Maricopa County Municipal Water Conservation District Number One v. Southwest Cotton Co., Civil 2872

• Citation: 7 P.2d 254,39 Ariz. 367
• Decision Date: 12 January 1932
• Docket Number: Civil 2872
• 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

7 P.2d 254

39 Ariz. 367

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

Civil No. 2872

Supreme Court of Arizona

January 12, 1932

On petition for rehearing on appeal from a judgment of the Superior Court of the County of Maricopa. Joseph S. Jenckes Judge. Original opinion modified and affirmed. (For original opinion, see ante, p. 65, 4 P.2d 369.)

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.

OPINION

LOCKWOOD, J.

Appellees have filed their petition for a rehearing of this appeal. They accept as correctly stating the law the two fundamental principles laid down by us in our opinion, ante, p. 65, 4 P.2d 369, to wit, that percolating waters are not subject to appropriation under the law of Arizona, and that when an appropriation is made from subterranean waters they must be shown to be of the same character as appropriable surface waters by clear and convincing testimony. They contend, however, that we have in effect affirmed their right of appropriation to a portion of the waters which were the subject matter of this action, and request that instead of sending this case back for a new trial we render judgment declaring their rights in such last-named waters.

In our opinion, we declared the waters in controversy to be divided into three classes: (1) that drawn through wells from underground waters not shown to be appropriable under the law; (2) that drawn from wells which might be appropriable under the law; and (3) surface waters of the Agua Fria River taken through what is known as the Marinette heading. Appellees accept our judgment as to the first class of waters, but ask us to affirm the right of appropriation to the last two classes mentioned as found by the trial court.

So far as the second class of waters is concerned, we think the motion should be denied. The test to be applied to such waters is that laid down by us for determining whether or not water is "underflow" of a surface stream. Evidence in regard to these waters was presented in the trial court on the theory that they came from dependent underground channels of the Agua Fria River and not from the river itself, and the findings and judgment of the trial court were based primarily upon that theory. The question of underflow in accordance with our definition thereof was touched only incidentally, if at all. We are of the opinion that since we laid down a theory of the right of appropriation of waters drawn from wells entirely different from that on which the trial court based its findings, it is but fair that both parties should have the opportunity of presenting evidence on this point based upon the proper theory of the law.

So far as the waters taken through the Marinette heading are concerned, the situation is somewhat different. The trial court in passing upon these waters correctly followed the law of surface appropriation, and were there nothing further required in the case than a mere declaration of the priority of appellees' right to the waters last named, we might perhaps render...