Fourzan v. Curtis, Civil 3371

• Decision Date: 19 February 1934
• Docket Number: Civil 3371
• Citation: 43 Ariz. 140,29 P.2d 722
• Parties: GENARO FOURZAN and H. S. STEPHENSON, Trustees, Appellants, v. EARNEST C. CURTIS and FRANCES E. CURTIS, Appellees
• Court: Arizona Supreme Court

29 P.2d 722

43 Ariz. 140

GENARO FOURZAN and H. S. STEPHENSON, Trustees, Appellants, v. EARNEST C. CURTIS and FRANCES E. CURTIS, Appellees

Civil No. 3371

Supreme Court of Arizona

February 19, 1934

APPEAL from a judgment of the Superior Court of the County of Coconino. Frank Harrison, Judge. Judgment reversed, with directions.

Mr. D B. Morgan, Mr. C. B. Wilson and Mr. O. C. Compton, for Appellants.

Mr. F M. Gold and Mr. H. L. Russell, for Appellees.

OPINION

LOCKWOOD, J.

Genaro Fourzan and H. S. Stephenson, as trustees, hereinafter called plaintiffs, brought suit against Earnest A. Curtis and Frances E. Curtis, his wife, hereinafter called defendants to enjoin the latter from interfering with a certain pipeline and water improvements belonging to plaintiffs, and with their free and uninterrupted use of certain water, and for damages for the previous destruction of the pipe-line in question by defendants. Defendants answered, claiming that they were entitled to the beneficial use of the water in controversy by reason of an appropriation thereof, and prayed that plaintiffs be enjoined from interfering with their rights. The case was tried to the court sitting with a jury and certain interrogatories were submitted to and answered by the jury. The court thereupon, impliedly adopting the answers to certain of the interrogatories, but without finding facts of its own, rendered judgment that defendants were entitled to the use of the water in question, and enjoined plaintiffs from interfering with such use, whereupon this appeal was taken.

There are some seventeen assignments of error, but the legal questions presented thereby are such that we feel we can determine them more logically and intelligibly by considering the issues which appear, upon the whole record, to be decisive of the case. The pleadings show, in substance, that this is a controversy between the parties over the right to use certain waters which have their origin in a place called by the parties, and which we shall call, "South Grass Seep," situated in that portion of the state north of the Grand Canyon of the Colorado. Plaintiffs claim the right to use the waters for two reasons: (a) That their predecessor in interest made a valid appropriation thereof in 1917 under the water law of Arizona, and has continued using the same beneficially at all times previous to the date of this action; (b) that if it appear, as a matter of fact and law, that such waters are not subject to the law of prior appropriation, but are percolating in their nature, and therefore belong to the owners of the land where they appear, plaintiffs are such owners. Defendants base their right solely on the contention that the waters are and have been, at least since the year 1921, subject to prior appropriation, and, while admitting that plaintiffs did commence to use such waters beneficially in 1917, claim they had abandoned their use for more than five years before they were appropriated by defendants.

We consider first what waters are subject to appropriation under the law of Arizona. Chapter 64 of the Session Laws of 1921 contains the latest enactment of the legislature on that point. They are stated therein as "the water of all sources of supply, flowing in natural streams, canyons, ravines or other natural channels or in definite underground channels, whether perennial, intermittent or flood waters, waste or surplus water, and of lakes, ponds and springs on the surface." It is admitted by both parties that, if these waters are subject to appropriation at all, it is as "springs on the surface," and not otherwise, for neither contends they come under any of the other mentioned classes.

We consider then what is meant by the phrase "springs on the surface," as found in our law. In the first place, we are of the opinion that the word "natural" was meant by the legislature to limit all of the different sources of water subject to appropriation, and that, if any of those mentioned are of artificial origin, that law does not authorize their appropriation. While any appropriable waters may be collected, stored or carried in artificial reservoirs channels and conduits, the test of the right of appropriation, both in quantity and quality, depends on their natural condition, and not on what may occur after that condition is artificially changed.

What, then, is a natural "spring on the surface"? The word "spring," when standing alone, has been given many definitions in accordance with the facts of the particular case. It is the contention of defendants, in substance, that any water appearing on the surface of the ground in sufficient quantity to moisten it is an appropriable spring, and they cite one case which they urge supports their position. Harrison v. Chaboya, 198 Cal. 473, 245 P. 1087. In that case a deed conveyed "all of that certain spring and water flowing therefrom . . . particularly described as follows, to wit: 'All the water issuing from our spring, which spring is located on the west end of a certain tract of land,'" describing certain premises owned by the grantor. It appeared that in those lands there was a wooden box four feet square at the foot of a tree, which was apparently within the area of a boggy and marshy place where an amount of water which underlay and percolated through the tract of land upon which the same was situated came to the surface thereof, occupying an area at the point of its exudation about forty feet square. The box referred to had been sunk within this damp or marshy area with a view, apparently, to collect the waters which arose thereon, and, in order to aid in such collections, wooden troughs or drains had been constructed leading into this central receptacle and out of which, by piping, the waters thus assembled were conveyed to the premises of the grantee. Some time before the inception of the litigation, the grantees, in order to increase the flow of water into the receptacle just described, had installed another wooden box about two feet square, some forty feet from the first one, and had led the waters collected therein by means of an iron pipe into the first box. The litigation arose over the right of the grantees to the waters thus last collected. It was their contention that the waters collected from both boxes were from the same source, and, as such, embraced within the terms of the conveyance. It was the contention of grantors that the waters so collected were from an entirely different and separate source, and not included within the original grant. The question was submitted to the court, and it said:

" . . . The term spring in its common acceptation, at least in California, is a term which in general usage has been applied to a damp, marshy or boggy area, usually of small but definite extent, wherein underground waters from a larger tract of land find their way to the surface thereof, and make their presence known either by a definite outflow or by the surface presenting such a quantity thereof as will render practicable their assembling in such receptacles as those described in the record herein zs box A and box B. . . ."

We are of the opinion that, under the peculiar circumstances of the case involved, the Supreme Court of California was justified in holding that the conveyance in question did use the word "spring" in the sense it was defined by the court, but we think it has no bearing on the present case.

So far as we know, there is no state recognizing the doctrine of prior appropriation which has named as one of its appropriable waters "springs on the surface," except Arizona....