GILLESPIE LAND & IRRIGATION CO.
BUCKEYE IRR. CO. et al.
[75 Ariz. 378] Clark & Clark and W. T. Elsing, Phoenix, for appellant.
Jennings, Strouss, Salmon & Trask, Phoenix, for appellee Salt River Valley Water Users' Ass'n.
Gust, Rosenfeld, Divelbess, Robinette & Linton, Phoenix, for appellee Gila Valley Irr. Dist.
Whitney, Ironside & Whitney, Phoenix, for appellee Maricopa County Municipal Water Conservation Dist. No. 1.
Moeur & Moeur, Phoenix, attorneys for appellee Roosevelt Water Conservation Dist.
Fennemore, Craig, Allen & Bledsoe, Phoenix, for appellee Kennecott Copper Co.
Evans, Hull, Kitchel & Jenckes, Phoenix, for appellee Phelps Dodge Corp.
Floyd M. Stahl and L. M. Laney, Phoenix, for appellees Buckeye Irr. Dist. and Arlington Canal Co.
Kramer, Morrison, Roche & Perry, Phoenix, for appellee Roosevelt Irr. dist.
Reed, Wood & Mangum, Coolidge, for appellee San Carlos Irr. Dist.
STANFORD, Chief Justice.
This case presents an appeal from a judgment of the lower court dismissing the complaint in intervention filed by the Gillespie Land and Irrigation Company, which complaint in intervention had theretofore been filed in an action wherein the Buckeye Irrigation Company and Arlington Canal Company were plaintiffs, and the Salt River Valley Water Users' Association was one of 5,206 defendants. The purpose of the original litigation was to determine the rights of the plaintiffs and defendants in and to the waters of the Gila River System. The Gillespie Company, by its complaint in intervention, alleged that it had certain rights in and to the waters of the Gila River and its tributaries, and asked to have these rights determined and adjudicated and sought injunctive relief against the plaintiffs and defendants in so far as their use interfered with the claimed rights of the Gillespie Company. A large number of the defendants filed answers denying that intervener had any valid or existing appropriations[75 Ariz. 379] of, or rights to the use of, any of the waters of the Gila River and its tributaries.
At this stage of the pleadings intervener filed its motion that
'* * * the Court enter an order herein referring this cause to the State Water Commissioner for fact finding as provided in Section 75-114, Arizona Code Annotated, 1939, and such other provisions of the statutes as may apply to such proceeding.'
Then a number of defendants filed their separate applications for the court to direct a 'separate trial upon intervener's right of appropriation to the waters of the Gila River.' By such applications the defendants denied that 'the intervener ever had any valid appropriation of the waters of said river for the reason that its (intervener's) predecessors who claimed such right of appropriation owned none of the lands which it now claims to be irrigated and cultivated.' The application further stated that
'* * * if said cause is set for trial in its entirety, a trial will result extending over a period of months during which intervener will claim its dates of appropriation and various defendants will spend months in proving the dates of appropriations for their various respective lands, and that if it be then determined that intervener had no right of appropriation whatsoever, any other proof in the case will be unnecessary * * *.'
On July 17, 1947, Presiding Judge Henry C. Kelly entered an order that
'* * * the issues raised by intervener's claims of right to the use of waters of the Gila River and its tributaries, as set forth in intervener's pleadings, and defendants' answers thereto, be set for trial, for the purpose only of determining the extent, priority dates and status of intervener's claims to the appropriation, and use, of the waters of the Gila River, and that upon such determinations being made, the issues then remaining be tried and determined.'
The hearing on the foregoing order was had before Judge Gordon Farley, at which time the intervener introduced evidence both oral and documentary, at the close of which plaintiffs and defendants moved to dismiss the complaint in intervention.
The evidence to which the motion was addressed disclosed that the intervener owns and maintains a dam (Gillespie Dam) in the Gila River at a point below where the Salt River enters the Gila. This dam is approximately 18 miles west of Buckeye, Arizona. From the dam there extends a large canal for a distance of approximately 42 miles to the intervener's lands which are some 8 miles west of Gila Bend.
Beginning with the year 1881 up to 1919, various individuals and corporations had attempted to initiate appropriations from the Gila River at the present site of the Gillespie Dam. Several of the predecessors[75 Ariz. 380] in interest of the Gillespie Company
had organized canal companies and had built dams in the river, all of which had washed out. After 1901 the dam site and the rights-of-way for the canal were owned by a corporation known as the Gila Water Company. On March 24, 1919, a Mr. Frank A. Gillespie acquired all the capital stock of the Gila Water Company. At this time the Gila Water Company did not own any land, nor did it or its predecessors in interest own any land that might have been irrigated from any dam that might have been erected at the dam site in question.
On March 24, 1919, a W. J. Murphy and F. A. Gillespie entered into a contract wherein Murphy acted as the representative and agent of the Gila Water Company. Briefly, this contract provided for the transfer of the stock and bonds of the company to Gillespie, who would put up certain money to construct the dam and canals of the company to deliver water to 72,000 acres of Santa Fe land which Murphy asserted he had authority to convey, and which under the contract were to be conveyed to the Gila Water Company when acquired by Gillespie. Under date of December 5, 1916, the Santa Fe Pacific Railroad Company had given an option to purchase these lands to J. C. Adams, which Adams assigned to Murphy. On March 26, 1919, the lands were conveyed from the Santa Fe to F. A. Gillespie, who ...