VANTEX LAND AND DEVELOPMENT COMPANY, Inc., a corporation, Appellant,
Jack M. SCHNEPF and Maude Schnepf, Appellees.
[82 Ariz. 55] Herbert Mallamo, Phoenix, for appellant Leslie Parry, Phoenix, of counsel.
Snell & Wilmer, Phoenix, for appellees.
This case involves the respective rights of Vantex Land and Development Company, Inc., plaintiff-appellant, and Jack M. Schnepf and Maude Schnepf, defendants-appellees, to the use of certain waste water. The facts either undisputed or such as could be found by the trial court are that defendants and plaintiff own adjoining tracts of land, plaintiff's lands lying to the south and west of defendants. Adjoining defendants on the south and southeast is land owned and farmed by one Boyd Lisonbee and adjoining Lisonbee on the south is land owned and formed by Lawrence Ellsworth. All these lands and other surrounding lands have been reclaimed for agricultural purposes and irrigated by the pumping of underground waters. Prior to reclamation there passed diagonally across these lands in a northwesterly direction a dry wash known as Sonoqui Wash into which drained surface water created by excess rain. Subsequent farming activities somewhat obliterated the wash as such and the respective owners, generally following the channel of the old wash, bulldozed a drain ditch to care for the drainage of these waters. This drain ditch meandered in a northwesterly direction from Ellsworth's land across Lisonbee's and defendants' holding to plaintiff's land. The irrigation operations of Lisonbee and Ellsworth result in a certain amount of waste or 'tail' water which they permit to drain into the drain ditch and flow upon defendants' land. There was evidence to the effect that Lisonbee and Ellsworth had an understanding with defendants that defendants would permit them to drain their excess waste water on their land provided they could use the same. Some of plaintiff's own waste water also drained off of plaintiff's land over defendants' land and into the drain ditch. On April 12, 1954, the state land commissioner, pursuant to plaintiff's application, issued to the plaintiff a permit to appropriate the water of Sonoqui Wash. Where the drain ditch enters defendants' land, they constructed a dam, culvert, headgate and sump thereby intercepting the flow of this waste water, impounding the same and using it for irrigation. Plaintiff seeks to enjoin defendants from intercepting and stopping the flow of this water.
Plaintiff filed a complaint asking that the defendants be enjoined from impounding, diverting or interfering with the free flow of this water. A temporary restraining order was issued together with an order that defendants show cause why a temporary or permanent injunction should not issue. After hearing wherein the foregoing facts were established, the court expressed the view that plaintiff was not entitled to an injunction and dissolved the [82 Ariz. 56]
temporary restraining order. Plaintiff appeals.
The question presented for decision is whether the defendants are legally obliged to allow these waste waters to pass through their land without interruption for the use and benefit of plaintiff. We are not here concerned with the obligation, if any, not to intercept the drainage of natural surface waters. Plaintiff's position is that the waters drain into a natural channel crossing defendants' land, thereby becoming subject to appropriation, and that plaintiff was entitled to an easement across defendants' land for the transportation thereof. It is likewise claimed by plaintiff that defendants by their conduct are estopped to deny plaintiff this easement.
As to surface water, the general rule is that whatever servitude, if any, with which the lower land is burdened in favor of the higher land is limited to such water as naturally flows and the owner of the dominant estate may not artificially increase this burden to the detriment of the owner of the lower estate. 56 Am.Jur., Waters, section 71, page 555. Applying this rule to the defendants, aside from permission by reason of arrangements with Lisonbee and Ellsworth, the latter would have no right to artificially create the equivalent of surface waters and drain them upon defendants' land and interfere with defendants' farming operations. Defendants would have a right to protect their property therefrom by stopping the flow unless prevented by the fact that the drain ditch into which the waters were conducted upon defendants' land generally follows the contour of Sonoqui Wash and the fact that plaintiff had a permit to appropriate the waters of the wash. The fact that at one time prior to the irrigation of these lands there existed a wash, dry except for the intermittent accommodation of natural surface waters, and the fact that the existing drain ditch might serve the same purpose do not increase the burden of the servitude placed by law upon defendants' land and thereby require the defendants to receive waste water from the dominant estate. Anderson v. Drake, 24 S.D. 216, 123 N.W. 673, 27 L.R.A.,N.S., 250; Podesta v. Linden Irrigation District, 141 Cal.App.2d 38, 296 P.2d 401.
Defendant Jack M. Schnepf testified in effect that he was not intercepting natural surface water and that he intended to fill in the drain ditch in his farming operations by putting into cultivation an additional 20 to 30 acres. The trial court could well have decided that to require defendants to permit the passage of this waste water across their farm would substantially interfere with their farming operations to their detriment.
The defendants are not obliged to leave this drainage wash in its natural state in order to furnish the upper owners a drain ditch to carry their surplus waters. [82 Ariz. 57] The law imposes no such servitude upon the lower landowner. The extent of defendants' obligation is limited by the extent of the servitude imposed by law and not by that imposed through artificial farming operations on the dominant estate. If defendants can utilize the wash without violating any obligation imposed by the limitation of the servitude the law recognizes, there is no reason why they should not be allowed to do so.
There is much interesting discussion in the briefs concerning the question whether the plaintiff can under our statutes appropriate this waste water. We think this question is immaterial to a disposition of the case and we do not pass upon it.
