89 P. 512 | Ariz. | 1907
— This is a suit brought by the Smithville 'Canal Company and a large number 'of water users under such canal, and the Central Canal Company and the water users under such canal, against all the other canals in the Upper Gila Valley, taking their water from the Gila river, praying that it be adjudged and decreed that the individual plaintiffs, shareholders in said canal companies, be decreed to be the appropriators of a certain amount of the water in said river, and that the defendants be restrained from interfering with such right, and that the defendants be required to set forth what right and claims, if any, they have in and to the water, and that such rights be determined according to the priorities. All the defendant canal companies answered in the case, and the majority of them joined in their answer the individual water users under them. The San Jose Canal Company also filed a cross-bill against the plaintiffs, and its codefendants, asking that the rights of the water users under such canal to the water be determined and decreed to be prior to the rights of the other parties to the action. The Montezuma Canal Company, one of the defend- ■ ants, answered for itself alone, but set up in its answer the
There is no bill of exceptions or statement of facts, and, while the reporter’s transcript of evidence has been sent up to this court, it has not been certified by the judge below. The appellant has furnished us an abstract of record, which contains the complaint, the answer of the San Jose Irrigating Company, the answer of Frank Dysart, the answer of the Montezuma Canal Company, the answer and cross-complaint of the San Jose Irrigating Company, the findings and conclusions of law, judgment, motion for a new trial, minute
The first assignment of error is as follows: “The court erred in rendering any decree herein affecting the rights of all water users in the Upper Gila Yalley to the use of the water of the Upper Gila river, for the reason that the same is not within the issue made by the pleadings in this case. ’ ’ As the pleadings are not before us, we cannot consider this assignment.
The second assignment of error is as follows: “The court erred in attempting by its decree to control the rights of all appropriators and water users on the Upper Gila river, and thereby affecting the rights of this appellant, for the reason that none of the appropriators or water users except as the owners of canals were parties to this action or subject to the jurisdiction of the court.” Apart from the fact that the state of the record would seem to preclude our determining whether this assignment is well founded, it appears from the minute entries that an order was made 'by the court, on motion of the defendants, bringing in all individual appropriators and water users of the canal companies, and it does not appear from the record that any question was raised in court below by the appellant as to any noneompliance with this order.
The third assignment of error is as follows: “The court erred in making any findings or decree granting priorities to the use of the public waters of the Gila river to canals or canal companies not actual beneficial appropriators and users of water, for the reason that such rights exist only in the owners and occupants of and to which the water is beneficially applied.” In this contention we think the appellant is at fault in its construction of the findings and decree of the court. The decree does not, nor do the findings, give any priority to the use of the water to any canal or canal companies; nor does the court find or decree that any canal or canal company was án appropriator. of water. The court decreed to each of the canal companies the right to divert certain amounts of water, respectively, hut as carriers merely, and the right of each canal company so to divert water is made solely dependent upon the rights of water users and appropriators of water who take their water through the
The fourth assignment of error is insufficient under our rules, and does not seem to be argued in the brief of the appellant.
The fifth and sixth assignments of error are based upon the alleged error of the court below in refusing to receive in evidence a judgment, in a case numbered 505 in that court, between the Montezuma Canal Company and the San Jose Irrigating Company and certain individual defendants. It is stated in the appellant’s abstract that this decree was offered in evidence, and that it was excluded by the court upon objection; but as there is no bill of exceptions, and as the reporter’s transcript has not been certified as a bill of exceptions, the action of the trial court in that respect cannot be reviewed by us.
The other assignments of error are to the effect that the court erred in appointing a water commissioner to carry out the court’s decree; the contention of the appellant being that the court has by such appointment of a water commissioner given judicial functions to such officer, and that a delegation of judicial functions to an executive officer of the court is beyond the power of the court. By its decree the court adjudged that the several parties to the suit were entitled to receive and divert from the river each, for his or their own lands, from time to time, an amount of water, and in the
We find no error in the action of the court below, as the record is presented to us, and the judgment of the district court is therefore affirmed.
SLOAN, CAMPBELL, and NAYE, JJ., concur.