Water code of the State of Arizona 1935

              .Water Code
of the·
State of Arizona
CHAPTER 81
·Artic1e I ---- Revised Code, 19~8
Amended 1929
Amended 1931
Amended 1934
NUMBER
RICIiUVEO JUL 2 3196
Compiled by
EDWIN T. STEWART
State Water Commissioner
PHOENIX, ARIZONA
November, 1935
: TABLE OF EQUIVALENTS
1 second-foot expresses a rate of: flow of water
equal to one cubic foot each second and
is equivalent. to the following:' '
7.48 U. S. gallons per second.
448.8 U. S. gallons per minute.
646,317 U. S. gallons per day.
1.98 acre-feet per day.
40 miner's inches.
1 acre-foot expresses a definite volume of water
which will cover one acre to a depth of
one foot. It is equivalent to the fol ...
lowing:
43,560 cubic feet.
325,851 U. S. gallons,
1 theoretical horsepower, is a power unit which
may be calculated by multiplying vertical
fall of water in feet by the amount of'
water in second ... feet and dividing the '
product by 8.8 and is equivalent to the
following:
550 foot-pounds per second.
746 watts.
1;00:0,000 U. S. gallons per day equals 1.55 second..:.
fu~ .
1,000,000 U. S. gallons equals 3.07 acre-feet.
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CHAPTER 81
Right of appropriation of water for irrigation
was not acquired subsequent to 1919, in absence
of compliance with statutory formalities. Tatters-field
v. Putnam, ........ Ariz ......... , 41 P. (2d) 228.
Article 1. State,water code.
§ 3280. 'Waters of state public, and subject
to beneficial use. The water of all so~rces,
flowing in streams, canyons, ravines or other
natural channels; or in definite underground.
channels, whether perennial or intermittent,
flood, waste or surplus water, and of lakes,
ponds and springs on the surface, belongs to
the public, and is subject to appropriation and
beneficial use, as herein provided. Beneficial
use shall be the basis, measure and limit to
the use of water. Whenever the owner of a
right to the use of water shall cease or fail to
.use the water appropriated for five successive
years, the right to the use shall cease, and
.the water shall revert to the public and be
again subject to appropriation. (§1; Ch. 164,
L. '19, am.,. 1, Ch .. 64, L. '21, rev.)
See notes under § 3281, infra.
R. S. 1913, § 5344, cited without construction or
application. George v. Gist, (1928), ........ Ariz ......... ,
263 Pac. 10. .
Constitutionality of statute. The Water code is
constitutional; it does not vest the water commis­sioner
with judicial power, or violate the constitu­tional
guarantee of due process of law. Stuart v.
Norviel, (1924), 26 Ariz. 493, 226 Pac. 908.
Riparian doctrine abolished. The common law
doctrine' of riparian right was expressly repudiated
by R. S. 1887, § 3198. Chandler v. Austin, (1895), 4
Ariz. 346, 42 Pac. 483. .
The adoption of the common law by Howell Code
of 1864, ch. 61, sec. 7 did not include the doctrine of
riparian rights. Boquillas Land & Cattle Co. v. Cur­tis,
(1908), 213 u. S. 339, 53 L. Ed. 822, 29 Sup. Ct.
493, affirming 11 Ariz. 128, 89 Pile. 504.
The right to use water is not confined to riparian
owners. Boquillas Land & Cattle Co. ·v. Curtis,
(1908),213 U. S. 339, 53 L. Ed. 822, 29 Sup. Ct. 493,
affirming 11 Ariz. 128, 89 Pac. 504.
Water subject to appropriation. Flood waters may
be appropriated. George v. Gist, (1928), 33 Ariz.
93, 263 Pac. 10.
A spring of water, as such, is not one of the
sources from which water may be appropriated. Mc­Kenzie
v. Moore, (1918),20 Ariz. 1,5, 176 Pac. 568 .
. Subterranean streams, flowing in natural channels,
between well defined banks, are subject to appro­priation
under the same. rule as surface streams.
Howard v. Perrin, (1904), 8 Ariz. 347, 76 Pac. 460.
Drainage· waters. Since in view of this section an
appropriator of water has the better right thereto,
4
'unless the owner of water abandoned the excess
without the intention of repossession after it' has
been allowed to flow over irrigated lands, the drain
waters do not become in character waste water, and
thereby become subject to capture by anyone else.
Lambeye v. Barcia, (1916), 18 Ariz. 178, 185, 157
Pac. 977, per opinion of Cunningham, J., concurring.
Drainage, waters placed in the ground by means
of artificial irrigation are not subject to appropria­tion
under this section, and a person or corporation
recovering such waters has the legal right to. dis­pose
of them by sale or otherwise, if he so choses.
'Brewster v. Salt River etc. Assn., (1924)" 27 Ariz.
23, 229 Pac, 929.
Percolating waters. In Arizona the right to appro­priate
water for any beneficial purpose is limited to
the appropriation of water declared public by this
section, and does not include percolating water. Mc­Kenzie
v. Moore, (1918),20 Ariz. 1,5,176 Pac. 568;
Percolating water oozing through the soil beneath
the surface in an undefined and unknown channel
is not subject to appropriation. Howard v. Perrin,
(1906), 200 u. S. 71, 50 L. Ed. 374, 26 Sup. Ct. 195.,
Percolating waters collected in a ditch or canal
are not subject to appropriation. Watts on v. United
States, (1919),260 Fed. 506.
Use of water. An appropriator of water for irri­gation
is entitled to so much water only as is neces-,
sary to irrigate his land, and is bound to, make a
reasonable use of it. Subsequent appropriators are
entitled to the residue of the stream or,to the whole,
thereof at times the water is not needed by prior
appropriators. Clough v. Wing, (1888), 2 Ariz. 371,
17 Pac. 453.
Forfeiture 'of rights. Whether there' has been a. \.
forfeiture of water rights involves no question of in­tention;
it is merely a question whether, as provid-
, ed in Civ. Code, 1913, § 5338, the party has, since
.the destruction of a dam, used due diligence under
all the circumstances of the case to reconstruct and
maintain it, which is a question of fact for the jury.
Gila Water Co. v. Gillespie, (1925), 29 Ariz. 304,
241 Pac. 307.
The contention that Civ.Code, 1913, § 5338 pro­vided
only for forfeiture of water rights and not the
reservoir rights, and the forfeiture of the latter inci­dentally
worked a forfeiture of the former. Gila
Water Co. v. Gillespie, (1925),29 Ariz. 304,306, 241
Pac. 307.
In an application to the state water' commission
for'the appropriation, of water, no appeal lies to
the supreme court. Smith v. Trott, 36 Ariz. 166,
283' P. 726,
Percolating 'waters are generally the property
of the owner of the land and not subject itO ap':
propriation. Maricopa County Municipal' Water
Conservation Dist. No. 1 v. Southwest Cotton Co.,
39 Ariz. 65, 4 P. (2d) 369, , '
Subterranean waters flowing in well-defined nat­ural
channels are public waters and subject to
appropriation. Maricopa County Municipal Water
Conservation Dist. No.1 v. Southwest Cotton Co.,
( 39 Ariz, 65, 4 P. (2d) 369. .
