Bristor v. Cheatham

DE CONCINI, Justice

(concurring in part, dissenting in part).

I agree with the majority opinion that the second count of appellants’ complaint states a cause of action and should be reinstated and the case sent back for trial.

The majority opinion completely disregards the theory of appellants’ case in the first cause of action and adopts the doctrine of prior appropriation instead. It probably has done so with the view that appellants are entitled to some relief though not on the theory of their complaint. However I believe that doctrine will cause more confusion, result in more lawsuits, nullify more property rights, and do more violence to the peace and tranquilty of the economy of the state than any other avenue this court. could have followed.

In attempting to reach some solution that would give appellants the relief that justice appears to demand, and do less violence to existing rights, I suggest three possible theories:

1. Doctrine of reasonable use.

2. Tort action.

3. Preferential priority for domestic use.

There is another possible theory that will not protect any person’s rights but will leave the matter solely in the hands of the legislature so that it may regulate the use of groundwater as it sees fit. I will call that theory:

4. Use by sufferance.

Before discussing each one of these theories separately, I will make a few general observaticns.

The- majority opinion assumes from counsel’s briefs that the waters in question are percolating waters, although appellants’ complaint does not allege such a fact.

I assume that the majority opinion holds that every use of groundwater made in this state was made under the doctrine of prior appropriation whether that was the intention of the users or not and in spite of the lack of statutory authority to make such an appropriation.

I do not agree that all users of percolating water in the state of Arizona since the Desert Land Act of 1877 have a water right under the doctrine of “prior appropriation” to all the water used, to the exclusion of all subsequent users of water under the “custom, usage and court decisions” of this state for a period of 48 years. Such a theory grants appellants water rights that they themselves neither sought nor expected from this court.

The briefs of counsel apparently proceed on the theory that the waters are “percolating”, but the contentions as to the law applicable in Arizona to percolating water are four-fold. Appellees contend that percolating water in Arizona is governed *254by the strict English rule found in Acton v. Blundell, 12 Mees & W. 324.

Appellants insist that the applicable principle is that of reasonable use as laid down in substance by the supreme court of Oklahoma and California respectively in Canada v. City of Shawnee, 179 Okl. 53, 64 P.2d 694, and Katz v. Walkinshaw, 141 Cal. 116, 70 P. 663, 74 P. 766, 64 L.R.A. 236 and the cases which follow them.

One of amici curiae claims that percolating water is and aways has been subject to the law of prior appropriation, while other amici curiae hold that percolating water is public and not private in its nature but leaves open the question as to whether it has been or could be actually and legally appropriated by any of the parties in interest. Other amici curiae present the common law doctrine while still others warn us of the dangers of recognizing that doctrine as a rule of property.

The question of the law applicable to percolating water has been before this court in the following cases: Howard v. Perrin, 8 Ariz. 347, 76 P. 460, affirmed 200 U.S. 71, 26 S.Ct. 195, 50 L.Ed. 374; McKenzie v. Moore, 20 Ariz. 1, 176 P. 568; Brewster v. Salt River Valley Water Users’ Ass’n, 27 Ariz. 23, 229 P. 929; Maricopa County Municipal Water Conservation District No. 1 v. Southwest Cotton Co., 39 Ariz. 65, 4 P.2d 369; Fourzan v. Curtis, 43 Ariz. 140, 29 P.2d 722; Campbell v. Willard, 45 Ariz. 221, 42 P.2d 403; and Adams v. Salt River Valley Water Users’ Ass’n, 53 Ariz. 374, 89 P.2d 1060. In all these oases this court specifically held that waters percolating generally through the soil beneath the surface of the ground are not subject to appropriation for the reason that the law of appropriation was statutory in its nature and that the legislature had failed to include percolating waters as appropriable. It then concluded that since they were not appropriable at that time, the common law rule must govern, and that this rule held that percolating waters are a component part of the earth and have no characteristics of ownership distinct from the land itself and are the property of the owners of the soil. Furthermore the legislature has acquiesced in said theory by not acting on the matter for nearly 50 years.

There can be no question but that if the rule of stare decisis is to be strictly'applied, this is the law of Arizona. However, there is a limitation to that rule as found in Maricopa County Municipal Water Conservation District v. Southwest Cotton Co., supra, and governs the use of said percolating water with the following language: “Whether percolating waters in Arizona since the adoption of the Howell Code have been governed by the old English common law in its strictest form, or by the American modification known as the rule of correlative rights as explained and defined in Katz v. Walkinshaw, * * *, and the cases which follow it, based on the doctrine of sic utere tuo ut alienum non laedas, we *255need not now decide. When the matter is properly before us, we will determine the rule which applies."

