Smith v. Trott

• Decision Date: 06 January 1930
• Docket Number: Civil 2811
• Parties: EDWARD SMITH, Appellant, v. FRANK P. TROTT, State Water Commissioner, and WID T. SAWYER, Protestant, Appellees
• Court: Arizona Supreme Court

283 P. 726

36 Ariz. 166

EDWARD SMITH, Appellant, v. FRANK P. TROTT, State Water Commissioner, and WID T. SAWYER, Protestant, Appellees

Civil No. 2811

Supreme Court of Arizona

January 6, 1930

APPEAL from a judgment of the Superior Court of the County of Maricopa. Joseph S. Jenckes, Judge. Appeal dismissed.

Mr. R G. Langmade, for Appellant.

Mr. J E. Morrison, Mr. Hess Seaman, Mr. W. S. Norviel and Mr Albert D. Leyhe, for Appellees.

OPINION

LOCKWOOD, C. J.

Edward Smith, hereinafter called appellant, in 1925 applied to the water commissioner of the state of Arizona under chapter 164, Session Laws of 1919, as amended (Laws 1921, chap. 64), and commonly called the Water Code, for a permit to appropriate certain waters from Date Creek at a point known as Tres Alamos Canyon, situated about twenty miles west of Congress Junction. Immediately following the filing of this application, Wid T. Sawyer, hereinafter called appellee, filed in the office of the commissioner a protest against its allowance. A hearing was duly held before the commissioner, and evidence introduced, whereupon the matter was taken under advisement, and the application of appellant finally denied on the ground of a conflict with prior vested rights. Appellant appealed from this decision to the superior court of Yavapai county, and the matter was by stipulation transferred to Maricopa county. It was tried March 24th, 1928, and on May 11th the court entered judgment in favor of appellee and denied appellant's petition, and the latter has appealed to this court from the order of the superior court of Maricopa county denying his application.

The first issue which confronts us is whether or not an appeal lies to this court under these circumstances. It is, of course, elementary that a right to appeal exists only by force of statute and is limited by the terms of the statute. Barth v. County of Apache, 18 Ariz. 439, 162 P. 62; Navajo-Apache, etc., Trust Co. v. Desmont, 17 Ariz. 472, 154 P. 206. And, where the right is neither given nor denied by the Constitution, it is within the discretion of the legislative authority to say in what cases and under what circumstances appeals may be taken. Hoeye v. Willis, 15 Ariz. 257, 138 P. 15. The matter was initiated under the Water Code. Within that Code are found two separate and distinct proceedings: the first being sections 5 to 15, dealing with the manner of appropriating water; the second, sections 16 to 33, providing for the determination of the relative rights of various claimants to the waters of a stream. Salt River Valley Water Users' Assn. v. Norviel, 29 Ariz. 499, 242 P. 1013. The legislature, in thus differentiating the two procedures, may have been moved by the fact that the decision of the water commissioner under sections 5 to 15 can in no manner affect a vested right. If he grants the permit, it does no more than allow the petitioner to initiate and perfect a valid appropriation of water, but it does not act as an adjudication between this water right and those of any other person. If, on the other hand, the commissioner denies the application, he takes away from the petitioner no existing rights. He merely prevents, for the time, his acquiring a right to the use of public property, and this the legislature can, of course, regulate as it sees fit. When, however, sections 16 to 33 apply, the situation is much changed. The determination in that case involves a settlement of the vested, and sometimes conflicting, rights of the parties, and the procedure is very different. The application herein unquestionably falls within the proceeding described in sections 5 to 15. These sections, after setting forth in some detail the terms of an application for a permit to appropriate waters, provide:

"Section 7. . . . All applications which shall comply with the provisions of this act shall be recorded in a suitable book kept for that purpose, and it shall be the duty of the Commissioner to approve all applications made in proper form which contemplate the application of water to a beneficial use, when the provisions of this act are complied with; but when the proposed use conflicts with vested rights, or is a menace to the safety or against the interests and welfare of the public, the application shall be rejected."

In case the applicant is dissatisfied with the decision of the commissioner, he is given a remedy in section 11 of the Code, which originally read as follows:

"Section 11. An applicant may appeal to the court hereinafter specified for relief, which may modify the decisions of the Commissioner if it shall appear that he has abused the authority reposed in him by law. Such appeal shall be taken within sixty days from the date of such decision by the Commissioner and shall be perfected when the applicant shall have filed with the court a copy of the order appealed from, together with a petition setting forth the appellant's reason for appeal, and such appeal shall be heard and determined upon such competent proof as shall be adduced by the applicant, and such like proofs as shall be adduced by the Commissioner."

No other right of appeal on an application made under sections 5 to 15, supra, is granted by the Water Code or any other statute, unless the general provisions of the Civil Code -- regarding appeals to this court -- are applicable. It is urged by appellee that these latter provisions do not apply in cases of this nature, and he cites in support of his contention the case of Mohave County v. Stephens, 17 Ariz. 165, 149 P. 670, 672, while appellant in oral argument claimed that the doctrine of this case has been expressly reversed in State v. Inspiration Consolidated Copper Co., 20 Ariz. 503, 181 P. 955, 957. The general principle of law enunciated in Mohave County v. Stephens, supra, is as follows:

"In the very liberal effort by the Legislature to provide for appeals from all kinds of orders, judgments, and decrees, it evidently had in view actions and proceedings of court origin only, and not proceedings originating in a board of equalization." (Italics ours.)

In this case the facts were as follows: Stephens, being dissatisfied with his tax assessment as made by the board of equalization of Mohave county, paid his taxes under...