Farmers Inv. Co. v. Bettwy

• Decision Date: 26 August 1976
• Docket Number: No. 11439--2,11439--2
• Citation: 558 P.2d 14,113 Ariz. 520
• Parties: FARMERS INVESTMENT COMPANY, a corporation, Appellant, v. Andrew L. BETTWY, as State Land Commissioner, and the State Land Department, a Department of the State of Arizona, and Pima Mining Company, a corporation, Appellees. FARMERS INVESTMENT COMPANY, a corporation, Appellant, v. The ANACONDA COMPANY, a corporation, Amax Copper Mines, Inc., the Anaconda Company as partners in and constituting Anamax Mining Company, a partnership, Appellees. CITY OF TUCSON, a Municipal Corporation, Appellant, v. ANAMAX MINING COMPANY, and Duval Corporation and Duval Sierrita Corporation, Appellees.
• Court: Arizona Supreme Court

Page 14

558 P.2d 14

113 Ariz. 520

FARMERS INVESTMENT COMPANY, a corporation, Appellant, v. Andrew L. BETTWY, as State Land Commissioner, and the State Land Department, a Department of the State of Arizona, and Pima Mining Company, a corporation, Appellees.

FARMERS INVESTMENT COMPANY, a corporation, Appellant, v. The ANACONDA COMPANY, a corporation, Amax Copper Mines, Inc., the Anaconda Company as partners in and constituting Anamax Mining Company, a partnership, Appellees.

CITY OF TUCSON, a Municipal Corporation, Appellant, v. ANAMAX MINING COMPANY, and Duval Corporation and Duval Sierrita Corporation, Appellees.

No. 11439--2.

Supreme Court of Arizona, In Banc.

Aug. 26, 1976.

Snell & Wilmer by Mark Wilmer, Loren W. Counce, Jr., Phoenix, for Farmers Investment Co.

Bruce E. Babbitt, Atty. Gen. by Peter C. Gullatto, Phoenix, for State of Arizona.

Musick, Peeler & Garrett by Bruce A. Bevan Jr., Los Angeles, Cal., Verity & Smith by John C. Lacy, Tucson, for Pima Mining Co.

Chandler, Tullar, Udall & Richmond by Thomas Chandler, Tucson, for Anaconda Co.

James D. Webb, Tucson City Atty., Robert O. Lesher, Tucson, for City of Tucson.

Fennemore, Craig, Von Ammon & Udall by Calvin H. Udall, Phoenix, for Duval Corp.

STRUCKMEYER, Vice Chief Justice.

On November 24, 1969, Farmers Investment Company, herein called FICO, filed a complaint naming certain mining companies as defendants. Among those named in its amended complaint filed November 8, 1973, were the Anamax Copper Mining Company, The Anaconda Company, the Amax Copper Mines, Inc. and Pima Mining Company, the Duval Corporation and the American Smelting and Refining Company. Subsequently, Andrew L. Bettwy, State Land Commissioner, and the State Land Department of the State of Arizona were added as parties defendant. The City of Tucson, a municipal corporation, became a party by intervention. The three appeals in this case are from the granting or denial of summary and partial summary judgments. We ordered the appeals consolidated for decision.

THE APPEAL OF FARMERS INVESTMENT COMPANY AGAINST THE ANAMAX COPPER MINING COMPANY, THE ANACONDA COMPANY AND THE AMAX COPPER MINES, INC.

The Anamax Copper Mining Company is a partnership consisting of the Anaconda Company and Amax Copper Mines, Inc. It is engaged in mining and milling low grade copper deposits in Pima County, Arizona. Farmers Investment Company, plaintiff in the court below, herein called FICO, is the owner of approximately 7,000 acres of irrigated land in Pima County, south of Tucson in the Santa Cruz Valley. Its lands have been irrigated for agricultural purposes for many years, some as long as prior to 1915. All of such lands are located within the Sahuarita-Continental Critical Groundwater Area, as designated by the State Land Department on October 14, 1954 pursuant to A.R.S. § 45--308. FICO has irrigated its farm lands and used for domestic purposes the percolating waters lying below the surface of the lands by pumping water from wells located on its lands. In addition to the irrigated lands of FICO, there are other lands within the Sahuarita-Continental Critical Groundwater Area which are irrigated by pumped waters. FICO pumps approximately 38,500 acre feet annually. Other land owners within the area use an additional amount of approximately 15,000 acre feet per year. The annual recharge of water within the critical area is substantially less than the amount used for agricultural purposes and the water table has been for many years gradually lowering and the reservoir of supply has been gradually depleting.

