Gila Water Co. v. Green

• Decision Date: 11 February 1925
• Docket Number: Civil 2139
• Citation: 27 Ariz. 318,232 P. 1016
• Parties: THE GILA WATER COMPANY, a Corporation, and FRANK A. GILLESPIE, Appellants, v. JAMES B. GREEN, Appellee
• Court: Arizona Supreme Court

232 P. 1016

27 Ariz. 318

THE GILA WATER COMPANY, a Corporation, and FRANK A. GILLESPIE, Appellants, v. JAMES B. GREEN, Appellee

Civil No. 2139

Supreme Court of Arizona

February 11, 1925

APPEAL from a judgment of the Superior Court of the County of Maricopa. F. H. Lyman, Judge. Judgment reversed.

Mr. C F. Ainsworth, for Appellants.

Messrs Kibbey, Bennett, Gust & Smith, for Appellee.

OPINION

WINDES, Superior Judge.

This is an action by appellee, James B. Green, against defendants the Gila Water Company, a corporation, and Frank A. Gillespie, for damages caused by the flooding of plaintiff's land. The alleged wrong causing the damage was that the defendants, during the years 1919-1921 constructed a dam across the Gila River a short distance below the land owned by the plaintiff, which dam obstructed the free flow of the waters of the river and caused them to overflow plaintiff's land. The defendants answered, admitting the construction of the dam, and, by way of justification therefor, alleged that the defendant the Gila Water Company is the successor in interest of the Peoria Canal Company, an Arizona corporation, which had in the years 1893 and 1894 constructed a dam across the Gila River in the same place, of the same height and forming the same reservoir as that formed by the present dam; that at the time of the construction of the first dam the lands of the plaintiff were unoccupied lands belonging to the United States government, and that by reason of these facts the defendant the Gila Water Company had a prior vested right and easement upon the land of the plaintiff, and that whatever rights the plaintiff had were subordinate to the rights of the defendant the Gila Water Company to maintain its dam. The plaintiff then replied, alleging in substance that in 1887 Louis Wolfley and Boyd A. Johnson located the dam site; that in 1890 Wolfley and Johnson conveyed the same to the Gila Bend Reservoir & Irrigation Company, which started the construction of the dam; that in 1893 this last-mentioned company conveyed its right to the Peoria Canal Company, which company in the years 1893 and 1894 constructed a dam, which in the same year was washed out by the flood waters of the river. It was further alleged in the reply that the premises remained in this condition until May 24, 1901, when they were conveyed to the defendant the Gila Water Company; that from the time of the destruction of the dam in 1894 until 1919, when the defendant the Gila Water Company began construction of this dam, the premises remained in this dilapidated condition.

There are several alleged errors relied upon by the appellant for the reversal of this case. Owing to the disposition that is to be made of the case, we will consider them out of the order in which they are presented.

In submitting the case the trial court instructed the jury in part as follows:

"Now these are the questions which you have to determine: First, whether or not the plaintiff's lands have been damaged in the way he has indicated, and if they have been damaged, whether or not the defendant Gila Water Company had a right to maintain, had ever had a right to maintain a dam at the place indicated; and, second, or third, if it ever did have a right to maintain a dam, such a dam as it now has at that point, that right has ever been lost by abandonment. Those are the several questions which you will have by your verdict to determine. . . . If you find from the evidence that the lands of the plaintiff were flooded by the waters of the Gila river by reason of the backing up of said waters through the construction and maintenance of the dam of the defendant Gila Water Company and the defendant Gila Water Company or its predecessors in interest, either never had the right to cause said lands to be so flooded, or if it ever had such right, had forfeited said right through abandonment, your verdict should be for the plaintiff."

Under the above instruction the jury could find a verdict for the plaintiff if they found that the defendant or its predecessors in interest never did have a right to construct the dam, or, if they found that the right once existed, they could then find for the plaintiff if they further found that the defendant had abandoned the right it once had. The contention of the appellant is that since there is no dispute as to the facts bearing upon the right of the defendant or its predecessors in interest to construct a dam at the point where it is now constructed, and no dispute as to the facts bearing upon the question of abandonment of the right, if it ever existed, these questions were merely law questions, and should not have been submitted to the jury for its determination.

