Howard v. Perrin

• Decision Date: 26 March 1904
• Docket Number: Civil 802
• Citation: 76 P. 460,8 Ariz. 347
• Parties: C. E. HOWARD, Defendant and Appellant, v. E. B. PERRIN, Plaintiff and Appellee
• Court: Arizona Supreme Court

76 P. 460

8 Ariz. 347

C. E. HOWARD, Defendant and Appellant, v. E. B. PERRIN, Plaintiff and Appellee

Civil No. 802

Supreme Court of Arizona

March 26, 1904

APPEAL from a judgment of the District Court of the Fourth Judicial District in and for the County of Coconino. R. E. Sloan Judge. Modified.

E. E Ellinwood, and W. C. Campbell, for Appellant.

Underground water flowing in a defined channel is subject to appropriation. Cross v. Kitts, 69 Cal. 222, 58 Am Rep. 558, 10 P. 409; Lord v. Meadville Water Co., 135 Pa. St. 122, 20 Am. St. Rep. 864, 19 A. 1007, 8 L.R.A 202; Metcalf v. Nelson, 8 S. Dak. 87, 59 Am. St. Rep. 746, 65 N.W. 911.

H. F. Ashhurst, and E. M. Doe, for Appellee.

In all the states and territories, whether the common-law doctrine of riparian rights or the Pacific Coast doctrine of appropriation obtains, the decisions are uniform, to the effect that percolating waters are the property of the owner of the soil, only one exception being anywhere recognized, that being the case of known subterranean streams or rivers flowing in natural channels between well-defined banks, which are subject to the same rules as surface streams. Barkley v. Wilcox, 86 N.Y. 143, 40 Am. Rep. 519; Bloodgood v. Ayers, 108 N.Y. 404, 2 Am. St. Rep. 443, 15 N.E. 433; Haldeman v. Bruckhart, 45 Pa. St. 514, 84 Am. Dec. 511; Greenleaf v. Frances, 18 Pick. 117; Chatfield v. Wilson, 28 Vt. 49; Roath v. Driscoll, 20 Conn. 533, 52 Am. Dec. 352; Frazier v. Brown, 12 Ohio St. 294; Dickinson v. Grand Junction Canal Co., 9 Eng. Law & Eq. Rep. 521; Case v. Hoffman, 100 Wis. 314, 44 L.R.A. 728, 72 N.W. 390, 74 N.W. 220, 75 N.W. 945; Tampa Water Works Co. v. Cline, 37 Fla. 586, 53 Am. St. Rep. 262, 33 L.R.A. 376, 20 So. 780; Gould v. Eaton, 111 Cal. 639, 52 Am. St. Rep. 201, 44 P. 319; West v. Taylor, 16 Or. 165, 13 P. 665; Willow Creek Irrigation Co. v. Michaelson, 21 Utah 248, 81 Am. St. Rep. 687, 60 P. 943, 51 L.R.A. 280; Crescent Min. Co. v. Silver King Co., 17 Utah 444, 70 Am. St. Rep. 810, 54 P. 244; Hanson v. McCue, 42 Cal. 303, 10 Am. Rep. 299; Acton v. Blundell, 12 Mees & W. 324; Taylor v. Welch, 6 Or. 199; Southern Pacific R.R. Co. v. Dufour, 95 Cal. 615, 30 P. 783, 19 L.R.A. 92; Ocean Grove v. Asbury Park, 40 N.J. Eq. 447, 3 A. 168; Village of Delhi v. Youmans, 45 N.Y. 362, 6 Am. Rep. 100; Williams v. Ladew, 161 Pa. St. 283, 49 Am. St. Rep. 891, 29 A. 54; Mosier v. Caldwell, 7 Nev. 363; Chase v. Silverstone, 62 Me. 175, 16 Am. Rep. 419; Chatfield v. Wilson, 28 Vt. 49.

OPINION

DOAN, J.

