestic purposes (being the highest beneficial use known to the law). Some of these wells have been in existence since 1916. Plaintiffs therefore had the right to offer proof to establish the facts alleged in their second cause of action, for clearly such waters are appropriable under section 75-101, A.C.A.1939, and the court erred in deciding this issue without evidence being taken, thereby denying plaintiffs their day in court.

Under our previous decisions we have said that water is presumed to be percolating until it is proved by clear and convincing evidence that it is not; Maricopa County Municipal Water Conservation District No. 1 v. Southwest Cotton Co., 39 Ariz. 65, 4 P.2d 369; Ryan v. Quinlan, 45 Mont. 521, 124 P. 512. Assuming plaintiffs' wells were supplied by percolating waters then if our pronouncement in the case of Howard v. Perrin, 1904, 8 Ariz. 347, 76 P. 460, affirmed 200 U.S. 71, 26 S.Ct. 195, 197, 50 L.Ed. 374,--to the effect that waters percolating generally through the soil beneath the surface of the earth are a component part thereof, having no characteristic of ownership distinct from the land itself, and are the property of the owner of the soil--is to be adhered to, the ruling of the trial court dismissing the first cause of action was correct.

Let us observe here that all of the attorneys who filed briefs in the instant case agreed in their arguments before the court that the decision in Howard v. Perrin, supra, in so far as it relates to percolating waters being a part of the soil is dicta to which we add our concurrence.

It will also be interesting to note that the Supreme Court of the United States in affirming the decision of this court, after stating that Howard's claim was upon '* * * a prior appropriation of all the water flowing in a subterranean stream * * *' and quoting sections 3199 and 3201 of the Arizona Revised Statutes of 1877 declaring all rivers, creeks and streams of running water in the Territory to be public and applicable to the purposes of irrigation and mining and providing for conveying the same through canals, etc., used the following language:

'We need not stop to inquire whether these sections apply to subterranean streams, because the finding of fact, which is sustained by the testimony, is 'that the only water upon said land is percolating water, oozing through the soil beneath the surface in an undefined and unknown channel.' Of course this excludes the idea of a 'river, creek, or stream of running water.'

'We see no error in the record, and the judgment of the Supreme Court of Arizona is affirmed.'

The sum total of the decision is that the claim is based upon the appropriation of water from a running stream. The evidence showed it was percolating water oozing through the soil. Therefore the court said it was not necessary to determine whether the statute applied to subterranean streams, indicating that the sole question before that court relating to water was whether the Arizona statute quoted applied to subterranean streams.

Plaintiffs first urged that their rights under the first cause of action should be determined under the rule of 'reasonable use' or the doctrine of 'correlative rights' as it is sometimes called, which is closely akin to the riparian rights doctrine. We believe the matter is properly before us and the time has arrived as predicted by the late Justice Lockwood in the Southwest Cotton Co. case, supra, when the court should review as a new question the nature and ownership of percolating waters and the right to the use thereof. Because of the very great interests involved and the far-reaching effect of a decision upon these questions we have given the matter the most careful consideration and have been materially aided by oral arguments and briefs from distinguished counsel, including counsel appearing as amici curiae.

It has been argued by some of the counsel who have filed briefs amici curiae that upon a determination of the question of whether or not the complaint stated a cause of action and if it is found to do so, the cause should then be remanded to the trial court for trial without any pronouncement whatsoever upon the law applicable to the rights of the parties litigant.

It is argued by other counsel in briefs amici curiae that it is not necessary to a decision of this case to consider the character of percolating waters. We fail to perceive the logic of this statement. The first cause of action of plaintiffs' complaint is grounded wholly upon the theory that their wells are supplied by percolating waters. As above stated all underground waters are presumed to be percolating until shown to be otherwise. Therefore we are directly presented in this case with the precise question of whether percolating waters are public in character and subject to appropriation or whether they are a component part of the earth and are the property of the owner of the soil. We will undertake to meet these issues.

It is also claimed by counsel for appellees supported by briefs amici curiae that the case of Howard v. Perrin, supra, is controlling and having been followed by the later decisions of this court, it is now stare decisis and has even ripened into a rule of property. Other counsel argue that the so-called rule of this court relating to percolating waters as enunciated in Howard v. Perrin, supra, is dicta and is not and has never been the law of this state.

It is contended by some members of this court that regardless of whether the pronouncement in Howard v. Perrin, supra, and later cases is dicta, citizens throughout the state relying upon the decision in that and subsequent cases, have spent large sums of money and that they therefore have vested rights which must be recognized.

With respect to this last contention let us ask the question, what property rights does Howard v. Perrin vest in persons who have developed an underground supply of water?

The common-law rule that water is inherent in the soil and belongs to the owner of the soil as laid down in the Howard v. Perrin case is itself an anomaly. Water, unlike rock and mineral, is migratory. Therefore it is not inherent in the soil as are rock and mineral. All the decisions are to the effect that the property right in water consists alone in the right to its use. Since there is no property right in the water itself and since it is only its use that is characterized as a property right and use being incorporeal never becomes a part of the soil. It may become appurtenant to it but never a part of it.

This thought is cogently...

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11 cases
  • Brasher v. Gibson
    • United States
    • Arizona Court of Appeals
    • October 18, 1965
    ...(1914). As to percolating waters the doctrine of reasonable use applies and not the doctrine of prior appropriation. Bristor v. Cheatham, 73 Ariz. 228, 240 P.2d 185 (1952), rev. 75 Ariz. 227, 255 P.2d 173 (1953). We might add that society and its knowledge developed these anomalous distinct......
  • Town of Chino Valley v. City of Prescott, 15501
    • United States
    • Arizona Supreme Court
    • November 30, 1981
    ...to the water beneath his property were not in question is not precedent for the decision in this case. In 1952, in Bristor v. Cheatham, 73 Ariz. 228, 240 P.2d 185, a majority of this Court held that waters percolating beneath the surface of the land were subject to appropriation. On reheari......
  • Jarvis v. State Land Dept. City of Tucson
    • United States
    • Arizona Supreme Court
    • June 24, 1969
    ...to the water flowing or lying beneath the soil. That day arrived twenty-one years later in 1952. In the first decision in Bristor v. Cheatham, 73 Ariz. 228, 240 F.2d 185, a majority of this court held that in Arizona the doctrine of prior appropriation applied to the use of ground water. Th......
  • General Adjudication of all Rights to Use Water in Gila River System and Source, In re
    • United States
    • Arizona Supreme Court
    • July 27, 1993
    ...river, the court reversed and remanded the case for a new trial. Id. at 99, 106, 4 P.2d at 381, 384. Until Bristor v. Cheatham, 73 Ariz. 228, 240 P.2d 185 (1952) ("Bristor I "), this court consistently applied Southwest Cotton's rule that percolating groundwater is not subject to appropriat......
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