England v. Ally Ong Hing

• Decision Date: 29 October 1968
• Docket Number: CA-CIV,No. 2,2
• Citation: 8 Ariz.App. 374,446 P.2d 480
• Parties: Jewel H. ENGLAND, husband of Velma England, dealing with his sole and separate property; and Jewel H. England and Velma England, husband and wife, Appellants, v. ALLY ONG HING and Fon Jing Hing, husband and wife, Appellees. 304.
• Court: Arizona Court of Appeals

Page 480

446 P.2d 480

8 Ariz.App. 374

Jewel H. ENGLAND, husband of Velma England, dealing with his sole and separate property; and Jewel H. England and Velma England, husband and wife, Appellants, v. ALLY ONG HING and Fon Jing Hing, husband and wife, Appellees.

No. 2 CA-CIV 304.

Court of Appeals of Arizona.

Oct. 29, 1968.

Rehearing Denied, see P.2d 128.

Elmer C. Coker, Phoenix, and Tom Fulbright, Florence, for appellants.

Stockton & Hing, by Robert Ong Hing, Phoenix, for appellees.

DONOFRIO, Judge.

Jewel England brought an action to quiet title to two springs for which he had certificates of water rights and prayed for injunctive relief. From a judgment granting him some, but not all that he asked, the plaintiff appeals to this Court. The facts are as follows. Since 1910 there has been maintained on a continuous basis 250 to 150 range cows and bulls in the general vicinity of the Battle Axe Ranch headquarters. The cattle have ranged generally for several miles in all directions. They have watered from various natural water sources in the area.

The ranch consists of 80 acres of patented land and approximately 25 sections of leased land. Running through the patented land and past the ranch headquarters is a wash known as Walnut Grove Creek running generally from the northeast to the southwest. One of its tributaries lying north of the headquarters is a creek or gully which is called Fig Spring Canyon. Northeast of the ranch headquarters is a patented mining claim consisting of 20 acres and known as Wild Cow No. 9. The Walnut Grove wash runs through this mining claim as does its tributary coming in from the northwest. Further south and closer to the headquarters is Silver Creek mining claim through the length of which runs the Walnut Grove Creek.

There are two major sources of yearround water. One is the water immediately south of the old highway crossing the Walnut Grove Creek in the southern part of what is not the Silver Creek mining claim. A retaining wall has been built in this area and at the foot of this retaining wall and in the bed of the creek there has been and still is a small stream of water running down into the sand within a distance of approximately 20 or 25 feet. Another source of water was in the Fig Spring Canyon which is situated in what is now called the Wild Cow No. 9 claim. The center of this source is in approximately the center of the new paved highway running through the Wild Cow claim. At this point where the new highway crossed the canyon, a large amount of fill had been placed over Fig Spring in 1954.

In 1947 plaintiffs made application to the State Land Commission of Arizona for two water rights. One was in connection with Fig Spring. The point of diversion and the point of beneficial use was designated as the approximate center of the source water mentioned above which ended up in the center of the new highway. The plaintiffs also applied for a water right as to Walnut Grove Spring. The point of diversion and the point of beneficial use was here designated as a concrete box near the Battle Axe headquarters.

At the time the new highway was built, in approximately 1954, the main source of water in Fig Spring Canyon was covered with fill and temporarily there was no water available there. Approximately 60 days after the construction, water began to seep out of the side of the fill below the highway and ran down the stream about as well as before.

The defendants, Hings, acquired the Wild Cow and Silver Creek mining claims. The Hings started to develop these properties for residential subdivision purposes in February 1963. Since then they have leveled large portions of the Wild Cow and Silver Creek area for residential sites. In the process of leveling the properties and in building roads thereto, the Hings have put a dike across Fig Spring Canyon, approximately 175 feet downstream from the spot where the water began seeping out of the highway. This dike is about 30 feet in height and near the top thereof there is a pipe to permit water to pass downstream after it has reached that height. The bottom of Fig Spring Canyon has been narrowed somewhat by the leveling operations and a small amount of debris has been placed in the bottom of the canyon.

At or about the time of the commencement of the leveling operations, the amount of water in Fig Spring Canyon below the highway substantially decreased. There was no longer water seeping from the side of the highway fill, though the moss in the area where the water did seep out is still visible.

