Gross v. MacCornack, 5307
| Decision Date | 23 March 1953 |
| Docket Number | No. 5307,5307 |
| Citation | 255 P.2d 183,75 Ariz. 243 |
| Parties | GROSS et ux. v. MacCORNACK et ux. MacCORNACK et ux. v. GROSS et ux. |
| Court | Arizona Supreme Court |
Charles P. Elmer, of Kingman, Shute & Elsing, of Phoenix, for appellants.
Carl D. Hammond, of Kingman, Clark & Clark, of Phoenix, for appellees.
The primary question before us is which of the parties to this appeal are lawfully entitled to the right to the use of the waters of Willow Spring, a small seep or spring in the Cerbat Range, 3 1/2 miles northwest of Kingman, Arizona. The lower court determined the issues in favor of the appellees, John F. Gross and his wife, Bertha L. Gross. The appellants E. A. MacCornack and his wife, Harriet MacCornack, have appealed. This review is of the record of two suits that were consolidated for trial in the lower court.
In cause No. 3652, filed in June, 1940, the plaintiff, John F. Gross (appellee herein) sought injunctive relief against the defendants Al Smith and Spring Valley Livestock Company, a corporation (whose rights were subsequently acquired by the appellants who were substituted as parties defendant), to restrain and enjoin them from interfering which the flow of the waters of Willow Spring through a pipe line originating at the spring and terminating on land owned by the appellees. After hearing had a temporary restraining order was issued on June 18, 1940, preserving the status existing prior to the occurrence of the acts complained of. With the temporary restraining order in full force and effect the case remained dormant over seven years.
The appellants, E. A. MacCornack et ux., as plaintiffs, in November, 1947 filed suit No. 4331 against the appellees, seeking to quiet their title to the land upon which Willow Spring is located. The appellees as defendants answered the complaint and filed therewith a cross-complaint by which they sought to establsh their right to the use of the waters of Willow Spring and asked that ownership of the pipe line and an easement for the right of way therefor, over appellants' lands, be declared vested in them.
As the issues were closely related, by stipulation of counsel these two suits were consolidated for trial. In November of 1948, trial was had, the court sitting without a jury.
The facts leading up to this litigation, stated in a light most favorable to a sustaining of the judgment, are somewhat unique. We shall first set forth the titles to the properties in question.
In the year 1917 James Curtin made homestead entry on the east half of Section 12, T. 21 N., R. 18 W. He established residence, built a home and made other extensive improvements, including a large water tank and troughs, on land which he erroneously believed was embraced within the boundaries of his government homestead when in truth all improvements except some fencing were located on the west half of said Section 12. His final proof was submitted and a patent from the United States of America was issued to him while he was still unaware of the true N-S mid-section line dividing Section 12. James Curtin conveyed this land to one J. T. Murphy on July 15, 1927, and by mesne conveyances the appellants acquired title July 22, 1947 from the Monaghan & Murphy Bank, of Needles, California, with full knowledge of the restraining order then in effect. This deed, after describing the land conveyed, recites: '* * * Together with all springs, water rights, pipe lines and appurtenances thereunto pertaining and located on the above described real property.'
James Curtin, on September 24, 1920, made an additional stock-raising homestead entry for the west half of Section 12. After his death in the fall of 1928, his widow Josephine H. Curtin received a patent therefor dated February 20, 1930. She later married Jos. T. Fitzgerald and the appellees obtained the property on August 8, 1941 from Mr. and Mrs. Fitzgerald by warranty deed. This deed, in addition to describing the land being conveyed, contained these words,--'* * * together with all water, springs, and water rights thereon or appertaining thereto * * *.'
Willow Spring is located upon the NW 1/4 of Section 9. Originally this section came to the Atlantic & Pacific Railroad Company as a part of a Congressional land grant. Title later passed to the Santa Fe Pacific Railroad Company, its successor in interest. Appellants and their predecessors in interest for many years held this realty under a grazing lease. On June 12, 1946 appellant purchased Section 9 from the railroad company and cause No. 4331, supra, was then brought to quiet title to this section in appellants.
In August, 1917, James Curtin posted a notice of location and claim to the right to the use of the waters of Willow Spring and had it recorded in the office of the county recorder of Mohave county. Curtin improved and developed the spring by collecting the water to a common point, by constructing converging small cuts and tunnels. Some similar development of the spring had been made prior to Curtin's entry. The water collected--a flow of approximately 8 gallons per minute--was conveyed by a one-inch pipe line 3 1/2 miles in length (financed by the Monaghan & Murphy Bank who held a chattel mortgage thereon) across Sections 9, 8, and 7 of T. 21 N., R. 17 W., and the east half of Section 12 in the adjoining township, to his home and improvements on the west half of the latter section.
It is clearly established that from the time the pipe line was laid to the date of the trial (30 years intervening), with the exception of 41 days in the year 1940 when Al Smith, appellants' predecessor in interest, cut the pipe line and interrupted the flow which gave rise to cause No. 3652, this water was continuously used at the Curtin home ranch on the west half of Section 12. The water was used for agricultural, domestic, and stock-raising purposes.
In our opinion the acquisition by appellants of the title in fee to Section 9 in no wise strengthened their claimed right to the ownership of the spring and the use of its waters on their east half of Section 12.
The lower court made findings of fact and the following conclusions of law:
'1. That plaintiff * * * Gross is entitled to a judgment * * * in cause No. 3652, against defendants * * * MacCornack * * *, restraining them * * * from interfering with the use of or the flow of the water through the pipe line from Willow Spring, * * *.
'2. That said * * * Gross, defendant and cross-complainant in * * * cause No. 4331, is entitled to a judgment * * * against * * * plaintiffs and cross-defendants * * * MacCornack * * * granting to said cross-complainant a perpetual easement in and to the water of Willow Spring and a perpetual easement and right of way for the pipe line from said Willow Spring * * * to the West Half (W. 1/2) of Section 12, * * *, together with the right to repair, maintain, and operate the said pipe line and convey the water from said Willow Spring therein and adjudging * * * that said water * * * is appurtenant to the West Half (W. 1/2) of said Section 12, subject only to the right of said plaintiffs to a reversionary interest therein in the event of an abandonment or forfeiture of said right of said defendant for non-user.
The assignments of error are as follows:
'No. I
'Assuming that the waters involved in this action could be acquired by adverse possession, the Court erred in its finding of fact that appellees were entitled to the exclusive use of the water; for the undisputed evidence, supported by a chain of title, establishes that if the waters were held adversely, they were so held by the predecessors of appellants and not by appellees or their predecessors.
'No. II
'The Court erred in its conclusion of law that the waters in question were appurtenant to the West Half of ...
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