Title: Jarvis v. State Land Department, City of Tucson
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Title: Jarvis v. State Land Department, City of Tucson
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Spatial Coverage: North America -- United States of America -- Florida
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Abstract: Jake Varn Collection - Jarvis v. State Land Department, City of Tucson (JDV Box 86)
General Note: Box 22, Folder 3 ( Court Cases of Water Rights in States Other Than Florida - 1990 ), Item 3
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JARVIS v. STATE LAND DEPARTMENT, CITY OF TUCSON Ariz. 385
Cite as 458 P.2d 385


[8] The trial court properly denied de-
fendant's motion to suppress the evidence
seized pursuant to the search warrant.
Affirmed.
LOCKWOOD, V. C. J., and STRUCK-
MEYER, J., concur.







104 Ariz. 527
W. W. JARVIS, for and on behalf of him-
self and other persons or legal entities
constituting a class too numerous to be
named as parties, Petitioners,
v.
The STATE LAND DEPARTMENT; Obed
M. Lassen, State Land Commissioner;
CITY OF TUCSON, a municipal corpora-
tion, real party in Interest, Respondent.
No. 9488.
Supreme Court of Arizona.
In Banc.
June 24, 1969.
Rehearing Denied July 15, 1969.


Original proceeding by landowners
within Avra and Altar Valleys for injunc-
tion to require state land department and
state land commissioner to cancel any ex-
isting grants of rights-of-way over state
lands by which city of Tucson might trans-
port water and to enjoin the land depart-
ment and land commissioner from permit-
ting Tucson to transport water through
pipeline over state lands. The Supreme
Court, Struckmeyer, J., held that location
of Altar and Avra Valleys within critical
ground water area was sufficient to entitle
landowners within the valleys to injunction
which would require state land department
and state land commissioner to cancel ex-
isting grants of rights-of-way over state
lands by which city of Tucson might trans-
port water and which would restrain them
from permitting Tucson to transport water
through pipeline over state lands.
Injunction granted.
456 P.2d-25


1. Waters and Water Courses =-100, 101
Landowner owns the water beneath
the soil. A.R.S. 45-301 et seq.

2. Evidence @=48
Court would take judicial notice that
the Avra and Altar Valleys were declared
by the state land department to be critical
and were included within Marana Critical
Ground Water Area. A.R.S. 45-301 et
seq.

3. Evidence C=48
Court would take judicial notice of
records of a state agency.

4. Waters and Water Courses e-107(2)
Location of Altar and Avra Valleys
within critical ground water area was suf-
ficient to entitle landowners within the val-
leys to injunction which would require
state land department and state land com-
missioner to cancel existing grants of
rights-of-way over state lands by which city
of Tucson might transport water and
which would restrain them from permitting
Tucson to transport water through pipeline
over state lands. A.R.S. 45-301 et seq.

5. Eminent Domain =188
Before city would be entitled to exer-
cise any power of eminent domain to con-
demn rights in percolating water, it would
be required to pay compensation for the
percolating waters to the landowners or to
the court on their behalf. A.R.S.Const.
art. 2, 17.

6. Waters and Water Courses =107(2)
Where landowners had 33,000 acres of
farmland dependent upon ground water of
Avra-Altar Valleys for productivity and
state had 8,000 acres under lease in culti-
vation and it would be unconscionable,
harsh and inequitable to require landowners
and state to prove damages which might re-
sult at sometime in indefinite future when
lands became marginal or to require them
to wait until the ground water level had so
dropped that lands were no longer produc-
tive, landowners' remedy at law by suit for
damages was inadequate. A.R.S. 45-301
et seq.





456 PACIFIC REPORTER, 2d SERIES


7. Waters and Water Courses e-107(2)
Municipalities may be enjoined from
illegal exploitation of ground waters. A.
R.S. 45-301 et seq.
8. Estoppel @=95
Silence does not operate as an estoppel
where the means of knowledge is equally
available to both parties.
9. Estoppel 3=95
Estoppel by silence cannot be invoked
by one who knows the true character of
his own title.

10. Estoppel =95
To make silence of a party operate as
an estoppel, there must have been a duty to
speak.

II. Estoppel -95
Remaining passive and silent does not
deprive a person of his legal rights.

12. Estoppel C=56
Before one is stopped he must have
done some act to induce or encourage an-
other to alter his position.

13. Estoppel e'95
Where legal rights of landowners
within critical ground water area were as
apparent to city as to landowners after
landowners had engaged attorneys to meet
and confer with city and landowners did
no act which would induce or encourage
city to alter its position, landowners' si-
lence when city entered into contracts and
agreements with United States to construct
pipeline for transportation of ground water
from critical ground water area did not es-
top them from seeking injunction to direct
state land department and land commis-
sioner to cancel city's rights-of-way to
transport water over state lands. A.R.S.
45-301 et seq.


Elmer C. Coker, Phoenix, Cox & John-
son, Eloy, for petitioners.
Gary K. Nelson, Atty. Gen., by Dale R.
Shumway, Sp. Asst. Atty. Gen., Phoenix,
for Obed M. Lassen, State Land Commis-
sioner of Arizona.


Dino De Concini, City Atty., of Tucson,
Robert O. Lesher, Sp. Asst. City Atty.,
Tucson, for real party in interest.
Jennings, Strouss, Salmon & Trask,
Phoenix, for amici curiae, Salt River Proj-
ect Agricultural Imp. & Power Dist. and
Salt River Valley Water Users Ass'n.

STRUCKMEYER, Justice.
This petition for an injunction filed De-
cember 12, 1968, invokes the original jur-
isdiction of this court, Constitution of Ari-
zona, Art. VI, Sec. V, A.R.S. It is by W.
W. Jarvis on behalf of himself and others
who irrigate 33,000 acres of land in the
Avra and Altar Valleys by means of wells
pumping percolating waters. The action is
directed principally against the City of
Tucson, a municipal corporation which has
recently drilled certain wells in the Avra
and Altar Valleys and proposes to trans-
port the waters pumped therefrom across
state lands to Tucson, a distance of some
fifteen to eighteen miles. Respondents, the
State Land Department and the State Land
Commissioner, Obed M. Lassen, admit that
the withdrawal and transportation of water
by Tucson will reduce the supply of
ground water (percolating water) in the
valleys and requests this court to determine
the legality of Tucson's actions. Petition-
ers ask that the State Land Department
and State Land Commissioner be required
to cancel any existing grants of rights-of-
way over state lands by which Tucson may
transport water and that the State Land
Department and the State Land Commis-
sioner be enjoined from permitting Tucson
to transport water through a pipeline over
state lands. A resume of the law as it has
developed in the Arizona cases controlling
the use of ground waters will point up the
principles governing this case.
[1] Thirty-seven years ago in Maricopa
County Municipal Water District, et al. v.
Southwest Cotton Co., 39 Ariz. 65, 4 P.2d
369, rehearing denied, 39 Ariz. 367, 7 P2d
254, this court predicted that the time
would soon come when it would be neces-
sary to consider the extent of the rights of
the surface owners to the water flowing or


