BRISTOR et al.
CHEATHAM et al.
[75 Ariz. 229] Dwight L. Solomon, of Phoenix, for appellants.
[75 Ariz. 230] Cunningham, Carson, Messinger & Carson, Snell & Wilmer, by James A. Walsh, and Wilson & Wilson, all of Phoenix, for appellees.
Kramer, Morrison, Roche & Perry, Jennings, Strouss, Salmon & Trask, Moore & Romley, Scott & Green, Walton & Walton, Whitney, Ironside & Whitney, Rawlins, Davis, Christy, Kleinman & Burrus, Lewis, Roca & Scoville, David B. Morgan, Edward E. Williams and Andrew L. Bettwy, all of Phoenix, Reed & Wood, Charles W. Stokes and Harry W. Bagnall, Jr., of Coolidge, Jesse C. Wanslee, of Phoenix, Ellis & Sult and Stanfield & Hernandez, of Eloy, Scanland, Mahoney & Walker, Thomas D. Derry, Tom Fulbright, E. L. Green and Raymond E. Peterson, all of Florence, Estes D. McBryde and Eugene K. Mangum, of Casa Grande, Fred O. Wilson, Atty. Gen., Perry M. Ling, Asst. Atty. Gen., and Howard F. Thompson, Asst. Atty. Gen., amici curiae.
The appeal is from an order of the lower court in sustaining a motion to dismiss plaintiffs' complaint. For the original majority and minority opinions, see 73 Ariz. 228, 240 P.2d 185. The substance of the allegations of the complaint are set forth therein. Rehearing was granted. Whenever the term ground water is used herein it shall be construed to mean what is commonly called natural percolating water, and when the term majority is used reference is made to the majority original opinion.
The only questions presented by the pleadings, by the assignments of error and by the contentions of plaintiffs in their briefs are whether the plaintiffs have the right to invoke the doctrine of reasonable
use or correlative rights and whether, having alleged in the second cause of action an underground stream and prior use of the water thereof, they have alleged an appropriation thereof. It was never alleged in the complaint nor contended by the plaintiffs in assignment of error or briefs that they had appropriated percolating water. This issue was apparently introduced into the case by amici curiae who have no right to create, extend or enlarge the issues. The majority, in deciding to cover the field and re-examine the entire law on the subject as a new question, state that Justice Lockwood predicted the time would arrive when such should be done. Reference is no doubt made to Justice Lockwood's decision in Maricopa County Municipal Water Conservation District No. 1 v. Southwest Cotton Company, 39 Ariz. 65, 4 P.2d 369, 372. Judge Lockwood did not so predict the re-examination of the entire subject but expressly limited any future consideration thereof to a consideration of the doctrines of reasonable use and correlative rights. Whithout sanctioning the right of the court, under the issues as thus presented, to re-examine the field of ground water [75 Ariz. 231] law, since such has been done we will treat it as a legitimate issue.
The majority hold that ground waters are public notwithstanding this court has ruled to the contrary for the past forty-nine years. The bases for such holding are that the common-law rule is an anomaly and fallacious; that the common-law rule is not suited to conditions in the arid Southwest and that the Act of Congress of 1877, 43 U.S.C.A. § 321, operated to sever such waters from the soil. The statute, Section 1-106, A.C.A.1939, tells us when we may depart from the common law, and such departure is not permitted for the reason that we might think the rule to be fallacious and anomalous. Whether we should for any other reason, after approximately fifty years' operation under an announced rule, depart therefrom depends upon many questions, the most important of which is the protection of property rights acquired upon the faith of this court's announcement of the law.
When this matter was thoroughly reexamined twenty-two years ago in the case of Maricopa County Municipal Water Conservation District No. 1 v. Southwest Cotton Company, supra, this court said:
'The case is one of the most important which has ever come before this court, involving as it does not only property interests of the value of many millions of dollars, but also a declaration of legal principles which will in all probability determine and govern to a great extent the course of future agricultural development within the arid regions of Arizona. * * * We think, however, this case is proof that the time has come when it is necessary for the protection and guidance of future agricultural development in the state that these principles should be enunciated as clearly and definitely as possible, so that our citizens may know how to guide their future procedure. * * *' (Emphasis supplied.)
It is generally so well known that we take judicial notice that, with faith in the foregoing declaration and assurance of this court, many and large investments have been made in the development of ground waters. Under these circumstances the court's announcement of the rule becomes a rule of property, and rights acquired thereunder should not be disturbed 'unless the law is such as to leave the court no alternative', Schofield v. Gold, 26 Ariz. 296, 225 P. 71, 74, 37 A.L.R. 275; and when a decision does become a rule of property, the rights acquired thereunder are entitled to protection under the law as declared. The majority opinion seems to recognize that the users of ground water developed under these conditions are entitled to protection but takes the position that they will receive better protection under the law of prior appropriation.
