MARICOPA COUNTY MUNICIPAL WATER CONSERVATION DISTRICT NUMBER ONE, a Corporation, BEARDSLEY LAND AND INVESTMENT COMPANY, a Corporation, and CARL PLEASANT, Appellants,
SOUTHWEST COTTON COMPANY, a Corporation, and VALLEY RANCH COMPANY, a Corporation, Appellees
[Copyrighted Material Omitted]
APPEAL from a judgment of the Superior Court of the County of Maricopa. Joseph S. Jenckes, Judge. Judgment reversed and cause remanded for new trial.
Messrs. Hayes, Stanford, Walton, Allee & Williams and Messrs. Kibbey, Bennett, Gust, Smith & Rosenfeld, for Appellants.
Mr. James R. Moore, for Appellees.
Mr. O. J. Baughn, Messrs. Sloan, Holton, McKesson & Scott, Messrs. Chalmers, Fennemore & Nairn, and Mr. U. T. Clotfelter, Amici Curiae.
[39 Ariz. 70] LOCKWOOD, J.
Southwest Cotton Company, a corporation, and Valley Ranch Company, a corporation, [39 Ariz. 71] hereinafter called plaintiffs, brought suit against Maricopa County Municipal Water Conservation District No. 1, a corporation, Beardsley Land & Investment Company, a corporation, and Carl Pleasant, hereinafter called defendants, for the purpose of enjoining the latter from storing and using for irrigation certain surface waters of the Agua Fria River. A judgment was finally rendered, granting an injunction upon certain terms set forth therein, and from said judgment this appeal has been taken.
The case is one of the most important which has ever come before this court, involving as it does not only property interests of the value of many millions of dollars, but also a declaration of legal principles which will in all probability determine and govern to a great extent the course of future agricultural development within the arid regions of Arizona. The real question involved is the law applicable to the relative rights to the ownership and use of the subterranean waters of the state as against those of the surface waters. We have discussed certain phases of this question in previous cases, but have never made a complete statement of the principles applying thereto, for the reason that theretofore the development of the subterranean waters has been of comparatively minor importance. We think, however, this case is proof that the time has come when it is necessary for the protection and guidance of future agricultural development in the state that these principles should be enunciated as clearly and definitely as possible, so that our citizens may know how to guide their future procedure. For this reason we treat the matter as though it were of first impression in all respects, not only considering the new issues which have arisen, but reconsidering and redetermining the old ones upon which we have heretofore expressed an opinion. The case has been most carefully [39 Ariz. 72] and exhaustively briefed by counsel so that we feel every possible angle and every authority bearing thereon has been called to our attention. We have considered every point raised and examined every case cited, and, if we have not mentioned and discussed them all, it is because, in view of the conclusions we have reached, it is unnecessary, and would extend this opinion to unreasonable length.
The area which is now the state of Arizona was acquired from the Republic of Mexico in 1848 and 1853. At the time the United States succeeded to the sovereignty which was previously held by Mexico, with the same right to alter or amend the existing laws, or establish new ones, as that previously held by the latter. Boquillas etc. Co. v. St. David etc. Assn., 11 Ariz. 128, 89 P. 504, affirmed 213 U.S. 339, 53 L.Ed. 822, 29 S.Ct. 493; Lux v. Haggin, 69 Cal. 255, 4 P. 919, 10 P. 674. On the other hand, in the absence of affirmative action by the United States or its agencies, the territory, and afterwards the state, of Arizona, the law existing in Arizona at the time of its acquisition is presumed to continue unchanged. Lux v. Haggin, supra; Clough v. Wing, 2 Ariz. 371, 17 P. 453. What, then, was the existing law in Arizona at the time of its acquisition by the United States, in regard to the ownership and use of water, surface and subterranean alike?
There are two great systems of law recognized in Western civilization: The common law, pertaining particularly to the English-speaking countries, and the civil law, which is found principally in those nations where the influence of the old Roman law from which it comes is, and has been, the strongest. Both of these systems distinguish between well-defined natural streams and bodies of water on the one hand, and subterranean, percolating waters on the other. So far as the second are concerned, the principle [39 Ariz. 73] governing them was, originally at least, the same under both systems. All rights to subterranean waters not flowing in definite, known channels belonged to the owners of the soil. Dig. 39, title 3, §§ 1, 12, 21; Code 3, title 34, §§ 4, 6; Acton v. Blundell, 12 Mees. & W. 324, 152 Eng. Reprint, 1223. But, as far as other waters were concerned, while both laws recognize that the title to the corpus of running water could not be acquired by any individual so long as it was in its natural channel, the common law adopted as governing the use of such waters what is known as the doctrine of riparian rights, the fundamental principle of which was that the water could be used by riparian proprietors alone, and by them only in such a manner, aside from strictly domestic purposes, as not to diminish or alter the course or quantity of the waters of the stream to the deprivation or injury of the other riparian proprietors. Miner v. Gilmour, 14 Eng. Rep. 861, 12 Moore, 131. Navigable waters were, under the common law, considered as under the exclusive control of the government, in trust for the general public, so far as the rights of navigation, etc., were concerned, but were otherwise subject to the usual riparian rights of owners of adjoining lands.