The Hings have also changed the natural channel of the Walnut Grove Creek to a substantial extent just above the Silver Creek mining claim and through the Silver Creek mining claim. The dike built by the Hings is an earthen dike constructed of the natural soil pushed in place by tractors. No suitable means has been taken to hold this dike in place and it is probable that within the next ten years a flash flood will carry away most of this natural soil downstream.

The only access and the only feasible route to the Battle Axe headquarters until recent years has been a road taking off from the old highway where it crossed the Walnut Grove Creek on the Silver Creek mining claim and going directly down the bed of the creek about 1000 feet to the Battle Axe headquarters. This road has been used continuously since prior to 1946, and probably several decades before that. This road has been used by the owners of the Battle Axe Ranch under the belief that they have a right to use it as access to their property. The right has no particular basis other than custom and usage in a country where land was cheap and it was generally considered that a person should have the right to go from a public highway to his home by the only feasible route.

Also on the Silver Creek mining claim is a turnaround which has been used since the new highway was constructed in about 1954. This turnaround was obliterated by the grading of the defendants some time in 1963. The turnaround was used by cattle trucks coming to the Battle Axe headquarters which were unable to make the sharp turn created by the angle at which the old highway joined the creek bed at this point. The use of this turnaround has been only occasional. No claim of right was ever transmitted by the users of this turnaround or by the owners of the Battle Axe Ranch to the owners of the Silver Creek mining claim.

Fifty years prior to the filing of this action, cattle from Battle Axe Ranch have grazed generally over the area known as the Silver Creek and Wild Cow mining claims. There have been feed and salt troughs installed at various times on these claims for these cattle. The plaintiffs claim ownership of these claims on the grounds of adverse possession.

The Walnut Grove Creek served as the main path on which cattle could be driven or could conduct themselves from the area of the Battle Axe headquarters to the grazing land above the Wild Cow mining claim. Unless this passage is used there is no practicable way to get these cattle from the northern range down to the area of the Battle Axe headquarters. Usually the main channel of the dry stream was used. This main channel has moved over the many years due to the rushing water.

There is a direct conflict in the evidence as to whether the artifical channel now constructed by the defendants is sufficiently wide to drive plaintiffs' cattle up and down. This conflict the trial court resolved in the defendants' favor, finding it is of adequate width, but that if any substantial amount of rock and debris should be deposited therein it would render the same unfeasible for driving cattle.

The plaintiffs' primary dispute with the lower court's judgment was the finding by the lower court that the defendants were not the cause of the drying up of Fig Spring. Such a contention by the plaintiffs causes this Court to delve into some of the basic water law of this state.

The doctrine of prior appropriation is the keystone around which all of the water law of Arizona has been constructed. The courts originally credited the Arizona water law to the Mexican law, and before that, to the native tribes of Pimas, Papagos and other pueblo Indians, including the ancient Hohokams, who were thought to have used the prior appropriation theory. Clough v. Wing, 2 Ariz. 371, 17 Pac. 453 (1888). This basis for the law was later found to be erroneous. The declarations by the First Legislature of the Territory of Arizona, in 1864, amounted to a statutory repudiation of the riparian rights doctrine and was the first espousing of the fundamental principles which were to govern the use of water in Arizona for the future. Maricopa County Municipal Water Conservation Dist. No. 1 v. Southwest Cotton Co., 39 Ariz. 65, 4 P.2d 369 (1931). It was felt that this was the only practical method of disbursing the sparse water in the vast, arid regions which make up a large portion of our state. This repudiation of the riparian rights doctrine and acceptance of prior appropriation was later incorporated into the Arizona Constitution, Article XVII, Sec. 1, A.R.S. when Arizona became a state, and put into the Arizona Water Code in 1919, Chapter 164, Session Laws of 1919 (now A.R.S. § 45--101 et seq.).

It is the recognized law in Arizona that when a person acquires land he takes it subject to any water rights which might have been initiated according to the law. Of course, these rights must not have lapsed nor become void for some other reason. Parker v. McIntyre, 47 Ariz. 484, 56 P.2d 1337 (1936).

Under the doctrine set up by the Supreme Court of Arizona in Parker v. McIntyre, supra, who questions must be answered. First, were the waters at the time of appropriation subject to appropriation under the laws of Arizona? Second, did the alleged appropriators make a valid appropriation of the water according to Arizona statute? Fortunately, our Supreme Court has given us a definition of...