5
The right of appropriation, both in quantity and
quality, depends on their natural condition, and
not on what may occur after· that condition is art-ificially
changed. Fourzan v. Curtis, 43 Ariz ......... ,
29 P. (2d) 722.
"Springs on the surface" refers only to the waters
which emerge from the earth without artificial as­sistance,
and that no appropriation can be made of
'percolating waters developed through the means
of tunnels, cuts, wells, or other artificial str:uctures,
even though those waters may by such structures be
brought to the surface at the place where a "spring
on the surface" already exists. Fourzan v. Curtis,
43 Ariz ......... , 29 P. (2d) 722.
To constitute a valid appropriation the water
must be put to some beneficial use. Fourzan v.
Curtis, 43 Ariz ......... , 29 P. (2d) 722.
Waters developed by tunnel and open cut that
collected at damp place, where there was no flow
before, held not subject to appropriation. Fourzan v.
Curtis, 43 Ariz ......... , 29 P. (2d) 722.
Percolating waters belong to the owner of the
land on which they are found, and he may convey
them to other premises than those on which they
are originally found, providing no other rights are
injured thereby. Fourzan v., Curtis, 43 Ariz ......... ,
29 P. (2d) 722.
Owners, securing title from one filing scrip on the
land, are the equitable owners of percolating waters
found thereon, with power to convey the waters
to other lands over right of way, if properlyac-quired.
Fourzan v. Curtis, 43 Ariz ......... , 29 P. (2d)
722. .
. Where pleadings characterized percolating water
as "South Grass Seep or Springs" in amended com­plaint,
it did not make the water subject to appro­priation
as "spring on the surface." Fourzan v.
Curtis, 43 Ariz ......... , 29 P. (2d) 722.
The mere existence of Boulder Canyon Project
Act authorizing construction of dam, storage reser­voir,
and hydro-electric plant at Black Canyon on
Colorado river, held not to invade quasi sovereign
rights of state of Arizona expressed in its laws
regUlating. appropriation of unappropriated waters.
State of Arizona v. State of California, 283 U. S.,'
451, 51 S. Ct. 523.
. Periodical, seasonal, or intermittent stream as a
watercourse. 40 A. L. R. 839.' .
Right to follow accretions across divisional line
previously submerged by action of water. 8 A. L. R.
, 640; 41 A. L. R. 395.
Subterranean and percolating waters; springs;
wells. 55 A. L. R. 1385.
Title to beds of natural lakes or ponds. 23 A. L.
R. 757.
See the article "Waters," 25 Cal. Jur. 985; 27 R. C.
L.,1052.
§ 3281. Right of. appropriation. Any per-"
son may appropriate any unappropriated
water for domestic, municipal, irrigation,
stock watering, water power, or mining uses,
6
for his personal use or for delivery to con­sumers;
the person first appropriating shall
have the better right. Such person, to effect
the beneficial use, may construct and main­tain
reservoirs, dams, canals, ditches,' flumes,
and other necessary waterways. (§4169, R. S.~
'01; 5337, R. S. '13, rev.)
See notes under § 3280, supra.
. What constitutes an appropriation is largely a
question of fact. Appropriation is the intent to take, .
accompanied by some open, physical demonstration
of the intent, and for some valuable use. Clough v.
Wing, (1888), 2 Ariz. 371, 17 Pac. 453.
Under this act a corporation was recognized as
.possessing the same right as an individual to appro-.
priatewater, but the restriction upon the subject of
appropriations of water from a public stream apply
alike to individuals and corporations. Slosser v. Salt
River Valley Canal Co., (1901), 7 Ariz. 376, 387, 65
Pac. 322.
The right to appropriate water depends upon
whether the water is unappropriated and upon the
purpose for which it is to be applied after appro­priation.
The person first in time who uses unappro- .
priated water for any of the purposes mentioned in
the statute acquires the better right thereto, and
may construct and maintain reservoirs, dams, ca­nals,
ditches,' flumes and other necessary water­ways.
Daggs v. Howard Sheep Co., (1914), 16 Ariz.
283, 145 Pac. 140.
One cannot acquire title to an easement in land
withdrawn from public entry by the Secretary of
Interior. Verde Water & Power Co. v. Salt River
Valley Water Users' Assn., (1921),22 Ariz. 305, 317,
197 Pac.' 227.
Prescriptive right of lower as against upper
owner to flow' of stream. 53 A. L. R. 20,1.
See 26 Cal. Jur. 44; 27 R. C. L. 1258.
§ 3282. Water commissioner; appointment;
powers and salary. The governor shall ap­point
a state water commissioner, who shall
be familiar with water law, hydraulics andir­rigation.
The commissioner shall hold office
for a period of six years, be removable by the
governor for cause, maintain his office at tile
capitol and receive a salary o£,four thousand'
dollars per annum and his necessary travel­ing
expenses; he shall have general control
and supervision of the waters of the state, and
of the appropriation and of the distribution
thereof, excepting the distribution reserved
to water commissioners appointed by the
courts under existing decrees. (§2, Ch. 164,L.
'19,rev.)
See 25 Cal. Jur. 1013 .
. §3283. Survey of water resources; record;
7
rules and regulations. The commissioner may
make surveys, investigations andcompila­tions
of the water resources in the state, and
their potential development, and may co-
. operate for such purposes with the United
States; he shall maintain a permanent public
'depository for existing and . future records of
stream flow, and other data relating ,to the
water resources of the state; he may formu­late
and prescribe rules and regulations gov­erning
the appropriation and distribution of·'
water. The commissioner shall have an offi­cial
seal bearing the words, "Arizona State
Water Commissioner" which shall be affixed
'to .certificates, maps, plans and like instru­ments
issued from his office. (§ § 3-4, Ch. 164,
L. '19, cons. & rev.)
§ 3284. Application to appropriate. Any
,person, including a municipality, the state, or
the United States, intending to acquire the
right to the beneficial use of water, shall make
an application to the commissioner for a per-.
mi.t to make an appropriation of water. The
application shall state the name and address
of the applicant; the water supply from which
the appropriation is applied for; the nature
and amount of the proposed use; the loca­tion,
point of diversion and description of the
proposed works by which it is to be put to
beneficial use; the time within which' it is
proposed to begin construction· and the time
required for the completion of the construc­tion
and the application of the water to the
proposed use. If the application is· for agri-'
cultural purposes it shall give the legal sub­divisions
of the land and the acreage to be
irrigated; if for power purposes, the nature
of the works by which power is to be devel­oped,
the pressure head and amount of water
to be utili?:ed, the points of diversion· and re­lease
of the water, and the uses to which the
power is to be applied; if for the construction
of a reservoir, the dimensions and description'
of dam, the capacity of the reservoir for each
.', foot in depth, the description of the land to
be submerged\ and the uses to be made of the
impounded waters; if for municipal uses, the
present population to be served, .and an es-
. timate of the future requirements; if for min­ing
purposes, the location and the nature of
_ DIPAATME'NT OF ~,
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8
the mines to be served, and the methods of
supplying and utilizing the waters. The ap;..
"plication shall be accompanied by such maps, '
drawings and data as prescribed by the com­missioner.
(§ § 5-6, Ch. 164, L. '19, am., 2-3 Ch.
