Title: Farmers Investment Company v. Bettwy
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Title: Farmers Investment Company v. Bettwy
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Language: English
Publisher: 558 Pacific Reporter, 2d Series
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Jake Varn Collection - Farmers Investment Company v. Bett (JDV Box 86)
General Note: Box 22, Folder 3 ( Court Cases of Water Rights in States Other Than Florida - 1990 ), Item 4
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Full Text




558 PACIFIC REPORTER, 2d SERIES


Workmen's Compensation statute in pari
material with the real estate statute.
Black's Law Dictionary sets forth the fol-
lowing definition of pari material :
"Of the same matter; on the same
subject; as, laws pari material must be
construed with reference to each other."

[4] Obviously the two above-indicated
statutes do not relate to the same matter.
Statutes are not interpreted in a vacuum
either, and legal relationships mandated by
one statute cannot be ignored in interpret-
ing another.
We find support for our position in this
case in McClain v. Church, 72 Ariz. 354,
236 P.2d 44 (1951). In this earlier pro-
nouncement by the Arizona Supreme
Court, it was held that real estate salesmen
were employees under the Unemployment
Compensation Act. In that case the court
noted that the legislature had removed real
estate salesmen from coverage under the
Act after the claim arose. The factual
background of the McClain case in regard
to the relationship of broker and salesmen
parallels our case here. Although the lan-
guage of the Employment Security Act,
Ch. 124, 1941 Sessions Laws, differs from
the Workmen's Compensation Act, we find
the previous opinion most persuasive.
In holding as we do, we are aware that
other jurisdictions have taken a contrary
position. See Florida Ind. Comm. v.
Schoenberg, 117 So.2d 538 (Fla.App.
1960). See also McGinniss v. Frederick
W. Berens Sales, Inc., 308 A.2d 765 (D.C.
App.1973), where the court in a personal
injury case indicated that each case should
go off on the basis of the specific facts to
determine whether the real estate salesman
was an employee or an independent con-
tractor.
The broad-brush portrayal of dire conse-
quences flowing from the position taken
here as extensively enumerated in respon-
dent Commission's Motion for Rehearing
can be readily remedied by the legislature
if in their wisdom they consider it nces-
sary.


The award of the Industrial Commission
is set aside.

CAMERON, C. J., STRUCKMEYER,
V. C. J., and HOLOHAN and GORDON,
JJ., concurring.



KEY NUMBER SYSTEM




113 Ariz. 520
FARMERS INVESTMENT COMPANY,
a corporation, Appellant,
V.
Andrew L. BETTWY, as State Land Com-
missioner, and the State Land Department,
a Department of the State of Arizona, and
Pima Mining Company, a corporation, Ap-
pellees.

FARMERS INVESTMENT COMPANY, a
corporation, Appellant,
v.
The ANACONDA COMPANY, a corporation,
Amax Copper Mines, Inc., the Anaconda
Company as partners in and constituting
Anamax Mining Company, a partnership,
Appellees.

CITY OF TUCSON, a Municipal
Corporation, Appellant,
V.
ANAMAX MINING COMPANY, and Duval
Corporation and Duval Sierrlta Cor-
poration, Appellees.
No. 11439-2.

Supreme Court of Arizona,
In Bane.
Aug. 26, 1976.


Incorporated owner of farm lands in
the valley of the Santa Cruz river within
the Sahuarita-continental critical ground-
water area filed suit against mining com-
panies, and others, seeking to enjoin de-
fendants from taking waters beneath the
critical groundwater area and using it on
land other than those from which the wa-
ters are taken. The City of Tucson inter-


^1 ~IYI_


14 Ariz.







FARMERS INVESTMENT COMPANY v. BETTWY Ariz.
Cite as 55S P.2d 14


vened and charged that the groundwater
withdrawn by plaintiff and the mines was
returned to the general groundwater sys-
tem changed in quality by its use, and the
city prayed that plaintiff and the mines be
enjoined from returning to the ground-
water system water of such quality as to
render the general supply undesirable for
domestic purposes. Appeals were taken by
plaintiff and by the city from judgments
entered by the Pima County Superior
Court, Robert O. Roylston, J. The Su-
preme Court, Struckmeyer, V. C. J., held
that the doctrine of reasonable use does
not permit percolating waters to be used
off the lands from which they are pumped
if thereby others whose lands overlie the
common supply are injured or damaged;
that pumping and transportation of ground-
water from state lands lying within the
upper Santa Cruz basin away from the
lands on which the water is pumped is un-
lawful where the supply of other ground-
water users who overlie the common source
of supply is being lowered and depleted;
and that mining company had standing to
enjoin, under the doctrine of reasonable
use, city's withdrawal and transportation of
percolating groundwaters of the Sahuarita-
continental subdivision of the Santa Cruz
groundwater basin by the city for use of
its municipal consumers.

Affirmed in part, reversed in part, and
remanded with directions.

Cameron, C. J., filed a dissenting opin-
ion.



I. Waters and Water Courses 1010I
Doctrine of reasonable use does not
permit percolating waters to be used off
the lands from which they are pumped if
thereby others whose lands overlie the
common supply are injured or damaged.

2. Waters and Water Courses ='101
American doctrine of reasonable use
cannot be said to only forbid the convey-
ance of percolating groundwaters off the


lands overlying the common source of sup-
ply.
3. Waters and Water Courses 0101
Where large investments have been
made in the development of groundwaters,
the doctrine of reasonable use becomes a
rule of property and the rights acquired
under decisions of the Supreme Court and
the investments made are entitled to pro-
tection.

4. Waters and Water Courses 0-101
Water may not be pumped from one
parcel and transported to another just be-
cause both overlie the common source of
supply if the plaintiff's lands or wells upon
his lands thereby suffer injury or damage.

5. Courts 2=93(1)
A court will not prefer one economic
interest over another on an ad hoc basis
where there are not enough of the material
goods in existence to go around; rather,
courts will protect rights acquired in good
faith under previous pronouncements of
the law.
6. Waters and Water Courses e=10
Pumping and transportation of
groundwater from state lands lying within
the upper Santa Cruz basin away from the
lands on which the water is pumped is un-
lawful where the supply of other ground-
water users who overlie the common
source of supply is being lowered and de-
pleted.

