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[218 U.S. 371, 372] Messrs. John J. Hawkins, Thomas Armstrong, Jr., and C. L. Rawlins for appellant on original submission.
Mr. Thomas Armstrong, Jr., for appellant on oral argument.
Mr. Walter Bennett for appellees.
Mr. Justice White, delivered the opinion of the court:
The decree of the supreme court of the territory of Arizona (11 Ariz. 99, 89 Pac. 512), which is appealed from, affirmed a decree of a district court of the territory, determining the rights of appropriators within the county of Graham to the waters of the Gila river.
In the brief of counsel for the appellee it is suggested that the appeal should be dismissed because the matter in dispute does not exceed the sum of $5,000, and because the appellant has no substantial financial interest in the cause. We think, however, that the record sufficiently shows that the jurisdictional amount is involved, and that the appellant has such interest as entitles it to prosecute the appeal. We shall, therefore, consider the case upon the merits.
The issues below were made up by an amended complaint, in which the Smithville Canal Company and the Central Canal Company and the water users under these canals were plaintiffs, and the Montezuma Canal Company and other canal companies, as also the water users under such canals, were defendants. The general nature of the controversy is indicated by the character of the [218 U.S. 371, 373] decree entered in the district court, just stated. Incorporated in the answer of the Montezuma Canal Company and its water users were averments in the nature of a cross bill against the San Jose Irrigating Company and the San Jose Extension Canal Company and various other defendants, setting up a former judgment recovered in the district court of Graham county by the Montezuma Canal Company, as settling between the Montezuma Company and said codefendants rights in the water of the river. The San Jose Irrigating Company, it is to be remarked, was incorporated in 1892, and in 1904 the San Jose Extension Canal Company was incorporated, and undertook the management, repair, and operation of a part of the canal previously under the control of the San Jose Irrigating Company.
The trial court made findings of fact and stated conclusion of law thereon, but certified no rulings in respect to the admission or rejection of evidence. The supreme court of the territory made no express findings of fact, but entered a general judgment of affirmance, manifestly based upon the correctness of the findings of the trial court. Under such circumstances the findings of the district court furnish a sufficient statement of the facts for the purposes of this appeal. Stringfellow v. Cain, 99 U.S. 610 , 25 L. ed. 421. The question for decision, therefore, is whether such findings are sufficient to support the decree. Ibid.
We are concerned, however, only with the error assigned by the Montezuma Canal Company, as that company alone appealed to the supreme court of the territory, and it is the only party to the record now seeking a reversal of the judgment of affirmance entered by the appellate tribunal.
The contentions urged by the Montezuma company are twofold: First, that due effect was not given to the prior judgment which it pleaded, and which determined its rights in the water of the Gila river as against the [218 U.S. 371, 374] appropriators of waters from that river at points above the head of its canal; and, second, that error was committed in the appointment of a so- called water commissioner, charged with the duty of distributing the water among the different canals, according to the adjudged priorities. There being, then, no controversy in respect to the rights to water decreed in favor of the canals situated below the head of the Montezuma Canal Company, the findings in respect to those canals need not be particularly referred to.
Before stating the contents of the decree which was entered in the trial court, we make a condensed statement of the facts embodied in the findings upon which the decree was based, in order to a comprehension of the controversey arising for determination.
There are 23,728 acres of land in the county of Graham, territory of Arizona, which are irrigated by water diverted from the Gila river by means of twenty-five ditches or canals. These canals extend from a point in section 29, township 6 south, range 28 east, at first in a southwestwardly and then in a northwestwardly direction, to a point 41 miles distant at the northeast corner of the southeast quarter of section 35, township 4 south, range 23 east. Commencing with the head of this irrigation system the canals in question, in their order as respects the flow of the waters of the river and the number of acres irrigated by each canal, are as follows: Brown, 100 acres; Sanchez, 400 acres; Mejia, 320 acres; Fourness, 260 acres; San Jose, 3,000 acres; Michelena, 450 acres; Montezuma, 3,750 acres; Union, 2,900 acres; Sunflower, 400 acres; Graham, 962 acres; Central, 2,675 acres; Oregon, 1,100 acres; Smithville, 1,760 acres; Bryce, 515 acres; Dodge, 450 acres; Nevada, 800 acres; Curtis, 800 acres; Kempton, 850 acres; Reid, 100 acres; Ft. Thomas, 960 acres; Thompson, 240 acres; Military, 400 acres; Saline, 46 acres; Zeckendorf, 50 acres. The Montezuma canal was first constructed. The six canals situated above the head of that canal were constructed as follows: The San Jose and the Michelena in 1874, the Mejia in 1877, the Sanchez in 1883, the Fourness in 1891, and the Brown in 1896. The first canal below the Montezuma is called the Union, and [218 U.S. 371, 375] was constructed in 1879. Among other things it was found that the Union canal 'carries water for 100 acres that were reclaimed in 1874, and irrigated by water that was then diverted from the river and carried to the land by the Montezuma canal. . . .'
