Jarvis v. State Land Dept. City of Tucson

• Decision Date: 24 June 1969
• Docket Number: No. 9488,9488
• Parties: W. W. JARVIS, for and on behalf of himself and other persons or legal entities constituting a class too numerous to be named as parties, Petitioners, v. The STATE LAND DEPARTMENT; Obed M. Lassen, State Land Commissioner; CITY OF TUCSON, a municipal corporation, real party in interest, Respondent.
• Court: Arizona Supreme Court

Page 385

456 P.2d 385

104 Ariz. 527

W. W. JARVIS, for and on behalf of himself and other persons or legal entities constituting a class too numerous to be named as parties, Petitioners, v. The STATE LAND DEPARTMENT; Obed M. Lassen, State Land Commissioner; CITY OF TUCSON, a municipal corporation, real party in interest, Respondent.

No. 9488.

Supreme Court of Arizona, In Banc.

June 24, 1969.

Rehearing Denied July 15, 1969.

Elmer C. Coker, Phoenix, Cox & Johnson, Eloy, for petitioners.

Gary K. Nelson, Atty. Gen., by Dale R. Shumway, Sp. Asst. Atty. Gen., Phoenix, for Obed M. Lassen, State Land Commissioner of Arizona.

Dino De Concini, City Atty., of Tucson, Robert O. Lesher, Sp. Asst. City Atty., Tucson, for real party in interest.

Jennings, Strouss, Salmon & Trask, Phoenix, for amici curiae, Salt River Project Agricultural Imp. & Power Dist. and Salt River Valley Water Users Ass'n.

STRUCKMEYER, Justice.

This petition for an injunction filed December 12, 1968, invokes the original jurisdiction of this court, Constitution of Arizona, Art. VI, Sec. V, A.R.S. It is by W. W. Jarvis on behalf of himself and others who irrigate 33,000 acres of land in the Avra and Altar Valleys by means of wells pumping percolating waters. The action is directed principally against the City of Tucson, a municipal corporation which has recently drilled certain wells in the Avra and Altar Valleys and proposes to transport the waters pumped therefrom across state lands to Tucson, a distance of some fifteen to eighteen miles. Respondents, the State Land Department and the State Land Commissioner, Obed M. Lassen, admit that the withdrawal and transportation of water by Tucson will reduce the supply of ground water (percolating water) in the valleys and requests this court to determine the legality of Tucson's actions. Petitioners ask that the State Land Department and State Land Commissioner be required to cancel any existing grants of rights-of-way over state lands by which Tucson may transport water and that the State Land Department and the State Land Commissioner be enjoined from permitting Tucson to transport water through a pipeline over state lands. A resume of the law as it has developed in the Arizona cases controlling the use of ground waters will point up the principles governing this case.

Thirty-seven years ago in Maricopa County Municipal Water District, et al. v. Southwest Cotton Co., 39 Ariz. 65, 4 P.2d 369, rehearing denied, 39 Ariz. 367, 7 P.2d 254, this court predicted that the time would soon come when it would be necessary to consisder the extent of the rights of the surface owners to the water flowing or lying beneath the soil. That day arrived twenty-one years later in 1952. In the first decision in Bristor v. Cheatham, 73 Ariz. 228, 240 F.2d 185, a majority of this court held that in Arizona the doctrine of prior appropriation applied to the use of ground water. The doctrine was bitterly assailed on rehearing and the court then in deciding that the owners of the land had a vested property right in the water underlying unequivocally committed this state to the doctrine of reasonable use rather than prior appropriation. Bristor v. Cheatham, 75 Ariz. 227, 255 P.2d 173. The rule that the owner of land owns the water beneath the soil has been the continuous holding of this court for seventy-five years. Howard v. Perrin, 8 Ariz. 347, 76 P. 460; McKenzie v. Moore, 20 Ariz. 1, 176 P. 568; Maricopa County Municipal Water Dist. et al. v. Southwest Cotton Co., supra; Bristor v. Cheatham, supra; State ex rel. Morrison v. Anway, 87 Ariz. 206, 349 P.2d 774.

In Bristor v. Cheatham the plaintiffs were the owners of wells on their lands which supplied water for domestic purposes. The defendants, many years later, sank a number of large wells for irrigation purposes. They transported the water thus pumped a distance of approximately three miles for the development and irrigation of lands not previously cultivated. It was expressly stated in the decision that the water was not beneficially used on the lands on which the wells were located. The defendants' pumping caused the water level to drop to the extent that the plaintiffs were deprived of water for domestic purposes. In the second decision this court considered both the English and American rules on reasonable use and adopted the American quoting from Rothrauff v. Sinking Spring Water Co., 339 Pa. 129, 14 A.2d 87, 90, as follows:

"While there is some difference of opinion as to what should be regarded as a reasonable use of subterranean waters, the modern decisions are fairly harmonious in holding that a property owner may not concentrate such waters and convey them Off his land if the springs or wells of another land owner are thereby damaged or impaired. * * *." (Emphasis supplied). 75 Ariz. at 236, 255 P.2d at 178.