Since the defendants are not obligated to receive this artificially-developed water, the fact that plaintiff receive a permit to appropriate the same does not impose upon defendants the obligation to permit its transportation across their land to enable plaintiff to complete its appropriation by putting it to beneficial use. Easements or rights of way for conducting water across another's land are not created merely by a permit to appropriate. If plaintiff has a valid permit to appropriate this waste water, it must find some other means of conducting it than by means of a gratuitous easement over defendants' property. That
defendants stopped the water when it entered their property and are utilizing the same is of no concern of plaintiff since defendants are not obligated to deliver it to plaintiff.
To enjoin the defendants from stopping this water would encumber their property with the burden of a servitude the law does not authorize. Nothing herein should be considered as announcing any principles that might have a bearing upon the rights concerning the flow of natural surface waters, nor is there any question herein of any rights that may be acquired by prescription.
Plaintiff contends that under the evidence the defendants by their conduct are now estopped to intercept this water for the reason that they permitted plaintiff to expend monies in the construction of installation for its capture and utilization. The evidence is not sufficient to estop defendants from denying plaintiff's right to an easement over their land. In order for the plaintiff to invoke an equitable estoppel, it must clearly show that there was reliance upon the conduct and conversations of the defendants. 19 Am.Jur., Estoppel, section 83, page 730. There was evidence of two purported conversations between Virgil J. Vance, president of plaintiff corporation, and defendant Jack M. Schnepf wherein Schnepf was supposed to have indicated he would not hold the water. There was evidence likewise that defendants did not protest the granting of plaintiff's permit to appropriate. The conversations[82 Ariz. 58] were after plaintiff had commenced the construction of its works and could not well be considered as having been an inducing cause of plaintiff's acts. The defendants were not obliged to protest plaintiff's application for a permit to appropriate merely because plaintiff might have thought such permit, if allowed, would give an easement over defendants' land. The plain fact is that plaintiff's complaint refutes the idea there was any reliance upon defendants' conduct. Plaintiff expressly alleges that it constructed its works 'in reliance upon the aforesaid application and permit granted'. The trial court clearly was not required to rule that defendants were estopped by their conduct.
The judgment is affirmed.
UDALL, C. J., and PHELPS and LA PRADE, JJ., concur.
STRUCKMEYER, Justice (dissenting).
I am unable to agree with the disposition of this case. The problem presented here arises out of conditions peculiar to the desert regions of the western part of this country and is a matter of first impression in this state. It is my conclusion that the majority have adopted and applied a rule of law which is not adapted to the natural and physical conditions of the people of this state and one which in this specific instance achieves an extremely harsh and oppressive result. I am compelled to these conclusions by consideration of facts which in part are undisclosed in the majority opinion and, therefore, a further statement of the matters which are pertinent to a complete decision is necessary.
Farming developed around Sonoqui Wash in the 1940's being carried on by the pumping of water from underground sources applied by irrigation to the surface. There, as is true everywhere in irrigation, surplus water wastes off the land to which it is applied. This is inevitable because the water must flow across the surface of the soil for a sufficient length of time to penetrate to the depth of the plant root system. In years past, the waste water from farming emptied into Sonoqui Wash, and with the possible exception of one year, pased down the channel, where it dissipated in the sand and gravel of the desert.
It should be immediately understood and emphasized that Sonoqui Wash is a desert wash similar to Coyote Wash except as to size. Coyote Wash was held by this court to be a natural watercourse, Southern Pac. Co. v. Proebstel, 61 Ariz. 412, 150 P.2d 81. It should be further understood that the area in and about Sonoqui Wash has been designated as 'critical' by the State Land Commissioner so that the drilling of
irrigation wells to reclaim other desert lands is now forbidden by law, Southwest Engineering Co. v. Ernst, 79 Ariz. 403, 291 P.2d 764; Consequently, while there are many thousands of acres of desert land [82 Ariz. 59] suitable to irrigation in this region, there is no underground source of supply of water available for that purpose.
In the spring of the year 1953, the plaintiff applied for and obtained a permit to appropriate 1,280 acre-feet of water out of Sonoqui Wash. This was under the appropriate statutes of which Section 45-101, subd. A, A.R.S.1956 is in part a rescript:
'The waters of all sources, flowing in streams, canyons, ravines or other natural channels, or in definite underground channels, whether perennial or intermittent, flood, waste or surplus water, and of lakes, ponds and springs on the surface, being to the public and are subject to approprition and beneficial use as provided in this chapter.' (Italics ours.)
By this section all waters found flowing in natural channels belong to the public and may be appropriated. No distinction is made between natural and artificially produced water; the only condition to appropriation is that it be found in a natural channel. The public purpose of this statute is, of course, apparent. In the desert no commodity has greater value than water. To the end that the ultimate beneficial use may be made of such a valuable substance and to encourage its use and re-use, the legislature has provided that the water, the subject matter of this litigation, may be validly appropriated, and when so appropriated, it is, of course, protected to the same extent as other appropriations.
The following testimony of the President of appellant Vantek Company is uncontradicted:
'Q. What did you do to capture these waters, what improvements did you put there on the land to make use of the water? A. First we took a dozer and made a lake that probably covers five acres, then we have an underground pipeline that goes 1643 feet, a 24-inch pipeline that is built on a kind of decline, that goes into a well that is 38 feet deep and then we have another installation there with a motor and a pump that pumps the water out of this 30-foot well.
'Q. What happens to it after it gets there? A. We have 75 horsepower motor that pumps this water 2700 feet up to the top of the 320 that we irrigate with ...