This brings us to the question whether, even if it were assumed ground [75 Ariz. 232] waters are public, it is legally possible to acquire any rights thereto under the law of prior appropriation. After deciding that such waters are now and always have been
public, the majority proceeds to hold that because they have always been public and have been put to use, they have been appropriated as of the respective dates that beneficial use began. This conclusion is based upon the proposition that because the legislature has not seen fit to declare ground water, as a class of water, subject to appropriation nor provide the steps for the acquisition of appropriative rights, plaintiffs have appropriated under some law of custom and usage, because congress had declared them public and subject to appropriation according to custom and usage prevailing in the arid West. We believe this to be unsound for several reasons. First, we can find no authority for the assumption that there exists any custom and usage to divert ground waters for irrigation purposes and thereby secure a prior right thereto. Under both the civil and common law, ground water belonged to the owner of the soil. Kinney on Irrigation and Water Rights, 2d ed., Vol. I, Sec. 563. Second, even if there had existed such a custom, it cannot prevail nor operate contrary to legislative rule.
In 1864, the territorial legislature provided a rule as to what waters were subject to appropriation, for what purposes they could be appropriated and that they could only be appropriated exclusively under such regulations and restrictions as the legislature provided. Article 22, Territorial Bill of Rights, Section 1, Chapter 55, Howell's Code. The classes of water by this law authorized to be appropriated were streams, lakes and ponds capable of beneficial use for irrigation. During succeeding years, other classes were added and made available for appropriation such as underground streams, flood waters, and spring waters. Session Laws 1919, Chapter 164, Section 1; Session Laws 1921, Chapter 64, Section 1.
The legislature has thus provided laws for the acquisition of public waters, and if there ever existed a custom and usage which authorized the appropriation of these waters (which we do not admit), such cannot be given the force of law contrary to the statute. When the legislature classifies waters that are subject to and available for appropriation, it is a limitation on the right to so acquire waters not classified for such purpose. Brewster v. Salt River Valley Water Users' Association, 27 Ariz. 23, 229 P. 929; Fourzan v. Curtis, 43 Ariz. 140, 29 P.2d 722; Drainage District No. 1 v. Suburban Irrigation District, 139 Neb. 460, 298 N.W. 131.
In Brewster v. Salt River Valley Water Users' Association, supra [27 Ariz. 23, 299 P. 934], in deciding that drainage waters were not subject to appropriation, this court said:
'Drainage waters are not of the class specified by the statute as subject [75 Ariz. 233] to appropriation. The waters involved in this litigation were put into the ground by means of artificial irrigation. They are not naturally in the ground and a part of it, in the sense of coming from a source unknown. They are therefore not subject to appropriation under any of the provisions of the statutory law. * * *'
In Fourzan v. Curtis, supra [43 Ariz. 140, 29 P.2d 724], in holding that certain waters were not subject to appropriation, the court said:
'* * *. The only reasonable explanation is that they (meaning the legislators) intended to reiterate the general principle that appropriable waters were only those in their natural condition, and that, realizing the common practice in Arizona of the artificial development of percolating subterranean waters to increase the surface flow of a spring, they meant to prohibit any attempt to evade the long-established rule in Arizona that percolating waters were not subject to appropriation. * * *'
In Drainage District No. 1 v. Suburban Irrigation District, supra [139 Neb. 460, 298 N.W. 136], that court said:
'From the history of our irrigation laws and constitutional provisions, it clearly appears that the expressed purpose of our lawgivers, as now existing, is to limit the right of appropriation for irrigation to the waters of the 'natural streams' of the state. * * *
* * *
* * *
'These drainage ditches are not natural streams or natural water courses, and their inherent nature exclude them from the class or kind of waters to which our laws of appropriation are now applicable. Not being subject to appropriation for irrigation purposes, the attempt to secure them for the defendant by the exercise of the right of eminent domain was unauthorized by our present laws and wholly ineffective. * * *'
We therefore cannot agree with the majority in holding that ground water is subject to appropriation. By every rule of statutory construction of which we have knowledge, the legislature has in effect said that it is not. When waters are classified for appropriation, it operates as a statutory limitation and excludes all waters not included therein. To say otherwise would permit the court to amend the statute by adding thereto other classes, which of course is strictly a legislative function. As was well said in Maricopa County Municipal Water Conservation District No. 1 v. Southwest Cotton Company, supra:
'Reading these successive enactments, we think it is clear the Legislature has never specifically made percolating waters subject to appropriation, and, if we apply the usual rule of [75 Ariz. 234] 'expressio ...