Maricopa County Municipal Water Conservation Dist. No. 1 v. Warford

• Decision Date: 31 May 1949
• Docket Number: 5104
• Citation: 206 P.2d 1168,69 Ariz. 1
• Parties: MARICOPA COUNTY MUNICIPAL WATER CONSERVATION DIST. NO. 1 v. WARFORD et ux
• Court: Arizona Supreme Court

206 P.2d 1168

69 Ariz. 1

MARICOPA COUNTY MUNICIPAL WATER CONSERVATION DIST. NO. 1 v. WARFORD et ux

No. 5104

Supreme Court of Arizona

May 31, 1949

Rehearing Denied July 16, 1949.

Appeal from Superior Court, Maricopa County; Edwin Beauchamp, Judge.

Judgment affirmed.

Whitney Ironside & Whitney, of Phoenix for appellant.

Darrel R. Parker, of Phoenix, for appellees.

De Concini, Justice. Udall, Stanford and Phelps, JJ., and Don T Udall, Superior Judge, concur. La Prade, C. J., being ill, the Honorable Don T. Udall, Judge of the Superior Court of Navajo County, was called to sit in his stead.

OPINION

De Concini, Justice.

L. A. Warford et ux., plaintiffs below, appellees here filed their complaint against appellants, et al. The other defendants were either dropped or the action against them dismissed. The case went to trial on appellees' first amended complaint and ther supplemental complaint filed the day of the trial. Appellant will hereafter be referred to as the District and appellee Warford as plaintiff.

The District was organized about the year 1925 to reclaim raw desert land for agricultural purposes. The District comprises some 35,000 acres, approximately 25 miles northwest of Phoenix. In 1927-1928 the District built its main canal and several laterals through which the water flowed to the land to be irrigated. The main canal, which runs in a southwesterly direction along the north side of the District acreage, was intercepted by Trilby wash at the west end of Lateral 3. The main canal was paralleled by a protective drainage ditch built by the District in 1927 or 1928. In 1935-1936 the District built an embankment 4 feet high paralleling the main canal for about one-fourth of a mile, then due north for 1 3/4 miles, thence due east for 1 1/4 miles to protect the main canal from surface waters.

At the junction of the main canal with Trilby wash, the District installed a siphon under the wash to carry the flow of the canal and not impede the run-off down the wash. The protective drainage ditch and embankment caused surface waters to be diverted away from the main canal directly to the natural bed of Trilby wash which ran southeasterly through the District's land and would have continued so except for the action of the District in digging a diversion channel along the north side of Lateral 5 which ran directly east. The purpose of diverting Trilby wash waters easterly was to protect the land within the District to the southeast from its ravages. The District is located so that an area of approximately 195 square miles drains through it via Tribly wash. Normally the wash is dry, but when rains descend in the watershed the wash runs a varying stream of water.

In 1939 a heavy rain fell and the waters carried by Trilby wash burst over Lateral 5 damaging both the lateral and land to the south, but did not reach plaintiffs' land. In 1941 and 1942 the District widened and deepened the ditch north of Lateral 5 and threw dirt up against the north side of the lateral to protect it from Trilby's diverted waters. The District has periodically repeated this process up to the date of the trial early in September, 1947. The court has had a map prepared from the evidence in the file. This map is attached hereto for illustrative purposes only.

Plaintiff has resided and farmed in this locality since 1937 and was aware of the District's work to alleviate flood conditions along Lateral 5. Plaintiff purchased by verbal contract from one Mrs. Minnie McMurtry the NW 1/4 of section 9 in 1941, went into possession and cleared 40 acres of it. On September 24, 1942, he took a written option on the same land and paid some money on account. In 1944 the deed was placed in escrow at the Phoenix National Bank. In 1945 or 1946 plaintiff purchased the NW 1/4 of the SW 1/4 of section 9 from the same grantor increasing his holdings to a total of 200 acres all of which was in T. 3 N., R. 1 W., G. & S. R. B. & M., Maricopa County. In 1942 the District extended its diversion canal from Trilby wash to the northwest corner of plaintiff's land. In 1943 water overflowed a little of his cotton land but did no appreciable damage.

In 1946 plaintiff had a well drilled and pump installed at a cost of $ 14,000. He levelled and plowed his land and planted cotton. During the summer of 1946 water came down the artificially created diversion channel and flooded about 70 acres of his land.

