89 P. 504 | Ariz. | 1907
Lead Opinion
— The plaintiff in error is the owner of a tract of land in Cochise county granted by the Republic of Mexico to Ignacio Gonzales and Nepomeceno Felix in the year 1833. The title to this tract of land was confirmed to the predecessors in interest of the plaintiff in error and successors in interest to the original grantees, by the court of private land claims, and, under the judgment of eonfirmanee of said land
The questions thus presented are historical as well as legal, and are of great interest. We will consider them in the order stated. As is well known, after the treaty of Guadalupe
“All rivers, creeks and streams of running water in the territory of Arizona are hereby declared public, and applicable to the purposes of irrigation and mining, as hereinafter provided.”
“All rights in acequias, or irrigating canals, heretofore established shall not be disturbed, nor shall the course of such acequias be changed without the consent of such established rights.”
“All the inhabitants of this territory, who own or possess arable and irrigable lands, shall have .the right to construct public or private acequias (canals), and obtain the necessary water for the same from any convenient river, creek or stream of running water.”
“Whenever such public or private acequias (canals) shall necessarily run through the lands of any private individuals not benefited by said acequias, the damages resulting to such private individuals, on the application of the party interested, shall be assessed by the probate judge of the proper county in a summary manner.”
*134 “No inhabitant of this territory shall have the right to erect any dam, or build a mill, or place any machinery, or open any sluice, or make any dike, except such as are used for mining purposes, or the reduction of metals, as provided for in section 6 and 7 of this chapter, that may impede or obstruct the irrigation of any lands or fields, as the right to irrigate the fields and arable lands shall be preferable to all others; and the justices of the peace of the respective precincts shall hear and determine the questions relative to all such obstructions in a summary manner, and cause the removal of the same by order directed to the constable of the precinct or sheriff of the county, who shall proceed to execute the same without delay.”
“When any ditch or acequia shall be taken out for agricultural purposes, the person or persons so taking out such ditch or acequia shall have the exclusive right to the water, or so much thereof as shall be necessary for said purposes, and if at any time the water so required shall be taken for mining operations, the person or persons owning said water shall be entitled to damages, to be assessed in the manner provided in section 6 of this chapter.”
“During years when a scarcity of water shall exist, owners of fields shall have precedence of the water for irrigation, according to the dates of their respective titles or their occupation of the lands, either by themselves or their grantors. The oldest titles shall have precedence always.”
“The regulations of acequias, which have been worked according to the laws and customs of Sonora and the usages of the people of Arizona, shall remain as they were made and used up to this day, and the provisions of this chapter shall be enforced and observed from the day of its publication. ’ ’
The laws of New Mexico contained similar provisions on the subject of water, and in fact little or no change thereof was made or attempted by the Howell Code.
It is contended by counsel for plaintiff in error that neither the Bill of Rights nor the statutes above quoted are to be construed as repugnant to or inconsistent with the doctrine of riparian rights as recognized by the common law of England. In Clough v. Wing, 2 Ariz. 371, 17 Pac. 453, this court, speaking by Mr. Justice Barnes, said: “Up to about a third of a century ago, and but recently before this enactment [referring to the Howell Code] the territory of Arizona had been subject to the laws and customs of Mexico, and the common
As stated by the supreme court of Utah, in Stowell v. Johnson, 7 Utah, 215; 26 Pac. 290: “At common law the riparian proprietor is entitled to have the water flowing, in quantity and quality, past his land as it was wont to do when he acquired title thereto, and this right is utterly irreconcilable with the use of water for irrigation.” Similar declarations have been made by the supreme courts of Colorado, Nevada, and Wyoming. Coffin v. Left-Hand Ditch Co., 6 Colo. 443 ; Jones v. Adams, 19 Nev. 79, 3 Am. St. Rep. 788, 6 Pac. 442; Reno etc. Works v. Stevenson, 20 Nev. 269, 19 Am. St. Rep. 364, 21 Pac. 317, 4 L. R. A. 60; Willey v. Decker, 11 Wyo. 496, 100 Am. St. Rep. 939, 73 Pac. 211. Even in those states where the common-law doctrine of riparian rights is applied, the impossibility of reconciling the common law with the right of appropriation is recognized. Lux v. Haggin, 69 Cal. 255, 10 Pac. 675. In the latter case, the court say: “The doctrine of appropriation, so called, is not the doctrine of the common law.” The statutes of Nevada adopted the common law of England in the following words: “The common law of England, so far as it is not repugnant to, or in conflict
It is true, as pointed out by plaintiff in error, that the legislature in 1885 amended the provision of the Howell Code adopting the common law as follows: “The common law of England so far only as it is consistent with and adapted to the natural and physical condition of this territory, and the necessities of the people thereof, and not repugnant to or inconsistent with the constitution of the United States, or Bill of Rights, or laws of this territory or established customs of the people of the territory is hereby adopted and shall be the rule of decision in all the courts in this territory. ’ ’ Laws 1885, p. 133, No. 68. It is further pointed out that, by the revision of 1887, the common-law doctrine of riparian rights was in terms abolished, in the following language: “The common-law doctrine of riparian water rights shall not obtain or be of any force or effect in this territory.” Rev.-Stats. 1887, par. 3198. If the legislative intent had been, prior thereto, in doubt, these provisions of the statute, under the rule applicable to the construction of statutes, would have weight, and possibly controlling weight, on the side of the view that the common-law doctrine of riparian rights had theretofore been recognized. The conflict between the legislation of the territory prior to 1885 and the common law with respect to riparian rights appears to us to be so sharp and well defined that the legislature may not, notwithstanding the amendments referred to, be presumed to have recognized thereby the common law as theretofore applying in the territory.
