Verde Water & Power Co. v. Salt River Valley Water Users' Ass'n

• Decision Date: 19 April 1921
• Docket Number: Civil 1887
• Citation: 22 Ariz. 305,197 P. 227
• Parties: VERDE WATER AND POWER COMPANY, Appellant, v. SALT RIVER VALLEY WATER USERS' ASSOCIATION, PARADISE VERDE WATER USERS' ASSOCIATION, and PARADISE VERDE IRRIGATION DISTRICT, Appellees
• Court: Arizona Supreme Court

197 P. 227

22 Ariz. 305

VERDE WATER AND POWER COMPANY, Appellant, v. SALT RIVER VALLEY WATER USERS' ASSOCIATION, PARADISE VERDE WATER USERS' ASSOCIATION, and PARADISE VERDE IRRIGATION DISTRICT, Appellees

Civil No. 1887

Supreme Court of Arizona

April 19, 1921

APPEAL from a judgment of the Superior Court of the County of Maricopa. F. H. Lyman, Judge. Affirmed.

Mr. J K. Doolittle, for Appellant.

Messrs Alexander, Christy & Baxter and Messrs. Gust & Smith, for Appellees.

OPINION

BAKER, J.

This is an action to quiet title to the Horseshoe reservoir site. It is more convenient to designate the parties here as plaintiff and defendants, as they were in the court below.

The defendant, Salt River Valley Water Users' Association separately demurred to the plaintiff's complaint, filed in the action, on the ground that it did not state facts sufficient to constitute a cause of action. The defendants Paradise Verde Water Users' Association and Paradise Verde Irrigation District, jointly demurred to the complaint on the same grounds. These demurrers were sustained, and the plaintiff, having failed to amend within the time fixed by the court, judgment was entered dismissing the complaint. From this judgment the appeal is taken.

Manifestly the question to be decided is the sufficiency of the complaint to entitle the plaintiff to the relief sought for, or to any relief. As before observed, it is an action to quiet title to the Horseshoe reservoir site. It is thoroughly settled that a complaint to quiet title will be bad on demurrer for want of sufficient facts to constitute a cause of action, if the facts stated therein fail to show title in the plaintiff (32 Cyc. 1351; 17 Ency. Pl. & Pr. 327), and if the complaint avers title in the plaintiff and then proceeds to set forth the facts which constitute the title, and such facts do not show title, a demurrer will lie. 32 Cyc., supra; 17 Ency. Pl. & Pr. 329. In other words, it is the facts specifically pleaded which will control, and not the general averments of the pleading. The narrow question, therefore, is this: Do the facts specifically stated in the complaint show title to the reservoir site to be in the plaintiff?

The complaint cannot be praised as a model of good pleading, but, stripped of its useless verbiage and bare conclusions, it sufficiently appears therefrom that the plaintiff is a corporation, and was organized under the laws of the state of Arizona in the year 1901. The corporation was formed apparently for the purpose of developing hydro-electric power for distribution and sale, and impounding and diverting the waters of the Verde River and irrigating arid lands therewith. It is claimed that the plaintiff acquired title to an easement in the land described in the complaint as the Horseshoe reservoir site under section 2339, Revised Statutes of the United States (U.S. Comp. Stats., § 4647), and also under the provisions of paragraphs 5337 and 5338, Revised Statutes of Arizona of 1913. The claim is based upon a number of notices of appropriation of the reservoir site and the waters of the Verde River. The first notice was posted August 15, 1901, by Prosper P. Parker and J. K. Doolittle. It was duly recorded and Parker and Doolittle, on the twenty-second day of October, 1901, conveyed all of their right, title, and interest acquired by said notice to the plaintiff. The next notice was posted by Augustus C. Sheldon and Prosper P. Parker on the twenty-ninth day of March, 1903. It was duly recorded, and Sheldon and Parker conveyed all their right, title, and interest acquired under the notice to the plaintiff on the twenty-second day of July, 1904. The corporation, acting through its president and vice-president, also posted, or caused to be posted and duly recorded, several other notices of appropriation at the Horseshoe reservoir or the dam site of the Horseshoe reservoir. The first of these last-mentioned notices was posted on the fourth day of May, 1905, the next on the twenty-fifth day of January, 1909, another on the twenty-third day of July, 1910, and yet another on the fourth day of November, 1912, and the last on the sixth day of March, 1916. On July 27, 1903, the Secretary of the Interior withdrew from any disposition whatever all of the public lands in townships 7 and 8 north, range 6 east, Arizona. These lands embraced the Horseshoe reservoir site. The withdrawal was made under the first form of withdrawal authorized by section 3 of the act of June, 17, 1902 (32 Stat. 388, c. 1093 [Comp. Stats. 1916, §§ 4700-4708; 9 Fed. Stats. Ann., p. 1366, etc.], and was made in connection with the Salt River Project in Arizona and for a reservoir site on the Verde River.

