Consolidated Canal Company v. Mesa Canal Company
| Decision Date | 09 April 1900 |
| Docket Number | No. 200,200 |
| Parties | CONSOLIDATED CANAL COMPANY, Appt. , v. MESA CANAL COMPANY |
| Court | U.S. Supreme Court |
This case comes on appeal from a decision of the supreme court of the territory of Arizona (53 Pac. 575), affirming a decree of the district court of Maricopa county in favor of the defendant in a suit brought by the appellant to restrain the defendant from maintaining in its canal a dam in such a way as to impede the flow of water in appellant's canal, or to destroy a certain water power claimed by appellant.
The facts, as shown by the findings and statement prepared by the supreme court, are as follows: The appellee was the owner of the Mesa canal. On January 10, 1891, it made a contract with A. J. Chandler, who subsequently transferred his rights thereunder to the appellant. The material portions of the contract are as follows:
'This article of agreement, made and entered into this 10th day of January, A. D. 1891, by and between the Mesa Canal Company, a corporation duly organized and legally existing under and by virtue of the laws of the territory of Arizona, having its principal office and place of business at Mesa city in the county of Maricopa and territory of Arizona, party of the first part, and A. J. Chandler, of the city of Phoenix, in the county and territory aforesaid, party of the second part, witnesseth:
'That, whereas, the said party of the first part is an irrigating coproration, and as such is now the owner operating the Mesa canal in said county and territory.
'And, whereas, said party of the second part desires to increase the size and capacity of said canal between the point in Salt river where the water is now taken out, or by consent of the directors of the Mesa Canal Company may hereafter be taken out, and a point in said Mesa canal known as 'Ayers' head gate,' so as to increase the flow of water through said portions of said canal as aforesaid, and for the purpose of the party of the second part, his associates and assigns, obtaining water thereby through said canal, and in order to have the said canal increased in size, dimensions, and capacity, without cost or expense to said party of the first part, and without in any way interfering with the rights, titles, interests, or privileges of said party of the first part in and to said canal and the water flowing through said canal, except as hereinafter provided.
* * * * * 'Now, therefore, the Mesa Canal Company, party of the first part, for and in consideration of the sum of one dollar to it in hand paid by the party of the second part, the receipt whereof is hereby acknowledged, and for the further consideration and purposes herein contained and expressed, does for itself and for its successors or assigns hereby grant unto the said A. J. Chandler, his associates, heirs, or assigns, forever, the following rights and privileges upon the terms and conditions herein expressed, viz.:
'That the said A. J. Chandler, his associates, heirs, or assigns, shall have the right and privilege of entering upon any and all of the following portions of said Mesa canal at any time prior to the first day of March, A. D. 1891, for the purpose of widening and enlarging and increasing the size and capacity of said Mesa canal between the point in Salt river where the water is now or may hereafter be taken out for said canal, and a point on said canal known as 'Ayers' head gate,' and enlarge and increase the size and dimensions of the main dam and head gates at the point of commencement of said canal in Salt river, and enlarge and increase the size and capacity of said Mesa canal so that the same when so enlarged and increased in size shall have a carrying capacity in addition to its present carrying capacity not exceeding forty thousand inches of water, miners' measurement, nor less than ten thousand inches of water, miners' measurement, and said enlargement shall be fully made and completed by the thirtieth day of December, A. D. 1891. The present carrying capacity of said Mesa canal for the purpose of this agreement shall be seven thousand inches, miners' measurement.
'The party of the first part hereby reserves the right to fur- ther enlarge said portion of the Mesa canal whenever they deem it necessary to do so, provided such enlargement shall not interfere with or lessen the rights or privileges herein granted to the party of the second part, his associates, or assigns.
'Said party of the second part, his associates, or assigns, shall, in enlarging said main dam, head gates, and canal as aforesaid, in all respects enlarge said dam, head gates, and canal in a good, substantial, and workmanshiplike manner, according to the most approved methods of constructing and building irrigating canals.
'All suits, liabilities, costs, expenses, or judgments, and all damages or loss incurred or sustained by the party of the first part caused by said enlargement, shall be borne by the party of the second part, his associates or assigns forever, and all suits or proceedings against the party of the first part by reason of said enlargement to be defended at the expense of the party of the second part.
'It is expressly understood and agreed by the parties hereto, their successors, or assigns, that at all times when there is an abundance of water in Salt river liable to appropriation and flowage through said canal when so enlarged, then and at all such times the said party of the first part shall have the right to use from said canal in addition to the amount hereinbefore specified as the capacity of said canal two thousand inches of water, miners' measurement.
'The management and control of the canal between the point known as 'Ayers' head gate' to and including the dam in Salt river, when so enlarged as aforesaid, shall be in the party of the second part, his heirs, associates, or assigns. Provided, that the party of the second part, his heirs, associates, or assigns, shall, before he or they are entitled to receive or use any water through said canal, first deliver to the party of the first part, their heirs, or assigns, at the point in said Mesa canal known as 'Ayers' head gate,' and shall continue to deliver the seven thousand inches of water, miners' measurement, above expressed as the carrying capacity of said Mesa canal, or such portion thereof as may be apportioned to said Mesa canal by decree of any court. Provided, the stockholders who are now using or may hereafter use water above the 'Ayers' head gate' shall have their water delivered to them as at present above the 'Ayers' head gate' aforesaid, or said stockholders shall have their water...
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