386 Ariz.


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JARVIS v. STATE LAND DEPARTMENT, CITY OF TUCSON Ariz. 387
Cite as 456 P.2d 385
neath the soil. That day arrived of another land owner are thereby dam-
ne years later in 1952. In the aged or impaired. *.'" (Emphasis
:ision in Bristor v. Cheatham, 73 supplied). 75 Ariz. at 236, 255 P.2d at
28, 240 P.2d 185, a majority of this 178.
Id that in Arizona the doctrine of In the instant case Tucson admits in its
propriation applied to the use of response that it has acquired well sites and
water. The doctrine was bitterly drilled wells for the purpose of transport-
on rehearing and the court then in ing water for the municipal uses of its res-
that the owners of the land had a idents. Tucson denies that petitioners will
property right in the water underly- be irreparably injured and damaged by the
luivocally committed this state to withdrawal and transportation of ground
rine of reasonable use rather than waters from the Avra and Altar Valleys,
propriation. Bristor v. Cheatham, asserting that its proposed pipeline system
227, 255 P2d 173. The rule that is designed to carry at a low head pressure
er of land owns the water beneath 24,000,000 gallons per day and that its
has been the continuous holding of maximum capacity will be approximately
t for seventy-five years. Howard 30,000,000 gallons per day. The denial by
n, 8 Ariz. 347, 76 P. 460; Mc- Tucson that petitioners will be irreparably
v. Moore, 20 Ariz. 1, 176 P. 568; injured and damaged must, therefore, be
a County Municipal Water Dist. et tested by whether petitioners' water supply
uthwest Cotton Co., supra; Bristor will be impaired by the transportation of
ham, supra; State ex rel. Morri- water from the lands overlying the well
Lnway, 87 Ariz. 206, 349 P.2d 774. sites which Tucson has acquired.
*istor v. Cheatham the plaintiffs In 1948 the Eighteenth Legislature in its
e owners of wells on their lands Sixth Special Session recognized that there
applied water for domestic purpos- were limits to the water resources of the
e defendants, many years later, state and adopted a Ground Water Code,
umber of large wells for irrigation See A.R.S. 45-301 et seq. Procedures
. They transported the water thus were established by which the State Land
a distance of approximately three Department would designate critical
r the development and irrigation of ground water areas in which thereafter the
t previously cultivated. It was ex- construction of other irrigation wells was
stated in the decision that the wa- prohibited. We upheld the constitution-
not beneficially used on the lands ality of the Code in 1955 in Southwest En-
h the wells were located. The de- gineering Co. v. Ernst, 79 Ariz. 403, 291
Pumping caused the water level P.2d 764. There we said:
to the extent that the plaintiffs "The legislative finding that the ex-
prived of water for domestic pur-
prived of water for domestic pur- haustion of ground water by excessive
In the second decision this court withdrawals threatens to destroy one of
ed both the English and American
the principal economic resources of the
a reasonable use and adopted the
reasonable use and adopted the state to the consequential serious injury
n quoting from Rothrauff v. Sink- of all is not disputed. Such a conclusion
ng Water Co., 339 Pa. 129, 14 A.2d is obviously justified because unre-
s follows: strained use must inevitably result either
ile there is some difference of in complete exhaustion of the state's
n as to what should be regarded as ground water so that in the end the
unable use of subterranean waters, lands dependent thereon will revert to
modern decisions are fairly harmoni- their desert state or in the lowering of
holding that a property owner may water tables so that the increased cost of
ncentrate such waters and convey pumping will reduce these lands to a
off his land if the springs or wells marginal or submarginal condition." 79


___






456 PACIFIC REPORTER, 2d SERIES


Ariz. at 408-409, 291 P.2d at 768.
[Footnote omitted]
[2-4] In 1954, pursuant to the terms of
the Ground Water Code, the Avra and Al-
tar Valleys were declared critical, being in-
cluded within and as a part of the Marana
Critical Ground Water Area. This is an
official act of a state agency, the records
of which we take judicial notice. State ex
rel. Smith v. Bohannan, 101 Ariz. 520, 421
P.2d 877. That these lands are within a
Critical Ground Water Area is alone suffi-
cient to grant petitioners the relief sought
since a Critical Ground Water Area is a
ground water basin or a subdivision there-
of "not having sufficient ground water to
provide a reasonably safe supply for irri-
gation of the cultivated lands in the basin
at the then current rates of withdrawal."
A.R.S. 45-301. Manifestly, a ground
water area or subdivision of a basin which
does not have a reasonable safe supply for
the existing users can only be but further
impaired by the addition of other users or
uses.
Petitioners have also supported their po-
sition by filing with this court as an exhib-
it the "Ground Water-Resources Report
No. 25 of the Arizona State Land Depart-
ment" published in February of 1966.
From that report entitled "An Appraisal of
Ground Water-Resources of Avra and Al-
tar Valleys, Pima County, Arizona", it ap-
pears that in common with the Basin and
Range Province of the Western United
States, the Avra and Altar Valleys form a
north-south trending ground water area
bounded on the east and west by mountains
of igneous and strongly metamorphic rock.
The Altar Valley is to the south and con-
siderably smaller than the Avra Valley into
which its waters discharge. The floor of
both valleys consists of alluvium, a con-
glomerate of silt, sand and pebbles washed
in by erosion from the surrounding moun-
tains to a depth in places of at least 2,000
feet. The detrital material below the val-
ley floors permits the storage of a large
volume of water which runs off from the
mountain area and "probably infiltrates to
the ground water reservoir through the


coarse materials at the base of the moun-
tains and along the stream channels."
Ground Water-Resources Report No. 25,
supra, page 14.
There is not sufficient data to determine
the theoretical available reservoir storage -
or the rate of withdrawal with relation
thereto in the Altar Valley, but it is clear
that its underground drainage is into the
Avra Valley. In the Avra Valley the wa-
ter storage has been determined to be about
16.5 million acre feet above an arbitrary
depth of 1,000 feet below the surface of
the ground. Statistics supplied from wells
in the Avra Valley for a ten year period
from the spring of 1955 to the spring of
1965, establish that about 1.2 million acre
feet of ground water were withdrawn for
an average of 120,000 acre feet annually.
After considering the small amount of nat-
ural inflow in excess of the natural out-
flow, this withdrawal in ten years has -C
amounted to about fifteen per cent of the
storage capacity of that portion of the res- .;
ervoir underlying the Avra Valley and has
resulted in the lowering of the water table
by approximately eighteen feet. Long
range planning within the Avra-Altar area,
is, of course, as elsewhere, based on the
proposition that a hydrologic equilibrium
must be maintained.
From the foregoing, it is readily appar-.
ent that any additional uses must necessari-
ly deplete the source of supply of existing
users. The City of Tucson in proposing to
establish a system with a potential with-
drawal capacity in excess of 30,000,000 gal-
lons per day will be taking more than 30,000
acre feet per year. Hence, Tucson, if per-
mitted to place its proposed system into
use, would withdraw and transport from


an area that is already critical an amount
of water equal to about one-fourth of that
presently being consumed with the result-
ing dimunition and earlier depletion of the
existing water supply. Tucson's action is
clearly illegal.
It is Tucson's position, however, that pe-
titioners are not entitled to an injunction
when the party charged with the withdraw-
al and transportation of ground water is


