Markiewicz v. Salt River Valley Water Users' Ass'n, 1

Citation576 P.2d 517,118 Ariz. 329
Decision Date24 January 1978
Docket NumberCA-CV,No. 1,1
PartiesM. M. MARKIEWICZ, H. S. Logwood, Ronald C. Kelner, Gordon S. Jaeck, Mack C. Brooks, Marie L. Millstone, John L. Neighbors, Gene Sewell, Arthur Witt, Ruel A. Sports, John W. Slingloff, Julius M. Simone, David Kauffman, Robert Balzano, Donna T. Balzano, John Zollner, Robert Hicks, J. M. Anderson, Ivan R. Gale, Frank Olson, Gerald G. Posthumus, Betty J. Kusse, Norman Weightman, Nicholas Demeter, Arthur Sukis, George Baroch, Robert Decot, Wm. J. O'Neill, Jr., Leland J. Hanchett, Roy F. Aycock, Hugo Pulice, H. E. Stedwell, Arthur J. Rheinlander, Jr., J. Patrick Linton, Mrs. A. B. Carpenter, now known as Mrs. Helen (Carpenter) Schoff, Joe Domanico, Frank E. Castle, Jr., Mary C. O'Neill, Charles A. Hornback, Herbert L. Kennel, Robert C. Stevens, Roderic D. Simpson, Bettie MacArthur, Pamela F. Wyatt, Terence Shelbourne, Dottie Dow, Veronica S. Funk, Gerald Dean Coffin, Edward C. Diorio, Harvey B. Dubois, R. W. Benson, Edward Brown, W. H. Beattie, Harold G. Bailey, S. W. Blakeley, W. B. Cooke, Steve Fuse, E. J. Gilsdorf, Clarence Johnson, John Mozingo, G. L. Pennington, George Stalnaker, James Thiem, Robert Thiem, John T. Tripp, John Vasquez, and Robert Whisenant, Appellants, v. SALT RIVER VALLEY WATER USERS' ASSOCIATION, an Arizona Corporation, and Salt River Project Agricultural Improvement and Power District, a political subdivision of the State of Arizona, Appellees. 3141. Division 1, Department A
CourtCourt of Appeals of Arizona
Burch, Cracchiolo, Levie, Guyer & Weyl by Michael E. Bradford and Welliever, Smith & Howard by Robert J. Welliever, Phoenix, for appellants
OPINION

HAIRE, Presiding Judge.

Appellants, a group of homeowners, sued the appellees Salt River Valley Water Users' Association (the Association) and Salt River Project Agricultural Improvement and Power District (the District) when appellants' homes were damaged by water escaping from the Arizona Canal. The Arizona Canal is operated by the Association, as agent for the District.

The facts giving rise to this action are as follows. The Arizona Canal crosses the Salt River Valley in a generally east-to-west direction. It runs from Granite Reef Dam on the Salt River east of metropolitan Phoenix, to Skunk Creek on the west. A cross-section of the canal would show that it is an open, earthen-banked trench, with the south bank elevated substantially higher than the north bank.

As it traverses the Valley, the canal intersects at least four major, natural washes. When it rains, surface runoff collects in these washes and flows in a north-to-south direction. If the quantity of water flowing down these washes is not too great, it simply flows into the Arizona Canal and is intercepted by the high south bank of the canal. However, during extremely severe storms, the wash water will overflow even the south bank of the canal, and will continue in its natural north-to-south drainage pattern.

When a storm is anticipated, the Water Users' Association follows storm control procedures designed to enable the canal system to accept and safely carry off as much runoff as possible. To do this, the canal is "dumped"; that is, no more stored water is permitted to enter the canal at Granite Reef Dam and all available diversion facilities are opened to remove water from the canal. Still, the run-off can be so heavy that it exceeds the canal's capacity, and overtops the south bank. When water overflows an earth bank, there is a tendency for the bank to erode and eventually wash out. To protect its canal, the Association has installed spillways concrete-covered notches in the south bank which permit water to spill out of the canal before the banks are overflowed.

