Salt River Valley Water Users' Ass'n v. Norviel
| Decision Date | 09 February 1926 |
| Docket Number | Civil 2281 |
| Court | Arizona Supreme Court |
| Parties | SALT RIVER VALLEY WATER USERS' ASSOCIATION, a Corporation, Appellant, v. W. S. NORVIEL, as State Water Commissioner of the State of Arizona, and UNITED VERDE COPPER COMPANY, a Corporation, Appellees |
On petition for rehearing on appeal from a judgment of the Superior Court of the County of Maricopa. Alfred C. Lockwood Judge. Rehearing denied.
For opinion, see ante, p. 360, 241 P. 503.
Messrs Kibbey, Bennett, Gust & Smith, for Appellant.
Mr John W. Murphy, Attorney General, Mr. Earl Anderson Assistant Attorney General, and Messrs. Anderson, Gale & Nilsson, for Appellee United Verde Copper Company.
In its motion for rehearing the United Verde Copper Company, appellee, insists that the former opinion of this court sets aside and utterly disregards the Water Code of Arizona, which is found at chapter 164, page 278 and following, Session Laws of 1919, and the amendments thereto, being chapter 64 of the Session Laws of 1921. We fail to see the viewpoint of the appellee. Instead of setting aside the Water Code, the opinion of the court is entirely in harmony and accord with the Water Code. The fourth and fifth propositions urged by the appellee in its original brief were discussed very briefly in the original opinion of the court for the reason that the court regarded the second proposition advanced by appellee as the most serious proposition advanced and the one which deserved the most attention.
It is easy to confuse the form of procedure provided by the Water Code where application is made for a permit to make an appropriation of water, with that provided for a determination of the relative rights of various claimants to the waters of a stream. Sections 5 to 15, inclusive, deal with the manner of appropriating water; the application before the commissioner for a permit, the rights of the permittee, the powers of the commissioner to grant the permit, and other matters all having to do with the appropriation of water or the performing of work upon dams, ditches, canals, or other distributing or controlling works. A careful study of the Code shows plainly that sections 16 to 33, inclusive, amount to what is really a separate subdivision. These sections provide for the determination of the relative rights of various claimants to the waters of a stream; a proceeding which is initiated by the commissioner either upon his own initiative or upon a petition signed by one or more water users. In this proceeding the commissioner's jurisdiction as provided by the Code is in the nature of the jurisdiction of a referee or similar to that of a master under the old chancery practice. He ascertains and determines the facts and files his findings in the superior court. He has no jurisdiction to enter a decree, but the decree is entered by the court. Provision is made for exceptions to the commissioner's findings, which are heard and determined by the court, and the decree only becomes final after it is settled by the superior court in accordance with the procedure prescribed therein. The most important difference between the authority of the commissioner in such instance and that of a referee or master is that the commissioner has original jurisdiction to initiate the proceeding, whereas the referee or master can only determine such issues as are directly referred to him by the court. Both are subject to revision by the court, and in no sense are the commissioner's findings conclusive as to the facts.
The powers of the commissioner under sections 16 to 33 inclusive, should not be confused with the powers of the commissioner upon an application for a permit to appropriate water or to change the point of diversion. ...
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