7. Waters and Water Courses =33
Mining company had standing to en-
join, under the doctrine of reasonable use,
city's withdrawal and transportation of
percolating groundwaters of the Sahuari-
ta-continental subdivision of the Santa
Cruz groundwater basin by the city for use
of its municipal consumers, since the com-
pany owned 1,530 acres of land formerly
cultivated inside the Sahuarita-continental
critical groundwater area, since the compa-
ny was historically entitled to the use of
water for irrigation, and since it had an
interest in preserving the groundwater sup-
ply in the Santa Cruz basin.








558 PACIFIC REPORTER, 2d SERIES


Snell & Wilmer by Mark Wilmer, Loren
W. Counce, Jr., Phoenix, for Farmers In-
vestment Co.
Bruce E. Babbitt, Atty. Gen. by Peter C.
Gullatto, Phoenix, for State of Arizona.
Musick, Peeler & Garrett by Bruce A.
Bevan Jr., Los Angeles, Cal., Verity &
Smith by John C. Lacy, Tucson, for Pima
Mining Co.
Chandler, Tullar, Udall & Richmond by
Thomas Chandler, Tucson, for Anaconda
Co.
James D. Webb, Tucson City Atty.,
Robert O. Lesher, Tucson, for City of
Tucson.
Fennemore, Craig, Von Ammon & Udall
by Calvin H. Udall, Phoenix, for Duval
Corp.

STRUCKMEYER, Vice Chief Justice.
On November 24, 1969, Farmers Invest-
ment Company, herein called FICO, filed a
complaint naming certain mining compa-
nies as defendants. Among those named
in its amended complaint filed November
8, 1973, were the Anamax Copper Mining
Company, The Anaconda Company, the
Amax Copper Mines, Inc. and Pima Min-
ing Company, the Duval Corporation and
the American Smelting and Refining Com-
pany. Subsequently, Andrew L. Bettwy,
State Land Commissioner, and the State
Land Department of the State of Arizona
were added as parties defendant. The City
of Tucson, a municipal corporation, became
a party by intervention. The three appeals
in this case are from the granting or deni-
al of summary and partial summary judg-
ments. We ordered the appeals consolidat-
ed for decision.

THE APPEAL OF FARMERS INVEST-
MENT COMPANY AGAINST THE
ANAMAX COPPER MINING COM-
PANY, THE ANACONDA COMPA-
NY AND THE AMAX COPPER
MINES, INC.
The Anamax Copper Mining Company is
a partnership consisting of the Anaconda


Company and Amax Copper Mines, Inc.
It is engaged in mining and milling low
grade copper deposits in Pima County, Ari-
zona. Farmers Investment Company,
plaintiff in the court below, herein called
FICO, is the owner of approximately 7,000
acres of irrigated land in Pima County.
south of Tucson in the Santa Cruz Valley.
Its lands have been irrigated for agricul-
tural purposes for many years, some as
long as prior to 1915. All of such lands
are located within the Sahuarita-Continen-
tal Critical Groundwater Area, as designat-
ed by the State Land Department on Octo-
ber 14, 1954 pursuant to A.R.S. 45-308.
FICO has irrigated its farm lands and
used for domestic purposes the percolating
waters lying below the surface of the lands
by pumping water from wells located on its
lands. In addition to the irrigated lands of
FICO, there are other lands within the Sa-
huarita-Continental Critical Groundwater
Area which are irrigated by pumped wa-
ters. FICO pumps approximately 38.500
acre feet annually. Other land owners
within the area use an additional amount
of approximately 15,000 acre feet per year.
The annual recharge of water within the
critical area is substantially less than the
amount used for agricultural purposes and
the water table has been for many years
gradually lowering and the reservoir of
supply has been gradually depleting.
On November 24, 1969, FICO filed its
original complaint. In its amended com-
plaint it alleged that appellees had acquired
well sites in the Sahuarita-Continental
Critical Groundwater Area and were
pumping water outside the area onto lands
other than those from which the waters
were being pumped; that all defendants in
the court below were thus pumping ap-
proximately 25,000 acre feet of water year-
ly. It was alleged that the use by appellees
of these percolating waters in their mining
operation was unreasonable and in viola-
tion of the rights of FICO; that if the use
of the appellees continued, the percolating
waters under FICO's lands would become
exhausted or lowered to the point at which





--I A P -- "W--aaX---00 WON l--BQI


16 Ariz.








FARMERS INVESTMENT COMPANY v. BETTWY Ariz.
Cite as 558 P.2d 14


it would be economically unfeasible to irri-
gate said lands and they would revert to
barren desert. FICO prayed that the Su-
perior Court enter a judgment permanently
enjoining appellees from taking the waters
beneath the critical groundwater area and
using it on lands other than those from
which the waters have been taken, and that
a decree be entered declaring the rights of
the respective parties in and to the waters
underlying the Sahuarita-Continental Criti-
cal Groundwater Area.
FICO also complained that because of
the depletion of the groundwater supply by
appellees FICO has been required to deep-
en its wells, lower its pump bowls and in
some instances construct replacement wells,
and that the added lift of groundwater
from the lowered water table has cost and
will cost FICO additional expense in pow-
er, labor and maintenance of its wells;
that the fair market value of FICO's prop-
erty and lands has been damaged to an
amount in excess of fifty million dollars.
The appellees answered appellant's com-
plaint, asserting that they have the right to
use the water pumped from under the Sa-
huarita-Continental Critical Groundwater
Area and that they have the right to con-
tinue and extend such use into the future.
They claim as an affirmative defense that
FICO has been guilty of laches in bringing
its claims against the appellees and there-
fore is not entitled to the relief sought.
Appellees also counterclaim against FICO,
alleging that they were putting the waters
which they pumped to the beneficial and
reasonable use for mining, milling and in-
dustrial uses; that the water table within
the basin has been for many years gradual-
ly lowering and the reservoir of supply has
been gradually depleting; that FICO's use
of percolating waters in connection with
the operation of its farm was unreasonable
and in violation of appellee's rights in that
water was being wasted by FICO and
FICO was not utilizing reasonable methods
to conserve such water.
While the action was pending trial,
FICO on April 15, 1974 moved for imme-
558 P.2d-2


