There are two principal questions raised by the pleadings and evidence in this case, (a) is defendant wrongfully pumping water from under the lands of plaintiffs, and (b) is defendant failing to furnish irrigation water to plaintiffs' land as required by law?
So far as the first question is concerned, I agree with the majority of the court and the trial judge that the answer is no. These waters are percolating in their nature and not subject to the law of appropriation. The plaintiffs disposed of whatever rights they had therein by the Tempe Contract, and further, in my opinion, are estopped from objecting to defendant's pumping them as it has done since 1922, by virtue of a long acquiescence in such pumping.
But when we consider the second question, I cannot agree with the unconditional affirmance of the judgment of the trial court which the majority of this court has seen fit to make. I regret that this is true. But since, in my opinion, the portion of that judgment referring to the second question is not based on a correct application of the unquestioned law to the facts, and its effect is to take away the private property of one man for the benefit of another, without compensation therefor, I feel that I should express my dissent.
I desire first to state a few of the fundamental principles of water law as I believe they exist, and have always existed, in Arizona, even at the risk of repetition in part of what the majority has already said, for it is only by restating and arranging these principles *Page 404 in a logical sequence that I can make my conclusions clear. The law of prior appropriation which governs the water of all running streams and lakes, whether surface or subterranean, in the state of Arizona is based upon the principle of "first in time, first in right," and all of our water law is, in substance, but an amplification and corollary of this principle. Stated more fully, the first man to apply a given quantity and quality of water to a specific tract of land for the purpose of irrigation is entitled to the continued use of such water in preference to any later appropriator, provided the amount so used is not more than is reasonably necessary for the proper cultivation of the land. This right is what is commonly called a "vested water right." It is not a right to the water itself, but to the use thereof, for the title to the water itself is always in the state as trustee for its citizens. It is attached inseparably, with one minor exception not involved in the present case, to the particular tract of land on which it is first used, and may not be sold, transferred or incumbered in any manner separate from the land to which it is appurtenant. It can only be lost by an abandonment of the use by the owner of the land. And if he abandons it, he cannot designate any particular person who, nor any land which, shall benefit thereby. It reverts to the state, and is again subject to appropriation in the same manner as it was originally, but the person who appropriates such abandoned water gets his right to the use thereof as of the date of his appropriation, and not that of the original appropriator. The situation may be illustrated by the line at a postoffice window where, if the man at the head of the line steps out, the balance of the line immediately moves up, and the man who has once lost his place must go to the foot. A subsequent appropriator may not *Page 405 diminish the quantity, deteriorate the quality, nor increase the cost of application of the water to the lands of the first appropriator by any act of subsequent appropriation. This does not mean, however, that the prior appropriator is entitled to any specific water from any particular source. If a later appropriator can secure water from another source, or sources, and deliver it to the first appropriator in another manner, without an increased cost to such appropriator, he is at liberty to do so, with or without the consent of the first one. But the water so delivered must not only be equivalent in quantity but also in quality to the water first appropriated, and any interference by any person with a vested right as above described and set forth, may, and should, be enjoined in a proper action by the prior appropriator. I give no citations to support the foregoing principles, for they are elementary water law, and are not, as I understand it, questioned by the majority of the court. It is their proper application to the facts of the present case which I think has been overlooked.
