Gould v. Maricopa Canal Co.

Citation8 Ariz. 429,76 P. 598
Decision Date26 March 1904
Docket NumberCivil 738
PartiesMARTIN GOULD, Plaintiff and Appellant, v. THE MARICOPA CANAL COMPANY, a Corporation, Defendant and Appellee
CourtSupreme Court of Arizona

APPEAL from a judgment of the District Court of the Third Judicial District in and for the County of Maricopa. Webster Street Judge. Reversed.

On rehearing. Memorandum decision, ante, p. 111.

Docketed and dismissed with costs. 195 U.S. 639, 49 L.Ed. 356.

The facts are stated in the opinion.

W. H Stilwell, and Joseph H. Kibbey, for Appellant.

It clearly appears that water diverted from the Salt River through the Wilson Ditch was first applied to reclamation of appellant's land in 1873, and later and "for over ten years last past" the water has been applied through the canal of appellee. The fact that appellant submitted to the illegal management of the canal of appellee does not change the legal status of appellant. The facts are not disputed, and the conclusion in law is irresistible that appellant is an appropriator of water from the Salt River first by means of the Wilson Ditch, and afterwards, and now through the Maricopa Canal, acting, as it is, in law, as the agent of the appropriator. Farmers' High Line Canal etc. Co. v. Southworth, 13 Colo. 111, 21 P. 1028, 4 L.R.A. 767; Wheeler v. Northern Colorado Irr. Co., 10 Colo. 582, 3 Am. St. Rep. 603, 17 P. 487; Albuquerque Land and Irr. Co. v. Gutierrez, 10 N. Mex. 177, 61 P 357; Combs v. Agricultural Ditch Co., 17 Colo. 146, 31 Am. St. Rep. 275, 28 P. 966; Broder v. Water Co., 101 U.S. 274, 25 L.Ed. 790; Armstrong v. Larimer County Ditch Co., 1 Colo.App. 49, 27 P. 235; Golden Canal Co. v. Bright, 8 Colo. 144, 6 P. 142; San Diego etc. Co. v. Sharp, 97 F. 394, 38 C.C.A. 220; Wright v. Platte Valley Irr. Co., 27 Colo. 322, 61 P. 603; Mandell v. San Diego etc. Co., 89 F. 295; South Boulder and R.C.D. Co. v. Marfell, 15 Colo. 302, 25 P. 504; Paige v. Rocky Ford Canal and Irr. Co., 83 Cal. 84, 21 P. 1102, 23 P. 875; Curtis v. Le Grande Water Co., 20 Or. 34, 23 P. 808, 25 P. 378, 10 L.R.A. 484.

C. F. Ainsworth, for Appellee.

Appellant has lost by abandonment any rights of appropriation he may ever have had. According to the authorities, any right that he may originally have had must be considered as abandoned after this lapse of time, and certainly that is the reason of the matter, for it is now many years since any water has been obtained under the old ditch, and during all that time the appellant has been buying water through the appellee's canal on water-rights rented by him. Churchill v. Bauman, 104 Cal. 369, 36 P. 93, 38 P. 43; Dalton v. Rentaria, 2 Ariz. 275, 15 P. 37; Oppenlander v. Left-Hand Ditch Co., 18 Colo. 142, 31 P. 855; Davis v. Gale, 32 Cal. 27, 91 Am. Dec. 554; Hewitt v. Story, 51 F. 101.

Therefore as to this question, Is the appellant entitled to water as a prior appropriator? we see that, as a matter of fact, the appellee is a prior appropriator of all the water that it carries, that, if the appellant or his predecessors in interest ever appropriated any water, which water was taken from him, it was not so taken from him by means of the appellee's canal at all, or certainly, if at all, only in part, and appellee should not be compelled to furnish to him all that was taken, and that the authorities are clear that as the appellant has for many years acquiesced in the rights of the appellee and bought water from it by virtue of water-rights which he had bought or leased, he has abandoned whatever rights he may ever have had, and now has no rights whatever as an appropriator.

Appellee is not bound to deliver water to appellant as claimed by him because he is cultivating lands cultivated earlier than those of water-right owners and lessors. We now come to what we consider really the most important question involved in this case.

This is the question whether the appellee is bound to deliver water to the appellant because he is cultivating lands cultivated earlier than those of some of the lessees of the appellant's water-right owners, notwithstanding that all of the water carried by the appellant is actually being put to a beneficial use by such water-right owners and lessees.

