State ex rel. Morrison v. Anway

• Decision Date: 24 February 1960
• Docket Number: No. 6646,6646
• Citation: 349 P.2d 774,87 Ariz. 206
• Parties: STATE of Arizona ex rel. Robert MORRISON, The Attorney General, Appellant, v. William Roy ANWAY and Betty Lou Anway, husband and wife, Louis E. Anway and Erma E. Anway, husband and wife, Herschel Saunders and Gertrude Saunders, husband and wife, Appellees.
• Court: Arizona Supreme Court

Page 774

349 P.2d 774

87 Ariz. 206

STATE of Arizona ex rel. Robert MORRISON, The Attorney General, Appellant, v. William Roy ANWAY and Betty Lou Anway, husband and wife, Louis E. Anway and Erma E. Anway, husband and wife, Herschel Saunders and Gertrude Saunders, husband and wife, Appellees.

No. 6646.

Supreme Court of Arizona.

Feb. 24, 1960.

Rehearing Denied March 29, 1960.

Wade Church, Atty. Gen., Leslie C. Hardy, Chief Asst. Atty. Gen., Stanley Z. Goodfarb, Asst. Atty. Gen., for appellant.

McCarty, Chandler, Tullar & Udall, Tucson, for appellees.

Snell & Wilmer, Jennings, Strouss, Salmon & Trask, and J. A. Riggins, Jr., Lewis, Roca, Scoville, Beauchamp & Linton and John P. Frank, Phoenix, Reed, Wood & Platt, Coolidge, and Marchant, Parkman, Miller & Pitt, Tucson, amici curiae.

STRUCKMEYER, Chief Justice.

This action was brought by the Attorney General of the State of Arizona at the request of the State Land Commissioner to restrain appellees from pumping water and irrigating lands located in an area designated as a critical ground water area. The court below entered summary judgment in favor of appellees on the allegation of the State's complaint, and this appeal followed.

William Roy Anway and Betty Lou Anway, husband and wife, and Louis E. Anway and Erma E. Anway, husband and wife, are the owners of certain lands in Pima County, Arizona; and they, together with Herschel Saunders and Gertrude Saunders, husband and wife, are engaged in cultivating these lands. Although the lands are within an area designated as a critical ground water area, they have diverted and are continuing to divert well waters onto lands not in cultivation prior to 1957. In order to effect the diversion, appellees have caused other lands in the same, or in a greater amount, to be taken out of cultivation, thereby effecting a crop rotation from one parcel to another. The State asserts that the diversion of water to lands not previously in cultivation prior to 1957 is prohibited either by A.R.S. § 45-301 et seq. or chapter 42, Laws of 1953, or both.

Title 45, chapter 1, Article 7.

It has been the recognized law of this state since 1904 that water filtrating or percolating through the soil beneath the surface of the land in undefined and unknown channels is a component part of the earth, having no characteristic of ownership distinct from the land itself and therefore belongs to the owner of the soil. Howard v. Perrin, 8 Ariz. 347, 76 P. 460; Maricopa County Municipal Water District No. 1 v. Southwest Cotton Co., 39 Ariz. 65, 4 P.2d 369. The rule as announced is a rule of property, and the rights acquired thereby are entitled to protection under the law; consequently, the owner of overlying land may mine the subjacent water as long as it conforms to the doctrine of reasonable use. Bristor v. Cheatham, 75 Ariz. 227, 255 P.2d 173, reversing Bristor v. Cheatham, 73 Ariz. 228, 240 P.2d 185, 195.

In 1948, the state legislature, in recognition of the need for controlling the unrestricted depletion of the ground water of the state, enacted what is now chapter 1, art. 7, Title 45, herein called the Act of 1948. It establishes a method for determining the areas within the state which do not have sufficient ground water to provide a reasonably safe supply for irrigation at current rates of withdrawal and upon such determination prohibited the construction of new irrigation wells. This court held that the Act was constitutional, stating that 'it should be emphasized that in critical areas the Act does not purport to regulate the use of ground water between owners of land in cultivation, * * *.' Southwest Engineering Co. v. Ernst, 79 Ariz. 403, 291 P.2d 764, 767.

In considering the State's position, that the diversion of water to lands not previously in cultivation is prohibited by the Act of 1948, it should immediately be stated that the legislature did not, by express language, so declare; hence, if the conduct is prohibited, it is only because of an implication sought to be drawn from the language used. It should also be stated that except for the implication sought to be drawn from the language used, appellees unquestionably, under the doctrine of reasonable use, would have the right to use the water from their wells in any manner that they think most beneficial to the enjoyment of the property.