"Whether or not the applicability of the common law to the physical conditions which prevail in the territory should enter into the construction to be given the statute, and whether or not the subsequent legislation can be construed as a reeogni
If the legislature of the territory may confer riparian rights by statute, it seems to us clear that it may do so upon the condition that such rights thus conferred may subsequently be modified or abrogated. Where the legislature has, subject to future legislation, conferred riparian rights to the use of water from flowing streams upon riparian owners, the latter cannot be said to be vested in such a sense as that they may not be subsequently abrogated by statute, at any rate when the riparian owner has made no use of the water permitted him at common law. It is conceded that no use of the water of the San Pedro river was made by any predecessor in interest of plaintiff in error between 1864 and 1887. If, therefore, the statute of 1864 conferred riparian rights as recognized at common law upon the predecessors in interest of the plaintiff in error, and this grant was limited by the condition that they might be, by future legislation, abrogated, it follows
The contention of the plaintiff in error that, under the treaty of Guadalupe Hidalgo, the owner of a Mexican grant, title to which had vested at the date of the treaty, retained all vested rights of property to which he was entitled under the laws of Mexico, is undoubtedly sound. The legislature of Arizona has no power or authority to deprive any such owner of any such rights, at least without due compensation. The plaintiff in error is the owner of such a grant. It remains to be determined, therefore, what, under the laws of Mexico prior to 1854, were the rights of an owner of land within the Gadsden Purchase to the water of a stream flowing through his land. Counsel for plaintiff in error asserts in his brief that these rights were substantially those of a riparian owner at common law. In support of this assertion, he cites the celebrated case of Lux v. Haggin, supra. We have carefully considered this ease in its bearing upon this question, and have reached the conclusion that the learned court, in reviewing the subject in the light of the authorities upon Spanish and Mexican law available to it, did not define with certainty the rights of a riparian owner of land in California prior to the cession. The court laid down as its general conclusion that: “By the law of Mexico, the running waters of California were not dedicated to the common use of all the inhabitants in such sense that they could not be deprived of the common use.” This general declaration is construed by the court subsequently in its opinion as follows: ‘ ‘ The waters of innavigable rivers, while they continued such, were subject to the common use of all who could legally gain access to them for the purposes necessary to the support of life. But the Mexican government possessed the power of retaining the waters in their natural channel, or of conceding the exclusive use of portions of them to individuals or corporations, upon such terms or conditions, and with such limitations, as it saw fit to establish by law. ’ ’
Here, it seems to us, is a clear declaration, assuming it to correctly state the Mexican law, that the use to which the waters of an innavigable river or stream might be put was the subject of legislative control. If the legislature, therefore, could concede to individuals or corporations exclusive right to the use of the water of innavigable streams, we are unable to see how riparian rights, in the nature of those recog
Whatever may have been the general law throughout the Republic of Mexico on the subject of wafer, it is reasonably certain that in the state of Sonora the doctrine of appropriation, as now recognized, was to some extent in force by custom. In this territory irrigation was practiced in the Santa Cruz valley prior to the cession, and it is well known the right of appropriation without regard to the riparian character of the lands was there in force probably from the time when the Spaniards first settled in the valley. Our statutes, as well as those of New Mexico, seem to have had their origin in the Mexican law, as modified by custom. To concede, therefore, to the owner of the grant in question riparian rights, would be in effect to concede to it what his predecessors in interest do not appear to have possessed prior to the cession under the Gadsden Purchase.
We think the court below did not err in applying the existing law of the territory in its decision of the questions at issue,
KENT, C. J., and CAMPBELL, J., concur.
Concurrence Opinion
— I concur with the reasoning and deductions in the opinion of Mr. Justice Sloan, but deem it appropriate, despite the conelusiveness of that reasoning, to state a broader ground upon which the same conclusion is inevitable. The essence of the common law is flexibility and adaptability. It is not a body of fixed rules, but is the best product of human reason applied to the premises of the ordinary and extraordinary conditions of life, as, from time to time, they are brought before tribunals. Hence, though the common law is homogeneous, yet it finds widely different expression in different jurisdictions. Should the common law become so crystallized that its expressions must take the same form, wherever the common-law system prevails, irrespective of physical, social, or other conditions peculiar to the locality, it would cease to be the common law of history, and would be but an inelastic and arbitrary code. The common law historically has carried with it, and as part of it, the principle that precedents —earlier deductions from known conditions — must yield to the reason of different or modified conditions. This is expressed, and analogously applied, in People v. Appraisers, 33 N. Y. 461, where it is said: “No doctrine is better settled than that such portions of the law of England as are not adapted to our condition form no part of the law of this state. This exception includes, not only such laws as are inconsistent with the spirit of our institutions, but such as were framed with special reference to the physical condition of a country differing widely from our own. It is contrary to the spirit of the common law itself to apply a rule founded on a particular reason to a case where that reason utterly fails. ’ ’ In Arizona, neither prior to its acquisition from Mexico nor since, has the doctrine of riparian rights had practical application or recognition. Great property rights have become established upon a different theory. The physical conditions and the demands of agriculture and mining are utterly inconsistent with its applicability. It would be entirely destructive of an agricultural system, which, though now great and of immense value, is but on the threshold of its development. This precise point has been considered and adjudicated by the supreme
Without further elaboration of my reasons, I state my belief that the utter incompatibility of the doctrine of riparian rights with the conditions of life in this territory is an all-sufficient reason, under the principles of the common law itself, to hold that that doctrine is not here in force.