Again in Fourzan v. Curtis, supra [43 Ariz. 140, 29 P.2d 725] this court again hung out the warning signal as 'follows: “ * * * It is the law of Arizona that percolating waters belong to the owner of the land on which they are found. Howard v. Perrin, supra; Maricopa County Municipal Water Conservation District No. 1 v. Southwest Cotton Co., 39 Ariz. 65, 4 P.2d 369. And he may convey them to other premises than those on which they are originally found, provided no other rights are injured thereby. Cohen v. La Canada [Land & Water] Co., 151 Cal. 680, 91 P. 584, 11 L.R.A.,N.S., 752.” (Emphasis supplied.)

1. Doctrine of Reasonable Use.

The two cases last above decided indicate that the question has not yet been decided. While it is the main point of difference between the parties in this case, the majority opinion has not treated the question on the ground no doubt that it is surplusage.

The argument of appellees is that such a doctrine is inapplicable because it is an offshoot of the riparian doctrine, which has been abolished by our constitution, article 17, section 1. I see no connection between the two, ever though some authorities have said there is, reasoning as follows: that by turning the water, in theory, to a 90° angle, the surface of the land would be' riparian to underground water. Furthermore, land riparian to a stream is not analogous to land with percolating water under the surface which is not an underground stream. I prefer to follow the reasoning of the Utah court in Glover v. Utah Oil Refining Co., 62 Utah 174, 218 P. 955, 957, 31 A.L.R. 900: "* * *. So that, while the concensus of opinion referred to in the Horne Case [Horne v. Utah Oil Refining Co., 59 Utah 279, 202 P. 815] finds some analogy between correlative rights to percolating water and riparian rights under the common law, there is, in the opinion of the writer, little or no analogy whatever, especially as affecting the question under review, in this jurisdiction.”

The doctrine of reasonable use as distinguished from correlative rights could be applied and appellants’ rights protected. Under correlative rights there is an apportionment of water between overlying land owners. Under reasonable use there is no such apportionment, but rather a prohibition upon a use on other land or at a distance away from the base of the common supply if such alien use interferes with the use or water of other property owners. Canada v. City of Shawnee, supra.

2. ' Tort Action.

While it is true appellants did not bring their complaint on the theory of a tort action, yet we could consider it, as well as the majority opinion considered the theory of prior appropriation.

*256Under the common law theory a man owns all the water under his land. When he extracts that water by lowering his neighbor’s well he is in effect taking his neighbor’s property. This amounts to an act of conversion and the taker should be bound to answer in damages. Under the law of property an adjoining landowner owes his neighbor lateral support. If he owes lateral support to his neighbor’s soil, where is the inconsistency of such a duty to his neighbor’s water? Furthermore when it is conclusively established that one property owner is taking another’s property, then the injured person should be made whole. Equity will not suffer a wrong without a remedy.

3. Preferential Priority for Domestic Use.

The majority opinion cites the above as one of its reasons for its decision. I am in accord with that if it were limited to domestic use. Therefore I agree with the majority opinion that appellants’ first count states a good claim because it pertains to their use of water for domestic purposes only.

Water used for domestic purposes has a preferential priority. Our 1919 Water Code was taken practically verbatim from Oregon. Stewart v. Verde River Irrigation & Power Dist., 49 Ariz. 531, 68 P.2d 329. The Oregon court held in Hough v. Porter, 51 Or. 382, 98 P. 1083, 1085, that water from streams was subject to the doctrine of prior appropriations, but even so “Every riparian owner, therefore, regardless of the date of the settlement, is entitled to the quantity of water reasonably essential to his domestic use and for the watering of his stock, including sufficient supply for the proper irrigation oif such garden produce as may be essential to the proper sustenance of his family." Head Note 21.

While appellants are not riparian owners to a stream, nevertheless they are entitled to preferential priority for domestic use.

Should the Howard v. Perrin Doctrine be Declared a Rule of Property?

It appears to me that we are losing sight of the problem before us, and that the majority opinion is trying to settle all the water problems of the state in one fell swoop by saying that the doctrine of prior appropriation has always been the law of this state governing percolating waters. Such a course is fraught with hazard because it upsets a half century .of law to the contrary and will affect all water users whether they are parties to this suit or not. The danger of such a course was pointed out in the briefs of other amici curiae not mentioned above. Furthermore the majority opinion has decided this whole matter without any evidence before it. It would appear to me that the proper way to invoke the doctrine of prior appropriation would be by the legislature. That body has the power and right to do so, as they have by heretofore legislating on the subject. *257In 1893 “flood waters” were added to the waters subject to appropriation. In 1919 “springs” were added. In 1921 “springs on the surface” were added (to describe the springs which were included in 1919). Ch. 64 of the Session Laws, 1921.