It is a universal rule that courts will not enlarge, stretch, expand, or extend a statute to matters not falling within its express provisions. We said, Barlow v. Jones, 37 Ariz. 396, 294, P. 1106, that courts cannot read into a statute something which is not within the manifest intention of the legislature as gathered from the statute itself. A departure from this rule is to alter the statute and legislate, and not to interpret. In spite of this obvious limitation on the court's duty, it is argued that because the Act of 1948 requires all persons owning or operating wells for irrigation to report the location thereof and the legal description of the land on which the water is used, subsection B, A.R.S. § 45-304, the legislature must have intended to limit the use of the water withdrawn from such wells to the land covered by the legal description. Otherwise, such requirements would be superfluous.

This argument might have some merit if in fact there could be found no other purpose in the provision, but it falls far short of conviction when considered in the light of the additional statutory requirement that the information must be kept as a permanent record--without differentiation as to whether the well is located in a critical area, subsection C, A.R.S. § 45-304. The obvious reason for requiring information to be kept as a permanent record is to have it available for use by the legislature, the various state departments and agencies, and interested members of the public as the need arises. We note that the language referred to is derived from chapter 12, Laws of 1945, which Act directed the State Land Commissioner to cooperate with the United States Geological Survey in securing information for a report on the supply of ground water in Arizona. The supply is not, of course, static. It varies, dependent upon many factors, some known, some possibly as yet unknown, and therefore must necessarily be the subject of constant reappraisal in the light of the collected information.

A similar argument has been addressed to the provisions of the Act requiring the legal description of the land upon which the well is to be drilled and used, A.R.S. § 45-305; where a permit to construct a well within a critical area is desired, A.R.S. § 45-313; where a change of well location is desired, A.R.S. § 45-315; where it is desired that a well be replaced or deepened, A.R.S. § 45-316. So many useful purposes are obviously shown in requiring that the information be kept and preserved that further discussion is deemed unnecessary. Chapter 42, Laws of 1953.

The State also argues that the transfer of the water by appellees is prohibited by chapter 42, Laws of 1953, herein called the Act of 1953. Subsection (a) of § 2 thereof provides:

'All of the area within the following described boundaries to wit: [herein is described the boundaries of the restricted area]; is hereby closed to new agricultural development through the use of ground water and no land within said area which has not been in cultivation within five years prior to the effective date of this Act shall be irrigated by ground water after the effective date of this Act; * * *.'

We would be inclined to agree with the State that were the quoted language still in effect, it would bar the appellees from using ground water on new cultivated land, since their lands are wholly within the prescribed restricted area.

In discussing the applicability of the Act of 1953, the parties to this cause have referred this court to certain rules of statutory construction by which the intention of the legislature may be derived if a statute or a portion thereof is omitted from a revision. The parties have centered on this issue because under the Revision of 1956 all of subsection (a) § 2, above quoted, was deleted. We note that the Code Commissioner carried forward the questioned portion of the Act of 1953, but it failed to pass into the revision. The following notation was inserted as a revisor's note: 'The provisions are deleted as executed.' The deliberate deletion of all reference thereto in the Act of 1953 would ordinarily be sufficient to compel the conclusion that the legislature in 1956 intended to repeal the whole Act of 1953, A.R.S. § 1-102 were it not for A.R.S. § 1-104 providing that the adoption and enactment of these Revised Statutes shall not be construed to repeal or in any way to affect or modify any special, local or temporary laws. Since the quoted portion of the Act of 1953 is manifestly a statute limited in its operation to a particular area of the state unless it was repealed prior to the adoption of the 1956 Revised Statutes, it would be carried over and saved by the foregoing express legislative declaration.

A.R.S. § 1-245 (formerly § 1-104, A.C.A.1939) provides:

'When a statute has been enacted and has become a law, no other statute or law, is continued in force because it is consistent with the statute enacted, but in all cases provided for by the subsequent statute, the statutes, laws and rules, theretofore in force, whether consistent or not with the provisions of the subsequent statute, unless expressly continued in force by it, shall be deemed repealed and abrogated.'

This section is a legislative codification of the generally accepted rule that a subsequent statute repeals an earlier statute, particularly if the two are in conflict or are inconsistent. We said in Olson v. State, 36 Ariz. 294, 285 P. 282, 285.

'It being true, therefore, that the last expression of the legislature on any subject is the law whether the old statute be consistent therewith or not, the only way be...