The appellee, E. B. Perrin, brought an action in ejectment in the lower court against C. E. Howard for the northwest quarter of section 15, township 25 north, range 3 west, in Coconino County, Arizona, based upon a record title in himself through mesne conveyances from the government. The appellant, C. E. Howard, in his answer claimed the property by right of possession only for a period of more than two years after plaintiff's right of action accrued and prior to the bringing of suit, and set up the statute of limitations in bar of the action. Defendant, as cross-complainant, further alleged in a cross-complaint that there was a subterranean stream of water running in a well-defined channel through and under the premises, and that prior to any public survey of the said land one J. W. Abshire appropriated all of the said waters for beneficial purposes; that the cross-complainant purchased the right of the said Abshire, and thereafter, on the sixteenth day of July, 1895, and prior to any public survey of the land, appropriated all of the said waters in conformity with the provisions of the statutes at that time existing, constructed pipe-lines and reservoirs, and applied said water to domestic, stock, and other beneficial purposes, and had thus used the said water and all thereof since the said appropriation; that the use of the land in controversy is necessary to the cross-complainant for the maintenance and complete use and enjoyment of the water and waterways thus appropriated and used by him; and asked, -- 1. That the cross-complainant be decreed to be the owner by right of appropriation of all the water flowing into and through said subterranean stream or channel, and entitled to the exclusive use and benefit thereof; 2. That defendant and cross-complainant be decreed to have a right of way over, through, and upon the said premises for the maintenance, repair, and use of said wells, pipe-lines, and reservoirs; and 3. That the plaintiff, the appellee herein, be enjoined from in any manner interfering with defendant's and cross-complainant's use of said water and waterways and entry upon the said premises for the said purposes of use, maintenance, and repair as aforesaid.

The stipulation on file, signed by the respective parties, and the evidence introduced by the plaintiff, satisfactorily established that the land in controversy was acquired from the United States by the Atlantic and Pacific Railroad Company under the provisions of an act of Congress dated July 27, 1866, (14 Stats. 292,) and that it was conveyed by the said Atlantic and Pacific Railroad Company to the plaintiff by warranty deed dated the thirteenth day of January, 1897. It is established by the evidence that Howard's grantor went upon the land in question in 1889, when it was unoccupied and unsurveyed, and sank a well and developed a flow of water, which he conducted by means of a pipe-line to some water troughs about three hundred feet distant, and constructed a reservoir to impound the overflow, and that he used the water from such troughs and reservoir for stock purposes; that he afterwards sunk a second well, and excavated two tunnels deflecting from the sides thereof for the purpose of developing and storing a stronger flow of water, which he utilized by means of the aforesaid pipe-line, troughs, and reservoirs for stock purposes, watering and dipping sheep therein; that in the year 1892 he sold his possessory right to the premises and his improvements thereon, including the wells, troughs, pipe-line, and reservoir, to the appellant herein, who from that time had remained in possession of the premises, and continued the use of the water for these purposes, until the institution of this action. It was also established by the evidence that the defendant, the appellant herein, on the 16th of July, 1895, posted on the dwelling-house on the premises a notice, in accordance with act 86 of the seventeenth legislature (Laws 1893, p. 135), that he had appropriated all the water in a certain defined underground channel of water, and to that end had made certain cross-cuts, a tunnel, and a well, also a certain ditch, pipe-line, and reservoir, all located at a place known as the "Abshire Place," held by him as a possessory right on unsurveyed land of the United States, and recorded a copy of said notice on said date in the public records of Coconino County, at page 63 in book 1 of "Millsites and Water-Rights." The defendant claimed no title, save such as this appropriation of water and the continuous occupation and use of the premises as a place to water stock may have given him.

The occupancy of the land by the defendant, based upon the right of possession only, does not avail against the plaintiff herein, claiming under a valid record title. Paragraph 2222 of the Revised Statutes of 1887 (afterward amended by act No 79, p. 97, of the Laws of 1893, and incorporated in the Revised Statutes of 1901 as paragraph 3525), under which the defendant claimed to hold this land as a possessory right, by way of establishing what was therein called "possessory rights," provided: "That all persons who have heretofore or may hereafter settle upon, cultivate or improve a tract of land in this territory, with a view of acquiring title thereto under the existing laws of the United States, shall be protected in the peaceable possession and quiet enjoyment of said tract of land, with all the improvements thereon, and all the wood, timber, soil and materials growing or being thereon, to the extent of one hundred and sixty acres or one half mile square in compact form, if...