64, L. '21, cons. & rev.) .
I
' , See notes under § 3280, supra.
, See 26 Cal. Jur.86.
§ 3285. Approval or rejection of applica­tion;
legislative authorization; relative value
of uses. Upon receipt of the application, the
commissioner' shall iridorse thereon the date
of its receipt and keep a record thereof. If the
application is defective, he shall return the
same for correction or completion; indorse
thereon the date of and reasons for the re-
" turn, and keep a record thereof. The applica­tion
shall not lose its priority of filing on ac­count
of such defects if corrected, completed
and refiled in the office of the commissioner
within sixty days from its return to the ap7
plicant, or within such further time as the·
commissioner may, by an order of record, .al­low.
Applications shall be recorded in a book
kept for that purpose. The commissioner shall
approve all applications, . made in proper
form, contemplating the application of water
to a beneficial use; but, when the application
\ or the proposed. use conflicts with vested
rights, is a menace to the safety, or against
the interests and welfare of the public, he
shall reject the application. An application
for the appropriation of the waters of a
stream within the state for the generation
of electric energy in excess of twenty-five
thousand horsepower, or an application for
a permit to build a dam for the generation,
of hydro-electric energy on a stream within
the state in excess of twenty-five thousand·
horsepower, shall not be approved or granted
unless authorized by an act of the legislature.
A change in the use of water appropriated for
domestic, municipal or irrigation uses, shall
not be made without the approval of the
commissioner; if the, change contemplates
the generation of hydro-electric energy or
power of over twenty-five thousand horse.:
power, such approval shall not be granted
unless authorized by an act of the legislature.
Before approving or rejecting the applica-
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9
tion, the commissioner may require addition­al
information to enable him to properly
guard the public interest, and may, onappli-
. cations proposing to divert more than ten cu­bic
feet of water per second, require a state­ment
of the following facts: If a corporation,
a copy of the articles of incorporation, the
names and residences of directors and offi­cers,
and the amount of its authorized' and
paid up capital; if not a corporation, the name
of the party proposing to construct the works,
and.a showing of his financial ability to carry
out the proposed work. He may also require
the applicant to show that the proposed di­version
will not conflict with vested rights.
An application. may be approved for less
water than applied for, if substantial reasons
exist therefor, and shall not be approved for
. more than can be applied to a beneficial use.
Applications for municipal uses may be ap­proved
to the exclusion. of all subsequent ap­propriations,
if the estimated needs of the
municipality so demand, upon consideration
and order by the commissioner. As between
two or more pending conflicting applications
for the use of water from a given water sup­ply,
where the capaCity of the supply is not'
sufficient for all applications, preference
shall be. given by the commissioner according
to the relative values to the public of the pro­posed
use. The relative values to the public
for this purpose are: 1. Domestic and muni­cipal
uses, domestic uses to be construed to
include gardens not exceeding one-half acre
to each family; 2. irrigation and stock water­ing;
3. water power and mining uses. (§7,
Ch. 164, L. '19, am., 4, Ch. 64, L. '21; 1, Ch. 109,
L. '27, rev.) .
If the commissioner proceeding under this section
grants the permit, his action is absolutely void in so
far as it conflicts with vested rights. A prior appro­priator
objecting before. the commissioner is not
bound by his action in granting the permit. Salt
,River Valley Water Users' Assn. v. Norviel, (1926), .
, 29 Ariz. 499, 242 Pac. 1013.
In an application to the state water commission
for the appropriation of water, no appeal lies to the
supreme court. Smith v. Trott, 36 Ariz. 166, 283 P.
726.
See 26 Cal. Jur. 86.
§ 3286. Effe<;t of approval or rejection. The
approval or rejection of the application shall
10
)'.' , '
be indorsed thereon, arecord thereof kept by .\
the commissioner, and the application re­turned
immediately to the applicant. If ap­proved,
the applicant may construct the nec­essary
works, take steps to apply the water'
to a beneficial use and perfect the appro­priation.
If the application is rejected, the ap­plicant
shall take no steps toward the con­struction
of the proposed work or the diver­sion
of the water. (§ 8, Ch. 164, L. '19, rev.)
§ 3287. Permit may be assigned; rights of
assignee; disclaimer, of franchise; value of .
permit. A permit to appropriate water may
be assigned, subject to the conditions of the
permit, but shall not be binding, except upon
the parties thereto, unless the assignment is
approved by and filed with ,the .commissioner.
The permittee, if he accepts 'such permit, shall
accept the same upon the condition that no
value, in excess of the amount paid to, the
state, shall be claimed for such permit, or for
the rights acquired thereby, when any public
authority is regulating, or fixing the rate or
charges of the services to be rendered by the
permittee, his successors or assigns, or when
the state, a city, county, municipal water or.
irrigation district, or any political subdivi-
. sion of the state is seeking to acquire the
rights and property of the permittee, his suc-
" cessors or assigns. (§ 9,Ch. 164, L. '19, rev.) ,
See Ch. § 3288. Time of construction. Actual con­,~~
~~ws struction, except under applications by a city.
,$P. Ses. or town for its municipal uses, shall begin
within one year from the approval of the ap­plication,
be prosecuted with reasonable dili­gence
and completed within a reasonable
time, to be fixed in the permit, not to exceed
five years from the date of such approval.
The commissioner shall, for good cause
shown, extend the time beyond the five years
if tlie magnitude, physical difficulties and cost
of the work merit such extension. (§10, Ch.
164, L. '19, rev.)
§ 3289. Applications for reservoir permits;
secondary permits for water~ Applications
for reservoir permits shall be governed by
the foregoing sections, except that the lands
proposed to be' irrigated therefrom need not
be enumerated in the primary permit. The
party proposing to apply to a beneficial use'
11
the water stored,'in such reservoir shalL: file
an application for a permit, to be known as
the secondary permit, which application shall
refer to such reservoir as the supply of water,
and shall show that a written agreement has
been entered into with the owners of .the
reservoir for a permanent interest in said res­ervoir
sufficient for the purposes set fqrth in
the application. When the beneficial use has
been perfected under the secondary permit,
the, final certificate, of appropriation shall
issue and refer to both the ditch described
in the ,secondary permit and the reservoir
described in the primary permit. If at any
time it shall appear to < the commissioner,
after a hearing, that the holder of the pri­mary
permit will not, or cannot, within a
reasonable period develop the supply of
water, or complete the works, the commis­sionermay,
upon application of the holder
of the secondary permit, permit to such hold­er
joint occupancy and use under the primary.
permit with the holder thereof, to the extent
deemed advisable by the commissioner; pro~
vided that the applicant shall pay to the
holder of the primary permit a pro rata por­tion
of the total cost of the works, such pro
rata cost to be based on the proportion of
water used by.the original and the additional
users of such works. (§ 12, Ch. 164, L. '19,
rev.)
§ 3290. Certificates; date of rights. Upon
it' being made to' appear to the satisfaction,
of the commissioner that an appropriation
has been perfected and a beneficial' use" com­pleted
in accordance with the provisions of
this article, he shall issue to the applicant a
certificate, like in form and substance to, and
recorded and transmitted to the applicant in
the same manner as, the certificate required
to be issued upon the final determination of . ,
the rights to the waters of a stream. Certifi­cates
for rights to the use of water for power
development shall limit the right or franchise
to a period of forty years from the date of
application, subject to a preference right of
renewal tinder the laws existing at the date
", of expiration of such franchise or right. The
right acquired by such appropriation shall
"date from the filing of the application in the
i
I I
12
office of the commISSIOner. (§ § 13-14,Ch.
