Mullen v. Gross

• Decision Date: 28 May 1958
• Docket Number: No. 6180,6180
• Citation: 326 P.2d 33,84 Ariz. 207
• Parties: A. John MULLEN, also known as A. J. Mullen, and Edith Mullen, his wife, Appellants, v. John F. GROSS and Bertha Gross, his wife, et al., Appellees.
• Court: Arizona Supreme Court

Page 33

326 P.2d 33

84 Ariz. 207

A. John MULLEN, also known as A. J. Mullen, and Edith Mullen, his wife, Appellants, v. John F. GROSS and Bertha Gross, his wife, et al., Appellees.

No. 6180.

Supreme Court of Arizona.

May 28, 1958.

Rehearing Denied July 1, 1958.

Clark & Coker, Phoenix, Frank X. Gordon, Kingman, for appellants.

Carl D. Hammond, Carl G. Krook, Kingman, for appellees.

STRUCKMEYER, Justice.

This is an action brought by A. John Mullen and Edith Mullen, his wife, as plaintiffs, against John F. Gross and Bertha Gross, his wife, and others, defendants, to quiet title to and restrain defendants from interfering with the plaintiffs' right to the use and enjoyment of certain waters located on the public domain within the boundaries of Arizona Grazing District No. 2. Plaintiffs alleged that they are the owners of the waters of a spring and a well known as Kerr Well by virtue of certificates of water rights duly issued by the State Land Commissioner of the State of Arizona in compliance with the law; and further, that they are the owners of the right to appropriate and place to beneficial use all the waters of three other springs by virtue of permits from the same authority. The defendants in general denied the allegations of plaintiffs' complaint and counterclaimed, asserting that they have the beneficial use to the waters in question by reason of prior valid appropriations, and that the plaintiffs' appropriations are inferior to and subordinate to the right, title and interest of the counterclaimants with the exception of Kerr Well, which waters plaintiffs allege are part of the land and percolating. The court below, contrary to the affirmative pleadings of both parties, found that all the waters without exception were percolating and not subject to appropriation under the rule announced in Bristor v. Cheatham, 73 Ariz. 228, 240 P.2d 185, and on rehearing, 75 Ariz. 227, 255 P.2d 173, denied the relief prayed for in plaintiffs' complaint, and granted no relief whatsoever to defendants on their counterclaim. It further ordered the State Land Commissioner, although he was not a party to this action, to cancel the certificates and permits issued to the plaintiffs. This latter portion of the judgment is, of course, obviously void for want of joinder.

There can be no doubt as to the jurisdiction of the Superior Court of Mohave County to determine the respective interests of the parties in these waters and to order the appropriate relief for their invasion, if any. While the State Land Commissioner is authorized by statute to issue permits and certificates of water rights, his action does not adversely affect the vested rights of prior appropriators and does not affect the jurisdiction of the Superior Court to determine controversies relative thereto. Ernst v. Superior Court of Apache County, 82 Ariz. 17, 307 P.2d 911; Beach v. Superior Court of Apache County, 64 Ariz. 375, 173 P.2d 79.

The principal question involved and the one which we think is primarily determinative of this appeal is the attack by the plaintiffs on the findings of the trial court that the waters here in dispute are percolating. As to the four springs, we think it was error to render a judgment decreeing that the waters are not appropriable because they are percolating. As pointed out, both parties alleged and relied on valid appropriations at the trial. The allegations in the complaint and counterclaim of valid appropriations constitute a distinct and unqualified admission that the waters in question were not percolating. The province of the court in respect to facts is to determine and not raise issues. Findings against the allegations admitted by the pleadings are outside the issues, and any legal conclusion which is not upheld by the admitted facts is erroneous. Back v. Hook, 107 Cal.App.2d 250, 236 P.2d 910; Horney v. Horney, 118 Cal.App.2d 679, 258 P.2d 555. In the instant case, as between the parties to this action, there was no issue as to the non-appropriable nature of the waters and even though the court's conclusion finds some support in the evidence, it is beyond the scope of the litigation.

The situation is different with regard to Kerr Well. T...