Wall v. Superior Court of Yavapai County

• Decision Date: 24 April 1939
• Docket Number: Civil 4094
• Citation: 89 P.2d 624,53 Ariz. 344
• Parties: JOHN L. WALL, CHARLES P. WINGFIELD and JOHN HEATH, Petitioners, v. SUPERIOR COURT OF YAVAPAI COUNTY, ARIZONA, and LEVI S. UDALL, Judge of the Superior Court of Apache County, Arizona, Acting as Judge of Said Superior Court of Yavapai County, Arizona, Respondents
• Court: Arizona Supreme Court

89 P.2d 624

53 Ariz. 344

JOHN L. WALL, CHARLES P. WINGFIELD and JOHN HEATH, Petitioners, v. SUPERIOR COURT OF YAVAPAI COUNTY, ARIZONA, and LEVI S. UDALL, Judge of the Superior Court of Apache County, Arizona, Acting as Judge of Said Superior Court of Yavapai County, Arizona, Respondents

Civil No. 4094

Supreme Court of Arizona

April 24, 1939

Original proceeding in Certiorari. Motion to dismiss application for writ granted.

Messrs Patterson & Eastvold, for Petitioners.

Messrs O'Sullivan & Morgan and Mr. Leo T. Stack, for Respondents.

OPINION

LOCKWOOD, J.

John L. Wall, Charles P. Wingfield and John Heath, hereinafter called petitioners, filed an application in this court for a writ of certiorari, directed to the superior court of Yavapai county, to review a certain action of said court. Notice of the application was served on the court, and Fred Back, Fred Boyd, Walter Wingfield and Ida B. See, hereinafter called respondents, who were the parties beneficially interested by the proceedings in the superior court of Yavapai county which the petitioners herein desired to have reviewed, filed an objection and a motion to dismiss the petition. Such an appearance is perhaps unusual, but since no objection has been made thereto by petitioners, and since the issues involved can be determined as well upon the objection of respondents as on a return made by the superior court and the judge thereof, we shall consider the motion to dismiss as regularly and properly made. As a rule we do not file written opinions on motions to dismiss, but in view of the issues involved, we have concluded to depart from our usual custom in that respect.

The petition is based upon the following situation: In the year 1900, the predecessors in interest of some of the respondents herein filed an action in the district court of the territory of Arizona against a number of defendants, some of whom were the predecessors in interest of the petitioners herein. The complaint set up the ownership of certain lands by the plaintiffs and defendants, alleging in substance that there were conflicting claims by the owners of such lands to the use of the waters of Clear Creek, a stream in Yavapai county, for the purpose of irrigation, and concluded with the prayer:

"That the rights of the several plaintiffs and defendants may be fixed, adjudicated and determined by the judgment and decree of this court according to the respective rights of the parties, and that defendants be restrained and enjoined from in any manner interfering with the rights of plaintiffs to the use of said waters as hereinabove set forth for the purpose of irrigating their lands, and for such further relief as to this court of equity may seem meet and proper, and for costs of suit."

The defendants filed various demurrers an answers, and the case was finally submitted to the court on a stipulation by all the parties. This stipulation reads, so far as material, as follows:

"It is hereby stipulated and agreed between the plaintiffs in the above entitled action, by and through their attorneys, Herndon & Norris; and the defendants in the above action by and through their attorneys, J. J. Hawkins and J. H. Jacks, that a decree shall be entered and an order of the court enjoining and restraining any violation of the rights herein and in said decree fixed and determined.

"It is stipulated that the waters described in the complaint may be divided and decreed as follows: (setting up the respective rights of plaintiffs).

"And it shall also be ordered and awarded in said decree that plaintiffs are entitled to 475 inches of the waters of said stream at all times of the year; and when there is more than sufficient water to supply the amounts respectively awarded as above, the same shall be prorated between the plaintiffs and defendants according to their respective interests.

"The measurement of the waters as herein distributed shall be as follows: By means of a box placed at the head gate or convenient place at the head of each ditch, 16 feet long, with a fall of 2 inches under a 4 inch pressure. And what is meant by a 4 inch pressure is that the water shall be 4 inches above the upper portion of the aperture.

