Maricopa County Municipal Water Conservation Dist. No. 1 v. Southwest Cotton Co.
| Decision Date | 22 October 1931 |
| Docket Number | Civil 2872 |
| Citation | 39 Ariz. 65,4 P.2d 369 |
| Parties | MARICOPA COUNTY MUNICIPAL WATER CONSERVATION DISTRICT NUMBER ONE, a Corporation, BEARDSLEY LAND AND INVESTMENT COMPANY, a Corporation, and CARL PLEASANT, Appellants, v. SOUTHWEST COTTON COMPANY, a Corporation, and VALLEY RANCH COMPANY, a Corporation, Appellees |
| Court | Arizona Supreme Court |
[Copyrighted Material Omitted]
APPEAL from a judgment of the Superior Court of the County of Maricopa. Joseph S. Jenckes, Judge. Judgment reversed and cause remanded for new trial.
Messrs Hayes, Stanford, Walton, Allee & Williams and Messrs. Kibbey Bennett, Gust, Smith & Rosenfeld, for Appellants.
Mr. James R. Moore, for Appellees.
Mr. O. J. Baughn, Messrs. Sloan, Holton, McKesson & Scott, Messrs. Chalmers, Fennemore & Nairn, and Mr. U. T. Clotfelter, Amici Curiae.
Southwest Cotton Company, a corporation, and Valley Ranch Company, a corporation, hereinafter called plaintiffs, brought suit against Maricopa County Municipal Water Conservation District No. 1, a corporation, Beardsley Land & Investment Company, a corporation, and Carl Pleasant, hereinafter called defendants, for the purpose of enjoining the latter from storing and using for irrigation certain surface waters of the Agua Fria River. A judgment was finally rendered, granting an injunction upon certain terms set forth therein, and from said judgment this appeal has been taken.
The case is one of the most important which has ever come before this court, involving as it does not only property interests of the value of many millions of dollars, but also a declaration of legal principles which will in all probability determine and govern to a great extent the course of future agricultural development within the arid regions of Arizona. The real question involved is the law applicable to the relative rights to the ownership and use of the subterranean waters of the state as against those of the surface waters. We have discussed certain phases of this question in previous cases, but have never made a complete statement of the principles applying thereto, for the reason that theretofore the development of the subterranean waters has been of comparatively minor importance. We think, however, this case is proof that the time has come when it is necessary for the protection and guidance of future agricultural development in the state that these principles should be enunciated as clearly and definitely as possible, so that our citizens may know how to guide their future procedure. For this reason we treat the matter as though it were of first impression in all respects, not only considering the new issues which have arisen, but reconsidering and redetermining the old ones upon which we have heretofore expressed an opinion. The case has been most carefully and exhaustively briefed by counsel so that we feel every possible angle and every authority bearing thereon has been called to our attention. We have considered every point raised and examined every case cited, and, if we have not mentioned and discussed them all, it is because, in view of the conclusions we have reached, it is unnecessary, and would extend this opinion to unreasonable length.
The area which is now the state of Arizona was acquired from the Republic of Mexico in 1848 and 1853. At the time the United States succeeded to the sovereignty which was previously held by Mexico, with the same right to alter or amend the existing laws, or establish new ones, as that previously held by the latter. Boquillas etc. Co. v. St. David etc. Assn., 11 Ariz. 128, 89 P. 504, affirmed 213 U.S. 339, 53 L.Ed. 822, 29 S.Ct. 493; Lux v. Haggin, 69 Cal. 255, 4 P. 919, 10 P. 674. On the other hand, in the absence of affirmative action by the United States or its agencies, the territory, and afterwards the state, of Arizona, the law existing in Arizona at the time of its acquisition is presumed to continue unchanged. Lux v. Haggin, supra; Clough v. Wing, 2 Ariz. 371, 17 P. 453. What, then, was the existing law in Arizona at the time of its acquisition by the United States, in regard to the ownership and use of water, surface and subterranean alike?