Let us apply these principles to the present case. Before 1900 the vested water rights of the Salt River Valley, with the exception, perhaps, of a few unimportant ones not involved in the present controversy, were based on the natural flow of the Salt River below its confluence with the Verde. This stream fluctuated greatly in the amount of water which it carried. At its lowest in the summer there was not sufficient water to irrigate properly the lands already under cultivation at that time. At its maximum it has been known for a short period to equal almost half the flow of the Ohio River in flood. There were then no storage reservoirs in operation upon the Salt, nor any of its tributaries, and as a result immense quantities of water which, if properly stored, would *Page 406 have been available for irrigation went to waste every year. To correct this situation, the government of the United States agreed to advance for the benefit of the landholders of the valley a sum sufficient to install a storage reservoir in the upper regions of the Salt River. As was said in the majority opinion, it found it convenient for this purpose to negotiate with a corporation, rather than with individual farmers, and the Salt River Valley Water Users' Association, the defendant herein, was organized. Its purpose primarily was to store the flood waters above referred to, but its charter also permitted it to supplement the existing canal systems of the valley for the purpose of delivering this stored water, to develop other water for irrigation, to generate and sell electric power, and to do a number of other things. The men who drew its articles of incorporation were undoubtedly perfectly familiar with the water law of Arizona, as above set forth, and recognized that the vested rights already existing could not be altered by the articles of incorporation, and that the farmers who already possessed such rights would never consent to surrender them and accept in lieu thereof rights to water to be stored in the future. They also knew that the corporation itself could acquire no vested right to the use of the stored water, but that such right must be acquired by the application of such water to specific lands, and that such appropriation when made was subject to the same rules of law as any other vested water right. But in order to reassure the farmers whom it was anticipated would become members of the association, a recognition of what was undoubtedly the existing law was expressly set forth in the charter of defendant:
"Art. XIV. Nothing in these Articles of Incorporation, or in the fact of becoming a member of this *Page 407 Association, shall be construed as affecting, or intending to affect, or in any way interfere with the present vested rights of any person to the prior use, or delivery, of the natural appropriated flow of the waters of the Salt and Verde rivers."
And it was further stated in article 5, section 7, of the charter that the water which belonged to the landowner by virtue of such rights should be delivered to him by the association. It was further recognized by article 5, section 8, impliedly if not explicitly, that under the law the association did not, and could not, own the stored waters. Such water, before Arizona became a state, was owned by the federal government in its sovereign capacity, and necessarily when we acquired statehood that ownership passed to the state. The right to use the water could only be acquired by the beneficial application thereof to specific tracts of land, and the date of the appropriation was that of the application to the land. In other words, all of the shareholders of the association, who necessarily under the articles were landholders thereunder, acquired the right to use the stored waters when these waters were applied to their land, and such right accrued as of the commencement of the construction of the storage works, under the familiar doctrine of relation. This being the case, all the original shareholders became appropriators of the stored water, with the same date of priority and an equal right to the use of such water.
It was recognized that much of the land owned by the prospective shareholders of the corporation had already a vested right to the use of the natural flow, while other lands did not. It was apparent, therefore, that some of the shareholders would have two vested rights applying to the same land; one of an early date, being of the natural flow, and the other of a later time, of the stored water which is available only to supplement *Page 408 the prior one in time of shortage of natural flow, while others would have nothing but stored water to which to look. It therefore, became necessary to determine just what the existing vested rights of the many thousands of shareholders were. This was done by means of a suit in the district court, and the rights declared as a result of that suit were set forth in what is commonly known as the "Kent decree." The court, in its decision, recapitulated and restated the water law of Arizona substantially as I have set it forth above, but with much greater detail. It divided the lands of the parties to the suit into three classes. The first is what is known as class "A" land. This consisted entirely of land which was found to have a vested water right in the natural flow, in accordance with the principles above set forth. The court carefully classified this land according to acreage, location and date of appropriation, running from the year 1869 down to and including 1909. It also found that certain lands had at one time been irrigated for a short period, but that the use of water thereon had been discontinued for longer than the period which, under our law, is considered as conclusive evidence of an abandonment of such right. These were classified as "B" lands. There was a third class of land which lay within the physical boundaries of the area which it was contemplated would be served by the defendant's project, but which had never been cultivated, classified as "C" lands. The court held, in substance, that the "A" and "B" lands had equal rights to make application for membership and to become shareholders in the defendant, and thereafter establish an appropriation of the stored water, while the "A" lands, in addition to the right to the use of such stored water, retained their vested rights as declared by the decree. The "C" lands were not permitted to apply for membership *Page 409 in the association until after the owners of the "A" and "B" lands had first exercised their rights, but thereafter, if it were deemed by the government that there was still sufficient storage capacity remaining to take care of the "C" lands, then the owners of the "C" lands might make application for, and receive, membership in the association. In other words, so far as the "A," "B" and "C" land rights in stored water are concerned, they were classified merely for the purpose of making application for membership in the association, but when once they became shareholders all who had been accepted before irrigation by stored water actually began participated equally in the use of such water.