Embodied in the 'conclusions of law' made by the court is a statement that William Ellsworth and other named individuals 'were the persons or successors in interest to the persons who, in 1875, appropriated water for and applied it to the first 300 acres of land' in certain named sections, 'and who are diverting and carrying water thereto through the San Jose cannal. . . .'
One half of a miner's inch per acre was found to be necessary for the irrigation of the lands served by the various canals. It was further found that a surface flow of 7,500 miner's inches in the Gila river at the head of the irrigation system furnished more water than is needed to irrigate the entire acreage shown by the evidence to have been in cultivation in the year 1904; and it was also found that 'there is a greater flow than this amount during the larger part of the year, so that the amount of water available for irrigation purposes is more than one half of a miner's inch per acre for a greater length of time each year than the time during which the supply is less than one-half inch per acre.'
Substantially all of the canals referred to are now controlled by incorporated canal companies, respecting whom the trial court found as follows:
Findings 11 and 12 are as follows:
We excerpt in full in the margin the decree which was
Be it remembered, that on the 28th day of April, 1905, the same being a regular judicial day of the April term of the said district court, this cause came on regularly for trial before the court without a jury, a jury having been expressly waived by the parties in open court. The parties appeared in person and by their respective attorneys, and [218 U.S. 371, 379] entered by the trial court, omitting the tabular statement as to the amounts of water to which the water users under the several canals were entitled when the surface flow at the head of the irrigating system was 300, 400, 500, [218 U.S. 371, 380] 750, 1,000, 1,500, 2,000, 2,500, 3,000, 3,500, 4,000, 4,500, 5,000, 5,500, 6,000, 6,500, 7,000, and 7,500 inches, respectively.
The question arises whether due effect was given to [218 U.S. 371, 381] the decree entered in the action No. 505 on February 17, 1897, in favor of the Montezuma Canal Company, referred to in finding No. 11; in other words, Is the decree as entered warranted by the facts as found? [218 U.S. 371, 382] We premise that the Montezuma Canal Company and the defendant, individuals and canal companies in action No. 505, whether viewed as appropriators of water or as mere carriers for others, sufficiently represented the users of the waters of the respective canals to cause such water users to be bound by the judgment. Thorpe v. Tenem Ditch Co. 1 Wash. 566, 20 Pac. 588; Arroyo Ditch & Water Co. v. Baldwin, 155 Cal. 280, 100 Pac. 874.
The portions of the tabular statement annexed to the decree with which we are now concerned relate to the distribution of water adjudged as between the Montezuma canal and the canals above the head of the Montezuma. Although, as against the appropriators of water served by the San Jose canal and the Michelena ditch, the Montezuma company, by the terms of the decree in ac-
[218 U.S. 371, 383] tion No. 505 'had the right and was entitled to have flow into the Montezuma canal continuously from the Gila river, at all times during the dry season of the year, when water is low and scarce in said river, 1,000 miner's inches of water,' these provisions were disregarded in the distribution of water ordered in this case. This plainly appears when it is considered that by the decree the following allowances were made to the San Jose and Michelena canals, when, if the rights conferred upon the Montezuma canal by the decree pleaded as res judicata had been respected, no allowances whatever at the stated stages of water could have been recognized as existing in the San Jose and Michelena canals; viz., 120 inches when the surface flow at the head of the irrigation system is 400 inches, 320 inches when the surface flow is 750 inches, 480 inches when the surface flow is 1,000 inches, and 600 inches when the flow is 1,500 inches, with an allowance also to the Mejia canal in the latter event of 30 inches.
