Town of Chino Valley v. City of Prescott, 15501

Decision Date30 November 1981
Docket NumberNo. 15501,15501
Citation131 Ariz. 78,638 P.2d 1324
PartiesTOWN OF CHINO VALLEY, a municipal corporation; and Tom M. Sullivan, William J. Wells and Edwin J. Johnson, for and on behalf of themselves and other persons and legal entities constituting a class too numerous to be named as parties, Plaintiffs-Appellants, v. The CITY OF PRESCOTT, a municipal corporation, Defendant-Appellee.
CourtArizona Supreme Court

Frank J. Barry, Tucson, for plaintiffs-appellants.

Stephens & Toles by Bill Stephens, Carol Benyi, Phoenix, for defendant-appellee.

Fennemore, Craig, von Ammon & Udall by Calvin H. Udall, James W. Johnson, Phoenix, for Duval Corp.

Dept. of Water Resources of Arizona by Kathy Ferris, Chief Counsel, Scott D. Larmore, Deputy Counsel, Phoenix, for Dept. of Water Resources of Ariz.

Chandler, Tullar, Udall & Redhair by Thomas Chandler, Robert E. Lundquist, Steven Weatherspoon, Tucson, for Anamax Min. Co.

Ely, Bettini & Ulman by Herbert L. Ely, Phoenix, for Arizona State AFL-CIO.

Ryley, Carlock & Ralston by Joseph P. Ralston, Michael J. Brophy, Phoenix, for Paradise Valley Water Co.

Lewis & Roca by John P. Frank, Tom Galbraith, Phoenix, and Musick, Peeler & Garrett by Gerald G. Kelly, Los Angeles, Cal., for Cyprus Pima Associates.

Lesher, Kimble & Rucker by Robert O. Lesher, Tucson, for Arizona Ass'n of Realtors.

Ellis & Baker by William D. Baker, Robert S. Lynch, Paul R. Orme, Phoenix, for Arizona Cotton Growers Ass'n Evans, Kitchel & Jenckes by Burton M. Apker, Phoenix, for ASARCO, inc.

STRUCKMEYER, Chief Justice.

This appeal is from an order of the Superior Court of Yavapai County dismissing the Town of Chino Valley's complaint to enjoin the City of Prescott from withdrawing groundwater from the Granite Creek Critical Groundwater Area. Order of the Superior Court affirmed.

The Town of Chino Valley lies approximately fifteen miles north of the City of Prescott in Yavapai County, Arizona. Prescott owns 164 acres of land in the Chino Valley. In 1948, it drilled wells on some of its Chino Valley property and began transporting groundwater through a seventeen-mile pipeline to its municipal customers. In 1962, pursuant to a petition by Chino Valley residents and A.R.S. § 45-301 et seq., the State Land Department established the Granite Creek Critical Groundwater Area. On September 20, 1970, the Town was incorporated. It was within the Granite Creek Critical Groundwater Area and it owned lands and was withdrawing groundwater from the same underground basin as Prescott. Prescott, itself, was not within the Granite Creek Critical Groundwater Area.

This action was filed on August 21, 1972, seeking to enjoin the pumping of groundwater by Prescott. It did not seek damages for the unlawful pumping or transportation of groundwaters. The lawsuit proceeded at a desultory pace until the order of dismissal on November 3, 1980. Meanwhile, in 1977 the Legislature amended the Arizona Groundwater Code. The Town in 1978 brought an original action in this Court which challenged the constitutionality of the prohibitions against injunctive relief contained in the 1977 amendments. That challenge was rejected. Town of Chino Valley v. State Land Department, 119 Ariz. 243, 580 P.2d 740 (1978).

Thereafter, in June of 1980, the Legislature enacted the Groundwater Management Act, herein called the Act or the 1980 Act. * It repealed the 1977 amendments and abolished critical groundwater areas, substituting geographic units of groundwater management called Active Management Areas and Irrigation Non-Expansion Areas. Certain areas which had been declared critical groundwater areas under former laws were included in the Active Management Areas. By A.R.S. § 45-411(A)(3), the Prescott Active Management Area was established. It includes the Little Chino and Upper Agua Fria Sub-basins. Both the Town of Chino Valley and Prescott are within the Little Chino Sub-basin of the Prescott Active Management Area.

By A.R.S. § 45-541(A) of the 1980 Act, transportation of groundwater is allowed within a sub-basin of an Active Management Area. Prescott, being within the Little Chino Sub-basin from which it was drawing water, moved for dismissal of the Town's complaint for injunctive relief. The Superior Court granted Prescott's motion, but ordered that the Town have twenty days in which to file an amended complaint specifying any damages. The Town's appeal from that portion of the trial court's order dismissing appellants' claim for injunctive relief is based upon the asserted unconstitutionality of the Act of 1980 since the Act, by permitting the transportation of groundwater, legitimatizes the prospective withdrawal of groundwater from the Little Chino Sub-basin by Prescott. Appellants' principal attack is that the Act takes property without due process of law and without just compensation. The Act is also challenged on the grounds that it is a legislative encroachment on judicial powers and that it violates art. 4, part 2, § 13 of the Arizona Constitution in that there are provisions in the Act of 1980 which were not included in the title of the Act.