A


388 Ariz.


^







JARVIS v. STATE LAND DEPARTMENT, CITY OF TUCSON Ariz. 389
Cite as 456 P.2d 385


a municipal body possessing the power of
eminent domain. Tucson urges that equity
will not enjoin the doing of an act which
will take or injure the property of others
when such taking or injury can be justified
and compensated under the rules of emi-
nent domain.
[5] We said in State v. Anway, supra,
that because of the pronouncements in
Howard v. Perrin, supra, and Maricopa
County Municipal Water District et al. v.
Southwest Cotton Co., 39 Ariz. 65, 4 P.2d
369, that the doctrine of reasonable use
"* is a rule of property, *." By
Art. 2, 17 of the Constitution of Arizona
"* No private property shall be taken
or damaged for public or private use with-
out just compensation having first been
made, or paid into court for the owner,
* *." We think this language of the Con-
stitution is clear and unambiguous, needs
no interpretation and means exactly what
it says. Hence, assuming that Tucson can
exercise the power of eminent domain to
condemn rights in percolating water, a
point we do not decide, compensation must
be first paid to the petitioners or into court
on their behalf.
[6] We recognize that line of cases
which holds that where damages for the
mining of subterranean water can be ade-
quately compensated in a suit for damages,
equity will not entertain an injunction.
But even were we to ignore the vital
thrust of the Constitution, we do not think
on the present record that a suit for dam-
ages can adequately compensate petitioners.
There are admittedly some 33,000 acres of
farm land dependent upon the ground wa-
ter of the Avra-Altar Valleys for produc-
tivity. The State of Arizona as owner or
trustee of state school lands has 8,000
acres under lease in cultivation. It has an
interest in the remainder of the desert
lands overlying the Avra-Altar Valleys to-
taling some 81,000 acres, at least a part of
which has not been put into cultivation be-
cause of the prohibition contained in the
Ground Water Code. To require petition-
ers and the State of Arizona to now prove
damages which may result at some time in


the indefinite future when the lands be-
come marginal or wait until the ground
water level has so dropped that the lands
overlying are no longer productive is un-
conscionable, harsh, and inequitable. The
interests are too great for such a cavalier
treatment of the rights here sought to be
preserved.
[7] Respondent, Tucson, asserts that
courts will not enjoin municipalities from
the illegal exploitation of ground waters.
We assume, since no injunction is prayed
for against Tucson and since Tucson des-
ignates itself in its response as the real
party in interest, that its position is predi-
cated on the theory that an injunction
against the State Land Department and the
State Land Commissioner is in reality an
injunction against Tucson. There are cas-
es concerning percolating waters where
courts after finding that an action for
damages was adequate have refused to is-
sue an injunction against a municipality,
but not where, as here, damages are diffi-
cult to measure and irreparable. Many
courts have found that an injunction is an
appropriate remedy. Koch v. Wick (Fla.),
87 So.2d 47; Forbell v. City of New York,
164 N.Y. 522, 58 N.E. 644; Dinger v. City
of New York, 42 Misc. 319, 86 N.Y.S. 577;
182 N.Y. 542, 75 N.E. 1129; Township of
Hatfield v. Lansdale Municipal Authority,
403 Pa. 113, 168 A.2d 333; Bennett v. City
of Salem, 192 Or. 531, 235 P.2d 772.
Tucson urges an estoppel against peti-
tioners alleging:
"That in March of 1968, attorneys for
the petitioners and the City met and con-
ferred, the attorneys for petitioners
being then informed of what even before
that time were widely-known plans; that
the City hearing no complaint, proceeded
to enter into contracts and agreements
with the United States and others to
spend at least 2.8 million dollars on con-
struction between March, 1968, and the
filing of this petition; [December 22,
1968] and that they [petition-
ers] have done nothing to assert their
purported rights and are now stopped to
do so; *."







456 PACIFIC REPORTER, 2d SERIES


[8-13] We do not think these allega-
tions raise an estoppel. Petitioners were
sufficiently concerned to engage attorneys
to meet and confer with Tucson. Thereaf-
ter, the legal rights were as apparent to
Tucson as to petitioners. Silence does not
operate as an estoppel where the means of
knowledge is equally available to both par-
ties. Cityco Realty Co. v. Slaysman, 160
Md. 357, 153 A. 278, 76 A.L.R. 296; Anno.
304, 310. Estoppel by silence cannot be in-
voked by one who knows the true charac-
ter of his own title. Certainly, petitioners
were under no duty to protect Tucson by
advising it as to what its legal rights were.
To make the silence of a party operate as
an estoppel, there must have been a duty to
speak. Ray v. First National Bank of Ari-
zona, 88 Ariz. 337, 356 P.2d 691. Remain-
ing passive and silent does not deprive a
person of his legal rights. In addition
there must be some act to induce or en-
courage another to alter his position.
Grant County Deposit Bank v. Greene, 6
Cir., 200 F.2d 835.
For the foregoing reasons a mandatory
injunction will issue directing the State
Land Department and Obed M. Lassen,
State Land Commissioner, to cancel any
rights-of-way heretofore granted to Tuc-
son for the transportation of water be-
tween the Avra and Altar Valleys and
Tucson, and the State Land Department
and State Land Commissioner are perpetu-
ally enjoined from granting such rights-
of-way except upon the following condi-
tion: that upon application to this court,
accompanied by a showing that the Avra-
Altar Valleys are no longer critical within
the meaning of the Ground Water Code of
1948, or such other circumstances as would
permit the legal pumping and transporta-
tion of ground water therefrom, this in-
junction will be modified or dissolved as
the facts warrant.

LOCKWOOD, V. C. J., HAYS, Justice,
and NABOURS, Judge, concur.
NOTE: The Honorable JESSE A.
UDALL, Chief Justice, having disqualified
himself, the Honorable WILLIAM W.