diate injunctive relief, asserting that Ana-
max was engaged in the mining and mill-
ing of copper ores, its mill being located
approximately four miles west of the farm
lands of FICO; that FICO's farm lands
were located within the Sahuarita-Conti-
nental Critical Groundwater Area south of
Tucson, which includes a major part of
what is generally referred to as the upper
Santa Cruz basin; that Anamax's mine
and mill were located one mile west of the
west boundary of the Sahuarita-Continen-
tal Critical Groundwater Area; that
FICO's farm consisted of two tracts of
land, roughly rectangular in shape, approx-
imately one and one-half miles apart, lying
in the valley of the Santa Cruz River;
that Anamax, prior to filing this litigation,
constructed several large water wells in the
critical area, equipped such wells with
large pumps powered by electrical energy
and transported the waters therefrom to its
mine and mill; that Anamax was planning
to enlarge its ore treatment facilities from
the capacity of 30,000 tons per day to
40,000 tons per day and otherwise enlarge
its operation, which would require 6,000
acre feet of additional water annually; that
Anamax was presently engaged in drilling
a well to the proposed depth of 1,000 feet,
32 inches in diameter at the collar, in order
to supply the water requirements of Ana-
max arising from its increased ore treat-
ment. This well was being drilled almost
equal distance between the boundaries of
FICO's two tracts. FICO prayed for re-
lief that Anamax be permanently re-
strained from completion and use of this
well for the purpose described or for any
use other than a beneficial use on the land
from which the water is withdrawn.
Appellees answered FICO's motion, ad-
mitting that they proposed to continue to
use the water so pumped and that some of
the water was used on lands outside of the
critical area. They asserted they intend to
increase their pumpage in the future. Ap-
pellees acknowledged that there was a de-
pletion of the percolating waters under
FICO's lands but answered that the deple-








558 PACIFIC REPORTER, 2d SERIES


tion was jointly being caused by FICO, the
appellees, the City of Tucson, and others.
Appellees acknowledged that their land
was located one mile west of the west
boundary of the Sahuarita-Continental
Critical Groundwater Area, and that it
used large quantities of water in its milling
operations. It did not, however, admit that
the actual use of a substantial part of such
water is outside the critical area. Appel-
lees also admitted that they were engaged
in drilling the water well described 1 by
FICO, but asserted that its intended depth
was 1,800 feet rather that 1,000 feet, and
that the additional water supply so ob-
tained would be pumped in part to the mill
located outside the critical area, but that
the bulk of such water would be returned
to the critical area in tailings. They there-
fore alleged that "any use of said water
outside of said critical area is de minimus,
using the term 'use' to mean consumptive
use." Other defenses were also asserted
with which this Court, at least at present,
is not concerned.
On May 21, 1974, the Superior Court in
response to a motion by Anamax for par-
tial summary judgment against the City of
Tucson, intervenor, granted such judgment
and made this finding:
"2. Water may be pumped from
one parcel and transported to another
parcel if both parcels overlie a common
basin or supply and if the water is put to
a reasonable use."
The following day, on May 22, 1974, aft-
er hearing arguments on FICO's motion
for preliminary injunction, the Superior
Court stated, in effect, that consistent with
its ruling of the day before it would deny
FICO's application for a preliminary in-
junction. The injunction was denied "sole-

I. Anamax states in its answering brief before
this Court:
"2. As to FICO's Question No. 2, ANA-
MAX conceeds [sic], that where certain
lands are included in a critical groundwater
area, further withdrawals will lower the
water table in that area, depending on tihe
extent of the overdraft to begin with and on
the extent of the subsequent withdrawal.


ly on that basis" and a written order was
signed and filed on May 24, 1974. This
latter order is the basis of the present ap-
peal.
In denying FICO's application for a pre-
liminary injunction, it is clear that the
court erred. Before, however, examining
the law applicable, certain of the more sig-
nificant facts should be emphasized. That
portion of the Santa Cruz basin involved
in this litigation lies south of the City of
Tucson to the Santa Cruz County line, a
distance of more than 30 miles. The Santa
Cruz Valley and its groundwater basin is
between north-south trending mountain
ranges on the eastern and western bounda-
ries of the Santa Cruz Valley. FICO's
farm consists of two separate parcels,
roughly rectangular in shape, each approx-
imately one to one and one-half miles wide
and about six miles long, called, respective-
ly, the Continental Farm and the Sahuarita
Farm. They lie in the bottomlands of the
Santa Cruz groundwater basin about two
miles apart and within the Sahuarita-Con-
tinental Critical Groundwater Area. Their
long axis extends north and south. The
farmed area of the two farms is principal-
ly planted to pecan trees, in a pecan plant-
ing program which began in 1965 and
which was completed a few years ago.
The Anamax mine pit lies approximately
three and one-half miles west of FICO's
Sahuarita Farm. It is within the critical
groundwater area, but the Anamax mill is
located approximately one mile north and
one and one-half miles west of the west
boundary of the critical area and is, thus,
outside the critical area. The wells from
which Anamax derives the water for use in
its milling operations are within the Santa
Cruz basin between FICO's two farms. It

To the degree that such increases the pump-
ing lift, it is fair to conclude that the landl-
owners in the area are 'damaged' or in-
jured. However, whether this damage is
daminum absque injuria on the one hand, or
'legal damage' on the other, must be de-
termined under the doctrine of reasonable
use."


