E. C. ADAMS et al., Appellants,
SALT RIVER VALLEY WATER USERS' ASSOCIATION, Appellee
APPEAL from a judgment of the Superior Court of the County of Maricopa. E. W. McFarland, Judge. Judgment affirmed.
Messrs. Woolf & Shute, for Appellants.
Messrs. Sloan, Scott & Green and Mr. Matt S. Walton, for Appellee.
[53 Ariz. 376] ROSS, C.J.
The plaintiffs are owners of farming lands in the Tempe area of the Salt River Irrigation Reclamation Project and shareholders of the defendant, Salt River Valley Water Users' Association, a corporation. In this opinion we shall refer to the parties as they were in the trial court, that is, as Tempe landowners or plaintiffs, and the Association or defendant.
The Association was incorporated at the instance of the Secretary of the Interior so that he would have a single agency to deal with in the installation of the Salt River Project instead of all of the landowners thereunder. The Association's board of governors and council are landowners with water rights, and are chosen from time to time by the whole membership at popular elections and from different sections of the Project.
The Association performs several functions for its members. It has charge of the Project's irrigation system and therefore attends to the carrying and delivering to those of its members entitled thereto their proportion of irrigation water, at times, places and in [53 Ariz. 377] the manner provided for by its charter and regulations. Another important function of the Association, delegated to it by its members and exercised in conjunction with the federal government, has been the building of three reservoirs on the Salt River to supplement the Roosevelt reservoir, and one on the Verde River. Its members have also constituted
the Association their agent to sink wells in their lands and equip them with pumps to lift the underground water for use in the irrigation of their lands in dry seasons or when there is a shortage of water in the reservoirs and river flow. Originally there was no problem of drainage in the Project. The "Salt" River was so named because of the salinity of its water. Large areas of the Project lands in time became waterlogged and impregnated with so much salt that they were infertile. The members of the Association voted bonds against their lands to install pumps to dewater their lands, and constituted the Association their agent to do the work.
Incidental to the works erected by the Association and the Government to impound and conserve water for use in irrigation, hydroelectric power was developed for use in pumping underground water for irrigation purposes, and also to dewater waterlogged lands in the Project. The sale of such power to public utilities, mining companies and others has been a source of considerable income to the Association.
Plaintiffs' grievances are not that defendant has been derelict in its duties of catching and conserving the waters that fall into the watershed of the Salt and Verde Rivers, and in developing the underground waters in the valley, but that it has gailed and refused to deliver to plaintiffs their appropriated water, as determined under the Kent Decree, and Their proportionate share of stored and developed water; and, in the performance of its duty of draining plaintiffs' lands, it is charged defendant has lowered the water [53 Ariz. 378] table too deep for the proper protection and productivity of plaintiffs' lands and because thereof greater quantities of water will be needed for the proper irrigation of their lands.
The relief asked is that the Association be required (1) to deliver to plaintiffs (except those in classes B and C) their appropriation of the flow of the Salt River; (2) to deliver to plaintiffs their proportionate part of stored and developed water; (3) to cease and desist from delivering to plaintiffs for irrigation pump water in lieu of their appropriated or stored water, and delivering their appropriated water and stored and developed water when needed by them to others, either in or out of the Project; and (4) to cease and desist from pumping any water from plaintiffs' lands not reasonably and necessarily required properly to drain them.
The Association's answer is that the services it had rendered plaintiffs, in furnishing them irrigation water and in draining their lands, are the same services it had rendered its members before plaintiffs joined the Association, which the plaintiffs well knew, and that plaintiffs had after joining the Association acquiesced in such services for the ten years last past, and for these reasons should not be permitted to complain of said services at this time. That such services so rendered plaintiffs were equal to like services rendered its members before plaintiffs joined the Association and since. The Association insists that the services rendered plaintiffs are not different from those rendered other landowners of the Project with similar rights and priorities, except unavoidable discrepancies from natural causes, such as soil diversity, land configuration and location.
There is not much controversy or dispute as to the facts. It appears that the water supply, consisting of the normal flow of the Salt River and that stored behind [53 Ariz. 379] the various dams and that developed by pumping, has been, when commingled, sufficient to irrigate the lands of the shareholders of the Project since 1924. The plaintiffs recognize the Association's right and duty to commingle these three sources of supply, as witness the plaintiffs' first and second prayers for relief. Plaintiffs, however, contend the Association has been delivering their appropriation of the river flow and their proportionate share of the storage water to other shareholders, and delivering to plaintiffs in lieu thereof water developed by pumping, and that such pump water is not as desirable for irrigation as the river flow and stored water for the reason it contains more salt.
Whether under the Association's charter and the Tempe Contract, under which plaintiffs became shareholders of the Association, the latter had the right to commingle the waters from the three sources of supply, is one of the questions to be answered. The other question is whether the Association, in the process of dewatering plaintiffs' waterlogged lands, should be enjoined from lowering the underground table more than eight or ten feet from the surface, or lower than necessary properly to dewater such lands.
After a trial extending over a considerable period of time, the court, at the request of plaintiffs, made findings of fact and conclusions of law separately and upon them decided the case in favor of the defendant. From such decision and judgment, plaintiffs have appealed.
