Clough v. Wing

Citation17 P. 453,2 Ariz. 371
Decision Date20 February 1888
Docket NumberCivil 222
PartiesA. S. CLOUGH, Plaintiff and Appellant, v. JAMES E. WING, Defendant and Appellee
CourtSupreme Court of Arizona

APPEAL from the District Court of the Third Judicial District in and for the County of Yavapai. J. C. Shields, Judge.


John A Rush and E. W. Wells, for Appellants.

Plaintiff claims right to the use of so much of the waters of Granite creek as is necessary to irrigate his premises described in his complaint, by virtue of prior appropriation of such waters by himself and grantors, and bases this right upon the act of Congress of July, 1886, and the custom, judicial decisions and laws of the Territory of Arizona. Rev. St. U.S secs. 2338, 2339 and 2340; Kaler v. Campbell, 13 Or 596, 11 P. 301.

The learned judge who rendered the decision and judgment in the court below seemed to question whether the act of Congress was intended to cover water rights acquired after its passage, or was confined in its effect alone to vested water rights existing at the time of its passage.

There can be no doubt upon this question. The act controls and governs water rights acquired since, as well as before its passage. The doctrine of riparian right, as fixed by the common law, was based upon the theory that the water flowing in a stream running through or adjoining the land was incident thereto, and that a conveyance of the land carried with it the incident, but this theory can have no controlling effect in this case. The government is primarily the owner of the land and the user of the water, and as such owner can unquestionably separate the land and the uses of the water, if it so chooses. It may grant the land to one and the use of the water to another.

Water rights acquired subsequent to the act of Congress are controlled and affected by it. Kaler v. Campbell, 13 Or. 596, 11 P. 301; Osgood v. Eldorado M. Co., 56 Cal. 571; Farley v. Spring Valley M. Co., 58 Cal. 142; Jones v. Adams, 19 Nev. 78, 6 P. 442; Broder v. Water Co., 101 U.S. 274; Basey v. Gallagher, 20 Wall. 670.

As to the effect of act of Congress upon riparian right, see Barnes v. Sabron, 10 Nev. 233-238; Kaler v. Campbell, supra; Judkins v. Elliott, (Cal.) 12 P. 116.

Where the right of prior appropriation of water is founded either upon custom, the decisions of courts or the law of the state or territory, it is sufficient to bring it within the purview of the act of Congress. It is not necessary that all three of the conditions exist in any one case. Basey v. Gallagher, 20 Wall. 670.

The right to prior appropriation of water is established in principle by the laws of the Territory. Secs. 1, 3, 7, 17, pp. 538, 539, Comp. Laws; Article 22, Bill of Rights.

The point of diversion of water from a flowing stream may be changed at any time after appropriation if the change does not conflict with existing rights of others. Kidd v. Laird, 15 Cal. 179, 79 Am. Dec. 472; Junkans v. Bergen, 67 Cal. 270, 7 P. 684.

The measure of the water appropriated is the capacity of the ditches and flumes of the appropriator if no other measure be fixed, such as so many inches of water, provided all the water the ditches and flumes will carry be necessary for the purposes it was appropriated. Barnes v. Sabron, 10 Nev. 245.

The appropriation of water is not limited to the amount actually used the first year. The appropriator may not be able to reduce to cultivation the land for which the water was appropriated the first year. Until the whole of the land for which the water was originally appropriated is reduced to cultivation, so long as he uses reasonable diligence in fitting his land for the use of the water, the law protects him in the right. Barnes v. Sabron, supra.

The issues found by the jury were in favor of the plaintiff, and were in accordance with, and supported by, the evidence. Upon this verdict plaintiff was entitled to judgment and decree, as prayed for in his complaint. But the learned judge claimed that the verdict was merely advisory, and concluded to disregard it and decide the case independent of and contrary to it. We admit that in an equity case the Court, in its discretion, may treat the verdict of a jury as advisory, and wholly disregard it, but when the issues found by the jury are conclusive of the rights of the parties, and the verdict is in accordance with the weight of the evidence, then for the court to disregard the verdict and render judgment contrary thereto, is an arbitrary exercise of that judgment which this court should correct.

The Court below finds that the plaintiff stood by and saw Wing build his ditches for the purpose of taking the water, and made no objection, and is therefore estopped from disputing defendant's claim to the water. Bearing in mind that defendant built his ditches, in 1884, when there was an excess of water; that during each year there was more water than plaintiff needed, except during the dry season, to-wit: the months of May, June and July of each year; that plaintiff had no claim or right to this surplus, plaintiff is not estopped from disputing defendant's claim to water covered by plaintiff's prior appropriation. Anaheim Water Co. v. Semi Tropic Water Co., 64 Cal. 195, 30 P. 623; Dorlarque v. Cress, 71 Ill. 380; Weise v. Moore, 22 Mo.App. 537-8; Alexander v. Kerr, 2 Rawle (Pa.) 83, 19 Am. Dec. 169.

Herndon and Hawkins, for Appellee.

This is an equitable proceeding. The verdict of the jury in such a case is merely advisory to the court, and is not conclusive, but may be disregarded by the Chancellor. Basey v. Gallagher, 20 Wall. 681.

The Court found that before defendant built any ditches or flumes, or went to any expense, plaintiff told defendant there was a surplus of water over and above what he needed; that to this surplus plaintiff had no claim, and that defendant might use it; that shortly after this talk defendant began the construction of his ditches; that the plaintiff took no steps to stop the defendant, but stood by and watched the defendant use the water for a period without complaint.

The plaintiff is estopped from questioning the legality of the act he then sanctioned, to the prejudice of defendant, who had given faith to his words, and to the fair inference to be drawn from his conduct. Dalton v. Rentaria, 2 Ariz. 275, 15 P. 37-42; Dickerson v. Colgrove, 100 U.S. 578; Kirk v. Hamilton, 102 U.S. 68.

The right to appropriate water is subject to two conditions, (1) That the appropriation must be for some useful purpose. (2) That economy and care must be employed in the use thereof. Weaver v. Eureka Lake Co., 15 Cal. 271; Basey v. Gallagher, 20 Wall. 681; Davis v. Gale, 32 Cal. 26, 91 Am. Dec. 554.

As to whether the use of the water by Clough was economical and careful, and as to whether his ditches, flumes and dams were so constructed as to save the water, there was a conflict of evidence, and where such a substantial conflict exists in the evidence, this court will not disturb the findings and decisions of the Chancellor unless gross injustice has been done. Gammans v. Rousel, 14 Nev. 171; Barnes v. Sabron, 10 Nev. 243.

When the rights of subsequent appropriators attach, the prior appropriator cannot encroach thereon by extending his rights beyond his first appropriation. Nev. Water Co. v. Powell, 34 Cal. 118, 91 Am. Dec. 685.

The quantity of water appropriated in any case is to be measured by the capacity of the ditch or flume at the smallest point; that is at the point where the least water can be carried through it. Ophir Silver Mining Co. v. Carpenter, 6 Nev. 393.

Plaintiff's appropriation, when made, applied to the then condition of the stream. Barnes v. Sabron, supra.

The conflict in the evidence is substantial, and the findings should not be set aside. Alhambra Addition Water Co. v. Richardson, 72 Cal. 598, 14 P. 383.

Barnes, J. Wright, C. J., concurs.


The facts are stated in the opinion.


This was a complaint filed by Clough in which he sought to enjoin defendant, Wing, from taking water from Granite creek, to his injury. He alleges that he has occupied a tract of land about 200 acres, describing it, and has for some 15 years cultivated the same in cereals, and has set out orchards and vineyards, and that the same have by his husbandry become of great value; that except by irrigation these results could not have been accomplished, and without constant continuance of the same all would be lost; that in the year 1869 he located and appropriated sufficient of the waters flowing in Granite creek to properly irrigate the same by building flumes and digging canals in which to convey the said water from said creek upon his lands, and so he did convey the water from said creek, and did use said water as aforesaid until now; that, in 1884, defendant, knowing of plaintiff's prior right and appropriation of said water, settled upon and occupied lands on said creek above plaintiff, and placed dams and other obstructions to the flow of the water in said creek, and constructed flumes and ditches for the purpose of diverting said water, and irrigating his lands; that between the 15th and 29th of June, 1885, he was thereby deprived of sufficient water to irrigate his lands. He prays that defendant be perpetually enjoined from using any of the water of Granite creek when needed by plaintiff as aforesaid. Defendant sets up his appropriation of water in 1884, and his use thereafter of enough to irrigate his lands, and that he has made valuable improvements, set out orchards, etc., and he alleges that plaintiff's flumes and ditches were out of repair, and wasted the water; that plaintiff in 1885 made further and additional appropriation of water by widening and building up his dam, but so that the water...

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