J. R. ATKINS and CHRISTINE ATKINS, Husband and Wife, Appellants,
RALPH C. HOOKER, Appellee
APPEAL from a judgment of the Superior Court of the County of Yavapai. Richard Lamson, Judge. Judgment affirmed.
Messrs. O'Sullivan & Morgan, Mr. J. H. Morgan and Mr. Leo T. Stack, for Appellants.
Mr. T. J. Byrne, for Appellee.
[56 Ariz. 198] ROSS, C.J.
The appellants, husband and wife, to whom we shall hereafter refer as plaintiffs, brought this action to condemn a private way of necessity over defendant Ralph C. Hooker's lands, through which their cattle might pass from plaintiffs' premises onto the public domain, to graze thereon. At the trial the other defendants were dismissed, it appearing that after the action was brought defendant Hooker acquired the land sought to be condemned. The court heard the case and denied plaintiffs the right to condemn for the purposes stated, and they have appealed.
The plaintiffs are the patentees of Section 34, Township 20 North, Range 5 West, and have lived thereon since 1933. This section is located in the Prescott National Forest Reserve, in Yavapai county, Arizona, and on that part of such reserve in which the odd-numbered [56 Ariz. 199] sections are privately owned and the even-numbered sections, or most of them, are public lands. It is a livestock country and for years has been chiefly devoted to that industry. The livestock was originally turned loose on the range and grazed upon it as free commoners for years. After it was set apart as a forest reserve, the Secretary of Agriculture was authorized by Congress "to permit, regulate, or prohibit grazing in the national forests," etc. Page 1, The Use Book, described as "A Manual of Information about the National Forests."
All four sides of Section 34 are bounded by odd-numbered sections and the owners thereof have constructed barbed-wire fences between their lands and plaintiffs', so that there is no driveway or escape for cattle from Section 34 to other parts of the forest reserve, and the grazing capacity of their section is only about 25 head. Plaintiffs have developed water on Section 34 sufficient to water from 200 to 250 head, and have only 64 head. They with to increase their herd to the maximum of their water supply and have applied to the forest service for a permit to range such cattle on Section 4 and other publicly owned sections in Townships 19 and 20 North, Ranges 5 and 6 West, situated south of their home place on Section 34.
The forest service investigated plaintiffs' application for permit and refused to give the permit. However, in a letter written May 4, 1939, by the Regional Forester at Albuquerque, New Mexico, to the plaintiff J. R. Atkins, it is stated, among other things:
"... You were informed that the Forest Service was ready and willing to
grant you a permit on the Forest for 100 head of cattle as soon as you had secured sufficient water for the number of stock to be permitted....
"... It is, therefore, suggested that you take the matter up with the Forest Supervisor who is ready and willing to approve your application for a limited [56 Ariz. 200] number of stock as soon as he is convinced of your ability to use the water on your place....
"... In the event you can convince the Supervisor that your water is accessible to the Forest range and will actually be used for your stock on the Forest, there will be no difficulty in your securing a permit for a limited number of stock to be grazed on a community basis.
"In closing, I wish to assure you that there is no desire upon the part of the Forest Service to deny you a grazing permit on the Forest, and, as stated above, it is simply a matter of your having, water accessible so that the range can be used. Therefore, I again suggest that you present evidence to the Forest Supervisor that you have access across the private lands and he will then be in position ...