It will be necessary before we enter upon a discussion of the assignments to state some additional facts that appear in the record, and some things of common knowledge that may not be questioned by either party and are basic to the rights of both.
Reference has been made to the Kent Decree. This decree was rendered by the Honorable EDWARD [53 Ariz. 380] KENT in the case of Hurley v. Abbott et al., the United States intervener, in the District Court of the Third Judicial District of the Territory of Arizona in and for Maricopa county, on March 1, 1910. The action was brought to ascertain who in the Project were entitled to water rights in the flow of the river and to establish their priorities. Everybody, from the first locators of water rights in 1869 through the succeeding years up to 1908, receiving river water from canals heading at or above "Joint Head" (about six miles east of Phoenix), was made a party and his rights to the river flow were determined as to quantity and priority. The court found that the acreage of such lands was approximately 151,000, of which about 16,000 acres were in the Tempe area now occupied by plaintiffs; that there were 28,000 acres to which water rights might be extended if the owners complied with the Association's charter. The 151,000 acres were classified as "A" lands, which were decreed to be "entitled, according to their relative dates of reclamation and by years, to the use of the normal flow of the water in the river to the extent necessary for their economical cultivation." The lands not in the "A" class were designated as "B" and "C" lands. Neither of these classes was given any right to the use of the normal flow of the river, that flow having been appropriated by the "A" lands. Judge KENT gives the reasons for classifying the lands of the Project and in his judgment and decree states:
"By agreement entered into between the United States and the Water Users' Association, the members of the latter, whether owners of land in classes A, B or C, are to be entitled to the benefits of the stored water in the Roosevelt reservoir, in such extent of acreage as the project shall serve. These benefits are to be formally obtained by those entitled thereto after the completion of the dam and upon the formal opening thereafter by the Government of this reclamation project, [53 Ariz. 381] by contractual obligations then to be entered into by the members of the Water Users' Association with the Government. The stored water is to be distributed to those who shall have the right thereto, proportionally according to the acreage of the land, and irrespective of any priority of irrigation or cultivation of such land....
"... When the flow in the river is less than the maximum amount, the amount available shall be distributed to the various canals for those parcels of land first entitled thereto according to their relative dates of priority by years as shown in the table. All flood and stored waters shall be shared by those entitled to it, and who can avail of it, irrespective of dates of priority."
This decision provides a method of computing the amount of the river water to which appropriators were entitled and states "and no water user entitled thereto shall be deprived against his consent of his proportionate share of the normal flow of the river by reason of such impounding dam" (Roosevelt dam). Under this decree, "A," "B" and "C" lands are placed upon an equal footing so far as stored water is concerned. This decree and the charter of the Association, which seem to harmonize with each other and were doubtless intended to, have been the Association's guide and source of authority in the distribution of irrigation water from the various sources of the Project. Sections 5, 6 and 7, of article V of said charter, read:
"Section 5. The ownership of each share of stock of this Association shall carry, as incident thereto, a right to have delivered to the owner thereof water, by the Association, for the irrigation of the lands to which such share is appurtenant.
"Section 6. The amount of water so to be delivered to such owner shall be that proportionate part of all stored and developed water, the storage or development of which is or may be effected by this Association, [53 Ariz. 382] or by means of works under its control, management or direction, or which may become available for distribution by this Association from irrigation works built by the National Government during any irrigating season, as the number of
shares owned by him shall bear to the whole number of valid and subsisting shares of the Association issued and then outstanding, to be delivered to and upon said lands at such times during such season as he may direct.
"Section 7. And there shall also be incident to such ownership of such shares the right to have delivered to the owner thereof, for the irrigation of said lands, as the Association shall from time to time acquire means for that purpose, the water heretofore and before the shareholder or his transferee became a member of this Association, appropriated by him or by his predecessors in interest, for the irrigation of said lands: Provided, however, that the whole amount of water actually delivered from all sources shall not exceed the amount necessary for the proper cultivation of said lands."
It is seen that section 5 makes ownership of shares of stock a condition to the right to have irrigation water served such owner by the Association. Section 6 provides that the amount of stored and developed water the owner is entitled to have delivered to his lands is the proportion his shares bear to the whole number of outstanding shares. Section 7 clearly applies to "A" lands only. It provides that "A" lands shall have a right to have delivered their river water but that the amount actually delivered from "all sources" shall not exceed the amount necessary for proper cultivation of the lands.
One of the objects for which the Association was organized, according to section 1, article IV, is:
"To provide for and distribute and furnish to the lands of the holders of shares of said Association to which said shares and the rights and interests represented thereby are appurtenant, an adequate supply of water for the irrigation of said lands;..."
[53 Ariz. 383] The Association performs this function not as the owner of the irrigation water, because it cannot and does not own the water. It is a carrier of the water for its shareholders, who have delegated to it, subject of course to review by the courts, the power to determine in the first instance the source or sources from which each shareholder is entitled to have his irrigation water. It is this power the plaintiffs claim has been wrongfully exercised to their injury.