__


18 Ariz.








FARMERS INVESTMENT
Cite as 55S
pumps the water withdrawn from the San-
ta Cruz Valley groundwater basin some
four miles to its mill. There is no claim
that there is a supply of groundwater un-
derlying the Anamax mill sufficient in
quantity to supply the water required for
its milling operation.
This suit was originally filed in Novem-
ber of 1969. In April of 1974, Anamax be-
gan drilling the first of two additional
wells by which it proposed to increase its
groundwater use by increasing its daily
milling capacity from 30,000 to 40,000 tons
of ore and by putting into operation an ox-
ide ore treatment plant to treat 10,000 tons
of ore. This would increase its water use
approximately 6,000 acre feet annually.
[1] The question presented for decision
is whether the doctrine of reasonable use
as it has heretofore been judicially deter-
mined in Arizona permits percolating wa-
ters to be used off the lands from which
they are pumped if thereby others whose
lands overlie the common supply are in-
jured or damaged thereby.
The principles controlling in this case
have been set forth in detail and in un-
equivocal language by this Court in many
decisions. Twenty-three years ago, on
March 14, 1953, the Court published its de-
cision on rehearing in Bristor v. Cheatham,
75 Ariz. 227, 255 P.2d 173 (1953), in which
it committed Arizona to the American doc-
trine of reasonable use. The decision em-
phasized that this State had adopted the
principle of reasonable use 49 years before,
and that whether the Court should after
nearly 50 years under an announced rule
depart from it depended upon many ques-
tions, the most important of which was the
protection of property rights acquired upon
the faith of the Court's pronouncement of
the law. Our exact language was:

"[M]any and large investments have
been made in the development of ground
waters. Under these circumstances the
court's announcement of the rule be-
comes a rule of property, and
when a decision does become a rule of


COMPANY v. BETTWY Ariz. 19
SP.2d 14
property, the rights acquired thereunder
are entitled to protection under the law
as declared." 75 Ariz. at 231, 255 P.
2d at 175.
In Bristor, the Court held that whether
the appellant Bristor's complaint which had
been dismissed in the lower court stated a
cause of action depended upon whether the
Court was to follow the English common
law
"that the owner of lands overlying
subterranean waters may extract the
same for any purpose he chooses with a
resulting damage to an adjoining owner
without liability therefore or whether we
adopt what is called the American rule
that one may extract such water for a
reasonable, beneficial use of the land
from which the same is taken." (Em-
phasis supplied) 75 Ariz. at 235, 255 P.
2d at 178.
The Court noted that this question was
specifically reserved for future considera-
tion 22 years before in Maricopa County
Water Conservation District No. 1 v.
Southwest Cotton Company, 39 Ariz. 65, 4
P.2d 369 (1931). The Bristor Court then
addressed itself to that question.
In doing so, language from Rothrauff v.
Sinking Spring Water Co., 339 Pa. 129, 14
A.2d 87 (1940) was quoted.
"'.* the modern decisions are
fairly harmonious in holding that a prop-
erty owner may not concentrate such wa-
ters [subterranean] and convey them off
his land if the springs or wells of anoth-
er landowner are thereby damaged or
impaired.'" (Emphasis supplied) 75
Ariz. at 236, 255 P.2d at 178.
Language was also quoted from Canada v.
City of Shawnee, 179 Okl. 53, 64 P.2d 694
(1936), that the doctrine
"' "does prevent the withdrawal of un-
derground waters for distribution or sale
for uses not connected with any benefi-
cial ownership or enjoyment of the land
whence they are taken, if it thereby re-
sult that the owner of adjacent or neigh-
boring land is interfered with in his








558 PACIFIC REPORTER, 2d SERIES


right to the reasonable user of subsur-
face water upon his land, or if his wells
are thereby materially dimin-
ished in flow. *."'" (Emphasis
supplied) 75 Ariz. at 238, 255 P.2d at
180.
And the Court concluded:
"This rule does not prevent the extrac-
tion of ground water subjacent to the
soil so long as it is taken in connection
with a beneficial enjoyment of the land
from which it is taken." (Emphasis sup-
plied) 75 Ariz. at 237-238, 255 P.2d at
180.
The holding on rehearing in Bristor was
explicitly affirmed 16 years later in 1969
in the first decision in Jarvis v. State Land
Department, 104 Ariz. 527, 456 P.2d 385
(1969). In the second Jarvis decision in
1970, three years before Anamax com-
menced the drilling of the well about
which FICO complains, the doctrine was
made incontrovertibly clear by our pro-
nouncement, supported by substantial au-
thority :
"Percolating waters may not be used off
the lands from which they are pumped if
thereby others wvho~e lands overlie the


common supply are injured.
*


Such waters can only be used in con-
nection with the land from which they
are taken." Jarvis z. State Land De-
partment, 106 Ariz. 506, 508, 509, 479 P.
2d 169,.170, 171 (1970). (Emphasis sup-
plied)
Appellee nonetheless argues that Bristor
only established the limited principle that
groundwater may not be conveyed to a
point beyond lands overlying the common
supply, compelling the conclusion that if
the water so transported returns at least in
part to replenish the common supply, this
satisfies the American doctrine of reason-
able use. Appellee argues that while a
party owning land overlying the common
underground water supply could not con-
vey pumped waters "off the land" or "off
his land," this only meant land overlying


the common source of supply. But there is
no language in Bristor's complaint which
suggests the water pumped by defendant
Cheatham was not used on lands overlying
the common supply.
The Bristors alleged in their complaint
that defendant was transporting water
three miles from where it was pumped, and
in paragraph 14 of their complaint:
"that the water so pumped by defendant
confers no benefit upon defendants'
lands where the pumping operation is
conducted; that such use by defendants
is an unreasonable use as to plaintiffs
*"

The Court's holding, therefore, that the
Bristors' cause of action stated sufficient
facts to warrant relief, must be interpreted
in light of the allegation that the water
pumped conferred no benefit to the de-
fendants' land on which the pumping was
conducted.
From the context of the language used
in the Bristor opinion, from the cases quot-
ed in it, and from the Bristors' position as
set forth in their complaint it is clear there
is no firm basis for appellees' conclusion
that the word "lands" meant other than
lands on which the pumping occurred.

The allegation of FICO's complaint, An-
amax's answer thereto, its answer to
FICO's petition for an injunction and the
allegations of Anamax's counterclaim all
establish that the parties are in agreement
that the water table within the Sahuarita-
Continental Critical Groundwater Area of
the Santa Cruz basin is being lowered and
the reservoir of supply is being depleted.
It is apparent, therefore, that the addition-
al pumping proposed by Anamax from the
well complained of in FICO's petition for
injunction of April 15, 1974, will necessari-
ly further deplete the source of supply of
the existing users. Even if it be assumed
that damage to FICO's wells has not yet
taken place, still such damage must, inevi-
tably, occur. FICO need not wait for its
farms to be devastated before applying for
injunctive relief against unlawful acts.