NABOURS, Judge of the Superior Court
of Yuma County, Division 1, was called to
participate in his stead.
McFARLAND, Justice (especially con-
curring) :
I concur in the able opinion of Justice
Struckmeyer; however, because of the
importance of the subject I feel that it is
desirable to express my views emphasizing
some of my reasons for my concurrence.
The issues involved in the case are set
forth in the majority opinion. Also the his-
tory of the development of the law is like-
wise discussed. The people of this State
have had for a century a great appreciation
of the importance of the proper utilization
of the water of our State. The history of
its use-dating back a century-has been
outlined in the many opinions of the trial
court and of this Court, beginning with the
Kent Decree in the case of Hurley v. Ab-
bott et al. [See Adams v. Salt River Valley
Water Users' Association, 53 Ariz. 374, 89
P.2d 1060.]
The principal cases setting forth the rule
governing subterranean waters are given
in the majority opinion, beginning with
Howard v. Perrin, 8 Ariz. 347, 76 P. 460,
holding that percolating waters are the
property of the owner of the soil, but the
subterranean streams flowing in natural
channels between well-defined banks are
subject to appropriations under the same
rule as surface streams. In the case of
Maricopa County Municipal Water Conser-
vation District No. 1 v. Southwest Cotton
Company, 39 Ariz. 65, 4 P.2d 369, the late
Justice Lockwood outlined the history of
subterranean water law, affirmed the hold-
ing in Howard v. Perrin, supra, and held
that:
"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, 141
Cal. 116, 70 P. 663, 74 P. 766, 64 LR.A.
236, 99 Am.St.Rep. 35, and the cases


__~II I


mwmm


390 Ariz.






JARVIS v. STATE LAND DEPARTMENT, CITY OF TUCSON Ariz. 391
Cite as 456 P.2d 385


which follow it, based on the doctrine of
sic utere tuo ut alienum non laedas, we
need not now decide. When the matter
is properly before us, we will determine
the rule which applies."
In Bristor v. Cheatham, 73 Ariz. 228,
240 P.2d 185, and on rehearing, 75 Ariz.
227, 255 P.2d 173, in the prevailing opinion
the Court adopted the American rule that
one may extract water for a reasonable,
beneficial use of the land from which the
same is taken.
The Legislature, in its 6th Special Ses-
sion in 1948, adopted a ground-water code.
This act of the Legislature was, by this
Court, in an able land-mark decision au-
thored by Justice Struckmeyer, held to be
constitutional. In Southwest Engineering
Co. v. Ernst, 79 Ariz. 403, 291 P.2d 764,
this Court, in passing upon the ground-
water code, held:
"* After a groundwater area is
designated as critical, the construction of
new irrigation wells therein is prohibited
with certain exceptions, i. e., domestic
and replacement wells. Those who are
pumping from existing wells are allowed
to continue to the full capacity of such
wells. It should be emphasized that in
critical areas the Act does not pruport to
regulate the use of ground water be-
tween owners of land in cultivation, nor
does it regulate the use of ground water
outside of critical areas with exception
that waste as defined is universally pro-
hibited. By prohibiting the drilling of
new wells in critical areas, the Act limits
the use of water to present facilities
thereby preventing additional withdraw-
als from underground supplies which are
determined to be inadequate.
*
"It can thus be seen that a conflict oc-
curs between appellant and the state by
reason of the interest of the public in
the preservation from destruction of a
resource essential to the sustenance of
life. Where the public interest is thus
significantly involved, the preferment of
that interest over the property interest
of the individual even to the extent of


its destruction is a distinguishing charac-
teristic of the exercise of the police pow-
er. The principle which we recognize
here as controlling rests upon historic
precedent extending back into the com-
mon law, Respublica v. Sparhawk, 1
Dall. 357, 1 L.Ed. 174, Bowditch v. City
of Boston, 101 U.S. 16, 25 LEd. 980,
and has had continuous recognition al-
most to the present moment. United
States v. Caltex (Phillippines), Inc., 344
U.S. 149,73 S.Ct. 200,97 L.Ed. 157.

"It has application not alone to the dis-
asters of fire, flood, pestilence and war,
but to other circumstances where public
interests dictate an unavoidable choice
between one class of property as against
another."
In the instant case, as set forth in Jus-
tice Struckmeyer's opinion, there can be no
question but what the pumping of the wa-
ter by the City of Tucson would deplete the
source of supply of the petitioning users.
The determination of the rights of the pe-
titioners requires careful consideration of
the objectives of the ground-water code.

In addition to those discussed in the
Ernst case, supra, I call attention to the
fact that what was known was the Central
Arizona Project was pending in the United
States Congress at that time. The Bureau
of Reclamation of the Department of the
Interior took the position that the Arizona
Water Users in Central Arizona would not
be saved by the Central Arizona Project
from the disaster which would result from
water shortage unless there was an under-
ground water law which would regulate
and prevent an expansion of the use of
water; that otherwise new land would be
put into cultivation which would deplete
the water supply even more than what
would be gained by the importation of wa-
ter from the Colorado River. The Gover-
nor of Arizona, in compliance with this po-
sition, made many recommendations to the
Legislature for the adoption of a ground-
water code, and called the Legislature back
into several sessions for its adoption.
These facts are shown by his many mes-






456 PACIFIC REPORTER, 2d SERIES


sages to the Legislature. To the 4th Spe-
cial Session he said:
"It is unnecessary to halt all pumping in
the areas that now are using from one
and a half to eighteen or twenty times
the amount of water available. Our goal
should be to endeavor to adopt a pro-
gram that will spread the remaining wa-
ter over say ten or twelve years. If we
can do this, Arizona will be able to ob-
tain the co-operation of the federal gov-
ernment to bring supplemental water
from the Colorado River in sufficient
quantity to give every one an adequate
supply.
"If we are to obtain this Colorado River
water, we must have this legislation.
*" Journal of the House, 18th
Legislature, 4th Spec. Session, p. 11
And, then, in his proclamation calling the
6th Special Session of the 18th Legislature,
he said:
"WHEREAS, the regulation and control
of Arizona's groundwater resources is an
imperative necessity, if this State's
rights in the Colorado river are to be re-
alized, the imminent threat to its agricul-
tural industry averted, and the conse-
quent menace to its economy turned
aside." Journal of the House, 18th Leg-
islature, 6th Spec. Session, p. 9
Then, in his message to the Legislature, he
stated:
"It is too bad that we did not get a code
back in 1937 when a legislative study
conducted under the direction of the
University of Arizona recommended
groundwater controls. Our present de-
velopment would have been more orderly
and on a much sounder foundation. But
it is useless to deplore past mistakes.
We now have opportunity to correct that
mistake and at the same time open the
door for bringing in water from the Colo-
rado river that should forever end the
recurring threats of water shortage that
has plagued this area since man arrived.
"The proposed code that will be present-
ed to you at this session represents the
best thinking of all factions involved in


