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Wall v. Superior Court of Yavapai County

Supreme Court of Arizona

April 24, 1939

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

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.


Page 625

[53 Ariz. 346] 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 [53 Ariz. 347] 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

Page 626

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 [53 Ariz. 348] 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 ...

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