Egan v. Estrada

• Decision Date: 15 March 1899
• Docket Number: Civil 643
• Citation: 6 Ariz. 248,56 P. 721
• Parties: EDWIN EGAN et al., Plaintiffs and Plaintiffs in Error, v. MATEO ESTRADA et al., Defendants and Defendants in Error
• Court: Arizona Supreme Court

56 P. 721

6 Ariz. 248

EDWIN EGAN et al., Plaintiffs and Plaintiffs in Error, v. MATEO ESTRADA et al., Defendants and Defendants in Error

Civil No. 643

Supreme Court of Arizona

March 15, 1899

APPEAL from a judgment of the District Court of the First Judicial District in and for the County of Pima. J. D. Bethune, Judge. Reversed.

Statement of facts: --

The plaintiffs in error, Edwin Egan and Rafael Vasquez, as plaintiffs in the district court, brought an action against the Santa Rita Land and Cattle Company, Colin Cameron, Thomas Bayze, Francisco Q. Acebedo, Benjamin Acebedo, Mateo Estrada and Julian Tanori to obtain a perpetual injunction restraining the defendants from using the water out of an irrigating ditch adverse to plaintiffs, and for the determination and adjudication of priorities of appropriation of the water, as between the respective parties, flowing from the Santa Cruz River. The cause was tried before a jury on general and special issues. Upon the general issue the jury returned a verdict for plaintiffs, and against the defendants, as to the use of water for one hundred acres of land, -- fifty acres to each. Upon the special issues they returned a special verdict that the defendant Mateo Estrada had been in the adverse and peaceable possession of the right to divert from the Santa Cruz River sufficient water to irrigate thirty-five acres of land for the period of five consecutive years from the time he built his ditch, in 1878 using the same adversely to plaintiffs, and a special verdict that the appropriation of water from the Santa Cruz River by Estrada was subsequent to plaintiffs' appropriation whereupon the court rendered judgment for plaintiffs against all of the defendants except Estrada, and adjudged that he have the prior use of the waters of said river, as against the plaintiffs, sufficient in amount to irrigate thirty-five acres. Plaintiffs bring their writ of error against the defendant Estrada alone. Plaintiffs' principal assignment of error was, that the verdict of the jury as to five years' adverse possession in Estrada was not supported by the evidence; that the court ought to have disregarded it and have rendered a judgment on the general verdict and on the special verdict; that the location and appropriation of Estrada was subsequent to the appropriation by plaintiffs. The defendant in error filed a motion to dismiss plaintiffs' writ of error, because all of the defendants to the action in the district court were not made defendants to the writ of error, upon the rule that all the parties to, and affected by, the judgment appealed from must be included in the writ of error.

Barnes & Martin, for Plaintiffs in Error.

Estrada pleaded five years' adverse and peaceable possession, and enjoyment thereof for more than five years before the complaint was filed.

The statute of limitations does not apply, but it has been held that a prescriptive right can be acquired by lapse of time. At common law the prescription must have been based upon twenty years' adverse and uninterrupted possession, and a grant was implied after such twenty years' uninterrupted possession; but this twenty years has been reduced to five years as the period fixed by statute as a bar to entry on land. Kinney on Irrigation, 293.

This doctrine is based on the decisions in California.

In Anaheim Water Co. v. Semi-Tropic Water Co., 64 Cal. 185, 30 P. 623, it was held that a prescriptive right must be based upon a quiet, open, notorious, and continuous appropriation, use, and enjoyment of the water at all times and seasons under the claim of right and title to do so adversely to the whole world, and was so used and enjoyed without let, hindrance, and objection by any one. It was there held that while there was sufficient water flowing in the river to supply the wants and demands of all parties, its use by one could not be an invasion of the rights of another, and as the court found in that case, as a matter of fact, that until within a year or two prior to the commencement of the action there was sufficient water flowing in the river to supply the wants and demands of all parties, plaintiffs acquired no right by prescription. See, also, Grigsby v. Clear Water Co., 40 Cal. 406; Ledu v. Jim Yet Wa, 67 Cal. 348, 7 P. 731.

S. M. Franklin, for Defendants in Error.

The jury found, the court found, and the facts sustain the finding, that for more than five years prior to the filing of this action Estrada had been in the open, notorious, adverse, peaceable possession and enjoyment, against the plaintiffs and the whole world, of sufficient water to irrigate thirty-five acres. That such adverse user gives a good title and prior right, see Davis v. Gale, 32 Cal. 32; Union Water Co. v. Crary, 25 Cal. 504, 85 Am. Dec. 145; Thomas v. England, 71 Cal. 456, 12 P. 491; Webber v. Clark, 74 Cal. 18, 15 P. 431; Hesperia Land and Water Co. v. Rogers, 83 Cal. 10, 17 Am. St. Rep. 202, 23 P. 196.

OPINION

STREET, C.J. (after stating the facts). --

1. It is a well-settled rule that all parties defendant shall be included in a writ of error when it is sought by the appeal to reverse a judgment in which all the parties are interested. The nature of this action calls for a separate judgment. The prayer of the complaint is that the whole question of priorities to the use of the water be examined into and judgment rendered for or against each of the parties to the action according to facts found. A court of equity is empowered and has placed upon it the duty of rendering a judgment in favor of plaintiffs as against some of the defendants, and in favor of some of the defendants and against plaintiffs, if the facts so warrant, each defendant being in that particular a separate party; and when a court of equity renders a judgment for plaintiff against certain defendants, and for some other of the defendants against the plaintiff, there would...