The question raised is not free from doubt nor easily decided. It is of momentous interest to the whole Project, as well as to a large population residing in and dependent upon the Project. For that reason, we think it should be approached and decided on broad lines and, if possible, in accordance with the general policy that has been followed by the Association, which has been, as we gather, an honest and conscientious effort to preserve to each landowner his rights as stipulated in the Kent Decree and the Association's charter, except when deviations have been consented to or made necessary by some compelling or unavoidable cause or circumstance.
It should not be overlooked that each member of the Association, regardless of where his land is located in the Project, or its class, or character, is required to contribute an equal amount per acre for the cost of the Project and its upkeep. Originally this was all right, for it evidently was based upon an understanding or belief by the Association that each and every member, at least during normal seasons, could be supplied with irrigation water for his lands -- the "A" lands from the river flow supplemented by flood and storage water, and "B" and "C" lands from flood and storage water. It was the long dry seasons that soon demonstrated that the Association had accepted subscribers for too many acres for the river and storage [53 Ariz. 384] water supply. However, any of its members deprived of water by reason of excessive acreage or drouth conditions could not complain, for they became members knowing that such a thing might happen, and that first in time was first in right when there was a shortage, whatever the cause. This aspect of the situation, however, was entirely changed when the problem of drainage presented itself to the Association and its shareholders. Drainage was not necessary in all parts of the Project. In some parts, however, it was acute and imperative if the lands were to be farmed and crops grown. In places the water had risen to the surface and stood in pools. Generally the waterlogged lands were "A" lands, and generally the "B" and "C" lands were not waterlogged. These latter, as also "A" lands that were not waterlogged, have been assessed at the same rate as the waterlogged lands for a drainage system. Natural justice, it would seem, whould require the waterlogged lands to concede something to the higher lands that do not become waterlogged and cannot, because of their being higher, have delivered to them the
pump water; and, as we shall see later, such concession has been the delivery of less river and storage water to such waterlogged lands and more pump water from such lands or nearby lands.
The owners of "A" lands on the north side of the river (91,813 acres) and most of the owners of such lands on the south side of the river (45,000 acres) joined the Association before the Kent Decree, as did also the "B" and "C" lands in those areas. The plaintiffs and their predecessors in interest, including those of "B" and "C" lands, refused or declined to join and continued, through their own irrigation system, to operate as an independent unit until February 9, 1924. They maintained their own diversion [53 Ariz. 385] dams, all of which were below Granite Reef diversion dam, until the Association, to save and economize water, arranged to deliver to the plaintiffs from the Granite Reef dam their proportion of the river and flood water flow. Otherwise the Association had nothing to do with plaintiffs and was under no duty to them. It was up to plaintiffs to provide their irrigation system and also to dewater their waterlogged lands, and in order to get hydroelectric power for pumping to irrigate and to dewater their lands they had to buy it, like any other customer, from the Association.
Some fifteen years after the Project had been operating, or in 1923, plaintiffs entered into negotiations with the defendant with a view of joining the Association. At that time the plant and facilities of the Association had been greatly expanded and improved. The Project had proved itself a success, the greatest of its kind in the country. Its acreage had increased to 242,000 of which 91,000 acres were in classes "B" and "C" and 151,000 in class "A." Plaintiffs, of course, were familiar with the situation before they became members of the Association on February 9, 1924, as per the contract between plaintiffs and the Association dated June 16, 1923, which will be referred to hereafter as the Tempe Contract. By the terms of this contract the plaintiffs assumed and agreed to pay to the Association their proportion of the cost of the Project, and the Association agreed to accept a transfer of the Tempe system of irrigation and drainage as a part of the irrigation and drainage works of the Project, and to pay plaintiffs therefor. The "General Purposes" of the Tempe Contract were stated to be:
"The object and purpose of this agreement is to provide and execute a general plan for the unified operation of the irrigation and drainage works situated within the Reservoir District substantially all of which [53 Ariz. 386] are controlled by the partieshereto or their associates, and thereby conserve irrigation water, reduce expenses of operation, remove danger of friction and litigation, provide funds for the construction of better drainage and irrigation facilities, and give better service of irrigation water to the land owners at reduced cost."
The Association agreed with plaintiffs that their lands would be
"thereafter furnished in perpetuity with irrigation and drainage service, including ditches for surface water, equal to the like service, then or thereafter provided and furnished to the Project Lands;..." (Italics ours) and that such lands would "be entitled to and receive all the rights, privileges and benefits and be subject only to the same liabilities and obligations as the Project Lands;..."
In another place in the contract the Association agrees that it will
"make all such changes, enlargements, extensions and improvements of said properties, and construct and install all such new and additional works and appliances as may be necessary or proper to provide and furnish all of the District Lands (plaintiffs') with irrigation and drainage service, including ditches for surface water, equal to the like service then provided and furnished to Project Lands, and will thereafter, in perpetuity provide and furnish all of said District Lands with irrigation and drainage service, including ditches for surface water, equal at all times to the like service furnished said Project Lands...." (Italics ours.)
The court found as a fact "that the Association has carried out and performed its part of said contract." Plaintiffs assign ...