Herman W. KENGLA and Mary J. Kengla, his wife, and James M. Sawtelle and Ruby L. Sawtelle, his wife, for themselves and others similarly situated, Appellants,
Virgil P. STEWART and Wilma M. Stewart, husband and wife; Leo C. Rice and Margaret M. Rice, husband and wife; Hillary C. Nunnink and Dorothy Nunnink, husband and wife; on behalf of themselves and others similarly situated, Appellees.
[82 Ariz. 366] Joseph B. Judge and Lawrenece E. Holladay, Tucson, for appellants.
May, Lesher & Dees, Tucson, for appellees.
This is an appeal from a judgment in favor of plaintiffs-appellees and against defendants-appellants, the nature of which will be more particularly set forth hereafter. The parties will be hereinafter referred to as plaintiffs and defendants as they are designated in the trial court.
The facts are that early in the year 1925 Judge Sawtelle (then judge of the Federal Court District 2 in Arizona) joined his wife in subdividing 160 acres of desert land [82 Ariz. 367] outside the limits of the City of Tucson. The tract was divided into 158 lots.
Judge Sawtelle died in 1934. During his life he and his wife executed and delivered only 15 deeds, conveying title to lots sold in said subdivision, 13 of which contained the following provisions:
'The parties of the first part hereby convey to the parties of the second part a one one-hundred-and-sixtieth ( 1/160) interest in the well and equipment and water system now or hereafter located on said addition, upon condition, however, that the said parties of the second part, their heirs and assigns shall, when the owners of a majority of the lots in said addition shall so request, convey said one one-hundred-and-sixtieth ( 1/160) interest in said well and equipment and water system, to a trustee in trust for the use and benefit of all of the owners of lots in said addition, subject to such rules and regulations as such trustee may prescribe, or to a water users' association to be organized by the owners of lots in said addition, as such owners of lots may determine, and subject to such regulations and by-laws as such association may prescribe.
'The parties of the first part further agree that until such time as the owners of the majority of said lots in said addition shall request the transfer of said one one-hundred-and-sixtieth ( 1/160) interest to such trustee or such water users' association as above provided, the parties of the second part shall have the right to obtain water for use on said lot from said water system, provided they shall install and maintain in good order a first-class water meter and service pipe, said service pipe not to exceed one (1) inch in diameter, and shall pay his, her, its, their proportionate share of the cost of the pumping and delivery of such water, such cost to be determined on a meter basis.
'It is hereby understood and agreed that the said water right runs with and is appurtenant to the land. No future transfer of said water right or interest in said water system shall be valid unless made to the future purchaser or purchasers of said land.'
There is also contained in said deeds a number of restrictive covenants which it is not necessary to quote. A deed executed in November, 1927, did not carry any provision relative to the water rights. However,
in October, 1934, Judge Sawtelle and wife executed a correctional instrument incorporating therein the clauses quoted above.
Upon the death of Judge Sawtelle and his wife, the remainder of the lots in said tract were inherited by W. H. Sawtelle, Jr. and James Sawtelle, sons of the deceased. W. H. Sawtelle, Jr., became bankrupt in 1945 and in April 1946, 52 lots [82 Ariz. 368] owned by him were sold and conveyed to the plaintiff and wife, and to one Herman O. Rasche and wife, by the trustee in bankruptcy. The conveyance was made by quitclaim deed and simply showed the authority of the trustee to make such conveyance subject to conditions, restrictions, reservations, easements, etc., and subsequently, W. H. Sawtelle, Jr., executed a deed conveying the same lots (52 in number) to the said Kengla and Rasche, which included the following clauses:
'Subject to taxes, conditions, restrictions, reservations, easements, and/or rights of way of record.
'Together with all and singular the tenements, hereditaments and appurtenances thereunto belonging, or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof.
'To have and to hold, all and singular the said premises, together with the appurtenances, unto the said parties of the second part, ...