GROSS et ux.
MacCORNACK et ux. MacCORNACK et ux.
GROSS et ux.
[75 Ariz. 244] Charles P. Elmer, of Kingman, Shute & Elsing, of Phoenix, for appellants.
Carl D. Hammond, of Kingman, Clark & Clark, of Phoenix, for appellees.
The primary question before us is which of the parties to this appeal are lawfully entitled to the right to the use of the waters of Willow Spring, a small seep or spring in the Cerbat Range, 3 1/2 miles northwest of Kingman, Arizona. The lower court determined the issues in favor of the appellees, John F. Gross and his wife, Bertha L. Gross. The appellants E. A. MacCornack and his wife, Harriet MacCornack, have appealed. This review is of the record of two suits that were consolidated for trial in the lower court.
Cause No. 3652
In cause No. 3652, filed in June, 1940, the plaintiff, John F. Gross (appellee herein) sought injunctive relief against the defendants Al Smith and Spring Valley Livestock Company, a corporation (whose rights were subsequently acquired by the appellants who were substituted as parties defendant), to restrain and enjoin them from interfering which the flow of the waters of Willow Spring through a pipe line originating at the spring and terminating on land owned by the appellees. After hearing had a temporary restraining order was issued on June 18, 1940, preserving the status existing prior to the occurrence of [75 Ariz. 245] the acts complained of. With the temporary restraining order in full force and effect the case remained dormant over seven years.
Cause No. 4331
The appellants, E. A. MacCornack et ux., as plaintiffs, in November, 1947 filed suit No. 4331 against the appellees, seeking to quiet their title to the land upon which Willow Spring is located. The appellees as defendants answered the complaint and filed therewith a cross-complaint by which they sought to establsh their right to the use of the waters of Willow Spring and asked that ownership of the pipe line and an easement for the right of way therefor, over appellants' lands, be declared vested in them.
As the issues were closely related, by stipulation of counsel these two suits were consolidated for trial. In November of 1948, trial was had, the court sitting without a jury.
The facts leading up to this litigation, stated in a light most favorable to a sustaining
of the judgment, are somewhat unique. We shall first set forth the titles to the properties in question.
East Half of Section 12
In the year 1917 James Curtin made homestead entry on the east half of Section 12, T. 21 N., R. 18 W. He established residence, built a home and made other extensive improvements, including a large water tank and troughs, on land which he erroneously believed was embraced within the boundaries of his government homestead when in truth all improvements except some fencing were located on the west half of said Section 12. His final proof was submitted and a patent from the United States of America was issued to him while he was still unaware of the true N-S mid-section line dividing Section 12. James Curtin conveyed this land to one J. T. Murphy on July 15, 1927, and by mesne conveyances the appellants acquired title July 22, 1947 from the Monaghan & Murphy Bank, of Needles, California, with full knowledge of the restraining order then in effect. This deed, after describing the land conveyed, recites: '* * * Together with all springs, water rights, pipe lines and appurtenances thereunto pertaining and located on the above described real property.'
West Half of Section 12
James Curtin, on September 24, 1920, made an additional stock-raising homestead entry for the west half of Section 12. After his death in the fall of 1928, his widow Josephine H. Curtin received a patent therefor dated February 20, 1930. She later married Jos. T. Fitzgerald and the appellees obtained the property on August 8, 1941 from Mr. and Mrs. Fitzgerald by warranty deed. This deed, in addition to describing the land being conveyed, contained these ...