- --------------'-- --


20 Ariz.








FARMERS INVESTMENT COMPANY v. BETTWY Ariz.
Cite as 558 P.2d 14


[2] The appellees' theory that the
American doctrine of reasonable use only
forbids the conveyance of percolating
groundwaters off the lands overlying the
common source of supply is not supported
by citation of any precedent. Neither is it
an effective rule except possibly in those
situations where there is an underground
pool or basin of water. If we assume that
the water withdrawn from an underground
pool which is not consumptively used re-
turns to replenish the common source of
supply, still where groundwater percolates
through the soil down gradient, the replen-
ishment of the supply does not benefit the
users of water up gradient from the point
of return.
[3] Moreover, the appellees' position
flies in the face of the maxim "first in
time, first in right." It contradicts this
Court's holding that where large invest-
ments have been made in the development
of groundwaters, the doctrine becomes a
rule of property and the rights acquired
under the Court's decisions and the invest-
ments made are entitled to protection. In
the end, what appellees are asking this
Court to do is to prefer the interests of
mining over farming, irrespective of the
time when rights were acquired and the
then rule of law.
Finally, the principle for which appellees
contend, namely, that they should be al-
lowed to pump because they return water
to the underground supply, is illusory. Ad-
mittedly, appellees consumptively use some
of the water which they pump from the
upper Santa Cruz basin. Since more wa-
ter is being withdrawn than is being re-
placed, a court of equity is justified in in-
terposing its protective cloak. Inevitably,
sooner or later as the supply diminishes,
appellant will be irreparably injured.
[4] We hold the Superior Court's find-
ing No. 2 of May 21, 1974 was error. Wa-
ter may not be pumped from one parcel
and transported to another just because
both overlie the common source of supply
if the plaintiff's lands or wells uoon his
lands thereby suffer injury or damage.


[5] We have held that the State in case
of shortage may constitutionally prefer ex-
isting users of water as against potential
users. Southwest Engineering Co. '.
Ernst, 79 Ariz. 403, 291 P.2d 764 (1955).
Because of the State's policy expressed
through the Legislature of preferring do-
mestic and municipal users over irrigation
and stock watering, we caused an injunc-
tion against the City of Tucson to be modi-
fied in order to permit it to withdraw wa-
ter from the Avra-Altar Valleys within the
Marana Critical Groundwater Area. Jar-
vis v. State Land Department, 106 Ariz.
506, 479 P.2d 169 (1970). Those cases are
not, however, precedent for a doctrine that
a court will prefer one economic interest
over another on an ad hoc basis where
there are not enough of the material goods
of existence to go around. Rather, courts
will protect rights acquired in good faith
under previous pronouncements of the law.
If it is to the State's interest to prefer
mining over farming, then the Legislature
is the appropriate body to designate when
and under what circumstances such eco-
nomic interest will prevail.
The order of the Superior Court of
Pima County dated the 24th day of May,
1974, denying the application and amended
application of Farmers Investment Compa-
ny for preliminary injunctive relief is set
aside with directions that the court proceed
in a manner consistent with this opinion.

THE APPEAL OF FARMERS INVEST-
MENT COMPANY AGAINST THE
STATE LAND DEPARTMENT AND
PIMA MINING COMPANY
FICO's appeal against the Pima Mining
Company arises out of these facts.
On October 24, 1966, the State Land
Commissioner executed State Land Depart-
ment Commercial Lease No. 906 with Pima
Mining Company as lessee. Pima Mining
Company caused four water wells to be
drilled on the leased lands so as to pump
groundwater from the supply of the upper
Santa Cruz basin and the Sahuarita-Conti-
nental Critical Groundwater Area. The







558 PACIFIC REPORTER, 2d SERIES


water so pumped was transported and used
in connection with Pima Mining Compa-
ny's mining and milling of copper ore at
its plant located approximately four miles
west of the lands the subject matter of
Lease No. 906.
Both FICO and Pima Mining Company
moved for summary judgments in the court
below. FICO's motion was denied and
Pima Mining Company's motion was grant-
ed. FICO petitioned this Court by special
action to review the rulings of the Superi-
or Court. We accepted jurisdiction for the
limited purpose of determining the consti-
tutional validity of State Lease No. 906.
Our decision filed on June 19, 1974, 111
Ariz. 56, 523 P.2d 487, determined that the
State Land Department violated the Arizo-
na Constitution and Enabling Act and the
lease was determined to be null and void.
The instant appeal from the summary
judgment granted Pima Mining Company
challenges only the sufficiency of the alle-
gations of Count 4 of FICO's complaint to
state a cause of action. FICO's allegation
in Count 4 is that the continued pumping
of water from the lands conveyed by the
State Land Department's Lease No. 906
"constitutes a trespass upon plaintiff's
property rights and a violation of the wa-
ter law of the State of Arizona."
[6] The question which is therefore
presented is whether the pumping and
transportation of groundwater from State
lands lying within the upper Santa Cruz
basin away from the lands on which the
water is pumped is unlawful where the
supply of other groundwater users who ov-
erlie the common source of supply is being
lowered and depleted. It is immediately
apparent from what we said in FICO's ap-
peal against Anamax that it is.
FICO further questions whether the use
of water pumped from the leased lands to
transport tailings that are dumped on two
sections of State school lands under a 10-
year commercial lease with the State Land
Department is a reasonable use of the wa-
ter so pumped. In light of our conclusion
that the pumping of water from the Santa


Cruz basin is unlawful where it depletes
the common source of supply of other
landowners and damages their lands, we
find it unnecessary to reach this question.
Since Pima Mining Company interposed
certain affirmative defenses in the lower
court in answer to Count 4 of FICO's
amended complaint it is ordered that this
matter be returned to the Superior Court
of Pima County for further proceedings
consistent with this decision.

