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Bristor v. Cheatham

Supreme Court of Arizona

January 12, 1952

BRISTOR et al.

Rehearing Granted February 26, 1952.

Reversed and remanded with directions.

Dwight L. Solomon, Phoenix, for appellants.

Cunningham, Carson, Messinger & Carson, Snell & Wilmer and Wilson & Wilson, Phoenix, for appellees.

Kramer, Morrison, Roche & Perry, Jennings, Strouss, Salmon & Trask, Moore & Romley, Scott & Green, Walton & Walton and Whitney, Ironside & Whitney, Phoenix, Reed & Wood, Coolidge, Fred O. Wilson, Atty. Gen., Perry M. Ling, Chief Asst. Atty. Gen., amici curiae.

Phelps, Justice. Udall, C. J., and Stanford, J., concur. La Prade, Justice (concurring in part and dissenting in part). De Concini, Justice (concurring in part, dissenting in part).


Phelps, Justice.

Page 186

[73 Ariz. 230] This is an appeal from a judgment of the trial court dismissing plaintiffs' cause of action in which plaintiffs sought to restrain defendants from abstracting and diverting [73 Ariz. 231] or using any waters which plaintiffs were pumping from domestic wells on their respective properties and for damages sustained.

The complaint alleges that plaintiffs have been the owners of the properties upon which they reside for many years and have been in possession thereof and expended large sums of money improving their land by building homes thereon, boring wells for domestic purposes, and various other improvements.

Page 187

They further allege there is a common supply of underground water underlying the premises of plaintiffs and defendants; that since 1916 their domestic supply of water has been, and is, derived exclusively from this underground water supply and that they have enjoyed the use of the same continuously since that time; these lands are located one and a half miles south and one mile east of Laveen; and that defendants' lands are west of plaintiffs' lands.

That in the years 1948 and 1949 defendants sank a number of large wells (eleven in all) to great depths and are taking the water by means of powerful pumps from this common water supply and are conveying it off the premises from which it is pumped to other lands owned by defendants, approximately three miles distant, where they are using it in reclaiming from the desert other lands not adjacent to the land from which water is being pumped.

They further allege that the withdrawal of such water from the common underground water supply has resulted in drying up the domestic wells of plaintiffs making it necessary in some cases for plaintiffs to haul their domestic water supply from other places and that as a result of defendants' action plaintiffs have been greatly damaged. In a second count they allege the waters from which their wells are supplied are taken from an underground stream. They prayed for an injunction against defendants enjoining them from further operation of said wells and for damages which they have thus far sustained.

Defendants moved to dismiss plaintiffs' complaint upon the ground that neither count therein stated a cause of action. The motion to dismiss was granted and judgment entered thereon. It is from this judgment that this appeal is being prosecuted.

Appellants claim that the court erred in dismissing their complaint and entering judgment thereon for the reason the complaint stated a cause of action in both its first and second counts. The allegations of the second cause of action though not artfully drawn are sufficient to inform defendants that plaintiffs claim the existence of an underground stream of water flowing beneath their soil from which they had taken water for many years and used it for domestic purposes (being the highest beneficial use known to the law). Some of these wells have been in existence since 1916. Plaintiffs therefore had the right to offer proof to establish the facts alleged in their second cause of action, for clearly [73 Ariz. 232] such waters are appropriable under section 75-101, A.C.A.1939, and the court erred in deciding this issue without evidence being taken, thereby denying plaintiffs their day in court.

Under our previous decisions we have said that water is presumed to be percolating until it is proved by clear and convincing evidence that it is not; Maricopa County Municipal Water Conservation District No. 1 v. Southwest Cotton Co., 39 Ariz. 65, 4 P.2d 369; Ryan v. Quinlan, 45 Mont. 521, 124 P. 512. Assuming plaintiffs' wells were supplied by percolating waters then if our pronouncement in the case of Howard v. Perrin, 1904, 8 Ariz. 347, 76 P. 460, affirmed 200 U.S. 71, 26 S.Ct. 195, 197, 50 L.Ed. 374, -- to the effect that waters percolating generally through the soil beneath the surface of the earth are a component part thereof, having no characteristic of ownership distinct from the land itself, and are the property of the owner of the soil -- is to be adhered to, the ruling of the trial court dismissing the first cause of action was correct.