The foregoing is a sufficient statement of the material facts for the determination of the case, but before we can reach this inquiry it is necessary to get rid of several other allegations in the complaint. It is alleged:

"That on the eighteenth day of January, 1917, the Secretary of the Interior gave the public notice in relation to the Salt River Project provided for by section 4 of the Reclamation Act (which in accordance with the express provisions of that act should have been issued at least as early as June, 1904), which notice excluded from the Salt River Project all of the lands withdrawn as aforesaid in 1902, 1903, and 1904, and thus automatically vacated and terminated all of such withdrawals, and terminated all authority and jurisdiction of the Secretary of the Interior over the property involved in this suit."

It will be observed that the notice referred to is not given nor set out, nor is there any recital of its language. That the notice had any reference to vacating the former withdrawal of the lands of the Horseshoe reservoir site is a forced inference from facts not found in the record. Facts must be pleaded -- conclusions of law will not do -- and a demurrer will not confess or admit the latter. It so happens in the present instance that the conclusion pleaded is contrary to the notice actually promulgated by the Secretary of the Interior under the provisions of section 4 of the Reclamation Act (32 Stat. 388 [Comp. Stats., § 4703; 9 Fed. Stats. Ann., p. 1366]), of which notice we take judicial knowledge ( Caha v. United States, 152 U.S. 211, 38 L.Ed. 415, 14 S.Ct. 513 [see, also, Rose's U.S. Notes]), and the averment is therefore a nullity.

" Allegations which are contrary to the facts of which judicial notice is taken are not admitted, but are to be treated as a nullity." 21 R.C.L. 509; 12 Ency. Pl. & Pr. 1.

The complaint proceeds:

"That on the seventeenth day of July, 1902, ostensibly pursuant to the provisions of the Reclamation Act, but really in gross violation thereof, at the instigation of certain officials of the reclamation service, the Secretary of the Interior withdrew from public entry substantially all of the public lands east of the Agua Fria in Maricopa county north of the Arizona Canal and south of the plaintiff's canal and canal line, and west of the Agua Fria withdrew substantially all of the public lands between that stream and plaintiff's canal line staked upon the ground near the base of the White Tank mountains. . . .

"The construction of the Horseshoe reservoir was never at any time contemplated by any government official within the meaning of that word in the third section of the Reclamation Act. No surveys looking to the utilization of the Horseshoe reservoir site were ever initiated or prosecuted diligently, or otherwise, by the Secretary of the Interior, or under his direction. That no money for the construction of the Horseshoe reservoir was ever legally available or prospectively available. That no maps, plans or estimates of cost of the utilization of the Horseshoe reservoir site were ever prepared under the direction of the Secretary of the Interior. That at all the said times it was a matter of common knowledge that the Salt River Project and the Yuma Project would much more than exhaust the quota of the reclamation fund by statute allotted to Arizona. In this and other respects the initiation and maintenance of the aforesaid withdrawals were in gross violation of the express provisions and limitations of the Reclamation Act. . . .

"That the defendants, and each of them, threaten, intend, and propose to invade, occupy, and confiscate the Horseshoe reservoir site, the property of the plaintiff; but the exact method by which they intend to accomplish that purpose, whether in collusion or separately, or perhaps competitively, the plaintiff has been unable to find out. It is known, however, that they are united in this: That from ignorance of the facts or inability correctly to interpret them, or from some baser motive, by means of usurpatory and illegal acts by public officials, or by any available unjust procedure, the defendants, and each of them, threaten, intend, and propose to defraud the shareholders and water-right holders of the Verde Water & Power Company of their said valuable property, so patiently and deservedly earned, and the plaintiff is without any adequate remedy at law."

It will be observed that no facts are stated in these allegations from which fraud will necessarily be inferred or presumed, and nothing is charged as done or performed under the influence of corrupt motives or by corrupt means. The whole charge is couched in general and vague terms, and consists principally of arguments and conclusions in which the action of the Secretary of the Interior, in making the withdrawal, is characterized, in effect, as fraudulent and collusive, only because such withdrawal is supposed to be adverse to what plaintiff claims its rights to be.

The official acts of the Secretary of the Interior are presumed right and regular...