THE APPEAL OF THE CITY OF TUC-
SON AGAINST ANAMAX COPPER
MINING COMPANY AND DUVAL
CORPORATION
This appeal arises out of the interven-
tion by the City of Tucson in the suit
Farmers Investment Company v. The Ana-
conda Company, et al. The Anamax Cop-
per Mining Company and the Duval Cor-
poration filed counterclaims against Tuc-
son and the lower court ordered summary
judgments entered in their favor on their
counterclaims.
Tucson's complaint in intervention as-
serted these facts. FICO is in possession
of lands in the valley of the Santa Cruz
River within the Sahuarita-Continental
Critical Groundwater Area and its lands
have been and are now irrigated by
groundwater from wells. The Anaconda
Company, the Duval Corporation, the
American Smelting and Refining Company
and the Pima Mining Company are corpo-
rations in possession of lands, which lands
are'used for the mining and milling of
copper ores, located within the watershed
of the Santa Cruz River but outside the
Sahuarita-Continental Critical Groundwa-
ter Area. Tucson has during its existence
as a city obtained most of its water from
wells located within the watershed of the
Santa Cruz River, some of which are now
located within the Sahuarita-Continental
Critical Groundwater Area. Much of the
water used and distributed for municipal
purposes by the City of Tucson is obtained
from wells located in the valley of the
Santa Cruz River and within its watershed


-- 1. ---mw-


22 Ariz.








FARMERS INVESTMENT
Cite as 55
downstream from lands owned by FICO
and the mining companies and downstream
from the points at which FICO and the
mining companies can return water to the
underground water supply.
Tucson charged that the groundwater
withdrawn by FICO and the mines is re-
turned to the general groundwater system
changed in quality by its use, so that ulti-
mately the water which Tucson must draw
from the Santa Cruz River valley will be
rendered undesirable for domestic pur-
poses. Tucson prayed that FICO and the
mines be enjoined from returning or per-
mitting to be returned to the groundwater
system underlying the Santa Cruz River
valley water of such quality as to render
the general supply of groundwater undesir-
able for domestic purposes when the re-
turned waters are mingled.
Tucson acknowledges that the water sup-
ply of the Sahuarita-Continental Subdivi-
sion of the Sahuarita-Continental Critical
Groundwater Area of the Santa Cruz
groundwater basin is limited and that the
supply has been diminishing and the water
table has been declining for many years.
Tucson does not own lands which have his-
torically been cultivated within the limits
of the critical area.
The Anaconda Company in its counter-
claim against Tucson asserted that it is the
owner of an open pit copper mine opera-
tion; that it has been using and will con-
tinue to use the percolating waters of the
Sahuarita-Continental Subdivision of the
Santa Cruz groundwater basin; that the
recharge of water to the groundwater ba-
sin is less than the amount of water that is
being withdrawn from the basin: that it
has been and will be irreparably injured
and damaged by the withdrawal and trans-
portation of the percolating groundwaters
of the Sahuarita-Continental Subdivision
of the Santa Cruz groundwater basin by
Tucson for use by its municipal consumers.
The Duval Corporation and the Duval
Sierrita Corporation in their counterclaims
against Tucson alleged that they were the
owners of land located within the Sahuari-
ta-Continental Subdivision of the Santa


COMPANY v. BETTWY Ariz. 23
S P.2d 14
Cruz groundwater basin; that the waters
they pump are put to reasonable and bene-
ficial use for industrial, mining and milling
purposes on lands which they own in the
Sahuarita-Continental Subdivision and that
the supply of groundwater of such subdivi-
sion is limited; that for many years the
water table has been lowering and the sup-
ply diminishing; that Tucson's pumping
and transportation is unlawful and has
caused and will continue to cause irrepara-
ble harm to them in that they will be de-
prived of the reasonable, beneficial and
lawful use of such waters in said subdivi-
sion.
The Duval companies and Anaconda
prayed for an injunction permanently en-
joining Tucson from transporting any wa-
ter from the Sahuarita-Continental Subdi-
vision of the Santa Cruz groundwater ba-
sin. In the alternative, the Duval corpora-
tions asked for an order permanently en-
joining Tucson from increasing the amount
of water it transports from the subdivision.
The court below enjoined Tucson from
pumping and transporting groundwater for
use away from the Sahuarita-Continental
Subdivision, Santa Cruz groundwater basin,
in amounts exceeding the rate at which
Tucson pumped before April 12, 1972. It
further enjoined Tucson from using any
wells and pumps installed in the subdivision
after April 12, 1972, for the pumping of
groundwater for use outside the subdivi-
sion. The court entered judgment in favor
of The Anaconda Company and Amax
Copper Mines, Inc. as partners in the Ana-
max Mining Company and the Duval Cor-
poration and Dural Sierrita Corporation
against the City of Tucson, finding that
while material issues of fact existed out of
which Tucson claimed the right to continue
pumping groundwater from wells installed
before the filing of Duval's counterclaim,
any rights which could be established
would not permit pumping of groundwater
at rates in excess of those amounts pumped
on or before April 12, 1972.
In Jarvis v. State Land Department. 1114
Ariz. 527, 456 P.2d 385 (1969), in answer
to the question whether Tucson could







558 PACIFIC REPORTER, 2d SERIES


pump water out of the Marana Critical
Groundwater Area, we said:
"From the foregoing, it is readily ap-
parent that any additional uses must nec-
essarily deplete the source of supply of
existing users. The City of Tucson in
proposing to establish a system with a
potential withdrawal capacity in excess
of 30,000,000 gallons per day will be tak-
ing more than 30,000 acre feet per year.
Hence, Tucson, if permitted to place its
proposed system into use, would with-
draw and transport from an area that is
already critical an amount of water
equal to about one-fourth of that pres-
ently being consumed with the resulting
diminution and earlier depletion of the
existing water supply. Tucson's action
is clearly illegal." 104 Ariz. at 530, 456
P.2d at 388.
This case, like FICO's against Anacon-
da, is not predicated on the pumping of
water from a critical groundwater area as
were the two cases of Jarvis v. State Land
Department, cited supra. In the Jarvis de-
cision of 1969 we took judicial notice that
the Avra and Altar Valleys were included
within and were part of the Marana Criti-
cal Groundwater Area. We said:
"That these lands are within a Critical
Ground Water Area is alone sufficient
to grant petitioners the relief sought
since a Critical Ground Water Area is a
ground water basin or a subdivision
thereof 'not having sufficient ground
water to provide a reasonably safe sup-
ply for irrigation of the cultivated lands
in the basii" at the then current rates of
withdrawal.' A.R.S. 45-301. Mani-
festly, a ground water area or subdivi-
sion of a basin which does nbt have a
reasonable safe supply for the existing
users can only be but further impaired
by the addition of other users or uses."
104 Ariz. at 530, 456 P.2d at 388.
In the instant case, the fact acknowledged
by all parties is that the Santa Cruz basin
does not have sufficient water to supply
existing users. Consequently, the addition-
al pumping of water by others will neces-
sarily further deplete the source of supply.