"And it is provided that the decree when so entered shall be binding and conclusive with the same force and to the same extent as if the case had been tried before the court, all the testimony to determine the rights of the parties had been submitted, and the decree based on the findings of the court regularly made."

In pursuance of said stipulation, the court made the following findings:

"1. That Clear Creek is a running stream of water in Verde Valley, Yavapai County, Arizona, adjacent to the lands described in the pleadings, and that the lands are arable and irrigable lands in said Valley, and that by means of irrigation with the waters of said stream are capable of producing valuable crops of hay, grain, vegetables and fruit.

2. That plaintiffs are entitled to the first right to the use of the waters of said stream to the extent of 475 inches through the irrigating season, to-wit: The months of May, June, July, August and September.

(Setting up the respective rights of plaintiffs and defendants).

"That plaintiffs are entitled during all the year to 475 inches of the water, and in seasons of the year where there is more water on said stream than sufficient to supply the amounts above found, the excess shall be divided by the parties according to their respective rights.

"That a proper measurement of the water for distribution among said parties is by means of a box 16 feet long with a fall of two inches to the 16 feet under a four inch pressure. What is meant by a 4 inch pressure is water four inches deep above the upper portion of the aperture at the point of measurement."

And judgment was rendered as follows:

"Wherefore, it is ordered, adjudged and decreed in favor of plaintiffs and against defendants that the plaintiffs are and shall hereafter be recognized as the owners of the respective tracts of land above described.

"They are further hereby adjudged and decreed to the first right and use of the waters of Clear Creek to the extent of 475 inches during each entire year;... And defendants, their attorneys, agents, employees, successors, representatives and assigns are hereby enjoined and restrained perpetually from in any manner interfering with the exclusive prior right of plaintiffs to the use of the flow of 475 inches of the waters of said stream, or any part thereof...."

In the year 1937, the respondents herein instituted proceedings in contempt against petitioners and others, alleging that they were guilty of having violated the injunctive provisions of the decree aforesaid. An affidavit was duly filed and attachment issued thereon, whereupon a motion to quash was made, and thereafter an amended affidavit and a second amended affidavit for attachment were filed, and a new attachment was issued and served. A motion to quash the second affidavit was filed, and by the court overruled, and a hearing was held, which continued for some five days, evidence being duly offered by both petitioners and respondents. Thereupon the court took the matter under advisement, and a decision and judgment was finally filed. This decision, so far as material, reads as follows:

" It only becomes necessary for the court to determine whether the respondents are guilty of contempt in having violated the terms of the decree of September 7, 1900. It must be conceded that said decree has long since become final, and as this proceeding is not to modify said decree, it only becomes necessary to determine whether its provisions are sufficiently specific and definite as to the measurement of the waters decreed to the users to be intelligible, so as to justify a punishment for contempt for a violation thereof. It cannot be gainsaid that under the decree the petitioners, as successors in interest to the original plaintiffs, have a first and paramount right to the waters of Clear Creek for the Pioneer ditch to the extent of 428 inches, plus 47 inches for the J. H. Wingfield farm on down the creek, or a total of 475 inches in all, before the respondents and others become entitled to any water.

"The court is not impressed with any of the following defenses urged by the respondents, viz.:

"(1) That the decree does not inure to the benefit of the successors in interest; or that petitioners are not in part such successors.

"(2) That the decreed water rights do not become appurtenant to the land upon which they are used.

"(3) Adverse use for a ten-year period by respondents, laches or the plea of estoppel.

"And all of such defenses are found unsupported by the evidence and are hereby expressly overruled.

"... Does the decree provide a definite and fixed method of measurement? If it does, that is all that the law would require. The court is of the opinion that this question must be answered in the affirmative. The method of measurement prescribed in the decree, according to the witness Goddard and others, has been used by the Pioneer ditch owners all down through the years, at least since the year 1907....

"It should be remembered that the decree of 1900 was entered upon a written stipulation of the parties, and the stipulation prepared by able counsel, prescribes the method of measurement set forth in the decree.

" It does appear from the evidence...