76 P. 598 | Ariz. | 1904
A rehearing was granted in this case at the last term of the court. As no opinion was filed upon the first hearing, we deem it proper to state now, with some fullness, the facts and our holding on these facts. The Maricopa Canal Company was organized under the general incorporation act of the territory during the year 1875. Its purpose, as expressed in its articles, was the carrying on and conducting of the business of supplying a portion of the Salt River Valley with water for irrigation, milling, manufacturing, and mechanical purposes. Its capital stock was divided into fifty
Upon these facts the trial court found that Gould, at the time he made application for water and was refused, was not entitled to water or to the service of the canal company for the following reasons: That Gould was not an appropriator of water from the Salt River; that the Maricopa Canal Company was organized for the purpose of supplying water for irrigation purposes to its own stockholders, and that all the water diverted and carried by said canal company in its canal belonged to and was the property of such stockholders and holders of its water-right deeds; that Gould was not a shareholder in the company, or the lessee of any share of stock, or the owner of any water-right deed issued by the company. Upon
The first and most important question is as to the status of the Maricopa Canal Company as a carrier of water. The finding of the court that the canal company, by its organization, limited its purpose and business to the supplying of water for irrigation to its own shareholders is not sustained by an inspection of its articles of incorporation nor by the history of the company. The purpose of the corporation, as expressed in its articles, was “to carry on and conduct the business of supplying a portion of the valley lying upon the north side of Salt River, county of Maricopa, territory of Arizona, in the vicinity of the town of Phoenix, with water for irrigation and for milling, manufacturing, and mechanical purposes, and to this end and for this purpose to purchase, construct, build, or dig such canals, ditches, or flumes as may be necessary to convey water from Salt River, . . . and conveying said water to such point or points in the above-described valley of Salt River as may be necessary for the disposal or use of said water.” It will thus be seen that there is nothing in its articles of association which indicates that its purpose was to limit its service as a carrier of water to any particular lands, nor is it expressed that its purpose was to serve its shareholders, and not the public generally. Had the purpose of the company in its organization been to become a public agency as a carrier of water, such purpose might fairly and reasonably be inferred from the language used in the articles. The history of the company shows that from the date of its organization until 1880 it supplied any and all landowners under the flow of its canal indiscriminately who applied for such service. The organization of the company, therefor, and its early history do not sustain the holding that the company was organized for the sole purpose of serving its shareholders as the private agency of such shareholders. It is true that the incorporators of the company as well as later shareholders regarded the ownership of a share of stock as carrying with it the right to have deliv
In the case of Slosser v. Salt River Valley Canal Company, 7 Ariz. 376, 65 Pac. 332, we held that a canal company having a similar organization, history, and relations to its consumers of water as shown in the case of the Maricopa Canal Company, was not a mere private agency having no other duty than the' supplying by means of its canal water' for particular appropriators whose agent it was, but occupied the status of a public agency, it having undertaken the diversion and carriage of water without regard to fixed contractual relations obligating it to perform such service for particular appropriators and limiting its service to the needs of such appropriators. We further found that as such agency such canal company does not possess the right to discriminate in rendering service as a carrier of water in any other way than the law in the first instance discriminates in recognizing the right of prior appropriation; that temporary leases or orders from shareholders, whether appropriators or not, conferred upon the holders no right entitling them, by virtue thereof, to water for use upon lands not owned or possessed by said shareholders; that the practice of the company recognizing such leases as valid was not in keeping with the spirit of our water laws, and was a clear violation of expressed provisions of our statutes, for the reasons that such canal company was not itself an appropriator of water, and that neither it, therefore, nor its shareholders as such possessed any power of control or any right of disposition over the water diverted and carried, save to transport and deliver the same to appropriators entitled to it under the law of prior appropriation; that water diverted from a public stream by such canal
Applying these principles to this case, it follows that the Maricopa Canal Company from the time of its organization has been a public agency as a carrier of water. It also follows that, if the water it diverted and carried remained public property until actually used by appropriators, it was the subject of appropriation to the same extent and in the same manner as when it flowed in the channel of the Salt River. Under our statutes an appropriator of water for irrigation is one who makes an application of public water upon land he.owns or possesses. To perfect such an appropriation two things are essential,—the ownership or possession of land, and the application thereon of public water to a beneficial use. No statute, either territorial or congressional, makes the ownership of the means of diversion essential to perfect the right of appropriation. Such means may be owned by another. Since, as stated in the Slosser case, a canal company organized for the' purpose of the diversion and carriage of water for irrigation, and not being the owner of arable and irrigable land, is not an appropriator of water, it follows that the diversion of public water would be unlawful were the consumers of such water not appropriators in the fullest sense. When the canal company is not itself the appropriator1, its only warrant for its diversion of water is that it supplies appropriators. All, therefore, whom it does supply and who make use of the water thus supplied for the irrigation of their lands are the appropriators whom, by its act of diversion and carriage, it undertakes to serve. It follows, therefore, that all persons owning lands under the flow of such a canal which have been irrigated by means of water furnished by such canal became appropriators, and possessed of rights of appropriation in the order of their priority. Had Gould, therefore, not been an appropriator before obtaining water
The stipulation referred to in the statement of facts which Gould was required to sign as one of the conditions upon which he was permitted to obtain water from the canal is of no effect in lessening the liability of the canal company or the rights of Gould as an appropriator of water. As we have said, the water which the canal company diverted and carried was public property, and hence the canal company in its distribution could enforce only such rules and regulations as would be necessary and’proper to secure economy of use, the rights of other appropriators, and its own right to collect a reasonable charge for its service. The law fixed and determined the extent and character of the appropriation made by each consumer of water, and the canal company possessed no power by contract to place any limitation upon such appropriation or to lessen its obligation in respect thereto. To recognize the binding force of the stipulation would be to concede to the company powers which it does not possess.
In the light of fuller discussion and a re-examination of the subject, we now hold, contrary to our holding in the Slosser case, that a canal company occupying relations to its
In the ease of the Maricopa Canal Company it appears that its practice has been at the beginning of each irrigating season to contract with such appropriators as may desire water for the ensuing irrigating season to supply such water in consideration of the payment of its charge for such service. It was argued in the brief of counsel for the canal company that if it be held that the canal company is obliged to furnish
Upon the authority of the Slosser ease, as modified in this decision, the judgment of the court below will be reversed, and a decree will be entered in this court establishing appellant’s rights as an appropriator of water to the extent needed for the irrigation of his lands, and requiring the appellee to deliver water to an amount not exceeding seventy miner’s inches, being the maximum amount heretofore used by him for said purpose, upon the' payment by appellant of such reasonable charge as may be established by appellee for its service and a compliance by appellant with the reasonable rules and regulations which may be established by said company in other, respects; and that said canal company be required to continue to render said service under said conditions so long as it may possess the ability so to do without injury to the rights of other appropriators having prior rights of appropriation.
Kent, C. J., Doan, J., and Davis, J., concur.