Plaintiff's complaint was brought on the theory of inverse eminent domain, Art. 2, Sec. 17, Ariz.Const., in that the District took his land by reason of such flooding. He alleged he was damaged to the extent of $ 30,000. His supplemental complaint filed the day of the trial prayed for damages in the sum of $ 11,700 for crop loss resulting from the 1947 summer floods.

The lower court made findings of fact and gave judgment to plaintiff. The District appeals from the judgment listing a number of assignments of error. Seventeen of them intermingled with other alleged errors supported by eight propositions of law are directed to the findings of fact. In whole the findings of fact are sustained by the evidence. When such is the case this court has held time and again that it will not disturb the lower court's findings. There are some slight deviations from the evidence but they do not constitute reversible error. Two examples of [SEE ILLUSTRATION IN ORIGINAL] error that the district lays great stress upon are as follows:

(a) Findings of Fact Nos. 8 and 9 are in error because the lower court found that "about 1941 work was begun * *" when the evidence shows that the first work was done in 1927-1928. This apparent error is meaningless for the reason that any work that was done along Lateral 5 by replacing the embankment to its original height of 1 1/2 feet at that time never caused any water to run over plaintiff's land. It was not until 1942 that the channel built by the District reached plaintiff's corner.

(b) The District complains in many of its assignments of error that the lower court used certain phrases to describe the conditions that existed, rather than the correct terminology such as "surface waters" instead of "flood waters," "drainage works" instead of "protective works," etc. While there may be some merit to the distinction between the terms, actually under the law of the case as hereinafter set out it makes no difference.

The District's first assignment of error is that the lower court lacked jurisdiction because plaintiff failed to file a verified claim as provided by Sec. 75-418, A.C.A.1939: "No claim shall be paid by the district treasurer until the same shall have been allowed by the board. * * * All claims against the district shall be verified in the same manner as is required for claims against counties."

Sections 17-316 to 17-321, A.C.A.1939, provide the manner and time in which such verified claims must be filed. A reading of these sections will clearly show that the taking of plaintiff's property by eminent domain is not such a claim as was contemplated by said sections. The requirement of filing such claim refers to contractual obligations and not to liabilities incurred by torts or under eminent domain. City of Phoenix v. Mayfield, 41 Ariz. 537, 20 P.2d 296. If the provision in Sec. 17-316 limited a claimant's right for loss of his property under eminent domain to a period of six months, it would run afoul of the general law governing the statute of limitations.

Sec. 17, Art. 2 of the Arizona Constitution is similar to the eminent domain provision of the State of Washington. Our court in Bugbee v. Superior Court, 34 Ariz. 38, 267 P. 420; Cienega Cattle Co. v. Atkins, 59 Ariz. 287, 126 P.2d 481; Ramirez v. Electrical Dist. No. 4, 37 Ariz. 360, 294 P. 614, has followed the construction placed thereon by the Washington Supreme Court. See: Wong Kee Jun v. City of Seattle, 143 Wash. 479, 255 P. 645, 52 A.L.R. 625; Kincaid v. Seattle, 74 Wash. 617, 134 P. 504, 135 P. 820; Willett v. Seattle, 96 Wash. 632, 165 P. 876; Boitano v. Snohomish County, 11 Wash.2d 664, 120 P.2d 490.

We hold, therefore, that it was unnecessary for plaintiff to comply with said sections as a condition precedent to the filing and prosecuting of this action against the District.

The District's third assignment of error is that plaintiff's action is barred by the one year statute of limitations, Sec. 29-201, A.C.A.1939, because plaintiff's claim is based "upon a liability created by statute." "A liability created by statute" is a liability that comes into being solely by statute, and one which had no existence prior to the enactment creating it. Griffen v. Cole, 60 Ariz. 83, 131 P.2d 989.

The question then arises whether or not Art. 2, Sec. 17, of the Arizona Constitution creates such a liability. While that section is not self-executing, In re Forsstrom, 44 Ariz. 472, 38 P.2d 878, it was primarily enacted, as its heading indicates: "Eminent Domain", for the benefit of the public. The right of property in the individual and to damages for its taking or injury existed long prior to the adoption of our constitution and would exist today without the eminent domain provision. Where liability would exist in some form irrespective of the statute, it is not a liability created by statute. Griffen v. Cole, supra; Haws v. Fracarol, 9 Cir., 72 F.2d 461. This not being a liability created by statute the one year statute of limitations does not apply.

The constitutional provision on "Eminent Domain" gave the right to take private property, in a limited way for "private use" and in a broader and general way for "public use", provided payment is made. If there were no eminent domain provision, private property could not be so taken. Therefore, private property rights existed...