This case is controlled by the American
doctrine of reasonable use as construed in
Bristor v. Cheatham, 73 Ariz. 227, 255 P.
2d 173, and Jarvis v. State Land Depart-
ment, 106 Ariz. 506, 479 P.2d 169.
[7] Tucson argues that if the doctrine
of reasonable use means that the water
must be used beneficially on the land from
which it is taken, the mines are also guilty
of unlawful conduct and have no standing
in equity to enjoin the City's uses. But we
agree with Duval that it has standing to
enjoin the City's withdrawal since it owns
1,530 acres of land formerly cultivated in-
side the Sahuarita-Continental Critical
Groundwater Area. Historically it is enti-
tled to the use of water for irrigation.
Duval has an interest in preserving the
groundwater supply in the Santa Cruz ba-
sin.
The judgment of the lower court enjoin-
ing the City of Tucson from using any
wells and pumps installed in the Sahuari-
ta-Continental Subdivision after April 12,
1972 is affirmed.

HAYS, HOLOHAN and GORDON, JJ.,
concur.

CAMERON, Chief Justice, dissenting.
I regret that I must dissent. In doing
so, I am aware that it is easier to take a
contrary position in what is, at best, a hard
and difficult case involving a body of law
already burdened with many inconsisten-
cies and uncertainties. I feel, however,
that I cannot agree with the well-written
opinion of the majority.
Before I discuss the main area of my
disagreement, I wish to mention in passing
two areas in which I feel a comment is in-
dicated. First, I believe that as to the City
of Tucson, the majority opinion is not only
overly restrictive of the rights of the city,
but fails to delineate what the City of Tuc-
son must do if it is to obtain the water
necessary to meet the minimum needs of
its people. As the majority opinion is
written, there is an inference that the City
of Tucson may never be able to increase
the amount of water they may take from
the South Side Field no matter what they


Is~---- --- I I- -- d


24 Ariz.








FARMERS INVESTMENT COMPANY v. BETTWY Ariz.
Cite as 558 P.2d 14


do and how great the need. We have, in
Jarvis II and III, allowed the city to take
water from one basin to another under cer-
tain conditions, and I would allow the city
to do likewise in the South Side Field.
Secondly, I feel that the time has come
to consider again the doctrine of correla-
tive rights under which the owners of land
overlying a common supply of water are
each limited to taking a proportionate
share of the available water and which
doctrine we rejected in Bristor II [Bristor
v. Cheatham, 75 Ariz. 227, 255 P.2d 173
(1953)]. Under existing law, two adjacent
landowners may pump each other dry to
the detriment of themselves and others
nearby. The result is all too frequently
that the access to water is not based on
"first in time, first in right" as stated in
the majority opinion, rather access to wa-
ter is determined by a race for consump-
tion controlled not by reasonable use but
the physical ability to extract water from
the common supply. This encourages
wasteful over-consumption and proclaims a
right that cannot be protected. In other
words, the larger and deeper the well, the
more powerful the pump, the more likely it
will be that a generous amount of water
will be available for use upon the land
serviced by that pump while the water un-
derlying the neighbor's land is sucked
down below the depth of his well. To the
small or family farmer the right to water
.then becomes a cruel illusion, proclaimed
.by law, but unobtainable in practice.
However tempting it may be to discuss
these two questions at length, I will con-
fine myself primarily to a discussion of the
meaning of "on the land" and "off the
land" in the American doctrine of reason-
able use which I belive the majority has,
by implication, defined too narrowly.
Arizona has adopted the "reasonable use
doctrine" with respect to percolating
groundwaters. In reversing our holding in
Bristor v. Cheatham, 73 Ariz. 228, 240 P.
2d 185 (1952) (Bristor I), to the effect
that percolating groundwater is subject to
appropriation, we stated:
558 P.2d-2V2


"* the American rule [is] that
one may extract such water for a rea-
sonable, beneficial use of the land from
which the same is taken. *"
Bristor v. Cheatham, 75 Ariz. 227, 235,
255 P.2d 173, 178 (1953). (Bristor II).
Reasonable use has been defined not by the
beneficial use of the water alone, but by
the beneficial use of the water on the land
from which the water was taken. Thus we
stated in Bristor II, supra:
"A great majority of the states which in
recent years have been presented with
this problem adhere to the principle that
the owner of lands overlying ground wa-
ters may freely, without liability to an
adjoining user, use the same without limi-
tation and without liability to another
owner, providing his use thereof is for
the purpose of reasonably putting the
land from which the water is taken to a
beneficial use. *" 75 Ariz. at
235, 255 P.2d at 178.
Water was then considered a part of the
land from which it was taken and if it was
put to beneficial use upon that land it was
reasonable even if by doing so other adja-
cent landowners overlying the common
supply were injured. Water could be tak-
en off the land to alien land for other ben-
eficial uses only if other landowners over-
lying the common supply were not injured
thereby. In Bristor II, supra, we cited
with approval:
"While there is some difference of opin-
ion as to what should be regarded as a
reasonable use of subterranean waters,
the modern decisions are fairly harmoni-
ous in holding that a property owner
may not concentrate such waters and
convey them off his land if the springs
or wells of another landowner are there-
by damaged or impaired. *"
Rothrauff v. Sinking Spring Il'ater Co.,
339 Pa. 129, 134, 14 A.2d 87, 90 (1940).
And we reaffirmed this position in a more
recent case:
"* Percolating waters may not
be used off the lands from which they








