Chandler v. Austin

42 P. 483 | Ariz. | 1895

BETTIUNE, J.

The plaintiffs, who are the appellees here, are the prior appropriators and users, fis between themselves and appellants, of certain water of the Salt River, and conduct their water through what is known as the “Tempe 'Canal” to the various points of use. Their appropriation and use of said water are for the purposes of irrigation and turning a gristmill known as “Hayden’s Mill.” Appellants, having appropriated and otherwise secured the use of water from the river subsequent to the appropriation of appellees, ■at a point in the river several miles above the point of diversion of appellees, for the purpose, among other things, of ■“creating, generating, and perpetuating, for public and private use, a water-power of not less than eight hundred horsepower,” now seek to mingle the water of appellees with their own, and run it from the river through their canal, over a precipice having a fall of forty or fifty feet, where the power plant is located, and deliver it back to appellees at a point in appellees’ ditch above any place of use by appellees, and were so actually n: oning and delivering said water when this action was ct mmeneed. An injunction was issued by the lower court, and, upon the 'final hearing of the case, made perpetual, restraining appellants-from interfering with the water of appellees, except to use it for mechanical purposes, provided that said water should after such use be returned by appellants to the natural channel of the river above the mouth of appellees’ ditch. This requirement, so far as we are aware, is in strict conformity with the provisions of the common law. At common law probably no such thing as an : rrigating ditch was known. Under its provision the usufruct is the only extent of a claim in water. The maxim “Water shi ild, and by right ought to, flow where it has been accustomed to flow” expresses the spirit of the common law in regulating, the use of water; so-that the doctrine that water, after being used by any person to the extent permitted by the con mon law, must be returned to its original channel not perceptibly diminished in quantity and undeteriorated in quality was established. But the common law has no application whatei or to the use of water with us. Not even the common-law doctrine of a riparian right is acknowledged by us, but is expressly repudiated by section 3198 of the Revised Statutes. So the common law can furnish no aid in the adjustment of water-rights in this territory. It seems to be admitted that there could be no objection to the use by a subsequent appropriator of the waters of a stream already appropriated, should the v* ater be returned uninjured to the channel above the point of diversion of the prior appropriation. But, as we have seen, this rule springs from the common law, which, as already staled, has no application in regulating our water-rights. We cannot perceive any reason why, under our system of the use of water, a person entitled to the use of a certain quantity of it should receive it at one place instead of another, provide! his rights are in no way affected or curtailed. The appellee:; claim a certain quantity of water for the irrigation of their lands and to run Hayden’s Mill. If they get it, why should the manner in which they get it matter to them, especially when one way may add useless burdens upon the exercise of absolr le rights of the appellants, and either way would equally subset’ve the rights of appellees.?

In onr view of the case, no rights of appellees are invaded by reason of the delivery of the water claimed by them into their ditch above the point of use by them. The evidence fails to show that any damage has accrued, or will accrue, to* them by having their water delivered to them at the point to-which appellants were delivering it at the commencement of this action, or that their remedies against appellants for a failure to so deliver the quantity of water to which appellees, are entitled, or for any damages otherwise suffered, would be in any manner different from those appellees would have-should appellants be required to deliver the proper quantity back into the channel of the river. We are of the opinion that the appellants were exercising an absolute right in the use of the water, of course subject to any penalty they may incur by the abuse of such right. We therefore do not think this is a ease for an injunction, but that the appellees have ample modes of redress at law for any damages which may be occasioned by any improper action of appellants in the use of ’ the water, or in delivering it back to appellees.

The judgment of the lower court is reversed, and the cause remanded for a new trial.

Hawkins, J., concurs.

Bouse, J., concurs in the result.