In the instant case Tucson admits in its response that it has acquired well sites and drilled wells for the purpose of transporting water for the municipal uses of its residents. Tucson denies that petitioners will be irreparably injured and damaged by the withdrawal and transportation of ground waters from the Avra and Altar Valleys, asserting that its proposed pipeline system is designed to carry at a low head pressure 24,000,000 gallons per day and that its maximum capacity will be approximately 30,000,000 gallons per day. The denial by Tucson that petitioners will be irreparably injured and damaged must, therefore, be tested by whether petitioners' water supply will be impaired by the transportation of water from the lands overlying the well sites which Tucson has acquired.

In 1948 the Eighteenth Legislature in its Sixth Special Session recognized that there were limits to the water resources of the state and adopted a Ground Water Code, See A.R.S. § 45--301 et seq. Procedures were established by which the State Land Department would designate critical ground water areas in which thereafter the construction of other irrigation wells was prohibited. We upheld the constitutionality of the Code in 1955 in Southwest Engineering Co. v. Ernst, 79 Ariz. 403, 291 P.2d 764. There we said:

'The legislative finding that the exhaustion of ground water by excessive withdrawals threatens to destroy one of the principal economic resources of the state to the consequential serious injury of all is not disputed. Such a conclusion is obviously justified because unrestrained use must inevitably result either in complete exhaustion of the state's ground water so that in the end the lands dependent thereon will revert to their desert state or in the lowering of water tables so that the increased cost of pumping will reduce these lands to a marginal or submarginal condition.' 79 Ariz. at 408--409, 291 P.2d at 768. (Footnote omitted)

In 1954, pursuant to the terms of the Ground Water Code, the Avra and Altar Valleys were declared critical, being included within and as a part of the Marana Critical Ground Water Area. This is an official act of a state agency, the records of which we take judicial notice. State ex rel. Smith v. Bohannan, 101 Ariz. 520, 421 P.2d 877. That these lands are within a Critical Ground Water Area is alone sufficient to grant petitioners the relief sought since a Critical Ground Water Area is a ground water basin or a subdivision thereof 'not having sufficient ground water to provide a reasonably safe supply for irrigation of the cultivated lands in the basin at the then current rates of withdrawal.' A.R.S. § 45--301. Manifestly, a ground water area or subdivision of a basin which does not have a reasonable safe supply for the existing users can only be but further impaired by the addition of other users or uses.

Petitioners have also supported their position by filing with this court as an exhibit the 'Ground Water-Resources Report No. 25 of the Arizona State Land Department' published in February of 1966. From that report entitled 'An Appraisal of Ground Water-Resources of Avra and Altar Valleys, Pima County, Arizona', it appears that in common with the Basin and Range Province of the Western United States, the Avra and Altar Valleys form a north-south trending ground water area bounded on the east and west by mountains of igneous and strongly metamorphic rock. The Altar Valley is to the south and considerably smaller than the Avra Valley into which its waters discharge. The floor of both valleys consists of alluvium, a conglomerate of silt, sand and pebbles washed in by erosion from the surrounding mountains to a depth in places of at least 2,000 feet. The detrital material below the valley floors permits the storage of a large volume of water which runs off from the mountain area and 'probably infiltrates to the ground water reservoir through the coarse materials at the base of the mountains and along the stream channels.' Ground Water-Resources Report No. 25, supra, page 14.

There is no sufficient data to determine the theoretical available reservoir storage or the rate of withdrawal with relation thereto in the Altar Valley, but it is clear that its underground drainage is into the Avra Valley. In the Avra Valley the water storage has been determined to be about 16.5 million acre feet above an arbitrary depth of 1,000 feet below the surface of the ground. Statistics supplied from wells in the Avra Valley for a ten year period from the spring of 1955 to the spring of 1965, establish that about 1.2 million acre feet of ground water were withdrawn for an average of 120,000 acre feet annually. After considering the small amount of natural inflow in excess of the natural outflow, this withdrawal in ten years has amounted to about fifteen per cent of the storage capacity of that portion of the reservoir underlying the Avra Valley and has resulted in the lowering of the water table by approximately eighteen feet. Long range planning within the Avra-Altar area, is, of course, as elsewhere, based on the proposition that a hydrologic...