Bristor v. Cheatham

PHELPS and UDALL, Justices

(dissénting).

For the sake of clarity we shall term the court’s opinion of January 12, 1952 as the majority opinion and shall designate the present court’s opinion on rehearing as. the prevailing opinion.

*239 We held in the majority opinion that the lower court erred in dismissing the plaintiffs’ complaint as to the first cause of action and to that extent we now agree with the prevailing opinion which arrives at the same conclusion. However, the basis for our holding is so diametrically opposed to the rationale of the prevailing opinion authored by Justice WINDES that we are impelled to register our disagreement with the principles enunciated therein.

There has never been disagreement between any of the members of the court that the second cause of action stated a proper ''‘claim for relief,” and that the lower court erred in dismissing that cause of action instead of putting plaintiffs to their proof.

At the outset let it be known that in the intervening months since handing down the majority opinion we have completely .re-examined the law relative to percolating waters in Arizona and are even more firmly of the opinion (1) that the Congressional Desert Land Act of 1877 effected a severance from the land of all waters upon .and under the public domain; (2) that percolating waters being migratory were .not thereafter entitled to be considered as .inherent in the soil or a component part of •the earth and thereby the property of the owner of the overlying soil, as was held by this court in the case of Howard v. Perrin, 1904, supra; (3) that the Perrin decision and the later cases following it .should be expressly overruled; (4) that inasmuch as this never was the law the rule of stare decisis should not be applied; and (5), that no rights have been acquired thereunder which have ripened into “a rule of property”. [ 240 P.2d 188 .] Nor is there anything in the prevailing opinion that would cause us to change the pronouncement contained in the original majority opinion to the effect, (a) that at least since 1877 percolating waters have been and are public in character; (b) are subject to appropriation and application to beneficial use under the acknowledged and accepted customs and usages of this state until the legislature prescribes other methods; and (c) that no act of the legislature of the territory or of the state of Arizona was necessary to invest percolating waters with the character of public ownership.

Without reiterating what has been previously said we shall attempt to confine this dissent to pointing out the weaknesses, as we see them, in the prevailing opinion.

First, it cannot be said that lakes or pools underlying the lands located in the valleys of Arizona fed by percolating waters for centuries upon centuries and eons upon eons were not a source of water supply in existence when the Desert Land Act was passed in 1877 as much so as now, nor that they were not plainly embraced within the language of the act. Justice Sutherland in construing the language of this act in California Oregon Power Co. v. Beaver Portland Cement Co., supra [ 295 U.S. 142 , 55 S.Ct. 729 ], said:

*240 “ * * * it effected a severance of all waters upon the public domain, not theretofore appropriated, from the land itself. * * * ” (Emphasis supplied.)

This pronouncement is in irreconcilable conflict with the rule laid down by this court in Howard v. Perrin and subsequent cases which the prevailing opinion in effect reaffirms, enlarged by the reasonable use doctrine. If the act of Congress severed water from all sources of supply from the land, this court may not by its ipsi dixit reunite it with the land thereby divesting it of its public character and clothe it with the attributes of private ownership. In the face of this act and the decisions of the United States Supreme Court interpreting it the prevailing opinion is unable to do more than “assume” (but not admit) that percolating waters are public.

Great reliance is placed upon the excerpts quoted from the Restatement of the Law (Torts). One compelling reason why the Restatement should not be followed in the instant case is that the principle enunciated, if applied to the arid region of the West, conflicts with the “legislative enactment” of Congress in passing the Desert Land Act which is binding upon us. Further, the text along with the preliminary drafts and proceedings of the Institute discloses the authors were concerned only with riparian rights which included both surface and subsurface waters. Such a rule should have no weight in Arizona because the riparian right doctrine has long been repudiated in this jurisdiction. This principle is firmly imbedded in article 17, section 1, Constitution of Arizona:

• “The common-law doctrine of riparian water rights shall not obtain or be of any force or effect in the state.”

The scope note to Topic 3 of chapter 41, Restatement of Law, supra, refutes the suggestion that it is authority for the rule enunciated in the prevailing opinion. It states in part:

“In some Western States in this country, notably Arizona, Colorado, Idaho, Nevada, New Mexico, Utah and Wyoming, the common law of Riparian Rights has not been adopted. The courts in those jurisdictions have held that the law of Prior Appropriation, which grew up in the early pioneer days, is their common law." (Emphasis supplied.)

With respect to the application of the law of prior appropriation to underground waters the prevailing opinion makes the startling declaration that

“ * * * we can find no authority for the assumption that there exists any custom and usage to divert ground waters for irrigation purposes and thereby secure a prior right thereto. * * * even if there had existed such a custom, it cannot prevail nor operate contrary to legislative rule.”

*241 It also declares that “Under both the civil and common law, ground water belonged to the owner of the soil”, citing Kinney on Irrigation and Water Rights, 2d Ed., Vol. 1, section 563. An examination of this section in our opinion fails to confirm the statement above quoted.