The Roman law, while in many respects accepting the same rules as to riparian rights as the common law, also recognized the acquisition, through prescription, deed or
through a grant from the government, of a right to divert the waters of both navigable and non-navigable streams by either riparian or non-riparian proprietors. Code 3, title 34, § 7; Code 11, title 42, § 4; Dig. 8, title 3, § 2, 1 and 2; Dig. 43, title 13, §§ 1-3. Dig. 43, title 20, §§ 1, 40-42. The sole restriction was that, if the stream were originally navigable, such navigability could not be destroyed by the diversion. Dig. 39, title 3, § 10, 2.
[39 Ariz. 74] These principles of the Roman law were followed in Spain for many centuries, though in "Las Siete Partidas," the famous Spanish Code, formulated about 1256, only the rule applying to percolating subterranean water was specifically discussed, and Spanish water law, as modified from time to time, was brought to Mexico, when it was first settled by the Spaniards. Its principles, as modified by local custom and statute, have been exhaustively discussed by the Supreme Court of California in the famous case of Lux v. Haggin, supra, and it would be a work of supererogation for us to attempt to add anything thereto. The conclusions of that court regarding rights to the use of nonpercolating waters, as they existed at the time of the acquisition of the Western territories by the United States, may be summed up as follows:
"It would seem to be in the power of the sovereign (except so far as the power is limited by the constitution of government) to authorize such diversions as shall interfere with navigation. . . .
"The waters of innavigable rivers, while they continued such, were subject to the common use of all who could legally gain access to them for purposes necessary to the support of life, but the Mexican government possessed the power of retaining the waters in their natural channel, or of conceding the exclusive use of portions of them to individuals or corporations, upon such terms and conditions, and with such limitations, as it saw fit to establish by law."
These conclusions, so far as they pertain to non-navigable streams, were referred to and quoted approvingly by the Supreme Court of the territory of Arizona in the case of Boquillas etc. Co. v. St. David etc. Assn., supra, and in reason we think those referring to navigable waters are equally correct. It appears, then, beyond doubt that the doctrine of prior appropriation was entirely unknown to the common [39 Ariz. 75] law, and under the Mexican law arose only as a result of a grant from the government. 1 Kinney on Irrigation, 2d ed., p. 1044. How, then, did it become a part of the law of Arizona?
When the territory of Arizona, which formerly was part of the state of Sonora, Mexico, was first organized, the right of appropriation of surface streams for irrigation purposes was to some extent permitted by local custom as well as by express grant. So far as percolating waters are concerned, there is nothing to show that a right of appropriation of these was ever exercised or claimed to exist as a matter of custom in Arizona or Sonora before its acquisition by the United States, and the only rules specifically touching upon subterranean waters were the principles laid down in Las Siete Partidas to the effect that the owner of the land owned them to the extent that he could draw them from his land at will, even though by so doing it cut off the subterranean supply previously used by other land owners, with the exception that the government could by grant authorize the appropriation of even these waters, if they ran in definite channels. Partidas 3, Tit. 32, § 19; Nov. Recopilacion, Tit. 3; Tit. 11, Lib. 7, Law 27, § 48.
We conclude, therefore, that at the time the territory of Arizona was acquired from Mexico the government of the United States, and its agent, the government of Arizona, had the right to dispose of and regulate the use of all waters of every nature, both surface and subterranean, in the dual capacity as sovereign and as proprietor of the public domain, unhampered by any rules of either the civil or the common law, or by any previous general custom which had theretofore existed, subject only to such vested rights to the use of specific waters as had been acquired, either formally from the Mexican government or impliedly as a result of local custom, and to [39 Ariz. 76] the right of use of all percolating, subterranean waters underlying lands then in private hands by the owners of such lands.
The matter was called to the attention of the first legislature of the territory of Arizona by Governor Goodwin, in the following language:
"You may also deem it advisable at this time, before rights become vested, to adopt a permanent policy as to the use of water for agricultural as well as mining purposes. Where water is scarce and valuable it is important to provide against monopolies, and that it should be used as much as possible for the common good."
The legislature responded by adopting article 22 of the Bill of Rights, which reads as follows:
"All streams, lakes, and ponds of water capable of being used for the purposes of navigation or irrigation, are hereby declared to be public property; and no individual or corporation shall have the right to appropriate them exclusively to their own private use, except under such equitable regulations and restrictions as the Legislature shall provide for that purpose."
In pursuance of this article the same legislature, at the same session, inserted in chapter 55 of Howell's Code the following provision:
"Section 1. All rivers, creeks and streams of running water in the Territory of Arizona are hereby declared public, and applicable
to the purposes of irrigation and mining, as hereinafter provided.
"Sec. 2 All rights in acequias, or irrigating canals, heretofore established shall not be disturbed, nor shall the course of such acequias be changed without the consent of the proprietors of such established rights.
"Sec. 3. All the inhabitants of this Territory, who own or possess arable and irrigable lands, shall have the right to construct public or private acequias, and obtain the necessary water for the same from [39 Ariz. 77] any convenient river, creek or stream of running water."
What is the effect of the Bill of Rights and these sections of Howell's Code on the use of water in Arizona?
Bearing in mind the language in the message of Governor Goodwin above quoted, and the fact that the Bill of Rights and Code were adopted by the same legislature, at the same session, we are of the opinion there can be no possible doubt the legislature had in mind the conflicting rules of the common law and the doctrine of prior appropriation, and intended to and did declare the fundamental principles which should govern the use of water in Arizona for the future. This declaration amounted to a statutory repudiation of the doctrine of riparian rights and an establishment of the so-called doctrine of prior appropriation as suited to the conditions prevailing in Arizona, so far as the waters named in the Bill of Rights are concerned, and this has been repeatedly and distinctly held by this court consistently for many ...