On November 24, 1969, FICO filed its original complaint. In its amended complaint it alleged that appellees had acquired well sites in the Sahuarita-Continental Critical Groundwater Area and were pumping water outside the area onto lands other than those from which the waters were being pumped; that all defendants in the court below were thus pumping approximately 25,000 acre feet of water yearly. It was alleged that the use by appellees of these percolating waters in their mining operation was unreasonable and in violation of the rights of FICO; that if the use of the appellees continued, the percolating waters under FICO's lands would become exhausted or lowered to the point at which it would be economically unfeasible to irrigate said lands and they would revert to barren desert. FICO prayed that the Superior Court enter a judgment permanently enjoining appellees from taking the waters beneath the critical groundwater area and using it on lands other than those from which the waters have been taken, and that a decree be entered declaring the rights of the respective parties in and to the waters underlying the Sahuarita-Continental Critical Groundwater Area.

FICO also complained that because of the depletion of the groundwater supply by appellees FICO has been required to deepen its wells, lower its pump bowls and in some instances construct replacement wells, and that the added lift of groundwater from the lowered water table has cost and will cost FICO additional expense in power, labor and maintenance of its wells; that the fair market value of FICO's property and lands has been damaged to an amount in excess of fifty million dollars.

The appellees answered appellant's complaint, asserting that they have the right to use the water pumped from under the Sahuarita-Continental Critical Groundwater Area and that they have the right to continue and extend such use into the future. They claim as an affirmative defense that FICO has been guilty of laches in bringing its claims against the appellees and therefore is not entitled to the relief sought. Appellees also counterclaim against FICO, alleging that they were putting the waters which they pumped to the beneficial and reasonable use for mining, milling and industrial uses; that the water table within the basin has been for many years gradually lowering and the reservoir of supply has been gradually depleting; that FICO's use of percolating waters in connection with the operation of its farm was unreasonable and in violation of appellee's rights in that water was being wasted by FICO and FICO was not utilizing reasonable methods to conserve such water.

While the action was pending trial, FICO on April 15, 1974 moved for immediate injunctive relief, asserting that Anamax was engaged in the mining and milling of copper ores, its mill being located approximately four miles west of the farm lands of FICO; that FICO's farm lands were located within the Sahuarita-Continental Critical Groundwater Area south of Tucson, which includes a major part of what is generally referred to as the upper Santa Cruz basin; that Anamax's mine and mill were located one mile west of the west boundary of the Sahuarita-Continental Critical Groundwater Area; that FICO's farm consisted of two tracts of land, roughly rectangular in shape, approximately one and one-half miles apart, lying in the valley of the Santa Cruz River; that Anamax, prior to filing this litigation, constructed several large water wells in the critical area, equipped such wells with large pumps powered by electrical energy and transported the waters therefrom to its mine and mill; that Anamax was planning to enlarge its ore treatment facilities from the capacity of 30,000 tons per day to 40,000 tons per day and otherwise enlarge its operation, which would require 6,000 acre feet of additional water annually; that Anamax was presently engaged in drilling a well to the proposed depth of 1,000 feet, 32 inches in diameter at the collar, in order to supply the water requirements of Anamax arising from its increased ore treatment. This well was being drilled almost equal distance between the boundaries of FICO's two tracts. FICO prayed for relief that Anamax be permanently restrained from completion and use of this well for the purpose described or for any use other than a beneficial use on the land from which the water is withdrawn.

Appellees answered FICO's motion, admitting that they proposed to continue to use the water so pumped and that some of the water was used on lands outside of the critical area. They asserted they intend to increase their pumpage in the future. Appellees acknowledged that there was a depletion of the percolating waters under FICO's lands but answered that the depletion was jointly being caused by FICO, the appellees, the City of Tucson, and others. Appellees acknowledged that their land was located one mile west of the west boundary of the Sahuarita-Continental Critical Groundwater Area, and that it used large quantities of water in its milling operations. It did not, however, admit that the actual use of a substantial part of such water is outside the critical area. Appellees also admitted that they were engaged in drilling the water well described ¹ by FICO, but asserted that its intended depth was 1,800 feet rather that 1,000 feet, and that the additional water supply so obtained would be pumped in part to the mill located outside the critical area, but that the bulk of such water would be returned to the critical area in tailings. They therefore alleged that 'any use of said water outside of said critical area is de minimus, using the term 'use' to mean consumptive use.' Other defenses were also asserted with which this Court, at least at present, is not concerned.

On May 21, 1974, the Superior Court in response to a motion by Anamax for partial summary judgment against the City of Tucson, intervenor, granted such judgment and made this finding:

'2. Water may be pumped from one parcel and transported to another parcel if both parcels overlie a common basin or supply and if the water is put to a reasonable use.'

The following day, on May 22, 1974, after hearing arguments on FICO's motion for preliminary injunction, the Superior Court stated, in effect, that consistent with its ruling of the day before it would deny FICO's application for a preliminary...