While the findings do not establish the reasons which led to these allowances contrary to the decree which was pleaded as res judicata, there is room for conjecture that the deductions from the Montezuma and the allowances to the San Jose and Michelena canals, contrary to the decree, were made for the following reasons: (a) As it was found that in 1875 Ellsworth and others had appropriated water for the irrigation of 300 acres of land, and were diverting the same through the San Jose canal, and the date of this appropriation was prior to some of the appropriations served through the Montezuma canal, it was considered that this priority should be regarded in the distribution, even if to do so would conflict with the prior judgment in favor of the Montezuma canal; and (b) because the share which was given to the Michelena canal out of the allowances made contrary to the prior judgment in favor of the Montezuma canal were presum- [218 U.S. 371, 384] ably so given to the Michelena canal, in order to comply with the terms of the judgment in action No. 797, referred to in finding 12, which established an equality of rights in the water between the San Jose and the Michelena canals. But if these be the theories upon which the court considered it was justified in disregarding the prior judgment, its action was erroneous. This was so, because the rights of the appropriations to the water carried through the Montezuma canal, as against appropriators of water diverted by the San Jose canal, were adjudicated as late as 1897 by the decree which was pleaded as res judicata, and as no facts were stated by the court which served to take the appropriations of water made by Ellsworth and others in 1875 out of the operation of the judgment of 1897, we can perceive no reason why the fact that appropriations were made in 1875 by Ellsworth et al. justified a disregard of the rights which the judgment of 1897 established in favor of the Montezuma canal.
The remaining contention urged is based upon the action of the trial court, affirmed by the supreme court of the territory, in the appointment of a water commissioner to make distribution of the waters of the Gila river pursuant to the apportionment adjudicated by the decree, and imposing upon the Montezuma company a liability to pay its pro rata share of the salary of the commissioner as fixed by the decree. The supreme preme court of the territory was of the opinion 'that it is essential that an officer of the court be continuously on the river to regulate the amount to be diverted under the decree by each canal, in accordance with the ever-varying volume of water in the river, according to the tabulated statement;' that the appointment of the commissioner was a proper choice of a method to carry the decree into effect; and that the appointment was authorized as well by a section of the Revised Statutes of the territory, providing that 'the court shall cause its judgment and decree to be carried [218 U.S. 371, 385] into execution,' as by the power which the court possessed by virtue of its 'general jurisdiction to provide all necessary means to carry out its judgment and decree.'
It would indeed seem that the decree was modeled upon legislative remedies provided for similar situations in other jurisdictions, as the decree and the remedies which it affords bear a peculiar resemblance to legislative provisions enacted in some of the states where irrigation is practised, to control and regulate the use of water for irrigating purposes. See part 4, Weil's Water Rights in the Western States, pp. 590 et seq. The reason for the creation of statutory provisions of this and kindred character undoubtedly is, as said in Farm Invest. Co. v. Carpenter, 9 Wyo. 110, 50 L.R.A. 747, 87 Am. St. Rep. 918, 61 Pac. 258, 'to be found in the inability of the ordinary procedure and processes of the law to meet the necessities pertaining to the segregation by various individuals or companies of water from the same stream by separate ditches or canals, and at different points along its course, under rights by appropriation to so divert and use the water.'
But because it was within the legislative power to provide administrative machinery to supervise the common use of water in a flowing stream by those having a lawful right to appropriate the water of that stream for beneficial use, it does not result that the decree entered by the court below was in excess of its authority. On the contrary in view of the absence of legislative action on the subject, and of the necessity which manifestly existed for supervising the use of the stream by those having the right to take the water in accordance with the decree which, undoubtedly to that extent, the court was authorized to render, we think the action taken by the court did not transcend the bounds of judicial authority, and therefore is not justly amenable to the attack made upon it. It follows from what we have said that error was committed by the court below in refusing to give due effect [218 U.S. 371, 386] to the judgment in action No. 505, which was pleaded as res judicata by the Montezuma Canal Company.
The judgment of the Supreme Court of the Territory of Arizona is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.
Wherefore, by reason of the law and the findings aforesaid, it is ordered and adjudged and decreed that the several parties to this suit are entitled to receive and are hereby authorized to divert and convey from the Gila river water sufficient, each for this or their lands, from time to time, in the amounts and in the order of priority as shown in the tabular statement hereto attached and filed herewith, and marked, 'Tabular statement of amounts of water to which the water users under the several canals are entitled at different stages of water in the river, showing the accretions to the surface flow at the head of the irrigation system, and giving the approximate amounts thereof at the head of the different canals.'
And the several parties hereto are each hereby forever enjoined from in any wise obstructing or interfering with the rights of any of the other parties to this suit, and for the purpose of carrying into effect this decree Albert T. Colton is hereby appointed a commissioner of this court, to hold said office and exercise the powers and duties thereof, hereinafter prescribed, until a further order of this court.