We shall follow out the principle on which the doctrine of appropriation of water and owning of water-rights is based, citing the authorities on the subject, and showing that water-rights need not be inseparably attached to land, that, on the contrary, they are the subject of property and may be bought and leased, and that the right and duty of the canal company is to furnish water to the owners or lessees of water-rights prior to those not owning or leasing water-rights, no matter on what land the water is to be used, provided all its water is actually put to a beneficial use.

The primary reason lying at the foundation of the whole system of the law of water-rights as built up in the arid region of the United States is that the development of the country is first to be considered, or, as the maxim puts it, "The greatest good to the greatest number." The old doctrine of riparian rights would have been injurious in application, as the water was needed to be carried from the streams for use in mining and irrigating the desert lands. Therefore by the application of the principle "the greatest good to the greatest number" the doctrine of allowing the diversion of water for irrigation and other beneficial purposes grew up. Black's Pomeroy on Waters, par. 14.

The next reason that it was found necessary to apply was qui prior est tempore potior est in jure, he who was the first appropriator was maintained in his right, for there would have been no stability to the law if an appropriation had not given a fixed legal right. Id.

Having this rule of prior appropriation fixed, the courts looked around for the principles which should govern cases which arose under it; when an appropriation should be recognized, and how the water should be used. Two rules were applied, and these two rules have governed the decision of all well-considered cases on this subject. These rules were (1) that of "beneficial use"; an appropriation could not be made except for a beneficial use, an appropriation not for a beneficial use would not have aided the development of the country; (2) that the possessor of prior rights must so use his rights as not to injure others, or, as the old maxim of the law puts it, sic utere tuo ut alienum non laedas.

These simple rules and principles should govern all cases involving water-rights; and we will trace their growth through the authorities and show how the law has been developed into the principles maintained by the appellee in the present case.

We start with the doctrine of the right of the prior appropriator, and we shall point out how the authorities have reasoned in accordance with the principles above set forth: (a) That an appropriator can change the point of diversion of his water; (b) that an appropriator can change the use to which he puts his water; (c) that an appropriator can sell his water-right and the right will attach to the vendee (not the vendee's land); (d that a water-right is property and not appurtenant to land unless expressly so made, and that an appropriator can lease his water-right and the water can then be used by the lessee. And, to sum up, that a water-right is property and that a water-right owner or his assignee is entitled to his property in the water, so long as it is actually and beneficially used, before outsiders can have any claim.

(a) Point of diversion can be changed. Soon after the doctrine of prior appropriation had been settled the question arose whether one who had acquired the prior right could not change the point from which he diverted his water if he chose and take the same amount from some other part of the stream. This contention was combated, but the courts held that if the waters were to be applied to a beneficial use, and if by change of the point of diversion no injury was done to the rights of others which had vested since the first appropriation, then there was no reason why the point of diversion should not be changed, and held that it could be. Ramelli v. Irish, 96 Cal. 214, 31 P. 41. ". . . it is also settled law that the person entitled to the use of the water may change the place of diversion, or the use to which it was first applied, if others are not injured by such change."

Other cases to the same point are: Kidd v. Laird. 15 Cal. 161, 76 Am. Dec. 472; Whittier v. Cocheco Mfg. Co., 9 N.H. 454, 32 Am. Dec. 382; Davis v. Gale, 32 Cal. 27, 91 Am. Dec. 554; Gallagher v. Montecito Co., 101 Cal. 242, 35 P. 770; Junkans v. Bergin, 67 Cal. 267, 7 P. 684; Correa v. Frietas, 42 Cal. 339; Fuller v. Swan Co., 12 Colo. 12, 19 P. 836; San Luis Water Co. v. Estrada, 117 Cal. 168, 48 P. 1075; Mining Co. v. Mosgan, 19 Cal. 609; Maeris v. Bicknell, 7 Cal. 262, 68 Am. Dec. 257; Sieper v. Frink, 7 Colo. 148, 2 P. 901.

This idea therefore that the point of diversion of the water could be changed at the will of the prior appropriator provided the water was still put to a beneficial use and that he did not injure others by making the change, became well established in the law, and along with it grew the idea that the (b) use of water can be changed. Following out the reason of the matter, that the right to water acquired by the prior appropriator was a property right belonging to him personally and not to his land, and could be used as he saw fit, provided he did not injure the public by wasting the water, or private individuals by direct harm to them, the courts held that the use to which the water had been first put might be abandoned by the appropriator and the water put to a new use. Kinney on Irrigation, p. 236.

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