In the year 1910, which was about the time when the stored water first actually became available for regular and constant use upon the land lying under the canal systems of the valley, there were two classes of land owned by the shareholders in defendant. The first was the class "A" lands, which had a vested right to the natural flow of the river, in accordance with the date of their appropriations, and also an equal right with all of the other shareholders to the use of the stored water so long as what they received of that water, added to whatever they were able to secure through their vested rights, did not exceed the quantity required for the proper irrigation of their land. The second was the class "B" and "C" lands which had been accepted for membership. These shared equally with each other and the class "A" lands in the right to use of the stored water. The maximum amount of water, therefore, which any member of the association was entitled to, including both his vested right in the natural flow and his vested right in the stored water, could never exceed the amount necessary *Page 410 for the proper cultivation of his lands, but might be less.
For many years the association proceeded to distribute water in accordance with this rule. The natural flow as it fluctuated from time to time was divided among the class "A" lands in accordance with the date of their appropriation. In addition thereto, the stored water was divided on equal terms among all the members of the association, with the proviso that it, together with the natural flow water, did not exceed the amount necessary for the proper cultivation of any particular land, as aforesaid. The principle involved in this method of distribution is simple, and in strict accordance with the general water law of the state, but the exact method of applying it to the particular tracts of land required, and will continue to require, constant and careful supervision and classification by the managing officials of the association.
The holders of land under the Tempe canal did not become shareholders in defendant and acquired no vested rights in the stored water at the same time that most of the other landholders in the valley did, for the reason that most of these lands had vested water rights in the natural flow of an extremely early date. The landholders thereunder felt that they would always have enough water for irrigation from this flow, without the necessity of sharing the large expense of building and maintaining the dams and canals required by the defendant to carry out the purposes of its incorporation, and for many years they continued operating as they originally had, as a separate unit. Under the law, defendant was obliged to permit to flow to the Tempe canal water equivalent to the natural flow of the river as it existed when the appropriation for the landowners under such canal was initiated, before it was permitted to retain in its reservoirs any *Page 411 water for storage. It was more economical and conserved the water for defendant, instead of allowing it to run down the river in sufficient quantity to meet the requirements of the Tempe canal, to take it out at Granite Reef and convey it to the head of the Tempe canal through the canal system of the defendant, and, as I have stated, the law permitted it to do this without the consent of the plaintiffs, the only requirement being that the water so delivered should be equivalent in quantity and quality to the natural flow, and at no greater cost to the plaintiffs. This practice went on until about the year 1922, and had it not been for one factor which had been overlooked by plaintiffs when they refused to become members of the defendant at the time of its organization, it would probably still be continued. The constant and increasing irrigation of the lands lying above those of plaintiffs caused an increase in the underflow and a raising of the water table under all of the valley, including the plaintiffs' lands. Due to the natural configuration of both surface and underground strata, the ultimate effect was that plaintiffs' lands began to waterlog. They tried to meet the situation by independent drainage and pumps, but were unable to do so, and for that reason entered into what is called the Tempe contract about 1922. By its terms, plaintiffs became members of the association, including in such membership all of their "A" lands and a considerable portion of lands which were classified as "B" and "C" lands under the Kent Decree. They agreed that the association should pump water from under their lands in such quantity as it saw fit, and that they would pay a certain amount of money to the association and turn over to it the Tempe canal system, and various other physical properties connected therewith, with some other provisions not necessary to refer to, and upon such conditions they became full fledged members of defendant, with all of *Page 412 the duties, rights and privileges of such members. But they carefully reserved in such contract all of their vested rights to the use of water for irrigation. The legal effect of this contract was obviously that so far as the subterranean waters were concerned, as I have indicated above, the defendant became for all practical purposes the owner thereof, with the right to pump and use them as it saw fit, either for drainage or irrigation purposes. But this right was subject always, both by virtue of the Tempe contract and the articles of incorporation themselves, to the prior right of the class "A" lands in the Tempe project to have delivered to them irrigation water in accordance with their existing vested water rights in the natural flow and the right of all the "A," "B" and "C" lands in that project to have delivered to them such proportion of the stored waters as they might be entitled to under the law as hereinbefore set forth.
It is over the delivery of water in accordance with these vested rights that the second controversy in this suit is concerned. Plaintiffs contend that while the quantity delivered to them is substantially what they were entitled to if nothing else is considered, that the quality has been so changed for the worse that the ultimate effect of the delivery of such water is not equivalent to a delivery of the natural flow and stored water, in accordance with their vested rights, for the reason that it contains so much pumped water, carrying an excess of salts, that eventually their land will be ruined for cultivation.