this complicated matter. It has been
studied and approved as the minimum that
we must have to guarantee to the Bureau
of Reclamation that we will have a stable
economy for the repayment of costs of
the Central Arizona Project. Both the
Central Arizona Project Association and
the Interstate Stream Commission have
endorsed the Bill on that basis." Id., at
p. 11
I do not feel that there is any question
but what the Legislature was seeking to
meet these objectives when it passed the
underground water code in 1948. In Chap-
ter 5, Laws of 1948, 6th Special Session,
Section 3, the Legislature stated its pur-
pose as follows:
"Sec. 3. Declaration Of Policy. United
State [sic] Geological Survey reports,
based on studies covering a long period
of years, indicate that large areas of rich
agricultural lands in Arizona are de-
pendent, in whole or in part, upon
groundwater basins underlying such
lands for their water supply, and that in
a number of such basins withdrawals of
ground water, greatly in excess of the
safe annual yield thereof, is converting
the lands of rich farming communities
into critical groundwater areas, to the
serious injury of the general economy and
welfare of the state and its citizens. It
is therefore declared to be the public pol-
icy of the state, in the interest of the ag-
ricultural stability, general economy and
welfare of the state and its citizens to
conserve and protect the water resources
of the state from destruction, and for
that purpose to provide reasonable regu-
lations for the designation and establish-
ment of such critical groundwater areas
as may now or hereafter exist within the
state."
The act provides for the designation of
"certain critical underground areas."
"1. 'Critical groundwater area' means
any groundwater basin as herein defined
[in paragraph 5], or any designated sub-
division thereof, not having sufficient
ground water to provide a reasonably
safe supply for irrigation of the cultivat-



d


392 Ariz.








Ariz. 393


STATE v. HUGHES
Cite as 456 P.2d 393


ed lands in the basin at the then current
rates of withdrawal."
The question then before this Court is
whether the City of Tucson, which is not
in the same water basin designated as a
critical area as the petitioners, has the
right to pump water from that area into
another water basin. Unquestionably it
was the intent of the Legislature to protect
the rights of users within a critical area
and thereby prevent the withdrawals
threatening to destroy one of the principle
resources of the State which could only re-
sult in an injury to all. The critical areas
were limited to water basins and subdivi-
sions thereof. Then, as now, there were
many recognized and established water
rights in each water basin. For exam-
ple, in Adams v. Salt River Valley Wa-
ters Users' Association, supra, this Court
recognized the right of the S.R.V.W.U.
to pump water to supply irrigation not
only for the lands from under which
they were pumped but from other lands in
the Project. So Justice Struckmeyer's de-
cision, I think, rightly limits the question
in the instant case to the taking of wa-
ter from critical areas and transporting it
to other areas.
The City of Tucson in its brief cites
45-301 and 45-322, A.R.S. It contends
that the provisions of these sections do not
relate in any way to the extraction of wa-
ter from land for domestic and industrial
uses.
We cannot interpret the provisions of
these sections to permit the transportation
of water pumped from wells in a critical
area to another area for the purposes set
forth therein to the detriment of the rights
of the users in the critical area. Such an
interpretation might permit industries to
practically exhaust a water supply in a
critical area to the detriment of established
rights. Such an interpretation would
thereby permit the defeat of the objectives
of the Legislature in passing the under-
ground-water code for the protection of
the rights of the users and the other objec-
tives set forth in the governor's message to
the Legislature. Justice Struckmeyer's de-
456 P.2d-25V2


cision provide for a mandatory injunction
to prohibit the transportation of water out
of the critical area to Tucson until the
Avra Valley and Altar Valley are no long-
er critical within the meaning of the
ground-water code or such other circum-
stances that would permit the pumping and
transportation of ground water therefrom.
It is not likely that the area will be de-
clared to be a non-critical area within the
foreseeable future. The other circum-
stances are not spelled out. I am personal-
ly of the opinion that the awarding of
damages has certain obvious difficulties.
The amount of damages to each user would
be difficult to determine. This would re-
quire taking into consideration the addi-
tional costs of pumping water for a great-
er depth which could vary in different
areas of the district, and from year to
year. Also there is the question of the
quality of water pumped at a greater depth.
This would depend upon too many vari-
ables. The City may have several alter-
natives. For example, the City might buy
sufficient amount of agricultural lands in
the district now using a like quantity of
water and retire them from cultivation.
Or at least make some arrangement for
non-cultivation until the City of Tucson
can secure its fair share of Colorado River
water under the Central Arizona Project
legislation.


KEY NUM sER SY


104 Ariz. 535
STATE of Arizona, Appellee,
V.
Carlos Billy HUGHES, Appellant.
No. 1879.
Supreme Court of Arizona.
In Bane.
July 9, 1969.


The defendant was convicted of first-
degree rape. The Superior Court of Pima
County, Mary Anne Richey, J., rendered







JARVIS v. STATE LAND DEPARTMENT
Cite as 479 P.2d 169


mony which compared the slipperiness of
the tile in front of appellee's store with tile
ivpmnt of another store. The testimony
wa. to the effect that the comparison
showed that the results of rubbing the ap-
pellant's shoes upon the tile in front of
both stores was about the same. A com-
parison of the tile in front of appellee's
store with the tile in front of another store
showing that they were about the same in
slipperiness does not appear to have any
material significance to any issue in the
case. But we do not think the failure to
strike the testimony was prejudicial error;
rather, we believe it was inconsequential.
Judgment affirmed.

LOCKWOOD, C. J., and UDALL, Mc-
FARLAND and HAYS, JJ., concur.








106 Ariz. 506
W. W. JARVIS, for aid on behalf of him-
and other persons or legal entitles
stituting a class too numerous to be
named as parties, Petitioners,
v.
The STATE LAND DEPARTMENT, a De-
partment of the State of Arizona, Andrew
L. Bettwy, State Land Commissioner of
the State of Arizona; and CITY OF TU-
CSON, a municipal corporation, real party
In Interest, Respondents.
No. 9488.
Supreme Court of Arizona
In Bane.
Dec. 28, 1970.


Original proceeding by landowners for
injunction to require State Land Depart-
ment and State Land Commissioner to can-
cel any existing grants of rights-of-way
over state lands by which city might trans-
port water and to enjoin Land Department
and Land Commissioner from permitting
city to transport water through pipeline
479 P.2d--llV


over state lands. The Supreme Court, 104
Ariz. 527, 456 P.2d 385, granted injunction,
and landowners subsequently petitioned for
an order to show cause why injunction
should not be strictly enforced. The Su-
preme Court, Struckmeyer, V. C. J., held
that city could not transport water through
its pipelines to lands which lay within wa-
tershed but outside critical ground water
area from where water was taken, but tha
in view of statute giving priority to needs
of municipalities for appropriable waters,
injunction would be modified to allow the
withdrawal of water from basin for mu-
nicipal uses to same extent as water pre-
viously withdrawn for use of those lands
which city might purchase in basin, and
water could be withdrawn either from wells
on land so acquired or from city's existing
wells in the basin, but water could not be
withdrawn both for use on the lands and
for transport off the lands for municipal
purposes.

Petition granted.

William W. Nabours, Superior Court
Judge, sat in place of Udall, J., who disqual-
ified himself.


1. Waters and Water Courses =107(3)
Under injunction against city embody-
ing rule that percolating waters may not be
used off lands from which they are pumped
if thereby others whose lands overlie com-
mon supply are injured, and that such wa-
ters can only be used in connection with
land from which they are taken, city could
not pump water from its wells and transport
water so pumped through its pipelines to
lands which were within watershed but
outside critical ground water area from
which water was taken.

