Hill v. Lenormand

Decision Date17 January 1888
Docket NumberCivil 197
PartiesJOHN HILL, et al., Plaintiffs and Respondents, v. E. LENORMAND, et al., Defendants and Appellants
CourtArizona Supreme Court

APPEAL from a Judgment of the County Court in and for the County of Cochise. Webster Street, Judge.


Herring & Herring, for Appellants.

Goodrich & Smith, for Respondents.

There is no statement of facts and hence the only question that can possibly arise upon the record as it made before this court is: Do the findings of fact support the decree of the court below? Every presumption is in favor of the findings and of the correctness of the judgment. Kilborn v. Ritchie, 2 Cal. 145, 56 Am. Dec. 326; Shelby v. Houston, 38 Cal. 421.

To reverse appellants must show affirmatively that the decree violates some rule of law. Johnson v. Pendleton, 1 Cal. 133.

Wright C. J.


The facts are stated in the opinion.


This action was instituted in the county court of Cochise county and its object was equitable relief. The complaint alleges that plaintiffs and their predecessors in interest, in the year 1877, appropriated the waters of the San Pedro river, to the extent of a canal or ditch six feet wide at the bottom, and of the depth of three feet; that plaintiff, the Contention Consolidated Mining Company, purchased from the predecessors of these plaintiffs an interest in said ditch, and the water thus appropriated. The court found as a fact that the appropriation was made at the time alleged; but that the amount of water appropriated was what would pass, without pressure, through a ditch five feet wide at the bottom, and of the depth of eighteen inches. The defendants, by their learned counsel, object to this finding, claiming that it is not responsive to the issue raised by their denial of the allegations; but we think it is. True, it finds, from the evidence, that the amount of water appropriated by plaintiffs was less than alleged; but, certainly, the finding was in direct line of the issue, and responsive to it. That the court found the amount of water appropriated by plaintiffs to be less than alleged in the complaint did not hurt defendants. It is well settled that courts of equity are not bound by the exact measure of relief asked. The logical inference to be drawn from the position of defendants' learned counsel is that, because plaintiffs allege that they had appropriated an amount of water that could pass through a ditch or canal six feet wide at the bottom by three feet deep, which allegation was denied by defendants, therefor the court should have found for the defendants, if the proofs showed that plaintiffs were not entitled to all they claimed. If A. brings suit against B., in trover, for the conversion of a bushel of barley, and B. denies the conversion, and, at the trial, the proofs show the conversion by B, of only one-half bushel, would not a judgment for A. for the one-half bushel be responsive to the issue?

It is admitted that plaintiffs made their appropriation in 1877; and that subsequently, in 1884, defendants diverted a considerable quantity of the waters of San Pedro river into a ditch constructed by them; and the court found as a fact that such diversion affected the flow of water into plaintiffs' ditch. We cannot review the finding of that fact here.

Now the only statement of facts in the transcript is the evidence of the defendant Lenormand, to the effect that he is the owner of the lands which he irrigates and that these lands lie on both sides of the San Pedro river. And this brings us to a consideration of the real question in this case. Defendants by their learned counsel, requested the following findings of law: "That defendants are riparian owners of the waters of the San Pedro river, where said river runs along through the lands and premises of defendants. (2) That defendants, as riparian owners of the waters of San Pedro river, where said river runs along or through their lands, are entitled to such free and full use of said waters as is reasonably necessary and sufficient for the purpose of cultivating their lands, and for such domestic purposes as are incident to the care of their stock, and the affairs of their daily household." These requests the court refused, and the defendants insist that it was error; but we think it was not. Does the fact of the ownership of these lands, on both sides of San Pedro river, by the defendants, give them the right to the usufruct of the waters...

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8 cases
  • Brasher v. Gibson
    • United States
    • Arizona Court of Appeals
    • October 18, 1965
    ...in a case where no appropriation rights are affected then it is not inconsistent to apply a rule of riparian right. In Hill v. Lenormand, 2 Ariz. 354, 16 P. 266 (1888) the court 'Riparian rights are the same here as elsewhere, wherever they apply; but they do not apply where the rights of p......
  • South West v. District
    • United States
    • Arizona Court of Appeals
    • November 10, 2008
    ...like California and Nevada, "`the right to running water exists without private ownership of the soil. ...'" Hill v. Lenormand, 2 Ariz. 354, 357, 16 P. 266, 268 (1888) (quotation omitted). Thus, "when a person acquires land he takes it subject to any water rights which might have been initi......
  • Clough v. Wing
    • United States
    • Arizona Supreme Court
    • February 20, 1888
    ...193, 57 Am. Dec. 85; Wright v. Howard, 1 Sim. & S. 190; Lux v. Haggin, 4 P. 919; Weiss v. Steel Co., 13 Or. 496, 11 P. 255; Hill v. Lenormand, 2 Ariz. 354, 16 P. 266; Ware v. Allen, 140 Mass. 513, 5 N.E. Mason v. Cotton, 4 F. 792; Dumont v. Kellogg, 29 Mich. 420, 18 Am. Rep. 102; Jones v. A......
  • Vantex Land & Development Co. v. Schnepf
    • United States
    • Arizona Supreme Court
    • March 12, 1957
    ...the purchase and ownership of the lands on both sides of San Pedro river above plaintiffs did not divest these rights.' Hill v. Lenormand, 2 Ariz. 354, 16 P. 266, 268. The doctrine of prior appropriation is essentially the right to take water from the appropriator's point of diversion witho......
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