This court will take judicial notice of the shortage of underground water, the increased amount of desert land brought under cultivation in recent years, and the consequent well drilling and water pumpage necessary thereto, and our present diminishing water supply. Under those circumstances the legislature has the right and power to control our ground water supply in the interest of the common weal.

The question then arises as to present use and existing rights. It is apparent that the majority opinion will be a solar plexus 'blow to farmers who made their investments on the theory of the Howard v. Perrin doctrine. They may now find themselves facing innumerable lawsuits claiming that their water rights do not exist because the water had heretofore been appropriated. The problem arises at this late date when we are acutely aware of our water shortage. To date the farmers have had no notice that their water has been appropriated by others, contrary to “custom, usage, and court decisions”. Such a holding would be contrary to the rule of property.

Rule of Property: “ ‘The decisions of this court having sanctioned such conveyanees, and the people and bar of the state having relied upon these holdings, notwithstanding they were made in cases in which the validity of such deeds was not discussed but rather accepted and recognized as a fact, it should not now be held that the court was wrong in pronouncing them valid when to do so would undoubtedly result in disturbing many titles, and thus cause injustice to a number of people, a condition that should never be permitted unless the law is such as to leave the court no alternative.’ ” Blackman v. Blackman, 45 Ariz. 374, 43 P.2d 1011, 1016.

See also Henderson v. Henderson, 59 Ariz. 53, 121 P.2d 437. “ * * * but the rule is not so absolutely fixed as to preclude the overruling of plainly erroneous decisions, where it is apparent that the beneficial results to be obtained by a departure from the rule will greatly exceed any disastrous effects likely to flow therefrom.” 21 C.J.S., Courts, § 216, p. 398.

In such case, however, the overruling decisions should be limited to prospective operation and should not operate retrospectively.

“ * * * The true rule in such cases is held to be to give a change of judicial construction in respect of a statute the same effect in its operation on contracts and existing contract rights that would be given to a legislative repeal or amendment; that is, make it prospective, fbut not retroactive.” 14 Am.Jur. Courts, Sec. 130, p. 347.

*258“ * * * In any event, a court of final decision may expressly define and declare the effect of a decision overruling a former decision, as to whether or not it shall be retroactive, or operate prospectively only, and may, by a saving clause in the overruling decision, preserve all rights accrued under the previous decision.” 21 C.J.S., Courts, § 194, p. 327.

The above rule has been approved by the Supreme Court of Arizona, see O’Malley v. Sims, 51 Ariz. 155, 75 P.2d 50, 53, 115 A.L.R. 634: “We think the Supreme Court of Wisconsin has wisely chosen the middle course which avoids, as far as it is possible to do so, injustice to parties who have relied upon the earlier rulings of courts, which are later reversed by the same court, and we have no hesitation in adopting that rule as the law of Arizona. * * * ” and also the case of Duhame v. State Tax Commission, 65 Ariz. 268, 179 P.2d 252, 259, 171 A.L.R. 684, where the court says: “However in fairness to the materialmen who have relied upon our express holding in the Crane case that a sale to a contractor was a sale for resale and was not taxable, we now hold that our decision in the instant case shall be given prospective effect only. Unquestionably we have the right to so limit the application of this ruling. (Citing cases.)”

Oregon, followed the same rule in National Surety Corporation v. Smith, 168 Or. 265, 114 P.2d 118, 123 P.2d 203, at page 223.

If property rights are going to be established then certainly it is more in line with common sense and logic that a rule of property be invoked that is in harmony with the laws, customs and usage of the state for nearly 50 years, rather than on some theory that is contrary thereto.

Appellants and some amici curiae point out the danger of recognizing the law in Howard v. Perrin as a rule of property as of the date of this opinion and present well depths, because that would amount to “prior appropriation” in reverse. In the instant case appellees have drilled their wells beyond the depth of appellants, leaving the latter high and dry so to speak. If there is a danger lurking behind a rule of property under either theory that would wreck the economy of the state we should adopt theory No. 4 as first above set out.

4.' Use by Sufferance.

(a) that percolating waters are public waters;

(b) that the right to “prior appropriation” is statutory;

(c) that the same are subject to legislative control;

(d) all users of such waters have no common law right or right of prior appropriation thereto, but are merely using said waters at sufferance by the state.