164, L. '19, cons. & rev.)
§ 3291. Reciprocity between states. An ap­plication
for the appropriation of water shall
not be denied because the point of diversion
of water described in the application, or any
portion of the works to be constructed for
the. purpose of storing, diverting or distri­buting
such water, or the place of intended
use, or the lands to be irrigated by such
water, or part thereof, may be situate in
some other state; but where either the point of
diversion, or any of such works, or the place
,of intended use, or the lands,' or part of the
lands, to be irrigated by means of such water,
are situated within the state, the permit shall
issue. The commissioner may, however, in his
discretion, decline to issue a permit where
the point of diversion is within the state, but
the place of beneficial use is. in some other.
state. (§ 15, Ch. 164, L. '19, rev.) "
§ 3292. Appeal from commissioner's deci-'
sions. An applicant, or any person whose
rights are affected by the decision of the com~ .
missioner, may appeal to the superior court
of the county in which the water proposed to
be diverted is situate, which court may mod­ify
the decisions of the commissioner if he
has abused his authority. The appellant, with­in
sixty days from the decision by the com­missioner,
shall file with the clerk of the
court a copy of the order appealed from,to:­gether
with a petition stating the grounds,
of the appeal. A copy of the petition'shall be
served upon the commissioner! who shall an­swer
the same within thirty days from' the
service, and with the answer transmit to tIle
court the records and files of his office in the
matter on appeal. The appellant may have
. summons issued for any other party in. in-' '
terest. The appeal shall be determined upon
the records and files of the commissioner and
'upon such further evidence as may be ad-duced
by the parties. (§ 11, Ch. 164, L. '19,
am., 2, Ch. 109, L. '27, rev.)
This section' does not authorize an appeal by one
aggrieved by any action of the watel1 commissioner,
except the applicant for a permit. Salt River Val­ley
Water Users' Assn. v. Norviel, (1926), 29 Ariz.
499, 503, 242 Pac. 1013. .
13
The Water Code provides for no hearing when
prior appropriators object to the issuance of a per­mit,
and the appearance of such an appropriator be­fore
the commissioner as a matter of courtesy does
, not give him jurisdiction either of the subject matter
or the parties for any purpose' except to grant or
deny the permit; his orders can in no way interfere
, with vested rights, and no decision by him can be
conclusive as to the facts. Salt River Valley Water
Users' Assn. v. Norviel, (1925), 29 Ariz. 360, 241
Pac. 503. '
In application to the state water commission for ,"
the appropriation of water, no appeal lies to the
supreme court. Smith v. Trott, 36 Ariz. 166, 283 P.
726.
. § 3293. Determination of conflicting rights.
, 'The commissioner may, and upon a l?etition
signed by one or more water users upon any
stream or water supply requesting the deter";
mination of the relative rights of the various
claimants to the waters of that stream or sup­ply
shall, if the facts and conditions justify,
determine the rights of the yarious claim­ants;
and shall fix a time for the taking of
'testimony and make such examinations as
will enable him to d~termine such rights. If
an action has been brought in a state court
for the determination of such rights, the court
may transfer such action to the commission­er'
for determination as herein provided, but
no proceedings shall be had in such action by
the commissioner until ,such transfer is made.
Where rights to the use of water, or dates of
appropriation 'have been determined in a
judgment of a court, the commissioner shall
accept such rights and dates of appropria­tion
as found in such judgment; and the
owner of an, appropriation adjudicated in
, such judgment need not appear in, or take
notice of the proceedings, investigations or
hearings of the commissioner except to dis,;
prove abandonment or other loss of the right
adjudicated by such judgment. (§ 16, Ch. 164,
L., '19, rev.) ,
In the proceeding provided by this and ensuing
sections the commissioner's jurisdiction is in the
nature of the jurisdiction of a referee or' similar to
that of a master under the old chancery practice,
save that he has original jurisdiction to initiate the
proceeding, whereas the referee' or master can only
,'determine such issues as are directly referred to
him by the court; both are subject to revision by
the, court, and in no sense are the commissioner's .
findings ,conclusive as to the facts. Salt River Valley
14
Water Users' Assn. v. Norviel, (1926), 29 Ariz.' 499,
242 Pac. 1013. . In a proceedings hereunder the water commis-
"sioner acts as a referee for the superior court;' and,
the proceedings in effect originates in the superior
court, so that an appeal will lie to the supreme
court.. Smith v. Trott, 36 Ariz. 166, 283 P. 726.
See 26 Cal. Jur. 88.
§ 3294. Publication of notice of investiga­tion.
The commissioner shall prepare a notice
of the place and date when he will begin the
investigation of the flow of the stream or sup­ply,
the ditches diverting water, therefrom,
and'the land irrigated thereby,. and requiring
,all claimants to rights in the waters thereof
to make proof of their claims when called
upon by the commissioner. The notice shall
be published in two issues of one or more
newspapers having general circulation in the
counties in which such supply is situated.'
(§ 17, Ch; 164" L. '19, am., 5, Ch. 64, L. '21,
rev.)
§ ,3295. Examination of stream and lands
irrigated. The .commissioner shall examine:
The stream or supply; the works diverting
water therefrom; the discharge of said stream
as shown by existing data and additional
measurements; the carrying capacity to the
various ditches and canals; the lands irrigated
or susceptible of irrigation from the various
ditches. and canals, and make measurement
thereof; and take such other steps and gather
,such other information as may be essential to
~ the proper understanding of the relative
rights of the parties. The investigations shall
. be reduced to writing, and kept of record jn
his office conveniently accessible to the pub­lic.
He shall make or cause to be made a map
or plat on a scale of. not less than one inch to
the mile, showing with substantial accuracy
the ,course of said stream or supply, the loca­tion
of such ditch or canal 'diverting water
therefrom, and the legal subdivisions of lands
which have been irrigated or are susceptible. \
of irrigation from the ditches and canals al­ready
constructed. (§ 18, Ch. 164, L. '19, a:qJ..,
6, Ch. 64, L. '21, rev.) .' ' ,
'. § 3296. Notice to claimants. During the in­'
vestigation the commissioner shall send by
registered mail to each claimant to the use of
any waters of said stream or supply, so far as
15 .
such chlimants can reasonably be ascertain­ed,
a notice stating the date and place when
and where the commissioner will take test­imony
of the rights to the waters of said·
stream or supply. Such notice must be mail­ed
at least thirty days prior to the date set
therein for the taking of testimony, and shall .
be published in two issues of one or, more
newspapers having general circulation in the.
counties in which such stream or supply is
situated. The taking of testimony may be
adj ourJ:1ed from time to time and from place
to place to suit the convenience of those in­terested.