2. Waters and Water Courses e=107(2)
A "critical ground water area" from
which the conveyance of ground waters off
the lands will be enjoined is a ground water
basin or subdivision not having sufficient
ground water to provide a reasonably safe
supply for irrigation of cultivated lands in


Ariz. 169


IIIIIY-LLIIIIWI~~_IlY1IYII








479 PACIFIC REPORTER, 2d SERIES


the basin at the then current rates of with-
drawal.
See publication Words and Phrases
for other judicial constructions and
definitions.
3. Waters and Water Courses l101O
Fact that statute prohibited only new
irrigation or drainage wells in critical areas
did not evidence legislative intent to permit
pumping for municipal purposes without
restriction. A.R.S. 45-301 et seq.
4. Waters and Water Courses 3=107(3)
Under injunction prohibiting transpor-
tation of ground waters by municipality to
municipality or elsewhere outside critical
ground water area, city was not prohibited
from delivering water to airfield for lawful
purposes where airfield supply was from
common basin over which it lay and from
which it could legally withdraw water by
sinking its own wells for domestic purposes.

5. Waters and Water Courses 107(3)
In absence of proof by municipal cor-
poration that its water customers outside
critical ground water area but within drain-
age area from which water was taken over-
lay water basin so as to be entitled to with-
draw water from it, there were no equities
which would relieve city of injunction
against transportation of water to customers
outside the critical ground water area from
which water was taken.

6. Equity 0-62
"Equity follows the law" means that
equity obeys and conforms to the law's gen-
eral rules and policies, whether the common
law or statute law.
See publication Words and Phrases
for other judicial constructions and
definitions.

7. Waters and Water Courses C:107(3)
In view of statute giving priority to
needs of municipalities for appropriable
waters, injunction prohibiting city from
transporting water to city or anywhere out-
side the critical ground water area from
where water was taken some 15 miles from
city would be modified to allow the with-
drawal of water from basin for municipal


uses to same extent as water previously
withdrawn for use of those lands which
city might purchase in basin, and water
could be withdrawn either from wells on
land so acquired or from city's existing
wells in the basin, but water could not be
withdrawn both for use on the lands and
for transport off the lands for municipal
purposes. A.R.S. 43-147.


Elmer C. Coker, Phoenix, and Donald C.
Cox, Eloy, for petitioners.
Gary K. Nelson, Atty. Gen., by Peter C.
Gulatto, Asst. Atty. Gen., Phoenix, for re-
spondent, State Land Commission.
Lewis C. Murphy, Tucson City Atty., by
Richard H. Day, Asst. City Atty., and Rob-
ert 0. Lesher, Sp. Asst. City Atty., Tucson,
for respondent, City of Tucson.
Evans, Kitchel & Jenckes, by Burton M.
Apker, Phoenix, amici curiae, American
Smelting and Refining Co.
Chandler, Tullar, Udall & Richmond,
Tucson, amici curiae, Anaconda Co. and
Boyd Land and Cattle Co.
Twitty, Sievwright & Mills, Phoenix,
amicus curiae, Banner Mining Co.
Fennemore, Craig, von Ammon & Udall,
Phoenix, amici curiae, Duval Corporation
and Duval Sierrita Corporation.

STRUCKMEYER, Vice Chief Justice.
This is an original petition by W. V.
Jarvis and others, requesting that respond-
ents, the City of Tucson and the State Land
Department, show cause why an injunction
heretofore issued under the original juris-
diction of this Court, Constitution of Ari-
zona, Article VI, 5, A.R.S., should not be
strictly enforced. The petition is a con-
tinuation of the dispute Jarvis v. State
Land Department, City of Tucson, 104 Ariz.
527, 456 P.2d 385, wherein petitioners, who
cultivate 33,000 acres of land in the Avra-
Altar Valleys within the Marana Critical
Ground Water Area by means of irrigation
wells, invoked the original jurisdiction of
this Court to obtain an injunction against
the City and the State Land Department.


___IRIIIIAAlslll~PII~slRCPillj~~


170 Ariz.







JARVIS v. STATE L
Cite as 479
Prior to 1969, Tucson drilled six wells
('4he Avra Valley for the purpose of pump-
.., and transporting water to its customers
both within and without the City, a distance
in excess of fifteen miles. Our injunction
directed the State Land Commissioner to
cancel rights of way across State lands for
transportation of the waters from the Avra-
Altar Valleys to Tucson or elsewhere. In
our written decision we said that upon ap-
plication to this Court accompanied by such
circumstances as would permit the legal
pumping and transportation of ground wa-
ter, our injunction would be modified or
dissolved as the facts warranted.
Petitioners in the present action now as-
sert that the City of Tucson, although not
transporting water to Tucson proper, has
continued to pump water from its wells and
has conducted water to areas both within
and without the Marana Critical Ground
Water Area in violation of the Court's in-
junction. Tucson acknowledges that it is
pumping water from its wells and is deliver-
ing water to an installation known as Ryan
Field within the Marana Critical Ground
Water Area and to certain residences out-
"the Marana Critical Ground Water
Area but within the Avra-Altar Valleys'
drainage area. Several questions which it
is believed pertinent have been propounded
by petitioners in order that there be a final
disposition of the dispute between the par-
ties.

In this Court's second decision in-Bristor
v. Cheatham, 75 Ariz. 227, 255 P.2d 173
(1953), the doctrine of prior appropriation
of ground waters was rejected and the dor-
trine of reasonable use was adopted. In
our first decision in this case we pointed out
that in Bristor it was alleged that the plain-
tiffs had been the owners since 1916 of cer-
tain wells from which they had supplied
themselves with -water for domestic pur-
poses. In 1949 the defendant sank a num-
ber of large irrigation wells which by their
operation sucked the ground water from
under the plaintiffs' lands, thereby destroy-
ing plaintiffs' supply for their wells. De-
fendant transported the water a distance


