Roosevelt Irrigation District v. Beardsley Land & Investment Co.

• Citation: 282 P. 937,36 Ariz. 65
• Decision Date: 16 December 1929
• Docket Number: Civil 2851
• Parties: THE ROOSEVELT IRRIGATION DISTRICT, a Corporation, Appellant, v. BEARDSLEY LAND AND INVESTMENT COMPANY, a Corporation, and MARICOPA COUNTY MUNICIPAL WATER CONSERVATION DISTRICT No. 1, a Corporation, Appellees
• Court: Supreme Court of Arizona

282 P. 937

36 Ariz. 65

THE ROOSEVELT IRRIGATION DISTRICT, a Corporation, Appellant, v. BEARDSLEY LAND AND INVESTMENT COMPANY, a Corporation, and MARICOPA COUNTY MUNICIPAL WATER CONSERVATION DISTRICT No. 1, a Corporation, Appellees

Civil No. 2851

Supreme Court of Arizona

December 16, 1929

APPEAL from a judgment of the Superior Court of the County of Maricopa. Joseph S. Jenckes, Judge. Reversed and Remanded.

Messrs Armstrong, Lewis & Kramer, for Appellant.

Messrs Hayes, Stanford, Walton, Allee & Williams, for Appellees.

OPINION

McALISTER, J.

This is an appeal by the Roosevelt Irrigation District from a judgment for the defendants, Beardsley Land and Investment Company and Maricopa County Municipal Water Conservation District No. 1, entered upon the refusal of the plaintiff to amend further after a general demurrer to its first amended complaint had been sustained.

It appears from this complaint that in 1927 the defendants, for the purpose of conveying water to and applying it upon a large acreage of land located in Maricopa county, Arizona particularly upon townships 2 and 3 north, range 2 west constructed and are now maintaining an irrigation canal from the northeast portion of said township 3 in a southerly direction to the southerly part of said township 2; that these two townships lie upon a comparatively level plain a few miles east of what is commonly known as the White Tank Mountains, the easterly watershed of which has from time immemorial drained eastward through natural washes, gorges and arroyos down across the lands of these two townships, and that prior to the happening of the things herein complained of no part of the drainage from this area has ever run anywhere except through these natural waterways or spread itself out over and dissipated itself upon the lands which the defendants are attempting to reclaim and irrigate; that just west of this irrigation canal and paralleling it the full length of said townships 2 and 3, a distance of twelve miles, the defendants have also constructed dams and canals in such a manner as to constitute a drainage canal averaging six feet in depth and eleven feet in width; that said drainage canal has been so intentionally constructed as to collect and gather the whole of the surface waters flowing from the easterly watershed of the White Tank Mountains from their natural watercourses throughout the entire length of said canal and cause them to flow southerly through the same and be discharged by it at the mouth thereof, on the south side of section 33 in said township 2, a direction in which no part of said water has ever flowed before.

It further appears from the amended complaint that for the purpose of reclaiming a large acreage in Maricopa county lying southerly and westerly from said townships 2 and 3, the plaintiff, subsequently to October, 1927, constructed an irrigation canal with a general east to west course which enters said township 2 at the southeast corner of section 36 thereof and continues from there in a southwesterly direction across township 1 north, range 2 west; that it passes only a short distance south of the mouth of the defendants' drainage canal, and that the latter throws against it and the lands served by it all the surface waters from the easterly watershed of the White Tank Mountains, an area so great and subject to such rainfalls that the volume of surface water collected in said drainage canal and discharged against plaintiff's canal and the lands thereunder is very much larger than the latter was built to handle, though its culverts, openings and gates are of sufficient capacity to care for and dispose of all the surface waters that may flow into it naturally from its own watershed above without damaging the lands of plaintiff or anyone else.

It further appears that plaintiff's canal is the only means by which water for irrigation may be furnished to many thousand acres planted to growing crops lying south and west of the point where the said surface waters are thrown against it, and should the usual rainfalls occur in the above watershed this canal and the lands it serves will be damaged and probably destroyed, and due to a failure to supply the necessary irrigation water, such injury will result in a total loss to the owners of the crops growing upon said lands; that about the 25th of August, 1928, a usual rainfall did occur in the watershed aforesaid and the surface water draining therefrom was stopped and collected by the dams and drainage ditch of the defendants and conducted thereby a distance of twelve miles and cast upon the irrigation canal, laterals and ditches of the plaintiff, with the result that it washed out and destroyed the canal in over twenty places and also the laterals at many points, and damaged the plaintiff in the sum of over $5,000; that plaintiff has no adequate remedy at law, and unless the court in the exercise of its equitable jurisdiction directs the defendants to take care of these surface waters in one of the several ways it names as suitable for the purpose or in one of their own not mentioned, or requires them to remove the obstructions placed in the said washes, gullies and arroyos and allow the said waters to flow in their original channels, the plaintiff is entirely without remedy, because the injury which may result from these wrongful acts is such that they would not be able to respond in damages therefor.

The only errors assigned are that the court erred in sustaining the general demurrer to the first amended complaint and in entering judgment for the defendants upon the plaintiff's refusal to amend. The sole question raised by these assignments is the right of defendants to protect their irrigation canal and lands from the surface waters of the easterly watershed of the White Tank Mountains in the manner above set forth. If they were justified in turning the surface water draining easterly from this large area of country in a southerly direction and discharging it upon the premises of plaintiff in large quantities, the demurrer was properly sustained, otherwise not.

The water in question drains through washes, gullies and arroyos and is therefore merely surface water, the law of which governs the parties hereto in protecting their premises from it. There are two distinct doctrines relating to such water -- the rule of the civil and that of the common law. The courts of many of the states have adopted the former, and where this is true the lower premises are subservient to the higher, the latter having a qualified easement in the former which carries with it the right to discharge all surface water thereon. The common-law doctrine, upon the other hand, has been accepted by the courts of a number of the states, and where it prevails the lower owes no duty to the higher estate relative to surface water, because it is regarded as a common enemy against which anyone may...