By the Constitution of Arizona, art. 17, § 1, effective at statehood in 1912, it was provided that the common law doctrine of riparian water rights "shall not obtain or be of any force or effect in the State." See Brasher v. Gibson, 101 Ariz. 326, 330, 419 P.2d 505, 509 (1966). Thereafter, in 1919, the Arizona Legislature provided that the water of all sources falling in streams, canyons, ravines, natural channels or definite underground channels belonged to the public and were subject to appropriation for beneficial use. Waters percolating beneath the soil were not included among those subject to appropriation. Appellants rely on the cases of Howard v. Perrin, 8 Ariz. 347, 76 P. 460 (1904), and Maricopa County Water Conservation District No. 1 v. Southwest Cotton Co., 39 Ariz. 65, 4 P.2d 369 (1931), for their basic proposition that they own the water percolating beneath their lands under the doctrine of reasonable use.

The Territorial Supreme Court, in Howard v. Perrin, commented:

"Throughout the Pacific Coast, where the doctrine of appropriation obtains, the decisions are uniform to the effect that waters percolating generally through the soil beneath the surface are the property of the owner of the soil * * *." 8 Ariz. at 353, 76 P. at 462.

Howard v. Perrin was a case in which Howard's grantor went upon unsurveyed lands and sank a well, developing a flow of water which he conducted to some water troughs and a reservoir. About six years later, Howard posted a notice that he had appropriated water from a definite underground channel pursuant to the Laws of 1893, Act 86. The issue was whether the waters which Howard claimed to have appropriated were in a definite underground channel or, as the court said: "constituted a running stream flowing in natural channels between well-defined banks * * *." 8 Ariz. at 353, 76 P. at 462. It was held that Howard, having alleged an appropriable subterranean stream, had the burden of proof to establish that fact by competent evidence. The court said it failed "to find sufficient evidence in the testimony of the witnesses * * * to establish the existence of 'a subterranean stream with well-defined channels or banks,' * * *." Id. at 354, 76 P. at 463. Palpably the statement that waters percolating through the soil beneath the surface are the property of the owner of the soil is dictum. Maricopa County Water Conservation District No. 1 v. Southwest Cotton Co., 39 Ariz. 65, 4 P.2d 369 (1931), was also a case in which it was determined that the proof did not establish an underground stream so as to permit appropriation of water. The court cited to Howard v. Perrin, saying:

"(A)nd therein we held that waters percolating generally through the soil are the property of the owner * * *.

* * * Whether such statement was, strictly speaking, dicta or not, it has been accepted as the law of this jurisdiction for so long, and so many rights have been based on it, that only the clearest showing that the rule declared was error would justify us in departing from it. " Id. at 82-83, 4 P.2d at 375-76.

The Town of Chino Valley relies on the two foregoing cited cases, but there are others in which the statement first made in Howard v. Perrin was repeated, although there was at no time, according to the way we read the cases, an arguable issue as to the precise nature of the right which the owner of the overlying lands had to the waters beneath. See Fourzan v. Curtis, 43 Ariz. 140, 147, 29 P.2d 722, 725 (1934); Gross v. MacCornack, 75 Ariz. 243, 248, 255 P.2d 183, 186 (1953); State v. Anway, 87 Ariz. 206, 208, 349 P.2d 774, 775 (1960).

Dictum thrice repeated is still dictum. It is a court's statement on a question not necessarily involved in the case and, hence, is without force of adjudication. Garvey v. Trew, 64 Ariz. 342, 350, 170 P.2d 845, 850 (1946). It is not controlling as precedent. Knight v. State, 273 Ala. 480, 486, 142 So.2d 899, 905 (1962); Sharkiewicz v. Smith, 142 Conn. 410, 412, 114 A.2d 691, 692 (1955). We therefore hold that the statement first made in Howard v. Perrin and reiterated under circumstances where the exact nature of the overlying owner's rights to the water beneath his property were not in question is not precedent for the decision in this case.

In 1952, in Bristor v. Cheatham, 73 Ariz. 228, 240 P.2d 185, a majority of this Court held that waters percolating beneath the surface of the land were subject to appropriation. On rehearing, however, one new judge having been elected and one judge having changed his position, it was held that groundwater was not subject to appropriation. The majority said:

"(M)any and large investments have been made in the development of ground waters. Under these circumstances the court's announcement of the rule becomes a rule of property * * *." 75 Ariz. 227, 231...

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