LND DEPARTMENT Ariz. 171
P.2d 169
of three miles where he developed agricul-
tural lands not theretofore irrigated. We
held in Bristor, which holding was repeated
in our first decision here, that this was not
a reasonable use of ground waters.
In our first decision here, we also held
that the American rule of reasonable use
permitted percolating water to be extracted
for the beneficial use of the land from
which it was drawn. We emphasized this
aspect of the doctrine of reasonable use by
requoting from Bristor that part of the de-
cision in Rothrauff v. Sinking Spring Wa-
ter Co., 339 Pa. 129, 14 A.2d 87, to the ef-
fect that the modern decisions are nearly
harmonious in holding that a property own-
er may not convey waters off the lands
from which they are pumped if the wells of
another are thereby damaged or impaired.
This limitation on the use of ground waters
has the overwhelming support of American
precedent. Percolating waters may not be
used off the lands from which they are
pumped if thereby others whose lands over-
lie the common supply are injured. See
Midway Irrigation Co. v. Snake Creek Min-
ing & Tunnel Co., 271 F. 157 (CCA 8th,
1921), aff'd, 260 U.S. 596, 43 S.Ct. 215, 67
L.Ed. 423 (1922); Katz v. Walkinshaw, 141
Cal. 116, 70 P. 663 (1902), on rehearing, 74
P. 766 (1903); Cohen v. La Canada Land
& Water Co., 151 Cal. 680, 91 P. 584 (1907);
Burr v. Maclay Rancho Water Co., 154 Cal.
428, 98 P. 260 (1908); City of San Bernar-
dino v. City of Riverside, 186 Cal. 7, 198
P. 784 (1921); Koch v. Wick, 87 So.2d 47
(Fla.1956); cf. Willis v. City of Perry, 92
Iowa 297, 60 N.W. 727 (1894); cf. Barclay
v. Abraham, 121 Iowa 619, 96 N.W. 1080
(1903); Schenk v. City of Ann Arbor, 196
Mich. 75, 163 N.W. 109 (1917); Bernard
v. City of St. Louis, 220 Mich. 159, 189 N.W.
891 (1922); cf. Stillwater Water Co. v.
Farmer, 89 Minn. 58, 93 N.W. 907 (1903),
and 99 Minn. 119, 108 N.W. 824 (1906);
Erickson v. Crookston Waterworks, Power
& Light Co., 100 Minn. 481, 111 N.W. 391
(1907); Meeker v. City of East Orange, 77
N.J.L. 623, 74 A. 379 (1909); Crane v.
.Borough of Essex Fells, 67 N.J.Super. 83,
169 A.2d 845 (1961), aff'd, 36 N.J. 544, 178


BsdlJf~aasr~Rl~a~irrr*ara~








479 PACIFIC REPORTER, 2d SERIES


A.2d 196 (1962); Smith v. City of Brook-
lyn, 18.App.Div. 340, 46 N.Y.S. 141; 54
N.E. 787 (1897); Westphal v. City of New
York, 34 Misc. 684, 70 N.Y.S. 1021 (1901),
aff'd, 75 App.Div. 252, 78 N.Y.S. 56, aff'd,
177 N.Y. 140, 69 N.E. 369 (1901), rearg.
den. 177 N.Y. 570, 69-J.E. 1133; Forbell
v. City of New York, 164 N.Y. 522, 58 N.E.
644 (1900); Dinger.v. City of New York,
101 App.Div. 202, 92 N.Y.S. 1120, aff'g. 42
Misc. 319, 86 N.Y.S. 577 (1903), aff'd 182
N.Y. 542, 75 N.E. 1129 (1905); Hathorn v.
Natural Carbonic Gas Co., 194 N.Y. 326,
87 N.E. 504 (1909); Rouse v. City of
Kinston, 188 N.C. 1, 123 S.E. 482 (1924);
Volkmann v. City of Crosby, 120 N.W.2d 18
(N.D.1963); Canada v. City of Shawnee,
179 Okl. 53, 64 P.2d 694 (1937); City of
Enid v. Crow, 316 P.2d 834 (Okl.1957); cf.
Ross Common Water Co. v. Blue Mountain
Consol. W. Co., 228 Pa. 235, 77 A. 446
(1910); Home v. Utah Oil Refining Co.,
59 Utah 279, 202 P. 815 (1921); Glover v.
Utah Oil Refining Co., 62 Utah 174, 218
P. 955 (1923).
Such waters can only be used in connec-
tion with the land from which they are
taken. See Sloss-Sheffield Steel & Iron
Co. Wilkes, 231 Ala. 511, 165 So. 764
(1936), reaff'd on sub. app., 236 Ala. 173,
181 So. 276 (1938); Sycamore Coal Co. v.
Stanley, 292 Ky. 168, 166 S.W.2d 293
(1942); Finley v. Teeter Stone, Inc., 251
Md. 428, 248 A.2d 106 (1968); Smith v.
City of Brooklyn, 18 App.Div. 340, 46
N.Y.S. 141, 54 N.E. 787 (1897); State
ex rel. Ericksen v. McLean, 62 N.M. 264,
308 P.2d 983 (1957); Bayer v. Nello L.
Teer Co., 256 N.C. 509, 124 S.E.2d 552
(1962); Volkmann v. City of Crosby, 120
N.W.2d 18 (N.D.1963); Canada v. City of
Shawnee, 179 Okl. 53, 64 P.2d 694 (1937);
Rothrauff v. Sinking Spring Water Co.,
339 Pa. 129, 14 A.2d 87 (1940); Silver King
Consol. Mining Co. v. Sutton, 85 Utah 297,
39 P.2d 682 (1934); Evans v. City of Seat-
tle, 182 Wash. 450, 47 P.2d 984 (1935).

[1] Tucson questions whether it may
pump water from its wells and transport
the water so pumped through its pipelines


to lands which lie within the watershed but
outside the Marana Critical Ground Water
Area. From what has been said concern-
ing the American rule of reasonable use,
the answer to Tucson's question is, of
course, that it may not.
"There is no apparent reason for say-
ing that, because defendant is a mu-
nicipal corporation, seeking water for the
inhabitants of the city, it may therefore
do what a private owner of the land may
not do. The city is a private owner of
this land, and the furnishing of water to
its inhabitants is its private business. It
is imperative that the people of the city
have water; it is not imperative that they
secure it at the expense of those owning
lands adjoining lands owned by the city."
Schenk v. City of Ann Arbor, 196 Mich.
75, 163 N.W. 109, at 114 (1917).
[2] We also pointed out in our first
decision in this case that the Avra-Altar
Valleys are a part of a critical water area,
being included within the Marana Critical
Ground Water Area. For the reason that a
critical ground water area is a ground water
basin or subdivision "not having sufficient
ground water to provide a reasonably safe
supply for irrigation of the cultivated lands
in the basin at the then current rates of
withdrawal," we held that additional users
would necessarily deplete the supply of the
existing users. Consequently, the convey-
ance of ground waters off the lands on
which wells in the Avra Valley are located
impairs the supply of the other land owners
within the critical area.

[3] Tucson argues that since by statute
A.R.S. 45-301 et seq. only new irrigation
or drainage wells in critical areas having a
capacity of more than 100 gallons per
minute are prohibited, the Legislature must
have intended to permit pumping for mu-
nicipal purposes without restriction. But
the illegality of the use of ground water is
not dependent upon whether the Legisla-
ture has not forbidden the sinking of wells
as a source of supply to be used for mu-
nicipalities. The right to exhaust the com-
mon supply by transporting water for use


r BIIPS131 ~-_LLIL-l~llls~LLLdlI~j~


_ _~ ,, --- ---- -I-- ~-- I


172 Ariz.






JARVIS v. STATE LA
Cite as 479
ei& the lands from which they are pumped
Srle of law controlled by the doctrine
,,-rasonable use and protected by the con-
,, on of the state as a right in property.

i41 Tucson questions whether on equi-
S. p-.;, principles it should be prohibited from
iri:vcring water to Ryan Field. Ryan Field
,., a: airfield which we understand has ex-
..scd at least as long as petitioners have
r::ngied in agriculture. Its lands overlie
:E. Avra-Altar water basin and geographi-
:,;i, it lies within the Marana Critical
around Water Area so as to entitle it to
w-,Ihdraw water from the common supply
for all purposes except agriculture. Tucson
should not be prohibited from delivering
water to Ryan Field for lawful purposes
since the Ryan Field supply is from the
common basin over which it lies and from
which it could legally withdraw water by
sinking its own wells for domestic purposes.

