Lambeye v. Garcia

• Decision Date: 02 June 1916
• Docket Number: Civil 1439
• Citation: 18 Ariz. 178,157 P. 977
• Parties: JOSEPH LAMBEYE, Appellant, v. RAMON GARCIA, Appellee
• Court: Arizona Supreme Court

157 P. 977

18 Ariz. 178

JOSEPH LAMBEYE, Appellant, v. RAMON GARCIA, Appellee

Civil No. 1439

Supreme Court of Arizona

June 2, 1916

APPEAL from a judgment of the Superior Court of the County of Maricopa. John C. Phillips, Judge. Affirmed.

Messrs Baker & Baker, for Appellant.

Messrs Kibbey, Bennett & Curtis, for Appellee.

OPINION

ROSS C. J.

This is an equitable action involving the right to certain waste waters. The appellant, who was the plaintiff below, is the owner of the northeast quarter of section 35, township 1 north, range 2 east, in Maricopa county. He is also the owner of the Marmonier canal, which heads in the Salt river about seven miles northeasterly above his lands. This canal is, and has been for a number of years, his principal source of water used in irrigating his land. The northeast quarter of section 31, said township and range, is owned by one A. Weiler, who prior to February 25, 1913, obtained his water for irrigation purposes through the Tempe canal, also heading in the Salt river some distance northeasterly from his land.

Some five years prior to February, 1913, appellant constructed a ditch from the Weiler land to the Marmonier canal for the purpose of catching and diverting the overflow and waste waters from the Weiler land into the Marmonier canal and thence to his land. With this ditch he captured the surplus and waste waters from Weiler's land and used the same to irrigate his land from the time of its construction down to March, 1913. Some time prior to February, 1913, the occupants of the northeast quarter of said section 31 (the Weiler land) and numerous other persons owning and occupying lands in that vicinity, for the purpose of procuring water from the Salt river and from the Roosevelt reservoir, under the Reclamation Act, for the irrigation of their lands, associated themselves together under the laws of the state of Arizona as a body corporate under the name of the Western Canal Construction Company. This construction company thereupon constructed what is known as the Western canal, which connects with the consolidated or Mesa canal on the south side about twelve miles easterly from said section 31, and runs thence southwesterly along and near said section 31. Since the completion of the Western canal, February, 1913, all of the waters used for irrigation purposes on the Weiler tract have been delivered through the Roosevelt reclamation project and under the control and regulation of the national government. Since February, 1913, no water has been delivered to said Weiler tract by means of the Tempe canal or any extension or lateral thereof.

In February, 1913, the Western Canal Construction Company constructed a lateral from the Western canal on the north side of section 31, so that it intercepted appellant's waste ditch from the Weiler tract to the Marmonier canal. Thereupon appellant, for the purpose of collecting and capturing the waste from the Weiler tract as he had theretofore done, constructed another ditch so as to intercept such waters before they reached the government lateral, and by means of said ditch he continued to collect and convey said waters to the Marmonier canal, and thence to his premises. In April, 1913, the Reclamation Service at the corner of sections 30, 31 and 36 constructed a culvert under the road which runs east and west between sections 30 and 31, so as to divert the water from the new waste ditch of appellant into the government lateral ditch conveying water to the appellee's premises in the northwest corner of section 25.

The appellant, in order to keep the waste water in his ditch and to prevent it from being diverted into the government lateral, placed a tappoon over the mouth of the culvert. The appellee, under the orders and directions of the government zanjero, removed the tappoon, so that the waste waters from the Weiler land and some other lands flowed through the culvert into the government lateral; thence on to his land for the purpose of irrigation. Whereupon the appellant brought this action to restrain the appellee from interfering with his said waste ditch and the surplus and waste water running therein from the Weiler lands. The appellee is a member and stockholder of the Western Canal Construction Company, and by virtue thereof entitled to water to irrigate his land from the Roosevelt reclamation project. The appellant is not entitled as a stockholder to any water from the government project to irrigate the northeast quarter of section 35, township 1 north, range 2 east; it not being listed under the project.

From these undisputed facts, which appear in the pleadings and in the evidence, judgment was in favor of appellee. The appellant appeals and assigns errors: First, that the court erred in the admission of evidence over his objections; and, second, that the judgment is not sustained by the evidence, and is contrary to the law.

We adopt the order of treatment of the questions raised followed by the appellant. He first argues that the evidence is insufficient to sustain the judgment and that the judgment is contrary to the evidence and the law. It is said that the waste and surplus water that escaped from the Weiler lands, being appurtenant to the land, belonged to Weiler until released by him with no intention of recapturing it; that such water was subject to appropriation and use by appellant without interference or interruption by anyone except Weiler; that Weiler is not a party to this suit contesting appellant's right to the water, nor has he taken steps to conserve and apply it upon his land without any waste or surplus; that his source of supply continued to be from the Salt river after he had come under the Roosevelt reclamation project as it had been before when his water was delivered to him through the Tempe canal, and also that the waste continued under the new arrangement as it had under the old; that, although the Weiler land and the land of appellee were under the reclamation project and had paid and were paying the Reclamation Service for carrying and delivering water to them through the Western canal, still neither appellee nor the Reclamation Service could capture, collect and divert the surplus and waste water in question, and in this manner deprive appellant of its use upon his land, even though it is not under the reclamation project, and did not contribute in any manner toward the construction of the Western canal.

We do not think that appellant's position is supported by the law. At no time since he has been appropriating the waste water from the Weiler land could he legally claim or demand that Weiler release or turn to him any water because Weiler was entitled to divert upon his land only so much water as was necessary to irrigate it; any excess of the amount so needed properly belonging to the natural stream or source of supply and should be left there. The appellant's supply of water from this source in all events was very precarious depending upon Weiler's diverting upon his land more water than he required, or a wasteful and profligate use of it. A frugal and economic use of his appropriation by Weiler might cut off the waste or reduce it to a minimum, and appellant could not complain. Indeed, Weiler might cease to use his ditches or laterals entirely and suspend the use of his appropriation for the time being without infringing any right of appellant. The appellant could capture the waste water so long as it...