558 PACIFIC REPORTER, 2d SERIES


are pumped if thereby others whose
lands overlie the common supply are in-
jured. (citations omitted).
"Such [i. e. percolating] waters can only
be used in connection with the land from
which they are taken. (citations omit-
ted)" Jarvis v. State Land Department
(Jarvis II), 106 Ariz. 506, 508-509, 479
P.2d 169, 171-172 (1970).
It would thus appear from a series of
Arizona cases that no matter now benefi-
cial the use, percolating waters could not
be used off the land if other landowners
were thereby injured. Water was a part
of the land and while it could be pumped
from many feet underground to the sur-
face, it had to be used on the land from
which it was pumped. The corollary, of
course, was that water could be severed
from the land from which it was taken and
transported to other land for reasonable
and beneficial use at that new place so
long as the owners of land overlying the
common supply were not thereby injured:
"* It is the law of Arizona that
percolating waters belong to the owner
of the land on which they are found.
(citations omitted) And he may convey
them to other premises than those on
which they are originally found, pro-
vided no other rights are injured there-
by. (citation omitted)" Fourzan v.
Curtis, 43 Ariz. 140, 147, 29 P.2d 722,
725 (1934). See also Neal v. Hunt, 112
Ariz. 307, 541 P.2d 559 (1975).
The strict limitation against taking
groundwater off the land, if other land-
owners overlying the common supply are
thereby injured, was considerably eroded
by Jarvis II, supra.
In Jarvis II, supra, we allowed water to
be taken from one groundwater area for
use in another groundwater area even
though it was assumed by the court that
damage would result to the other landown-
ers overlying the common supply. We
stated:
"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. (citation omitted) By A.R.S.
45-147 the relative value of uses in ap-
propriable waters has been fixed by the
Legislature as first, domestic and munic-
ipal uses, and second, irrigation and
stock watering. The creation of such a
priority clearly evidences a legislative
policy that the needs of agriculture give
way to the needs of municipalities.
Hence, we hold that the decree in this
case will be modified if Tucson purchas-
es or acquires the title to land within the
Avra-Altar Valleys which are now culti-
vated 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 annual historical
maximum use upon the lands so ac-
quired." Jarvis v. State Land Depart-
ment, supra, 106 Ariz. at 510-511, 479
P.2d at 173-174.
And in Jarvis v. State Land Department,
113 Ariz. 230, 550 P.2d 227, filed 27 May
1976 (Jarvis III), this court further deter-
mined the amount that could be withdrawn
by the City of Tucson.
There is, of course, no question that
mining is a legal and proper use for water
and can be a beneficial use. In the instant
case, whether the mines could use the wa-
ter in question depends upon whether their
use is "on the land" or "off the land."
Logically, the land from which the water
may be taken can be defined so as to be
quite restrictive. For example, the actual
field or pasture upon which the well is sit-
uated could be considered the land from
which the water is taken and an adjacent
pasture or field could be considered "off
the land."
This appears to be the position taken by
the majority when they state:
"The Court's holding, therefore, that the
Bristors' cause of action stated sufficient
facts to warrant relief must be interpret-
ed in light of the allegation that the wa-
ter pumped conferred no benefit to the
defendants' land on which the pumping
was conducted."


26 Ariz.








FARMERS INVESTMENT COMPANY v. BETTWY Ariz.
Cite as 558 P.2d 14


I believe that the "land from which the
water was taken" is that land which over-
lies the judicially determined distinct body
of groundwater from which the water was
obtained. The rationale for this approach,
which is, I believe, implicit in our previ-
ously published opinions, is, essentially,
that damage to the available supply of
groundwater occurs when water is perma-
nently removed from the land overlying
the common supply, so that it is prevented
from returning through the ground to re-
plenish the supply. There is no reason, ac-
cording to the traditional legal understand-
ing of groundwater hydrology, to prohibit
the transporting of such water from one
point to another, so long as both overlie
the common supply. This is because the
water is as available to replenish the com-
mon supply at the point of use as it would
have been at the point of pumping. The
transportation causes little diminution of
the common supply, and no increase in dam-
age to other landowners overlying the com-
mon supply. I believe that water used
anywhere on land overlying the same com-
mon supply from which it was pumped is
used "on the land" for the purposes of the
reasonable use doctrine. I believe, then,
that the finding of the trial court which
read as follows:
"2. Water may be pumped from one
parcel and transported to another parcel
if both parcels overlie a common basin
or supply and if the water is put to rea-
sonable use. Jarvis II."
should be upheld as representing not only
the law as it existed before the majority
opinion in this case, but common sense as
well. I would affirm the decision of the
trial court.
I feel that I must make one more com-
ment concerning the majority opinion.
The majority opinion, in an attempt to but-
tress its interpretation of the Bristor opin-
ions, states:
"Appellee nonetheless argues that Bris-
tor only established the limited principle
that groundwater may not be conveyed
to a point beyond lands overlying the


common supply, compelling the conclu-
sion that if the water so transported re-
turns at least in part to replenish the
common supply, this satisfies the Ameri-
can doctrine of reasonable use. Appellee
argues that while a party owning land
overlying the common underground wa-
ter supply could not convey pumped wa-
ters 'off the land' or 'off his land,' this
only meant land overlying the common
source of supply. But there is no lan-
guage in Bristor's complaint which sug-
gests the water pumped by defendant
Cheatham was not used on lands overly-
ing the common supply.
"The Bristors allege in their complaint
that defendant was transporting water
three miles from where it was pumped,
and in paragraph 14 of their complaint:
'that the water so pumped by defend-
ant confers no benefit upon defend-
ants' lands where the pumping opera-
tion is conducted; that such use by de-
fendants is an unreasonable use as to
plaintiffs *'
"The Court's holding, therefore, that the
Bristors' cause of action stated sufficient
facts to warrant relief, must be inter-
preted in light of the allegation that the
water pumped conferred no benefit to
the defendants' land on which the pump-
ing was conducted."
The bench and bar of this State have an
obligation to follow the law as we state it
in our written opinions. However, the
pleadings in the trial court, which this
court did not, at the time, consider impor-
tant enough to quote in the opinion of the
court, should not be considered as part of
the case law of this State. I disagree with
the majority's statement that the court's
holding in Bristor must be "interpreted in
light of the allegation" contained in Bris-
tor's complaint. Bristor's complaint was
not quoted in the opinions of this court in
Bristor I and II nor was the complaint part
of the record in the instant case. Our
opinions should speak for themselves, and
counsel should not be required to resort to
ancient records and unpublished pleadings
in interpreting our prior decisions.




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