The Desert Land Act of 1877 is not controlling. From Winters v. United States, 8 Cir., 143 F. 740, at page 747, we quote: “It necessarily follows from the conclu*259sions we have reached as to the proper interpretation of the treaty that the appellants did not acquire any exclusive or superior right to all the waters of Milk river by virtue of the appropriation of said waters under Desert Land Act March 3, 1877, c. 107, 19 Stat. 377, as amended by Act March 3, 1891, 26 Stat. 1096, c. 561, 1 Supp.Rev.St. 137 [43 U.S.C.A. § 321], The law is well settled that the doctrine of appropriation under said statutes, which is recognized and protected by section 2339 of the Revised Statutes \U.S.Com.St.l901, p. 1437 (43 U.S.C.A. § 661)}, applies only to public lands and waters of the United States. * * '* ” (Emphasis supplied.)

Such a declaration would leave the legislature with a free hand. It could pass a groundwater code after public hearings, consider water and engineering data, the relative rights of the various interests in the different water basins and water sheds in the state. After gathering all that necessary information the legislature then could with its eyes wide open pass a groundwater code that would be more beneficial and protective to all concerned. Therefore it seems consonant with reason that a decision should be made that is in harmony with the conservation of our limited supply rather than one that will allow some well and property owners the right to pump all the water they want or can pump under their particular property right whether it is the common law right or right of prior appropriation.

It strikes me that the following quotation from the majority opinion is handing the legislature an empty shell: “ * * * The problem of how and when percolating waters of this state are to be hereafter appropriated is a legislative and not a judicial function.”

In other words it says, now that all the water in the state is appropriated you (the legislature) may prescribe rules for appropriating water. Under such circumstances there is nothing remaining for the legislature to do but to invoke the police power of the state, which it could do better under the common law doctrine than it can under the prior appropriation doctrine, and at the same time not upset existing property rights. The reason for that is that the legislature will be confronted with the doctrine of “prior appropriation” when it attempts to regulate percolating waters. Prior appropriators will contend there is no need for regulation because all that is necessary to stop exhaustion of the supply is to stop subsequent pumpers from using the water. If prior appropriation is thus invoked just a comparatively few water users will benefit from the remaining supply.. While if the common law theory is recognized then the police power can be invoked equally upon all users and each of them will get some water. It’s true that they may all have to take a percentage cut in their acreage farmed but it will not altogether ruin them. I 'believe the state would benefit more by a fair distribution *260of the water rather than have the use curtailed solely at the expense of the junior appropriators.

The majority opinion stating that percolating water was always subject to appropriation because of the acts of Congress, overlooks the decisions of the United States Supreme Court which recognizes the rights of each state to adopt any theory it wishes. The citation from the California Oregon Power Co., a United States Supreme Court case, cited in the majority opinion, confirms the right of every state to adopt any rule it sees fit: “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. What we hold is that following the act of 1877, if not before, all nonnavigable waters then a part of the public domain became publici juris, subject to the plenary control of the designated states, including those since created out of the territories named, with the right in each to deterimne for itself to what extent the rule of appropriation or the common-law rule in respect of riparian rights should obtain. For since ‘Congress cannot enforce either rule upon any state/ (citing case), the full power of choice must remain with the state. The Desert Land Act does not bind or purport to bind * * (Emphasis supplied.)

See also Hough v. Porter, supra, which cites United States v. Rio Grande Dam & Irrigation Co., 174 U.S. 690, 19 S.Ct. 770, 43 L.Ed. 1136.

It is to be-further noted that the acts of Congress mentioned in the majority opinion, apply likewise to New Mexico, Arizona, California and Utah. In New Mexico, the doctrine of prior appropriation was recognized and upheld. Yeo v. Tweedy, 34 N.M. 611, 286 P. 970; State ex rel. Bliss v. Dority, 55 N.M. 12, 225 P.2d 1007. It should be noted that the New Mexico water code adopted in 1931, specifically provided for prior appropriation for ground waters. In Arizona the common law doctrine has been in use and recognized by the United States Supreme Court. Howard v. Perrin, supra. In California the doctrine of correlative rights has been established and accepted. Katz v. Walkinshaw, supra. The state of Utah sampled all three theories before concluding with a statute on “prior appropriation” in 1935.

Thus it can be seen .that Arizona was free to adopt any theory it wished. The doctrine of prior appropriation for percolating waters was not forced on Arizona by the United States Congress.

For the foregoing reasons I dissent in part.