Jackson v. Lebanon Reservoir & Ditch Co.

• Decision Date: 30 March 1918
• Docket Number: Civil 1581
• Citation: 19 Ariz. 443,171 P. 997
• Parties: EDITH SANBERG JACKSON, Appellant, v. LEBANON RESERVOIR & DITCH COMPANY, a Corporation, et al., Appellees
• Court: Arizona Supreme Court

171 P. 997

19 Ariz. 443

EDITH SANBERG JACKSON, Appellant, v. LEBANON RESERVOIR & DITCH COMPANY, a Corporation, et al., Appellees

Civil No. 1581

Supreme Court of Arizona

March 30, 1918

APPEAL from a judgment of the Superior Court of the county of Graham. A. G. McAlister, Judge. Appeal dismissed.

STATEMENT OF FACTS BY THE COURT.

This action was commenced during the spring of the year 1915 by the appellees and the appellant, as plaintiffs, owners of irrigable agricultural lands in Graham county, against George N. Campbell and other named defendants, therein seeking to adjudicate and finally settle the priority rights of all of the parties to the action to the waters of a stream known as Merejildo Wash. The complaint sets forth the priority claims of the parties, the extent of the appropriations made, the acreage of each party irrigated from said stream, the connection the corporation sustains to the landholders, and its wrongfully interfered with the rights of the plaintiffs in the water in question in the main action. The relief demanded is a restraining order prohibiting the defendants from diverting any of the waters of the said wash from the plaintiffs' ditches, and from interfering with the flow of water through plaintiffs' system of irrigation; that the court adjudicate the respective rights and priorities of the plaintiffs and defendants as against one another to the use of the waters of Merejildo Wash; for a perpetual injunction; and for general relief.

The cause was tried on the twelfth day of July, 1915, and the trial resulted in a decree determining the respective rights of the parties, granting the injunctive relief prayed for. The decree was entered on the 11th day of April, 1916. The following language was used in the decree:

" . . And that each of the parties hereto have pursued and is pursuing the reduction thereof [lands] to cultivation by irrigation with all reasonable diligence, and that as against one another each of the said parties has the right to divert and use, on his said tracts of land, water from and of the natural flow of the said Merejildo Wash, in the order of priority and dating from the date as set forth in the said schedule, for the irrigation and cultivation of the amount of said lands shown in said schedule, or so much thereof as may at any time be under cultivation and irrigation, diverting to and applying therein, however, only such limited amount of water as may actually be necessary, economically and carefully used, for the purpose of cultivation thereof such crops as may be cultivated thereon from time to time."

Then follows the schedule, showing that Edith Sanberg is the second in the list, cultivating and irrigating 32 acres from the year 1894. The decree expressly retains jurisdiction over the cause "for the purpose of executing this decree, or for the purpose of modifying the same from time to time, if upon application facts are shown justifying such modification . . ."

The defendants in the action gave notice of appeal on September 14, 1916. An appeal bond was approved and filed October 10 1916. The appeal was never prosecuted in this court. On September 20, 1916, the plaintiffs in the main action moved for an amendment of the decree in the particular of defining and prescribing the manner of distributing the water to the several land owners entitled thereto, to the end of carrying out the decree according to the spirit of its terms and to promote justice. The motion filed complains of the acts of Edith Sanberg in taking water greater in amount than allowed her by said decree, and alleges:

" . . That since the time the said decree was entered the said plaintiff [Sanberg] has persistently and continually claimed more water than the amount to which she was entitled has gone upon the plaintiff's ditches and cut the same has taken water at times sufficient to water 60 acres, and persistently and continually is acting in such manner as to annoy the remaining plaintiffs and interfere with the distribution of water upon their land."

The relief demanded is a modification of the decree, "so that it shall be made definite and certain [as] to the number of days during each month or week that the said Edith Sanberg (now Edith Sanberg Jackson) has the right to said water," and for an injunction restraining said party from interfering with the use of the water by the other parties, and praying for a citation requiring said party to show cause why said decree should not be so modified.

On October 16, 1916, Edith Sanberg Jackson appeared and demurred to the facts set forth in the petition for citation, alleging that the application sets forth facts inconsistent with the pleadings in the main case; that the respondent is named a...