Let us observe here that all of the attorneys who filed briefs in the instant case agreed in their arguments before the court that the decision in Howard v. Perrin, supra, in so far as it relates to percolating waters being a part of the soil is dicta to which we add our concurrence.

It will also be interesting to note that the Supreme Court of the United States in affirming the decision of this court, after stating that Howard's claim was upon "* * * a prior appropriation of all the water flowing in a subterranean stream * * *" and quoting sections 3199 and 3201 of the Arizona Revised Statutes of 1877 declaring all rivers, creeks and streams of running water in the Territory to be public and applicable to the purposes of irrigation and mining and providing for conveying

Page 188

the same through canals, etc., used the following language:

"We need not stop to inquire whether these sections apply to subterranean streams, because the finding of fact, which is sustained by the testimony, is 'that the only water upon said land is percolating water, oozing through the soil beneath the surface in an undefined and unknown channel.' Of course this excludes the idea of a 'river, creek, or stream of running water.'

"We see no error in the record, and the judgment of the Supreme Court of Arizona is affirmed."

The sum total of the decision is that the claim is based upon the appropriation of water from a running stream. The evidence showed it was percolating water oozing through the soil. Therefore the court said it was not necessary to determine whether the statute applied to subterranean streams, indicating that the sole question before that court relating to water was whether the Arizona statute quoted applied to subterranean streams.

Plaintiffs first urged that their rights under the first cause of action should be determined [73 Ariz. 233] under the rule of "reasonable use" or the doctrine of "correlative rights" as it is sometimes called, which is closely akin to the riparian rights doctrine. We believe the matter is properly before us and the time has arrived as predicted by the late Justice Lockwood in the Southwest Cotton Co. case, supra, when the court should review as a new question the nature and ownership of percolating waters and the right to the use thereof. Because of the very great interests involved and the far-reaching effect of a decision upon these questions we have given the matter the most careful consideration and have been materially aided by oral arguments and briefs from distinguished counsel, including counsel appearing as amici curiae.

It has been argued by some of the counsel who have filed briefs amici curiae that upon a determination of the question of whether or not the complaint stated a cause of action and if it is found to do so, the cause should then be remanded to the trial court for trial without any pronouncement whatsoever upon the law applicable to the rights of the parties litigant.

It is argued by other counsel in briefs amici curiae that it is not necessary to a decision of this case to consider the character of percolating waters. We fail to perceive the logic of this statement. The first cause of action of plaintiffs' complaint is grounded wholly upon the theory that their wells are supplied by percolating waters. As above stated all underground waters are presumed to be percolating until shown to be otherwise. Therefore we are directly presented in this case with the precise question of whether percolating waters are public in character and subject to appropriation or whether they are a component part of the earth and are the property of the owner of the soil. We will undertake to meet these issues.

It is also claimed by counsel for appellees supported by briefs amici curiae that the case of Howard v. Perrin, supra, is controlling and having been followed by the later decisions of this court, it is now stare decisis and has even ripened into a rule of property. Other counsel argue that the so-called rule of this court relating to percolating waters as enunciated in Howard v. Perrin, supra, is dicta and is not and has never been the law of this state.

It is contended by some members of this court that regardless of whether the pronouncement in Howard v. Perrin, supra, and later cases is dicta, citizens throughout the state relying upon the decision in that and subsequent cases, have spent large sums of money and that they therefore have vested rights which must be recognized.

With respect to this last contention let us ask the question, what property rights does Howard v. Perrin vest in persons who have developed an underground supply of water?

The common-law rule that water is inherent in the soil and belongs to the owner [73 Ariz. 234] of the soil as laid down in the Howard v. Perrin case is itself an anomaly. Water, unlike rock and mineral, is migratory. Therefore it is not inherent in the soil as are rock and mineral. All the decisions are to the effect that the property right in

Page 189

water consists alone in the right to its use. Since there is no property right in the water itself and since it is only its use that is characterized as a property right and use being incorporeal never becomes a part of the soil. It may become appurtenant to it but never a part of it.

