MARICOPA COUNTY MUNICIPAL WATER CONSERVATION DIST. NO. 1
WARFORD et ux
Rehearing Denied July 16, 1949.
Appeal from Superior Court, Maricopa County; Edwin Beauchamp, Judge.
Whitney, Ironside & Whitney, of Phoenix for appellant.
Darrel R. Parker, of Phoenix, for appellees.
De Concini, Justice. Udall, Stanford and Phelps, JJ., and Don T. Udall, Superior Judge, concur. La Prade, C. J., being ill, the Honorable Don T. Udall, Judge of the Superior Court of Navajo County, was called to sit in his stead.
De Concini, Justice.
[69 Ariz. 4] L. A. Warford et ux., plaintiffs below, appellees here filed their complaint against appellants, et al. The other defendants were either dropped or the action against them dismissed. The case went to trial on appellees' first amended complaint and ther supplemental complaint filed the day of the trial. Appellant will hereafter be referred to as the District and appellee Warford as plaintiff.
The District was organized about the year 1925 to reclaim raw desert land for agricultural purposes. The District comprises
some 35,000 acres, approximately 25 miles northwest of Phoenix. In 1927-1928 the District built its main canal and several laterals through which the water flowed to the land to be irrigated. The main canal, which runs in a southwesterly direction along the north side of the District acreage, was intercepted by Trilby wash at the west end of Lateral 3. The main canal was paralleled by a protective drainage ditch built by the District in 1927 or 1928. In 1935-1936 the District built an embankment 4 feet high paralleling the main canal for about one-fourth of a mile, then due north for 1 3/4 miles, thence due east for 1 1/4 miles to protect the main canal from surface waters.
At the junction of the main canal with Trilby wash, the District installed a siphon under the wash to carry the flow of the canal and not impede the run-off down the wash. The protective drainage ditch and embankment caused surface waters to be diverted away from the main canal directly to the natural bed of Trilby wash which ran southeasterly through the District's land and would have continued so except for the action of the District in digging a diversion channel along the north side of Lateral 5 which ran directly east. The purpose of diverting Trilby wash waters easterly was to protect the land within the District to the southeast from its ravages. The District is located so that an area of approximately 195 square miles drains through it via Tribly wash. Normally the wash is dry, but when rains descend in the watershed the wash runs a varying stream of water.
In 1939 a heavy rain fell and the waters carried by Trilby wash burst over Lateral 5 damaging both the lateral and land to the south, but did not reach plaintiffs' land. In 1941 and 1942 the District widened and deepened the ditch north of Lateral 5 and threw dirt up against the north side of the lateral to protect it from Trilby's diverted waters. The District has periodically repeated this process up to the date of the trial early in September, 1947. The court has had a map prepared from the evidence in the file. This map is attached hereto for illustrative purposes only.
[69 Ariz. 5] Plaintiff has resided and farmed in this locality since 1937 and was aware of the District's work to alleviate flood conditions along Lateral 5. Plaintiff purchased by verbal contract from one Mrs. Minnie McMurtry the NW 1/4 of section 9 in 1941, went into possession and cleared 40 acres of it. On September 24, 1942, he took a written option on the same land and paid some money on account. In 1944 the deed was placed in escrow at the Phoenix National Bank. In 1945 or 1946 plaintiff purchased the NW 1/4 of the SW 1/4 of section 9 from the same grantor increasing his holdings to a total of 200 acres all of which was in T. 3 N., R. 1 W., G. & S. R. B. & M., Maricopa County. In 1942 the District extended its diversion canal from Trilby wash to the northwest corner of plaintiff's land. In 1943 water overflowed a little of his cotton land but did no appreciable damage.
In 1946 plaintiff had a well drilled and pump installed at a cost of $ 14,000. He levelled and plowed his land and planted cotton. During the summer of 1946 water came down the artificially created diversion channel and flooded about 70 acres of his land.
Plaintiff's complaint was brought on the theory of inverse eminent domain, Art. 2, Sec. 17, Ariz.Const., in that the District took his land by reason of such flooding. He alleged he was damaged to the extent of $ 30,000. His supplemental complaint filed the day of the trial prayed for damages in the sum of $ 11,700 for crop loss resulting from the 1947 summer floods.
The lower court made findings of fact and gave judgment to plaintiff. The District appeals from the judgment listing a number of assignments of error. Seventeen of them intermingled with other alleged errors supported by eight propositions of law are directed to the findings of fact. In whole the findings of fact are sustained by the evidence. When such is the case this court has held time and again that it will not disturb the lower court's findings. There are some slight deviations from the evidence but they do not constitute reversible ...