[53 Tucson's delivery of water to pur-
chasers within the Avra-Altar drainage
area but outside the Marana Critical Ground
Water Area is, however, without equitable
sanction. There is no indication in the
f'cord that these customers of Tucson over-
Iie the water basin so as to come within
the principle applicable to Ryan Field. Un-
til Tucson can establish that its customers
outside the Marana Critical Ground Water
Area but within the Avra-Altar Valleys'
drainage areas overlie the water basin so
as to be entitled to withdraw water from it,
there are no equities which will relieve it
of the injunction heretofore issued.
Finally, petitioners request this Court to
determine whether Tucson by acquiring
lands in cultivation in the Avra-Altar Val-
leys may remove the ground water used
upon those lands to other areas contrary
to the doctrine of reasonable use. The
State Land Department joins petitioners in
requesting that the first Jarvis decision be
augmented by clarifying the rights of the
parties in this respect. Tucson also asks
the Court to pass upon a like question al-
though in somewhat a different form.
Amici Curiae, however, oppose the request


ND DEPARTMENT Ariz. 173
P.2d 169
of the parties that the Court expand on the
legal rights in question.
We think, however, that the problem is
critical to municipalities in Arizona and so
justifies our consideration even though not
strictly embraced within the limits of the
issues of the original lawsuit. As indicated,
Jarvis' action invoked this Court's equitable
jurisdiction. We issued the injunction but
stated that we reserved the right to modify
or dissolve upon application accompanied
by a showing of circumstances as would
permit the legal pumping and transportation
of ground water by the City. Our decree
was consistent with the almost universal
rule that a court of equity when requested
will determine all the equities connected
with the main subject of the suit and grant
all the relief necessary to a complete adjust-
ment of the litigation:
"It is a principle of equity that it does
justice completely and not by halves.
When a bill had been brought in good
faith to obtain relief within the jurisdic-
tion of the court, the bill may be re-
tained to do complete justice with ref-
erence to the subject matter, even though
upon the facts the specific relief prayed
for cannot be given, and a bill would not
lie for the sole purpose of obtaining the
specific relief that is given. Reynolds v.
Grow, 265 Mass. 578, 580, 164 N.E. 650;
Booras v. Logan, 266 Mass. 172, 175, 164
N.E. 921; Degnan v. Maryland Casualty
Co., 271 Mass. 427, 430, 431, 171 N.E.
482; Peerless Unit Ventilation Co., Inc.,
v. D'Amore Construction Co., 283 Mass.
121, 125, 126, 186 N.E. 280; Geguzis v.
Brockton Standard Shoe Co., 291 Mass.
368, 371, 197 N.E. 51; Somerville Na-
tional Bank v. Hornblower, 293 Mass. 363,
368, 199 N.E. 918, 104 A.L.R. 1107."
Fields v. Othon, 313 Mass. 115, 46 N.E2d
546, at 547 (1943).

[6,7] It is also frequently stated as a
maxim of equity that equity follows the
law. By this is meant that equity obeys and
conforms to the law's general rules and
policies whether the common law or stat-
ute law. See, e. g., Provident Building &


fi~-~EZ9e~A3~4PPrsLI~ul~- --








479 PACIFIC REPORTER, 2d SERIES


Loan Ass'n. v. Pekarek, 52 Ohio App. 492,
3 N.E.2d 983 (1936). By A.R.S. 45-147
the relative value of uses in appropriable
waters has been fixed by the Legislature
as first, domestic and municipal uses, and
second, irrigation and stock watering. The
creation of such a priority clearly evidences
a legislative policy that the needs of agri-
culture give way to the needs of municipali-
ties. Hence, we hold that the decree in this
case will be modified if Tucson purchases or
acquires the title to lands within the Avra-
Altar Valleys which are now cultivated and
uses the water which would have been used
in cultivating such lands as a source of
supply for its municipal customers. Tucson
may withdraw an amount equal to the an-
nual historical maximum use upon the lands
so acquired.

The record in this case compels the con-
clusion that underlying the Avra-Altar Val-
ley floor is a basin of gently percolating
waters. It is our decision, therefore, that
if Tucson acquires lands within the Avra-
Altar Valleys overlying the Marana Critical
Ground Water Area it may withdraw water
from the basin for municipal uses to the
same extent as water previously withdrawn
for use on those lands. The water with-
drawn may be either from wells on the lands
so acquired or from Tucson's presently ex-
isting wells, but in no event may water he
withdrawn both for use on the lands and
transported off the lands for municipal pur-
poses. Any withdrawals shall be through
water metering devices available for in-
spection by all parties to this litigation
or their agents, and the devices will indicate
the current rates of withdrawal together
with the quantity of water withdrawn
monthly. Tucson will furnish quarterly
records of its water withdrawals to the
Office of the State Land Commissioner
where they will be held available for ex-
amination by the public.

The injunction heretofore issued will be
continued in effect except insofar as it has


application to the installation known as
Ryan Field.

LOCKWOOD, C. J., McFARLAND
and HAYS, J., and WILLIAM W. NA-
BOURS, Judge Superior Court, concur.

NOTE: The Honorable JESSE A..
UDALL, J., having disqualified himself,
the Honorable WILLIAM W. NABOURS,
Judge of the Superior Court of Yuma Coun-
ty, was called to participate in his stead;




S | NUMHBE SYSTiM>




106 Ariz. 511
NAVAJO COUNTY, Arizona, Mohave Coun-
ty, Arizona, Apache County, Arizona, Co-
conino County, Arizona, Yavapal County,
Arizona, and State Department of Prop-
erty Valuation, Appellants,
v.
FOUR CORNERS PIPE LINE COMPANY,
Appellee.
No. 10139-PR.

Supreme Court of Arizona,
In Bane.
Dec. 31, 1970.


Pipeline owner brought action against
five counties and state department of prop-
erty valuation to recover ad valorum tax-
es on pipeline paid under protest. From
judgment of the Superior Court, Maricopa
County, Morris Rozar, J., in favor of pipe-
line owner, counties and department ap-
pealed. The Court of Appeals, 12 Ariz.
App. 348, 440 P.2d 496, affirmed. On petition
for review, the Supreme Court, McFarland,
J., held that substitution by trial court of
such court's method of evaluation for that
of department exceeded court's jurisdiction,
absent finding, or evidence sufficient to
warrant finding, that department had em-


i-9-~"U~~I~I""""""""""sP"P"""~BB~g"""~~


174 Ariz.




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