This thought is cogently expressed in an excellent article by Dean Marion R. Kirkwood, entitled "Appropriation of Percolating Waters", appearing in Vol. 1, Stanford Law Review, p. 1, November, 1948: "It is to be hoped that the courts will give thoughtful reconsideration to the conception of ownership of the corpus of percolating water. It is submitted that this conception is quite unrealistic. It rests on the notion that the overlying-land owner has possession of all that is below the surface of his land, and that there is no distinction in this respect between rock and water. But in fact there is a difference: rocks stay in place, water moves. This so-called possession, and consequent ownership, is then something of constantly changing character. Such ownership cannot apply to a given landowner until the water arrives at, or after it passes, his boundaries. Moreover, his neighbor equally 'owns' the water temporarily under his land. When one makes use of his supposed ownership by pumping water, he usually takes not only that under his own land, but draws out that from under his neighbor's land as well. The common-law rule results in permission to one to deprive another of his property merely by taking it -- a rather extraordinary doctrine. The reasonable use rule restricts this power slightly, but still approves expropriation of another's property. Doesn't the property interest of the landowner really go only to his exclusive right of access to the water through his land rather than to his ownership of the water itself? * * *"

It follows then that the common-law concept that the owner of the overlying land owns the percolating waters under its surface is fallacious. We will hereinafter undertake to show that the vested rights of the users of percolating waters since the decision in the Howard v. Perrin case are more fully protected under the law of prior appropriation than under the so-called common-law rule.

Referring to the argument of counsel that the question is now stare decisis and assuming that the rule relating to percolating waters is not dicta, it is universally recognized that notwithstanding the rule of stare decisis and the inclination to follow precedent the courts have the power to depart from rules previously established especially where to adhere to the rule would be more harmful to the public at large than to overrule precedent [73 Ariz. 235] and establish a sound principle. State ex rel. La Prade v. Cox, 43 Ariz. 174, 30 P.2d 825; City of Glendale v. White, 67 Ariz. 231, 194 P.2d 435; State v. Allred, 67 Ariz. 320, 195 P.2d 163, 4 A.L.R.2d 735; Ray v. Tucson Medical Center, 72 Ariz. 22, 230 P.2d 220; Calhoun Gold Min. Co. v. Ajax Gold Min. Co., 27 Colo. 1, 59 P. 607, 50 L.R.A. 209; Great Northern Ry. Co. v. Sunburst Oil Refining Co., 287 U.S. 358, 53 S.Ct. 145, 77 L.Ed. 360.

We are confident that if this court's attention had been called to the act of Congress of March 3, 1877, known as the Desert Land Act, chapter 107, 19 St. at L. 377, U.S.C. Title 43, Sec. 321, 43 U.S.C.A. § 321, either in the case of Howard v. Perrin or subsequent cases relating to the same subject matter, the court would have reached a different conclusion. To not do so would have resulted in the court totally ignoring the plain language of the act of Congress, supra. This it did not have the constitutional authority to do. In doing so it entered the field of legislation resulting in effect in setting aside a valid act of Congress.

We fail to see any danger lurking in a decision of this court holding percolating waters to be public. On the other hand we definitely can see the inevitable exhaustion of all underground waters in the State of Arizona if the rule of private ownership of such waters as enunciated in the Howard v. Perrin case is still held to be the law. If that rule is adhered to the legislature is shackled from enacting an underground water code to meet the present emergency.

Page 190

Let us observe here that the vested rights of all persons who have appropriated and applied percolating waters to a beneficial use in this state are fully protected under the law of prior appropriation. In fact more so than under the common-law rule as laid down in the Howard v. Perrin case. In the absence of an express legislative policy on the subject, the rights of the users of percolating water must be governed by the acts of Congress and the acknowledged and accepted customs and usages of this state, i. e., prior appropriation and beneficial use. We agree with the Supreme Court of New Mexico in Yeo v. Tweedy, 34 N.M. 611, 286 P. 970, 974, wherein it is stated: "* * * When we once admit a modification of the common-law rule, as the majority of the states have done, there is no place for us to stop short of the rule of prior appropriation. * *"

To permit the present underground water race to continue unabated, without regulation or control, would inevitably lead to exhaustion of the underground supply and consequently to economic disaster.

