STAMATIS et al.
JOHNSON et ux
Kramer, Morrison, Roche & Perry, of Phoenix, for appellants Milton Stamatis and Cresanthe Stamatis, his wife.
Warren L. McCarthy, County Atty., Phoenix, for appellant County of Maricopa.
Cunningham, Carson, Messinger & Carson, of Phoenix, for appellees.
Faulkner, Superior Judge. La Prade, C. J., and Stanford and De Concino, JJ., concur. Phelps, J., being disqualified, the Honorable J. W. Faulkner, Judge of Superior Court of Mohave County, was called to sit in his stead. Udall, Justice (dissenting).
Faulkner, Superior Judge.
[71 Ariz. 135] Appellees (plaintiffs below) brought suit against appellants (defendants below) for a mandatory injunction to compel the latter
to reopen and restore to its former condition an open irrigation ditch located on the defendants' land and in which plaintiffs claimed a prescriptive right of use. Judgment for mandatory injunction and permanently enjoining the defendants from interfering with the ditch was granted. From this judgment defendants have appealed.
The undisputed testimony shows that the open irrigation ditch involved in this action was used by plaintiffs and their predecessors in interest, without any change in its location, for a period of more than twenty years immediately before the filing of the complaint in 1948, for the purpose of carrying water for the irrigation of their lands. This use gave plaintiffs a prescriptive easement to the ditch, for such purpose, and established its permanent location.
By implication defendants Stamatis and wife admit the existence of such prescriptive easement, and also make a more direct admission in their answer and special defense, their statement being as follows: "That * * * the defendants Milton Stamatis and wife caused a new ditch * * * to be constructed and placed underground upon the old prescriptive easements, as defendants Milton Stamatis and wife are informed and believe, upon which the said old ditch had been operated * * *" Counsel for said defendants further state in their opening brief that the ditch "has been used for a long time and has become a prescriptive easement traversing the land of the servient estate. * * *"
[71 Ariz. 136] Said defendants have been the owners since 1929 of the lands lying on both sides of said ditch, which extends from a canal on Seventh Street, outside the city limits of Phoenix, to the lands of plaintiffs situated near Third Street. Defendants Stamatis and wife, through their agent Phoenix Title & Trust Company, a short time before the filing of plaintiffs' complaint, and during the year 1948, platted and dedicated a subdivision of the lands on which said ditch was located, and dedicated to public use as a street or highway a strip of land 60 feet wide to be known as Ocotillo Road, in the middle of which road said open ditch was located. Said ditch as originally constructed, and as used up until 1948, carried water by gravity flow from said canal on Seventh Street to plaintiffs' premises, the diversion from the Seventh Street canal being by means of a headgate situated near the middle of said Ocotillo Road.
During the summer of 1948, defendants Stamatis, without the consent and over the objections of plaintiffs, constructed and placed a concrete tile pipeline with an inside diameter of 14 inches, leading from said headgate on Seventh Street to the south side of said Ocotillo Road, a distance of 51 feet, and thence on and along the south side of said Ocotillo Road, a distance of approximately 1250 feet, to a standpipe which was built high enough to raise the water to the level of plaintiffs' lands, and piped the same onto plaintiffs' lands at the same place where water had been delivered to them by gravity flow through the old ditch. Throughout most of its length, said pipeline was located approximately 26 feet south of the line of said open ditch to which ...