It is clear that under the law as to the facts, as I have above set them forth, if it be true that defendant is delivering water which is inferior in quality to what plaintiffs would receive if their vested rights in the water were given them, that such delivery violates both the Tempe contract and the articles of incorporation of the association, and that the plaintiffs are entitled *Page 413 to injunctive relief, if no other method can be found of securing to them the rights to which they are entitled.
What was the conclusion of the trial court as to the ultimate fact? It found that plaintiffs were not receiving water of the character to which they were entitled, and that the effect of continued application of what they did get would eventually ruin their lands. If this be true, and under our rule we must accept this finding as being correct, how can a judgment be sustained which, in effect, says that the defendant should not be enjoined from continuing to violate its charter, the Tempe contract, and the law? Apparently the trial court realized that defendant was not complying with the law, but gave as a ground for the judgment that it was impossible for the defendant to deliver separately natural flow, stored water and pumped water, and that it could not be compelled to do the impossible. The fallacy in the decision is the apparent belief of the court that the defendant had no right to mix these waters, but must deliver the natural flow, stored water and pumped water of the river separately and in specie. As I have pointed out, the prior appropriator has no right to any particular water from any particular source. What he is really entitled to is such a quantity and quality of water as will produce the same results on his land, so far as agricultural production is concerned, as was produced by the water which he had appropriated and was using before the later appropriator came on the scene of action. It is obvious, if this be the rule, that the defendant is required to deliver such an admixture of water, regardless of the source, as will produce a result equivalent to what was produced by the waters to which plaintiffs were entitled at the time of their appropriation thereof. This, the court found, could be done very simply. It stated, in its findings, that the evidence showed that *Page 414 while an inordinate proportion of pumped water for irrigation, such as the plaintiffs were receiving, would eventually ruin their land if applied only in the quantity of natural flow water and stored water which would be required for the purpose of successful agriculture, yet if the total quantity delivered was increased sufficiently so as to leach the salts deposited into the subterranean waters, the effect of this greater quantity on the land and on agriculture, would be equivalent to that of a lesser quantity of natural flow and flood water.
If these findings be correct, all that the defendant is required to do in order to deliver to the plaintiffs what they are entitled to, by reason of their vested rights, is to increase the total quantity of water delivered and to allow the water table under plaintiffs' lands to stand at such a level that the effect of the increased quantity of salt carried by the pumped water will be neutralized by the leaching of the land.
As I read the majority opinion, it agrees with me as to the fundamental water law of the state; it agrees that under this law and the facts of the case the plaintiffs are entitled to have delivered to them water in accordance with their vested rights, or else its equivalent in effect upon agriculture and their lands, of mixed water. It agrees, as it must under the findings of the trial court, that defendant is not doing its duty in this respect, but that it can do so with comparatively little difficulty. It would seem, if these things be true, that the next step is inevitable, and that defendant should be required to perform the duty imposed upon it by law. But the majority opinion at this point, to my mind, departs from law and logic, and says, in substance, notwithstanding the law as applied to the facts:
". . . We have no doubt the management of the Association, consisting as it does, of practical dirt farmers, has and will utilize every facility it has to *Page 415 deliver to plaintiffs water of an equal quality to the river flow and storage; or if that is not possible, because of inherent natural causes, the Association will do the next best thing, to wit, deliver to plaintiffs greater quantities of pump water so that the deficiency in quality will be supplied by increased quantity. We do not feel that we should undertake, in the situation as we see it, to suggest what steps the Association should take to correct any inequalities, for we are sure the Association, with its experienced farmers and engineers, is better qualified for that task than the members of this court or the judge of the trial court."
In other words, the defendant has not done its duty in the past, but we will assume that it will do it in the future, and will, therefore, affirm the judgment of the trial court that it may continue its present course, and thus throw the costs of this action upon the plaintiffs.
With all due respect to the majority of the court, it seems to me that its conclusion is such a non sequitur that I must respectfully dissent from the order affirming the judgment intoto. What should be done is to modify the judgment by commanding defendant to deliver to plaintiffs the water to which they are entitled, or its equivalent, as required by law, but giving it a reasonable time to work out the best method of so doing, and retaining continuing jurisdiction of the case for the purpose of seeing that this is done. *Page 416