Brockman v. Grand Canal Co., Civil No. 740

Civil No. 740 | Ariz. | Mar 26, 1904

SLOAN,

J.—This case is controlled by the law applied in the case of Gould v. The Maricopa Canal Company (decided at this term), ante, p. 429, 76 P. 598" court="Ariz." date_filed="1904-03-26" href="https://app.midpage.ai/document/gould-v-maricopa-canal-co-6473498?utm_source=webapp" opinion_id="6473498">76 Pac. 598.

The organization of the appellee, the Grand Canal Company, its history, its practice with regard to the recognition of leases of its shares of stock by the holders thereof, give it the status found by this court to have been assumed by the Salt River Valley Canal Company in the case of Slosser v. Salt River Valley Canal Company, 7 Ariz. 376, 65 Pac. 332, and the Maricopa Canal Company in the case of Gould v. The Maricopa Canal Company. The record shows that Brockman, from 1878 to 1888, was the owner of a share of stock in the Grand Canal Company, and of the water-right privilege recognized as appurtenant thereto, and irrigated his land by means of the same from the company’s canal; that in the year 1888 he sold his land ánd water-right to one Shook; that in 1890 he repurchased his land without the water-right, and thereafter obtained water from the canal company by renting other water-rights, or shares of stock representing them, until the'year 1899, when he applied for water for the ensuing season, and was denied the same by the appellee upon the ground that he was not a shareholder or the lessee of a.share of stock.

The segregation of his water-right from the land, and the sale of the latter to Shook, and his repurchase of the land without the water-right, must be held to have been an abandonment by Brockman of his original right of appropriation. Under the law declared in the Gould case, when, after his repurchase, he began the irrigation of his land by means of water obtained from the appellee’s canal, he then and thereby initiated a new right of appropriation.

The judgment of the court below is reversed, and a decree will be entered enjoining the Grand Canal Company from in any manner or by any means whatsoever preventing a flow of water from the Salt River through the Grand Canal to the lands of plaintiff, described in the complaint, in an amount sufficient for the proper cultivation of the same, and not exceeding the amount used by him upon said land and furnished by the appellee since 1890, upon the payment to the appellee of its reasonable charge for such service, and a compliance with the reasonable rules and regulations governing the diversion, carriage, and distribution of water in its canal, whenever and at all times when the water available for diversion and carriage in the company’s canal is not required and used by appropriators of water under the canal having prior rights of appropriation.

Kent, C. J., Doan, J., and Davis, J.,. concur.