There is no room for dispute as to the following facts: That in the years 1893 and 1894, a dam was constructed across the Gila River on the same dam site occupied by the present dam, the construction of which is the subject of complaint; that the predecessors in interest of the defendant the Gila Water Company complied with the laws of then territory of Arizona for the appropriation of water and reservoir site prior to the construction of the dam in 1893; that this dam washed out within a year after its construction; that subsequently the defendant the Gila Water Company became involved in litigation over these rights, which litigation terminated in the year 1909 in favor of the defendant the Gila Water Company; that in May, 1907, appellant filed in the United States Land Office an application and map for right of way for a canal in connection with these works, and, in December, 1909, defendant filed an application for a reservoir site, both applications being under the Act of 1891; that there was filed a protest against the approval of the application for the reservoir site; hearing was had in the local land office upon this protest in 1911, an appeal was taken and the matter finally disposed of in favor of appellants in 1913; that the construction of the present dam was commenced in the year 1919; that whatever rights the original locators and constructors of the first dam had were legally conveyed and transferred to the defendant the Gila Water Company; and that the inception of the plaintiff's rights, if any, was March 22, 1909, the date upon which his predecessors in interest filed upon the plaintiff's land as a homestead.

Under this set of facts it is not for the jury to determine whether the defendant the Gila Water Company ever had a right to construct a dam on these premises. Under this set of facts the defendant the Gila Water Company did under the law at one time have a right to construct a dam, and create a reservoir at this place. This right was created by compliance with the statutes of the territory relating to the appropriation of water and the actual construction of the first dam in 1893. When the predecessors in interest of the defendant the Gila Water Company had done this, they had rights to the water and reservoir sites, which the laws and the courts of the territory recognized and under and by virtue of sections 2339 and 2340, United States Revised Statutes (9 Fed. Stats. Ann. 2d ed., pp. 1349 and 1360 [U.S. Comp. Stats., §§ 4647, 4648]), the United States government confirmed these rights. In fact, the Supreme Court of the territory of Arizona and the Supreme Court of the United States have said that the defendant the Gila Water Company had these rights. Gila Bend Reservoir & Irr. Co. v. Gila Water Co., 9 Ariz. 57, 76 P. 990; 202 U.S. 270, 50 L.Ed. 1023, 26 S.Ct. 615; 205 U.S. 279, 51 L.Ed. 801, 27 S.Ct. 495; 214 U.S. 491, 53 L.Ed. 1057, 29 S.Ct. 704 (see, also, Rose's U.S. Notes). The litigation in the above case was terminated March 15, 1909, and certainly it cannot be said that at that time the defendant, the Gila Water Company, did not have the right to construct this dam.

When one has complied with the local laws for the appropriation of water, and has constructed upon vacant public lands of the United States the works for the diversion of that water, he thereby acquires a vested and an accrued right within the meaning of said sections 2339 and 2340, United States Revised Statutes, and the rights thus acquired are superior to the rights of a subsequent entryman upon said lands. Cottonwood Ditch Co. v. Thom, 39 Mont. 115, 101 P. 825, 104 P. 281; Rasmussen v. Blust et al., 85 Neb. 198, 133 Am. St. Rep. 682, 122 N.W. 862; Keiler v. McDonald, 37 Idaho 573, 218 P. 365; Chicago, B. & Q. R. Co. v. McPhillamey, 19 Wyo. 425, Ann. Cas. 1913E, 101, 118 P. 682.

In the last-mentioned case the court said:

"There are numerous decisions to the effect that, if an appropriator is first in time with reference to possession and use as compared with the date an entry is made, the rights of the entryman are junior and inferior."

In Cottonwood Ditch Co. v. Thom, supra, the court in passing upon the priority of one who was claiming by appropriation, and under sections 2339 and 2340, United States Revised Statutes, and one who was claiming under a homestead filing, used the following language:

"It seems clear to us that Congress, in these two sections, not only recognized and acknowledged all such vested and accrued water rights, including all ditches and reservoirs used in connection therewith, as were recognized and acknowledged by the local customs, laws, and decisions of the courts, and intended that all such rights should be maintained and the owners thereof protected . . . . Plaintiff's ditch was completed across the land in question, and plaintiff's predecessors were in possession of the same, at the time defendant made his homestead filing. This being so, it follows that defendant took his homestead subject to the right of way for plaintiff's ditch, and that ...