There are two great systems of law recognized in Western civilization: The common law, pertaining particularly to the English-speaking countries, and the civil law, which is found principally in those nations where the influence of the old Roman law from which it comes is, and has been, the strongest. Both of these systems distinguish between well-defined natural streams and bodies of water on the one hand, and subterranean, percolating waters on the other. So far as the second are concerned, the principle governing them was, originally at least, the same under both systems. All rights to subterranean waters not flowing in definite, known channels belonged to the owners of the soil. Dig. 39, title 3, §§ 1, 12, 21; Code 3, title 34, §§ 4, 6; Acton v. Blundell, 12 Mees. & W. 324, 152 Eng. Reprint, 1223. But, as far as other waters were concerned, while both laws recognize that the title to the corpus of running water could not be acquired by any individual so long as it was in its natural channel, the common law adopted as governing the use of such waters what is known as the doctrine of riparian rights, the fundamental principle of which was that the water could be used by riparian proprietors alone, and by them only in such a manner, aside from strictly domestic purposes, as not to diminish or alter the course or quantity of the waters of the stream to the deprivation or injury of the other riparian proprietors. Miner v. Gilmour, 14 Eng. Rep. 861, 12 Moore, 131. Navigable waters were, under the common law, considered as under the exclusive control of the government, in trust for the general public, so far as the rights of navigation, etc., were concerned, but were otherwise subject to the usual riparian rights of owners of adjoining lands.
The Roman law, while in many respects accepting the same rules as to riparian rights as the common law, also recognized the acquisition, through prescription, deed or through a grant from the government, of a right to divert the waters of both navigable and non-navigable streams by either riparian or non-riparian proprietors. Code 3, title 34, § 7; Code 11, title 42, § 4; Dig. 8, title 3, § 2, 1 and 2; Dig. 43, title 13, §§ 1-3. Dig. 43, title 20, §§ 1, 40-42. The sole restriction was that, if the stream were originally navigable, such navigability could not be destroyed by the diversion. Dig. 39, title 3, § 10, 2.
These principles of the Roman law were followed in Spain for many centuries, though in "Las Siete Partidas," the famous Spanish Code, formulated about 1256, only the rule applying to percolating subterranean water was specifically discussed, and Spanish water law, as modified from time to time, was brought to Mexico, when it was first settled by the Spaniards. Its principles, as modified by local custom and statute, have been exhaustively discussed by the Supreme Court of California in the famous case of Lux v. Haggin, supra, and it would be a work of supererogation for us to attempt to add anything thereto. The conclusions of that court regarding rights to the use of nonpercolating waters, as they existed at the time of the acquisition of the Western territories by the United States, may be summed up as follows:
These conclusions, so far as they pertain to non-navigable streams, were referred to and quoted approvingly by the Supreme Court of the territory of Arizona in the case of Boquillas etc. Co. v. St. David etc. Assn., supra, and in reason we think those referring to navigable waters are equally correct. It appears, then, beyond doubt that the doctrine of prior appropriation was entirely unknown to the common law, and under the Mexican law arose only as a result of a grant from the government. 1 Kinney on Irrigation, 2d ed., p. 1044. How, then, did it become a part of the law of Arizona?
When the territory of Arizona, which formerly was part of the state of Sonora, Mexico, was first organized, the right of appropriation of surface streams for irrigation purposes was to some extent permitted by local custom as well as by express grant. So far as percolating waters are concerned, there is nothing to show that a right of appropriation of these was ever exercised or claimed to exist as a matter of custom in Arizona or Sonora before its acquisition by the United States, and the only rules specifically touching upon subterranean waters were the principles laid down in Las Siete Partidas to the effect that the owner of the land owned them to the extent that he could draw them from his land at will, even though by so doing it cut off the subterranean supply previously used by other land owners, with the exception that the government could by grant authorize the appropriation of even these waters, if they ran in definite channels. Partidas 3, Tit. 32, § 19; Nov. Recopilacion, Tit. 3; Tit. 11, Lib. 7, Law 27, § 48.
We conclude, therefore, that at the time the territory of Arizona was acquired from Mexico the...
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