The said commissioner shall have the power, at all times, when it shall be proper and necessary, in the discharge of his duties, to enter upon any and all of those certain canals and ditches known as the Brown, Sanchez, Mejia, Fourness, San Jose, Michelena, Montezuma, Union, Sunflower, Graham, Central, Oregon, Smithville, Bryce, Dodge, Nevada, Curtis, Kempton, Zeckendorf-Clavenger, Reid, Fort Thomas, Zeckendorf-Collins, Thompson, Military, Saline, and upon each and every part thereof, and upon all the dams, gates, flumes, and other structures and appliances, for the obstruction, diversion, or conveyance of water from said Gila river for the irrigation of lands under any or all of said canals or ditches, and have supervision and direction of the placing of, changing, closing, or opening of, the same for the
purpose of the discharge of his duties, and to direct the placing of proper gates, dams, or other means for the control of the water of said river at the heads of the canals or other points on the banks of said canals, as he may direct, at the expense of the parties hereto interested therein, and to make such rules and regulations as he may deem proper and expedient, to be observed by the parties hereto, for the distribution and use of said water.
And it is further ordered that said commissioner shall in person, with the assistance of such help as he may need, superintend and control the distribution and use of water by the parties hereto, and by the proper practice direct the diversion of such water from said river, and its conveyance to the place of use by whatsoever means he may deem best to secure the greatest economy therein. In the service of said water he shall direct the distribution thereof in accordance with the rights of the parties as to the extent of land irrigated and order of priority of time of appropriation as in this decree established. In the distribution and use of such water the commissioner shall take as a basis of the supply necessary for the cultivation of said lands one half of a miner's inch constant flow for each acre of land, or at that ratio, reckoning 40 miner's inches as the equivalent to a flow of 1 cubic foot per second; provided, however, that no land shall be served with an amount of water in excess of that beneficially used thereon. In measuring the water so supplied, the measure shall be taken for the water supplied to the several canals at the point of diversion from the river.
The commissioner shall report, from time to time, to the court, as to his action in the premises, and shall, whenever he needs the same, apply to the court for further directions as to his powers and duties to make this decree effective.
Any of the parties to this suit may apply to this court for any proper modification of this order or in the supervision and direction of the commissioner.
The compensation of said commissioner shall be one hundred and fifty dollars and twenty cents ($150.20) per month, and shall be paid by the parties hereto in the proportion set out in the following table, to wit:
A table designating the amounts to be paid by the water users un
der the several canals and ditches, as their pro rata proportion of the salary of the commissioner, based upon the acreage irrigated under each canal:
Canal. Acres. Amount. Brown 100 $ .65 Sanchez 400 2.55 Mejia 320 2.00 Fourness 260 1.65 San Jose 3000 19.00 Michelena 450 2.85 Montezuma 3750 23.75 Union 2900 18.35 Sunflower 400 2.55 Graham 962 6.10 Central 2675 16.95 Oregon 1100 6.95 Smithville 1760 11.15 Bryce 515 3.25 Dodge 450 2.85 Nevada 800 5.05 Curtis 800 5.05 Kempton 850 5.40 Reid 100 .65 Ft. Thomas 960 6.10 Thompson 240 1.50 Military 400 2.50 Saline 36 .20 Zeckendorf 500 3.15 ___ ___ Total acres 23,728 Total am't 150.20
And the said parties shall pay said proportionate sum into the office of the clerk of this court for the use of the said commissioners on the first day of each and every month.
And it is further ordered and decreed that the gates of the water users in arrears of payments to said commissioner in accordance with the foregoing provisions may be kept closed by said water commissioner until said arrears are paid and satisfied.
It is further ordered and decreed that in the case of each incorporated company, party hereto, that is operating a canal or ditch, the pro rata portion of the said commissioner's compensation falling due from the acreage of the water users of such canal shall be a charge against the canal company, and shall be paid by proper officer of such company to the clerk of this court on the first day of each month, for the account of said commissioner, and the said officer of the said canal company is hereby authorized to close the gates of water users, under the canal operated by said canal company, who may at any time be in arrears for more than sixty days in the payment of the pro rata share of said commissioner's compensation due from the acreage owned or controlled by said water users, and the said officer is hereby ordered and required to close the gates of the said canal at any time the said canal company may be in arrears of payment, for more than sixty days, to the clerk of this court, of the pro rata part of the compensation due from the acreage irrigated under the said canal, and to keep such gate closed and the flow of water through said canal arrested until said arrearage is paid in full, and the commissioner is hereby authorized to superintend such closing of the gate and arrest of flow, and to see that the same is done in accordance with provisions of this decree. The parties herein each pay their own cost, and the court cost common to all parties necessarily incurred herein is adjudged against all the parties hereto in the same proportion as the salary of the commissioner has been apportioned herein.
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