The common-law concept that the owner of land owned everything to the center of the earth below and to the sky above became a part of the body of that law under conditions wholly different from those which obtain anywhere today. In fact scientific advancement has made it wholly [73 Ariz. 236] inapplicable to present conditions. No one would dare contend that one who flies an airplane over the premises of another is guilty of trespassing and no one would challenge the right of the Federal Government to regulate the use of the air lanes for transportation by means of airplanes.

It is only in recent years that motor operated pumps capable of withdrawing thousands of gallons of water per minute from the earth have been available. These pumping operations create a partial vacuum in the earth in the area where located, thus completely changing by the law of gravity, the course of the percolating waters oozing through the soil in undefined and unknown channels, drawing them into the cavity from every direction. The practical result of such pumping operations is to pursue and withdraw the waters from beneath the surrounding lands as effectively and effectually as if pipes were extended from the well in all directions to and under adjoining lands conveying water through them to the point from which it is pumped to the surface.

It is our view that the Desert Land Act of March 3, 1877, declared percolating waters to be public and subject to appropriation. The Act in so far as material reads as follows, section 321 thereof: "* * * it shall be lawful for any citizen of the United States, or any person of requisite age 'who may be entitled to become a citizen, and who has filed his declaration to become such' and upon payment of 25 cents per acre -- to file a declaration under oath with the register and the receiver of the land district in which any desert land is situated, that he intends to reclaim a tract of desert land not exceeding one section, by conducting water upon the same, within the period of three years thereafter, Provided however that the right to the use of water by the person so conducting the same, on or to any tract of desert land of six hundred and forty acres shall depend upon bona fide prior appropriation: and such right shall not exceed the amount of water actually appropriated, and necessarily used for the purpose of irrigation and reclamation: and all surplus water over and above such actual appropriation and use, together with the water of all, lakes, rivers and other sources of water supply upon the public lands and not navigable, shall remain and be held free for the apropriation and use of the public for irrigation, mining and manufacturing purposes subject to existing rights. * * *"

In the case of California Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 142, 55 S.Ct. 725, 727, 79 L.Ed. 1356 (decided in 1935), the Supreme Court of the United States in passing upon the Desert Land Act, supra, stated that: "For many years prior to the passage of the Act of July 26, 1866, c. 262, § 9, 14 Stat. 251, 253 (U.S.C. Title 43, section 661), the right to the use of waters for mining and other beneficial purposes in California and the arid region generally was fixed and regulated [73 Ariz. 237] by local rules and customs. The first

Page 191

appropriator of water for a beneficial use was uniformly recognized as having the better right to the extent of his actual use. The common law with respect to riparian rights was not considered applicable, or, if so, only to a limited degree. Water was carried by means of ditches and flumes great distances for consumption by those engaged in mining and agriculture. (Citing cases.) The rule generally recognized throughout the states and territories of the arid region was that the acquisition of water by prior appropriation for a beneficial use was entitled to protection; and the rule applied whether the water was diverted for manufacturing, irrigation, or mining purposes. The rule was evidenced not alone by legislation and judicial decision, but by local and customary law and usage as well. * * *"

The court then discusses briefly the effect of the Act of 1866 and states: "* * * This provision was 'rather a voluntary recognition of a pre-existing right of possession, constituting a valid claim to its continued use, than the establishment of a new one.' * * *"

It then took up a discussion of the Desert Land Act of March 3, 1877, supra, and made the following pronouncement: "* * That act (the act of March 3, 1877) allows the entry and reclamation of desert lands within the states of California, Oregon, and Nevada (to which Colorado was later added), and the then territories of Washington, Idaho, Montana, Utah, Wyoming, Arizona, New Mexico, and Dakota, with a proviso to the effect that the right to the use of waters by the claimant shall depend upon bona fide prior appropriation, not to exceed the amount of waters actually appropriated and necessarily used for the purpose of irrigation and reclamation. * *" (Emphasis supplied.)

It then called particular attention to the following portion of the act: "'* * * All surplus water over and above such actual appropriation and use, together with the water of all lakes, rivers, and other sources of water supply upon the public lands and not navigable, shall remain and be held free for the appropriation and use of the public for irrigation, mining and manufacturing purposes subject to existing rights.'" (Emphasis supplied.)

