Leonard VANCE and Josephine S. Vance, his wife, Petitioners,
Obed M. LASSEN, State Land Commissioner of the State of Arizona, The State Land Department and the State of Arizona, Respondents.
Herbert Mallamo, Phoenix, for petitioners.
Robert Morrison, Atty. Gen., and Herbert B. Finn, Sp. Asst. Atty. Gen., for respondents.
LA PRADE, Justice.
An alternative writ was issued in this matter upon the application of petitioners [82 Ariz. 189] directing the State Land Commissioner to issue to the petitioners a permit to drill a new well in an area that had theretofore been designated as a critical groundwater area or show cause for its non-issuance.
The petition for the writ alleged that the petitioners were: (1) the owners of the SE1/4 of Section 4, T1S, R4E, G&SRB&M; (2) that this land was located within the exterior boundaries of Salt River critical groundwater area theretofore regularly established; (3) that the lands had been continuously irrigated and cultivated for more than five years prior to June 23, 1948, and continuing to the time of filing the application for a permit; (4) that on January 18, 1957 they regularly applied for a permit to drill a new irrigation well on the lands to produce water to be used on them, as provided by section 45-313, A.R.S., and assigned as reasons an insufficient water allotment by the Salt River Valley Water Users' Association for the growing year
of 1957; and (5) that the Land Commissioner had denied their application.
In the application filed with the Commissioner all of the foregoing facts were set forth. Applicants' application was for a permit for a 'supplementary well'. The Commissioner, in his letter of rejection, said that he was without authority to issue a permit for a 'supplementary well'.
The return to the writ admitted all the fact allegations of the application for the permit and the petition for the writ. Respondent denied that petitioners were entitled to a 'supplementary well' for the reasons set forth in Ernst v. Collins, 81 Ariz. 178, 302 P.2d 941. By stipulation of counsel it appears that there never has been an irrigation well on the lands in question. We conclude that the application for the permit was in truth and fact an application for a new well in a critical groundwater area. There are no provisions in the groundwater code, Article 7 of Chapter 1, Title 45 of A.R.S., sections 45-301 to 45-324, relating to or authorizing 'supplementary wells'.
We believe that the pleadings create this issue: Can the State Land Commissioner lawfully reject an application for a permit to drill a new well to irrigate lands in critical groundwater area for lands that qualify under the provisions of section 45-314?
Our present groundwater code, and particularly sections 45-313 and 45-314, A.R.S., furnish the answer to the question propounded. These sections read as follows:
' § 45-313. Application for permit to construct irrigation well within critical groundwater area
'A. No person, except as otherwise provided, shall construct an irrigation well in a critical groundwater area established as provided by this article without a permit therefor.
[82 Ariz. 190] 'B. A person proposing to construct an irrigation well within a critical groundwater area shall make application to the department for a permit authorizing such construction which shall contain the following:
'1. Name and address of applicant.
'2. Name and address of the owner of the land on which the well is ...