(§ 19, Ch. 164, L. '19, am., 7, Ch. 64,
L. '21, rev;)
§ 3297. Statement of claimant. The commis­sioner
shall enclose with said notice a blank
form on which the claimant shall present in
writing the particulars of his Claim of right
to' the waters. The statement shall include:
The name and address of the claimant; the
nature of the right or use on which the claim'
is based; the time of initiation of such right
and the commencement of such use; if dis­tributing
works are used or required, the date
of beginning and completion of construction
or of enlargements, the dimensions of the
ditch as originally constructed and as enlar­ged;
the date when water was first used for
. beneficial purposes; if used for irrigation,
. 'the amount of land reclaimed the first year
and in subsequent years, and the amount and
general location of the land, the character
of the soil, and the kindof crops cultivated;
and such other facts as will show a com­pliance
with the law in acquiring the right.
The statement shall.be verified by the claim­ant.
The commissioner or his deputy, if the
oath be taken before him, shall administer
such oath without charge. (§ § 20-1, Ch. 164,
L. '19, am;, 8-9, Ch. 64, L. '21, cons. & rev.)
§ 3298. Opening and inspection of evidence.
Upon the completion of the' taking of testi­mony
the commissioner shall give notice by
registered mail to the claimants that at a
time and place named in the notice, not less
than ten days thereafter, said evidence will
be open to inspection by the claimants. The
commissioner shall keep the evidence open
I
16
to inspection at such place not less
thirty days, or such further time as fixed
in the notice. (§ 23, Ch. 164, L. '19, am., 11, Ch.
64, L. '21, rev.) \
§ 3299. Contest; notice· of; hearing. Should
any claimant desire to contest the rights as­serted
in the evidence submitted by another·
claimant, he shall, within five days after the
expiration of the period fixed in the notice·
for public inspection of the evidence, notify
the commissioner in writing under oath;
stating with reasonable certainty the grounds
of his proposed contest. The commissioner
shall notify, by registered mail or by person­al
service, the said contestant and the claim­ant
whose rights are contested, to appear, be­fore
him at such time and place as he shall
designate in said notice, not less than thirty
days nor more than sixty days from the date
the notice is served. The commissioner may
adjourn the hearing from time to time upon
reasonable notice to the parties, may issue
subpoenas and compel the attendance of wit­nesses,
take evidence, order the taking· of
. depositions .and issue commissions therefor .
. Said witnesses shall receive fees as in civil
actions, the costs to be taxed in the same
manner as are the costs in suits in equity.
The evidence in such hearing shall be limit­ed
to the subjects enumerated in the notice
and statement of contest. (§ § 24-5, Ch. 164,
L. '19, am., 12-13, Ch. 64, L. '21, cons. & rev.)
§ 3300. Order of determination; court hear­ing;
notice to claimants. After the completion
of the taking of testimony or the hearing of
a contest, the commissioner shall file the evi­dence
in his office and make, and enter of
record in his office, findings of fact and an
order determining and establishing the sev­eral
tights· to the waters of said stream or
supply. The original evidence and certified
copies of the measurements and maps and of
the order 'of determination and findings of
the commissioner, as they appear of record
in his office, shall be thereupon filed by the
commissioner with the clerk of the superior·
court in the county in which reside the great­est
number of water users whose rights are
determined by such order of determination.
\
17
,
Upon the filing of such evidence and order,
, the court shall. by an order fix a time of hear­ing
in said court, which shall be at least forty
days subsequent to the date of such order.
The clerk of said court shall forthwith de­liver
a certified copy of such order to the com­missioner,
who shall immediately upon re­ceipt
thereof notify each claimant who has
appeared in the pro<;!eeding, of the time and'
·place for such hearing. Service of such notice
shall be deemed complete upon depositing
such notice in the post office as registered
mail, addressed to such claimant at his ad­dress
as set forth in his statement of claim.
Proof of such service shall be made and filed
with the court by Ithe commissioner as soon
as possible after the mailing of such notices.
(§ 26, Ch. 164, L. '19, rev.)
§3301. Filing exception to order; hearing
and decree. The proceedings in court shall
thereafter be as near as may be like a suit in
equity. At any time prior to the hearing, any .
party interested may file exceptions in writ­ing
to such findings and order of determina­tion,
or any' part thereof, which exceptions
shall state with reasonable certainty the
grounds of the exceptions and shall specify
the part of such findings and orde'r to which
exceptions are made. A copy of such excep­tions
shall be served upon any adverse party
affected thereby; such service may be made
upon such adverse party in person, upon his
attorney if he has appeared by attorney, upon
his agent, or if a non-resident of the state, by
registered mail addressed to his place of resi­dence
as set forth in the proceedings. If no
exceptions are filed, the court shall on the day.
set for. the hearing enter a decree affirming·
the determination of the commissioner; if ex-.
ceptions are filed the court shall fix a time,
not less than thirty days thereafter, at which
time a hearing will be had upon such excep­tions.
All parties may be heard upon the con­sideration
of the exceptions, and the commis­sioner
may appear on behalf of the state. The
Court may remand the action to the commis­sioner
for further testimony and a further
order of determination, or affirm or .modify
the order of the commissioner, and assess the
18
costs as it deem just. The clerk ,of the court,
immediately upon the entry of the judgment
of determination shall: ,transmit a" certified
copy of such judgment to the commissioner,
who shall immediately enter the same of rec­ord
in his office and file a certified copy of
such judgment with the county recorder of
each county wherein such stream or supply,
or any portion or a tributary thereof, is situ­ated.
(§ 27, eh. 164, L. '19, am., 14, Ch. 64, L.
'21, rev.), '
A court does not abuse its discretion in denying a
re-reference to the water commissioner on the
ground of newly discovered evidence where the
motion therefor was not supported by any showing
of the proposed evidence claimed to be newly dis­covered.,
Stuart v. Norviel, (1924), 26 Ariz. 493, 226
Pac. 908.
§ 3302. Division of water pending hearing;
determination conclusive. The determination
of the commissioner shall be in full force and
effect from the date of its entry in his rec­ords;
and during its pendency in the court,
" and until a certified copy of the judgment of
the court is transmitted to the commissioner,
the division of water from the stream or sup­ply
involved in such appeal shall be made in
. accordance with the order of the commis­sioner.
The determination of the commis­sioner,
as confirmed or modified by the judg­ment
of the court, shall be conclusive as to
all prior rights and the rights of all existing
claimants upon the stream or body of water
embraced in the determination. (§28, Ch. 164,
L. '19, am., 15, Ch. 64, L. '21, cons.; 31, Ch.'164,
,L. '19, rev.) ,
§3303. Certificate after final determination.
,Upon the filing of such judgment the com­missioner
'shall issue to each person repre-
'sented in such determination, a certificate;
signed by the commissioner and attested un­der
his seal, setting forth the name and ad­dress
of the owner of the right, the priority
of date, and the extent and purpose ,of such
,right, and, if such water be for irrigation pur­poses,
a description of the legal subdivisions
of land to which said water is appurtenant.
He shall transmit such certificate, and the re:­cording
fee to the county recorder of the
county.in which such, right is located, who"
shall record the same in a book. kept for that
i
\
(
1
I
i
19
purpose, and thereupon immediately trans­'
mit the certificate to the owner. (§ 29, Ch .
.164, L. '19, am., 16, Ch. 64, L. '21, rev.) ,
§3304. Rehearing. Within six months from
the date of the judgment of determination
by the court, the commissioner or any party
interes,ted may apply to the court for a re­hearing.
If it shall appear to the court'that
there are good grounds for a rehearing, the
court shall enter an order fixing the time for
the hearing of the application, and the clerk
of the court shall, at the expense of the peti­tioner,
forthwith mail to the commissioner
and to every party interested a' notice of such
application and of the time and place of the
hearing thereof. (§ 30, Ch. 164, L. '19, rev.)
§ 3305; Estoppel; intervention by persons
not notified. Whenever proceedings hereun­der
are instituted for the determination of the
rights to the use of any water all claimants
interested therein shall appear and submit
proof of thei~ claims at the time and in the
manner herein required; any claimant, not·
herein excused, who shall fail to appear in
such proceedings and submit proof of his,
claim, shall be barred and estopped from sub­sequently
asserting any right theretofore ac­quired
upon the stream or other body of
water' embraced in such proceedings, and
shall forfeit all rights to the use of said water
theretofore claimed by him. Any person' in­terested
in the water upon whom service of
notice of the pendency of, the proceedings
was not had, and who did not have actual
knowledge or notice of the pendency of
said proceedings, may, at any time within
one year after the entry of the order of de­termination
by the commissioner, file a pe­tition
with the commissioner to intervene in
said proceedings. Such petition shall contain
'all matters required of claimants who have
been served with notice, of said proceedings
and a statement that the intervener had not
, actual knowledge or notice of the pendency
of said proceedings. Upon the filing of the pe­tition
the petitioner shalL be allowed to in­tervene
upon such terms as may be equit-
,able, and thereafter has the rights of a claim­ant
served, ,. and',like proceedings shall be
20
had upon the claim of such petitioner. (§ 32,
Ch. 164, L. '19, rev.) ,
, ' ��3306 .. Several determinations; reopening
! records. Whenever the rights to the waters of
a'stl'eam or supply have been determined by
more than one and the same proceeding,
the commissioner may open to public inspec-tion,
in the manner herein provided for the
opening and inspection of evidence, all proofs
and evidence of rights to the water, and his
finding in relation thereto, in the proceedings
affecting such stream or supply; and any per­son
may contest the claims. or rights' of an­other
to such water; provided, such contest
may not be maintained, except between'
claimants who were not parties to the same
adjudication in the original hearings. (§ 33,
Ch. 164, L. '19, rev.)
See notes under § 3293, supra.
§3307. Water districts; superintendent. The
commissioner shall divide the state into water
districts with reference to drainage water­.
sheds so as to secure the best protection to
the claimants to water and the most econom­ical
supervision by the state. Districts shall
not be created until a necessity therefor
arises, but shall be created from time to time
as the claims thereof from the streams or sup- ,
ply of the state shall be determined. The com- /'
missioner shall appoint one water superin­tendent
'for each district, who shall receive
such compensation as the. commissioner may
fix, to be paid by the water users of the dis­trict.
Each superintendent shall keep an ac­count
of the time spent by him and his as­sistants
in the duties of each county, arid pre­sent
a verified copy thereof to the superior
'court of each county at the end of each
month, whereupon the judge of the court
shalf order the same paid according to an
equitable distribution of the amount among
'the water users. The superintendent may em ..
ploy assistants, whose compensation shall be
fixed and paid in like manner as the super­intendent.
(§ 34, Ch. 164, L. '19, am., 17, Ch .
• i 64, L. '21, cons., 35, Ch. 164, L. '19, & rev.)
! §3308.Duties of superintendent; injunction
'against. The superintendent shall divide the'
. water of the sources of supply of his district
21
among the several ditches and reservoirs
· taking water therefrom, and among the lat­erals
and ditches according to the rights of
" each, shut and fastenthe head gates of ditch-
· es, and regulate the controlling works of
reservoirs, in time of scarcity of water, as
may be necessary by reason of the rights ex­isting
from the supply of his district; he-may
regulate the distribution of water among the
. users under a partnership ditch· or reservoir I
in accordance with existing decrees where
the rights have been determined; he shall, as
near as may be,divide, regulate and control
the use of the water by such closing of the
head gates as will prevent the waste of water,
or its use in excess of the right.'Any person
interested may apply to the superior court of
the county for an injunction against the su­perintendent,
but such injunction shall not
be issued unless it appears that the superin­tendent
has failed to carry into effect the or­der
of the commissioner or decrees of the
court determining the existing rights to the
use of water. Whenever the superintendent
regulates a head gate to a ditch or the con­trolling
works of .reservoirs, he shall attach to
such head gate or controlling works a written
notice, dated and signed, stating that such
head gate or controlling works has been reg­ulated
by him and is wholly under his con­trol,
and. such notice shall be legal notice to
all parties interested in the division and dis­tribution
of the water of such ditch or res­ervoir.
The county attorney shall· appear for
the superintendent in any case which may
arise in the pursuance of his official duties.
· (§ § 36-7, Ch. 164, L. '19, cons. & rev;)
§ 3309. Head gates; measuring devices·, The
owner of any ditch or canal shall maintain at
the point where the water is diverted, a sub-.
stantial head gate, so constructed that it can
be locked and kept closed by the water su­perintendent;
and, when required by the
commissioner, shall construct and maintain
measuring devices at points along such ditch
to assist the water superintendent in deter­mining
the amount of water to be diverted
into said ditch from the stream, or taken from
it by the users. The owner of a reservoir 10-
22
cated across or upon the bed of a natural
stream, shall, when required by the commis­sioner,
construct and maintain a measuring
device, approved by the commissioner, below
such reservoir, a gauge graduated to feet and
tenths of feet inside the reservoir, and a ca­pacity
table for same, and, .if necessary, a
measuring device above such reservoir on
each source of supply discharging in~o such
reservoir. When necessary for the protection
of. the other water users, the commissioner'
may require flumes' to be installed along the
line of. any ditch. If any such owner of irriga­tion
works shall refuse or neglect to construct
and maintain . such head gates, flumes, or
measuring devices after twenty days' notice,
the' commissioner may close such ditch and
the same shall not be opened or any water di­verted
from the source of supply, under the
penalties prescribed by law for the opening
of head gates lawfully closed, until the re­quirements
of the commissioner have been
complied with; and if any owner of a res­ervoir
located across the bed of a natural
stream shall neglect to put in such measuring
device after twenty days' notice, the com­missioner
may open the sluice gate or outlet
of such reservoir and the same shall not· be
closed, under penalties of the law for chang­ing
or interfering with head gates, until
such measuring devices are installed. (§ 41,
Ch., 164, L. '19, am., 18, Ch. 64, L. '21, rev.)
§ 3310. Repealed, Chapter 102, Session Laws
of Arizona, 1929. (See Amendments.)
§ 3311. Repealed, Chapter 102, Session Laws
of Arizona, 1929. (See Amendments.)
§ 3'312. Use of bed' of stream as carrier.
Whenever the owner of a reservoir desires to
use the bed of a stream or other watercourse
for the purpose of carrying water from the
reservoir to the consumer, he shall in writing
notify the water superintendent of the dis..;
trict in which the . waters are to be used,
giving the date when it is desired to dis­charge
water from such reservoir, its volume,
and the names of all persons and ditches en­titled
to its use. The superintendent shall
then supervise the opening of such reservoir
23
gat'es, and close or adjust the head gates of
all ditches from the watercourse not entitlec\
to the use of such stored water, that those,
having the right, may secure the water to
which.they are entitled. (§ 44, Ch. 164, L. '19, .
rev.)
Liability_ for damages from obstruction of stream
by debris or waste. 54 A. L. R. 358.
Right to drain surface water into natural water­course.
28 A. L. R. 1262.
§ 3313. Disagreement of water users; appeal
to superintendent; rotation. The water users
from any ditch or reservoir unable to agree
· upon the distribution or division of water.
through or from said ditch or reservoir, m?y
apply to the water superintendent of the dis­trict
in which said ditch or reservoir is lo­cated,
by written notice, stating such facts
and requesting the superintendent to regulate
such ditch or reservoir and make a just divi­sion
or distribution of water therefrom to the
parties entitled to the use thereof. The su­perior
court may also direct the ·water super­intendent
of the district to take charge of and
enforce any decree to water rights pending a
· determination of all the water rights of the
watershed. Water users owning land with at-
· tached water rights may rotate in the use of
the supply to which they may be entitled, and
whenever two or more water users shall
notify the superintendent that they desire to
use the water by rotation, and shall present
a written agreement as to the manner of such
rotation, the superintendent shall distribute
the water in accordance with such agree­ment.
(§ § 45~6, Ch. 164, L. '19, cons. & rev.).
§ 3314 .. Water to remain appurtenant to
land; transfer of right where not practicable
to continue usc. Water used for irrigation
· purposes shall remain a right appurtenant to
.the land upon which it is used; if, however, at
.any time for any natural cause beyond con-.
trol of the owner it becomes impracticable to
beneficially or economically use the water for
irrigation of the land to which it is appur­tenant,
the right may, with the approval of
the commissioner, be severed from the land,
and simultaneously transferred and become
appurtenant to other land without losing
I.
24
priority . theretofore established, if ~ch
change can be made without detriment to ex­isting
rights. Before the' approval of such
transfer an inspection shall be made by the
commissioner and he shall approve _or dis­approve
such transfer and prescribe the con­ditions
therefore. (§ 48, Ch. 164, L. '19, am.,
21, Ch. 64, L. '21, rev.) ..
Appropriator of right to use water for irrigation
must be owner or possessor of land susceptible of
irrigation, and appropriation once made attaches
permanently to such land and cannot be trans­ferred
therefrom, except when it becomes im­practicable
to use water. economically or benefi­cially
on land to which it is appurtenant. T'atters-field
v. Putnam, ........ Ariz ......... , 41 P. (2d) 228.
Appropriation of water may not be made by
temporary "possessor" of land. Tattersfield v. Put-nam,
........ Ariz ......... , 41 P. (2d) 228.
Valid appropriation of water must be made with
intent to appropriate. Tatterfield v. Putnam, ........
Ariz ......... , 41 P. (2d) 228.
Prior in time is prior in right in appropriation
of water, and except where doctrine of relation is
applicable, date of appropriation is time when
actual beneficial use of water commences. Tatters­field
v. Putnam, ........ Ariz ......... , 41 P. (2d) 228.
Landowner failed to acquire as appurtenant ,to
land right to use water from creek for irrigation,
. where land was occupied and irrigated by cor­poration
and predecessors under mistaken belief
that they had title, and owner subsequently ac­quired
title by homestead entry and leased land
to corporation, since lessee cannot initiate appro­priation
of water which enures to lessor's benefit.
Tattersfield v. Putnam, .... ~ .. Ariz ....... , 41 P. (2d) 228.'
No right of appropriation of water for ·use of
state land was initiated where land was leased to
corporation. Tattersfield v. Putnam, ...... Ariz ......... ,
.41 P. (2d) 228.
. § 3315. Violations defined; water superin­tendent
may arrest. Any person who shall:
Wilfully and without authority open, close,
change or interfere with any lawfully estab­lished
head gate, measuring device, or water
box; or, wilfully use water or conduct into or
through his ditch water which has been law­fully
denied him by the water superintendent
or other competent authority; or, without au­thority
use the water to which another is en­titled;
or, without authority divert water from
a stream; or, wilfully waste water to the det­riment
of another; or, divert a stream to the
injury or threatened injury of the lands of an­other;
or, use, store, or divert water without
25
or before the issuance of the permit to appro­priate
such waters; or, when an appropriator
of, water has the lawful right-of-way for the
storage, diversion or carriage of water, place
or maintain any obstruction interfering with
the use of the works, or prevent convenient
access thereto, is guilty of a misdemeanor.
The possession or use of water when the :lame
shall have been lawfully denied by the water
superintendent or other' competent authority
is prima facie evidence of the guilt of the per­son
'using it. The water superintendent, or his
assistants within his district, may arrest any
person violating this section and deliver him
to the sheriff or other police officer within
the county, and upon delivery to the sheriff
or officer shall immediately make complaint
before the proper justice of the peace against
the person so arrested. (§ § 39-40, 49-50, Ch.
164, L. '19, cons. & rev.)
§3316. Fees. The following fees shall be col­lected
in advance by the commissioner: For
examining an application for permit to appro­priate
water, three dollars; for filing and
recording permit to appropriate, water
for irrigation purposes, twelve cents per acre
for each acre to be irrigated up to and includ­ing
one hundred acres, and ten cents per acre
for each acre in excess of one hundred acres;
if the application is 'for power purposes, .
twenty-five cents for each theoretical horse­power
to be developed up to and including
one hundred, ten cents for each horsepower
in excess of one hundred and up to and in­cluding
one thousand, and five cents for each
horsepower in excess of one thousand; if the
application is for any other purpose, five dol­lars
for filing and recording each permit; for
filing or recording any other water right in­strument,
one dollar for the first hundred
words and ten cents for each additional hun­dred
words or fraction thereof; for making
copy of any document recorded or filed in his
office, ten cents for each hundred words or
fraction thereof; but where the amount ex­ceeds
five dollars, then only the actual cost
in excess of that amount; for certifying cop­ies,
documents, records, or maps, one dollar
for each certificate; for blue print copy of
n
! '
26
any map or drawing, ·ten cents per square
foot or fraction thereof; for such other work
as may be required of his office, actual cost
of the work. At the time of the submission of
proof of appropriation, or the taking of tes­timony
for the determination of rights to
water, he shall collect from each claimant
two dollars for recording the water right
certificate in the office of the county recorder,
together with an aaditional fee of twelve
cents for .each acre of irrigated lands up to
and including one hundred acres, and ten
cents per acre for each acre in excess of one
hundred acres; also twenty-five cents for each
theoretical horsepower up to and including
one hundred horsepower, and fifteen cents for
each horsepower in excess of one hundred
up to and including one thousand horse­power,
and five cents for each horsepower
in excess of one thousand horsepower up to
and including two thousand horsepower, and
two cents for each horsepower in excess of
two thousand horsepower as set forth in such
proof, the minimum fee, however, for any
claimant in such cases to be two dollars and
fifty cents; also a fee of five dollars for any
. other character of claim to water. The two
dollars recording fee shall be transmitted by
the commissioner to the co?nty recorder with
the certificate when issued. (§ § 51, 21, Ch.
164, L. '19, am., 22, 10, Ch. 64, L. '21, cons. &
rev.)
Power of state to exact fee or require license for
taking water from stream. 19 A. L. R. 649; 29 A.
L. R. 1478;
§ 3317. Vested rights not affected. Nothing
herein contained shall impair vested rights to
the use of water, affect relative priorities to
. the use of water determined by decree of ,the
court" nor impair the right to acquire prop­erty
by the exercise of the right of eminent
domain whenever conferred by law; nor shall
the right to take and use water be impaired
or affected by the provisions hereof where
appropriations have been initiated under and
incompliance with previouslaws then ex­isting,
and such appropriators" have, in· good
faith and in compliance with the laws then
, existing, commenced the construction of
works for the application of the water so ap-·
27
propriated to a beneficial use and prosecuted
such work diligently and continuously, but
such rights shall be adjudicated as herein
provided. (§ § 56, 58, Ch. 164, L. '19, rev.)
When one has complied with the local laws for the'
, appropriation of water, and has constructed upon
public vacant lands of the United States the works
for the diversion of that water, he thereby acquires
a 'vested and accrued right superior to that. of a
subsequent entryman upon such lands. Gila Water
Co. v. Green, (1925), 27 Ariz. 318, 232 Pac. 318.
, When a permit issued under this act constitutes a
cloud upon. the right of one who has appropriated
all the water of a stream except in times of great
floods, he may maintain an action for a decree ad­judging
his rights and canceling the permit. Salt
River Valley Water Users' Assn. v. Norviel, (1925),
29 Ariz. 360, 241 Pac. 50,3.
§ 3318. Biennial report. The commissioner
shall render to the governor biennally, ,and
oftener if required, a full and true report of'
his work. The report shall be delivered to the
governor on or before the thirty-first day of
,December of the year preceding the regular
session of' the legislature, and shall include
therein such suggestions of, amendments of
existing laws or for new laws as the commis­sioner
may deem necessary. (§ 59" Ch. 164, L.
'19, am., 24, Ch. 64, L. '21, rev.)
§ 3319. Right to construct ditches and ca­nals;
eminent domain. The' owner of arable
and irrigable lands may construct public or
private canals for the carrying of water, and,
whenever the same necessarily run through
the lands of another, the right-of-way there­for
through such land may be acquired by
condemnation, under the laws of eminent
domain. (§ § 4176-7, R. S. '01; 5346-7, R. S.
'13, cons. & rev.)
R. S. 1913, § 5346, cited without construction or
application. McKenzie v. Moore, (1918), ,20 Ariz. 1,
4, 176 Pac. 568.
In R. S. 1901; §,4176, (R. S. 1913, § 5346), the term
"inhabitants" was used as descriptive of those who;
possessed a right to appropriate water for agricul­tural
purposes, and included corporations, provided
they owned or possessed arable and irrigable lands.
Slosser v. Salt River Valley Canal Co., (1901), 7
Ariz. 376, 387, 65 Pac. 322.
Conceding that it was essential to a valid appro­priation
of water that the' appropriator be an inhab­itant
of the state, a complaint in an action to adjudi­cate
water rights was not subject to a general' de­murrer
where it did not disclose that the appropria:"
28
tor was not an inhabitant of the state. Bigle'r ~.
Welker, (1914), 16 Ariz. 44, 141 ,Pac. 124.,
§ 3320. Preference in case' of. scarcity.
During years when a scarCity of water exists,
owners of lands shall have precedence of the
water for irrigation according to the dates of
their appropriation or their occupation of the
lands, either by themselves or .theirgrantors.
· Th~ oldest titles shall have precedence. (§
4191, R. S. '01; 5358, R. S. '13, rev.)
· Where the evidence shows that at all times there
was sufficient water for the lands of both parties,
plaintiff has no right to an injunction restraining
defendant from diversion and use of water. Clough
v. Wing, (1888), 2 Ariz. '371, 17 Pac. 453.
R. S. 1887, § 3215, was restricted to public ace­qui
as or ditches, and was construed as a declaration
that priority of use and appropriatiori of water upon
particular lands should govern in determining con­.
flicting rights. While limiting the use of water to
particular lands, it did not deny the right of alien-
, ation. Biggs v. Utah Irrigation Co., (1901), 7 Ariz.
331, 349, 64 Pac. 494.
§ 3321. Canal owner not to contract in ex­cess
of carrying capacity. Any person owning
or controlling any canal, flume, or other
means for carrying water from a stream or
supply to ~ands for the irrigation of such
.lands, shall not contract to carry more water
, than such canal, flume or other means may
be estimated to carry at anyone time,
whether such contract be made for. measured
time or acreage quantity. Such person shall
keep the canal, flume or other" means in
good repair and condition so as to carry the
full amount of water contracted to be car­ried
or delivered. (§ § 4171-2, R. S. '01; 5339-
40, R. S. '13, cons. & rev.)
§ 3322. Water users may clean canals and
make repairs. When any person owning or
controlling any canal, flume or other means
· for carrying water, shall permit the same, or
· the dam head gates or other appliances for
securing the water at the head, to get out of
repair or reduced in capacity so that the same
will not carry the amount of water contracted
to be delivered to the users thereof, and shall
· not within a reasonable time repair, .cleanse
or restore the saple, then the users may, after
· six days' notice in writing to the owner or
person .in control, enter in and upon said
canal, flume or other m'eans, and make re-
29.
pairs, clean or restore the same. The cost of
· such repairs, cleansing or restoration shall be .
· a lien on such canal, flume.or other carrying'
means, enforceable as other liens upon real
property. Within thirty days after the com- .
pletion of the repairs, cleansing. or restora­tion,
a verified notice of the lien claimed,
stating the expenditures actually made, item­izing
the sums expended and the purpose lor
which each was expended, and stating the
facts upon which the lien is claimed, shall be
filed in the office of the recorder of the coun­ty
in which such work was done, and re­corded
in a book kept by him for that pur­pose.
(§ 4173, R. S. '01; 5341, R. S. '13, rev.)
Right to hasten the flow and . increase the volume
of water in a stream by alterations or improvements
· in .the bed. 9 A. L. R. 1211.
§ 3323. Natural waterways. Though the
waters which naturally flow in the natural
channels of streams have been previously ap­propriated
and put to beneficial use by others,
such channels may be used to carry water,
· without, however, diminishing the quantity of
water which nautrally flows therein, the use
of which has been appropriated. Where the
parties interested cannot agree upon the divi­sion
of the water turned into the natural
channel from the water naturally flowing
therein, or if it be difficult to ascertain the
amount to.which each party is entitled, then
the water superintendent of the district shall
make such division. (§ § 4202-3, R. S; '01; 5342-
3, R. S. '13, cons. & rev.)
AMENDMENTS
Chapter 102, Session Laws of 1929; repealed '
Sections 3310 and 3311 of the Water Code and
thereby divested the State Water Commis-
.sioner of his jurisdiction over the construc­tion
of storage dams and vested this jurisdic­tion
in the state engineer (Arizona state high­way
engineer). Chapter 47, Session Laws of .
1931 amended Sec. 1, Chapter 102, