Consolidated Canal Co. v. Mesa Canal Co.
| Decision Date | 11 June 1898 |
| Docket Number | Civil 595 |
| Citation | 53 P. 575,6 Ariz. 135 |
| Parties | CONSOLIDATED CANAL COMPANY, a Corporation, Plaintiff and Appellant, v. MESA CANAL COMPANY, a Corporation, Defendant and Appellee |
| Court | Arizona Supreme Court |
APPEAL from a judgment of the District Court of the Third Judicial District in and for the County of Maricopa. A. C. Baker Judge. Affirmed.
The facts are stated in the opinion.
C. F Ainsworth, Thomas D. Bennett, and John D. Pope, for Appellant.
C. M Frazier, for Appellee.
-- This was an action brought by the appellant in the lower court to enjoin the appellee from building and maintaining a check or dam in appellee's canal, and thereby backing up the water against the division-gates that separated the waters of the appellee's canal from the waters in the canal of the appellant, and thereby impeding the flow of water in the appellant's canal, and destroying a water-power used by appellant for propelling machinery. Both parties to this action are corporations doing business in the county of Maricopa, Arizona Territory, organized for the purpose of conveying water from the Salt River, and delivering the same to the consumers and users thereof along the line of their proposed and constructed canals, and both are engaged in the transaction of such business. The appellee, being the owner of the Mesa Canal, on January 10, 1891, entered into a written contract with A. J. Chandler, authorizing him, his successors and assigns, to take possession of that portion of the Mesa Canal between a point known as "Ayer's Headgate" and a point on the Salt River where the said canal was taken out, and to reconstruct and enlarge the canal, thereby increasing its carrying capacity, and thereafter delegating to the said Chandler, his successors and assigns, the management and control of the part so to be enlarged and reconstructed. Chandler transferred his rights under the contract to the appellant, the Consolidated Canal Company, which last-named company enlarged and reconstructed the Mesa Canal down to the place called the "Division Gates," which latter point seems, by the evidence in the case, to have been by mutual consent of the contracting parties substituted for Ayer's headgate as the point of division of the waters and delivery by the appellant to the appellee of the water to which the latter is entitled. In thus enlarging and reconstructing the canal appellant raised the grade thereof at great expense, for the purpose of carrying the water at a higher elevation, thereby enabling the canal to cover more and other lands. The elevation of the grade at the point where the division-gates were located was about five feet above the grade at that point on the canal formerly owned by the appellee. The purpose and desire of the appellant was to secure through the enlarged canal a flow of water for irrigation and other purposes for itself and patrons. Under the terms of the agreement for such purpose, it bore the expense of the enlargement and reconstruction of the canal to that point from the point of diversion on the river, and obligated itself to deliver at this point to the appellee, at a certain annual rental, seven thousand inches of water, which amount was in the stipulation agreed upon as the original carrying capacity of the Mesa Canal. Upon the construction of the division-gates at the point named, the appellant delivered the water to the appellee at the elevation of the former canal at that point, thereby securing a waterfall of five feet in the water thus delivered. After delivering the water in that manner for some years, the appellee built a dam in its canal a short distance below the division-gate, that raised the water and caused it to flow through a lateral ditch that enabled the appellee to irrigate some lands under its former canal, on which it had not been able to place water from its former elevation. The effect of this raise in the water was to reduce the fall at the division-gate. Thereafter the appellant constructed a water-wheel, and a mill for grinding grain, to be driven thereby, and erected them at the division-gate, the wheel to be turned by the water after its discharge through the division-gate for delivery to the appellee; whereupon the appellee increased the height of the dam that had been formerly built to such an extent that it raised the surface of the water, and backed up the same against the division-gate in such a manner as to destroy three and one half feet of the five-foot fall that had been thereby occasioned, and totally destroyed the water-power. A further result of the elevation of the water in the appellee's canal was to impede the flow of water in the appellant's canal above the division-gates, and thereby detract from the carrying capacity of the appellant's canal.
On the refusal of the appellee, when requested by the appellant to remove the dam, this action was brought; and upon the allegation that the damage...
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