In discussing this portion of the act the court said: "* * * it had become evident to Congress, as it had to the inhabitants, that the future growth and well-being of the entire region depended upon a complete adherence to the rule of appropriation for a beneficial use as the exclusive criterion of the right to the use of water. * * *"

The court then said: "In the light of the foregoing considerations, the Desert Land Act was passed, and in their light it must now be construed. By its terms, not only all surplus water over and above such as might be appropriated and used by the desert land entrymen, but 'the water of all [73 Ariz. 238] lakes, rivers, and other sources of water supply upon the public lands and not navigable' were to remain 'free for the appropriation and use of the public for irrigation, mining and manufacturing purposes.' If this language is to be given its natural meaning, and we see no reason why it should not, it effected a severance of all waters upon the public domain, not theretofore appropriated, from the land itself. * * *"

The court cites with approval the supplemental opinion in Hough v. Porter, 51 Or. beginning at page 382, 98 P. 1083, 1091. In that opinion the court held that the legal effect of the language quoted from the Desert Land Act was to dedicate to the public all interest, riparian or otherwise, in the waters of the public domain, and to abrogate the common-law rule in respect of riparian rights as to all lands settled upon or entered after March 3, 1877. Specifically the court said in Hough v. Porter, supra, with respect to the legal effect of the dedication or reservation of all waters upon the public domain for public use that: "* * * The words 'shall remain and be held free for the appropriation and use of the public for irrigation,' etc., are clearly words of reservation and dedication, and obviously so intended. * * *"

The court further said: "It was in the exercise of a similar prerogative on the part of the government that there was by

Page 192

the act of 1877 given to the public, or to any individual thereof, the right to appropriate and apply to a beneficial use the waters flowing through its public domain. (This case involved the appropriation of waters from a river.) No limit as to the time in which this right may be exercised is made, except in effect that he who first diverts the water and with due diligence applies it to the uses there enumerated is given the better right thereto. It can make no difference, therefore, whether it be termed a grant, reservation, dedication, trust, or other privilege. This unquestioned power of the owner over the public domain was exercised, and any one entering upon, and acquiring title to, any part of the public domain after the passage of this act accepted such land entitled thereto with full knowledge of the law under which the patent was issued; the import thereof being that this right incident to the soil was reserved by the government, to be held in trust for the public, and that he who first applies the water to a beneficial use shall become the owner of the right thereto, and that the recipient of such title takes it subject to that right, which he, in common with others of the public, is privileged to exercise. * * *" (Emphasis supplied.)

In approving this opinion the United States Supreme Court said that it was well reasoned and in its opinion reached the right conclusion.

Before concluding its opinion in the California Oregon Power Co. case, supra, [73 Ariz. 239] the court further said, 55 S.Ct. page 731: "Nothing we have said is meant to suggest that the act, as we construe it, has the effect of curtailing the power of the states affected to legislate in respect of waters and water rights as they deem wise in the public interest. What we hold is that following the act of 1877, if not before, all nonnavigable waters then a part of the public domain became publici juris, subject to the plenary control of the designated states, including those since created out of the territories named, with the right in each to determine for itself to what extent the rule of appropriation or the common-law rule in respect of riparian rights should obtain. For since 'Congress cannot enforce either rule upon any state,' (Citing case.) the full power of choice must remain with the state. The Desert Land Act does not bind or purport to bind the states to any policy. It simply recognizes and gives sanction, in so far as the United States and its future grantees are concerned, to the state and local doctrine of appropriation, and seeks to remove what otherwise might be an impediment to its full and successful operation. (Citing cases.)" (Emphasis supplied.)

The same conclusion was reached in the case of State of Wyoming v. Colorado,259 U.S. 419, 42 S.Ct. 552, 66 L.Ed. 999 and in Snake Creek Mine & Tunnel Company v. Midway Irrigation Co.,260 U.S. 596, 43 S.Ct. 215, 67 L.Ed. 423. See also Yeo v. Tweedy, supra, and State ex rel. Bliss v. Dority,55 N.M. 12, 225 P.2d 1007. In the latter case this precise question has been ably discussed and it was held that ...

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