This court in the case of Clough v. Wing, 2 Ariz. 371 , 17 P. 453, 455 , decided in 1888, after an exhaustive recitation of the history of irrigation stated that:

“ * * * From ‘time whereof the memory of man runneth not to the contrary,’ the rights of riparian owners were settled in the common law; and the right to appropriate and use water for irrigation has been recognized longer than history, and since earlier than tradition. * * * The same was found to prevail in Mexico among the Aztecs, the Toltecs, the Vaquis, and other tribes at the time of the conquest, and remained undisturbed in the jurisprudence of that country until now. * * *

“ * * * Up to about a third of a century ago, and but recently before this enactment [the act of the Arizona legislature of 1864], the territory of Arizona had been subject to the laws and customs of Mexico, and the common law had been unknown; and that law has never been, and is not now, suited to conditions that exist here, so far as the same applies to the uses of water. (Citing cases.)

“The ‘local customs’ of the act of 1866 [act of Congress], so far at least as it refers to rights to the use of water, is not a mere usage or custom, requiring proofs of undisturbed continuance beyond the memory of man. 1 Greenl.Ev. § 128. The courts take knowledge of them as of the public laws. * * * 1 Greenl.Ev. § 5, * *

See also Boquillas, etc., Co. v. St. David, etc., Ass’n, 11 Ariz. 128 , 89 P. 504 .

The above quotation makes it doubly clear that the citations of authorities in the prevailing opinion from riparian right jurisdictions can have no application to water problems in Arizona where the doctrine of prior appropriation has prevailed since before the Spanish conquest of Mexico.

It is our position that the act of the legislature in declaring certain of the waters of Arizona to be public is a voluntary recognition of a pre-existing right rather than the establishment of a new one and was therefore unnecessary except for regulatory purposes.

The prevailing opinion then asserts that the legislature has provided laws for the acquisition of the right to use public waters and if there ever existed a custom or usage which authorized the appropriation of these waters such cannot be given force of law contrary to statute. This is not entirely accurate. The legislature has never *242 passed a law relating to the acquisition of the right to use percolating water. And it was not until 1919 that it declared springs, lakes and underground channels to be subject to appropriation. Can it be seriously-contended that the act of Congress in severing the water from the land did not include the water from lakes and springs upon the public domain? Let us point out that the Congress of the United States has expressly declared all waters from every source to be 'public and subject to appropriation. That law is the supreme law of the land and the legislature of this state can pass no valid law in conflict therewith. Having passed no law with respect to the appropriation of percolating waters, their appropriation is controlled by the prevailing custom and usage relating to the appropriation of public waters in this area since long before it was acquired by the United States from Mexico. The legislature may prescribe the steps to be taken to perfect an appropriation of percolating waters. It may regulate their use; perhaps fix the level below which underground water may not be lowered; or prohibit their use altogether if the circumstances justify it. In short its powers relating thereto are plenary except- where Congress has entered the field or where the waters have already been appropriated. We believe that the Supreme Court of the United States in the California Oregon Power Co. case, supra, meant nothing more than -this when it said:

"* * * Nothing we have said is meant to suggest that the act, as we construe it, has the effect of curtailing the power of the states affected to legislate in respect of waters and water rights as they deem wise in the public interest. * * * ”

It certainly never intended to say that the legislature could pass a law that would declare the waters covered by the act of Congress to belong to the land and therefore privately owned by the owner of the soil under which they may be found. The ^failure of the legislature to prescribe such steps by which this character of water may be appropriated does not have the effect of changing its character of public ownership nor the right to appropriate it according^ to the local usage and custom by putting it to a beneficial use and that right will continue to prevail until the legislature does act.

The prevailing opinion, after holding that the rule first announced in Howard v. Perrin has now ripened into a “rule of property” very cautiously opines, before embracing the reasonable use doctrine, that for the future “Possibly the only source of power the legislature possesses (to regulate the use of water) is the police power for the general welfare.” If this be true there are rough times ahead for the reason that Arizona will be on an unchartered sea. While there are isolated instances where police power has been invoked to regulate water to solve a particular local problem, *243 our research attests that no jurisdiction in the United States has attempted to regulate on a state-wide basis the use of waters, either surface or percolating, under its inherent police power.

The magnitude of the regulatory task ahead becomes more apparent when it is realized that three-fourths of the irrigated crops grown in Arizona last year were produced from pumped waters. And it becomes even more appalling when we consider that the volume of underground waters being annually withdrawn is many times greater than the recharge. We predict that the mad race to “mine” percolating waters which are our greatest natural resource will continue unabated until such time as these waters are declared to be public in character and suitable regulatory measures are adopted. We are confident that the inexorable judgment oí time will confirm the views expressed in the original majority opinion and in this dissent.

It is asserted in the prevailing opinion that a great majority of the states confronted with this problem in recent years have adopted the reasonable use doctrine. As applied to riparian right jurisdictions this is probably a correct statement. We note however that the jurisdictions cited in support of the assertion are from the Atlantic and Pacific seaboards where too much rather than too little water is the problem. It is noticeable that the arid states of the West are not included. The great majority of the latter do not stop short of prior appropriation and beneficial use in regulating the use of both their surface and percolating waters.