Appellants are homeowners who, on June 22, 1972, resided in Phoenix south of the Arizona Canal in an area bounded by (approximately) 40th Street on the East, 35th Street on the West, Camelback Road on the North, and Campbell Road on the South. The Arizona Canal intersects 40th Street just north of Camelback Road, and travels in a northwesterly direction above the appellants' homes. West of 40th Street, at what would be 38th or 39th Street, the canal crosses the two forks of Cudia City Wash, one of the major washes in the Salt River Valley. To the east, at 48th Street, the Old Crosscut Canal connects with the Arizona Canal and provides a means to divert water south to the Salt River. The Salt River Valley is subject to brief, high intensity summer storms. Several of these storms have been severe enough to cause major breaches in the Arizona Canal. The records of the Association show that in 1939 a desert storm produced runoff that broke the canal banks in several places. One break occurred 175 feet west of 40th Street. In 1943, another storm produced numerous breaches in the canal, and the Association recognized that the Old Crosscut Canal's gates were "inadequate" for diverting water from the Arizona Canal. This inadequacy contributed to breaks downstream (west) from 40th Street. Four witnesses testified to seeking a break in the Arizona Canal near 40th Street during a severe storm in 1970. However, the Association denied that any break occurred there.

On June 22, 1972, a severe rainstorm occurred in the Cudia City drainage area. It rained hard for about two hours, beginning at about 6:00 a. m. At about 8:00 a. m. the rain relented somewhat. The storm has been characterized as one of 500-year return frequency, i. e., a storm so severe that it can be expected to occur, on the average, only once in 500 years.

During this storm, the Association went into its storm control procedures. By 7:00 a. m. no more irrigation water was being released into the Arizona Canal. However, large quantities of water had begun flowing down the Cudia City Wash and other arroyos. Exactly when this water hit the canal is unclear, but Cudia City Wash water entered the canal in sufficient quantity to create a backflow, causing water in the canal to flow east, or upstream. When the full flow of Cudia City Wash hit the canal, the canal filled "in minutes". Flood Control Spillway No. 2 west of 40th Street ran full, and water began overtopping the south bank of the canal between 32nd Street and 40th Street. The water pouring over the canal caused the south bank to erode and give way in three places west of 40th Street. This was the same location where the canal had broken in 1939, and, according to appellants' witnesses, in 1970. The three breaches widened and deepened as water flowed through them. By 10:30 a. m. the breaks were each three to five feet deep and about 25 feet wide. Eventually, an island between two of the breaks washed away, so that the three breaks became two.

Between 8:00 and 9:00 a. m. several of the appellant homeowners observed a wall of water rushing through the area south of the canal. This water was flowing swiftly and carried great amounts of mud and debris. Possessing sufficient kinetic force to tear down fences and carry away automobiles, the flood waters caused serious damage to appellants' homes and other property.

Appellants originally sought to bring this suit as a class action. However, the trial court determined that the action could not properly be maintained as a class action. Appellants filed a notice of appeal from this ruling, but the appeal was later dismissed pursuant to stipulation of the parties, and appellants proceeded in their individual capacities. On appellants' motion, the case was ordered bifurcated into separate trials on the issues of liability and damages. After a fourth and final amendment to their complaint, appellants asserted claims against appellees based on two theories: strict liability for diversion of a natural watercourse, and negligence. Before trial, the court struck appellants' strict liability claim. The case then went to jury trial on the issue of negligence liability. At the close of plaintiffs' case, a directed verdict was granted in favor of the defendant District. At the close of all the evidence, and without submitting the case to the jury, a directed verdict of no liability was granted in favor of the Association.

On appeal, plaintiffs assert that the trial court committed error in the following respects:

A. Striking the strict liability claim;

B. Directing a verdict for the District on the basis that the District was not liable for the acts of the Association;

C. Failing to admit Exhibit 76 into evidence;

D. Directing a verdict in favor of the Association on the issue of negligence; and

E. Denying appellants the right to proceed as representatives of a class.

At oral argument, appellees conceded point B above, admitting that the District may be derivatively liable for the acts of the Association in the maintenance and operation of the Arizona Canal.

The appellee Water Users' Association by cross-question, raises a jurisdictional issue which, if resolved favorably to the Association, would

compel an affirmance of the judgment of the trial court. I. DID THE TRIAL COURT HAVE JURISDICTION OVER THE NECESSARY PARTIES AND SUBJECT MATTER?

The association presents two arguments that the court was without jurisdiction to render a judgment in this case. The first argument concerns immunity of the Association; the second argument asserts the absence of an indispensable party, specifically, the United States.

Appellee Water Users' Association argues that it operates the canal as an agent of the United States and that agents of the United States are immune from suit. The recent case of Salt River Valley Water Users' Association v. Giglio, 113 Ariz. 190, 549 P.2d 162 (1976) destroys this argument. Giglio held that the Association is not, at least for purposes of this type of lawsuit, an agent of the United States. 113 Ariz. at 196-97, 549 P.2d at 168-69....

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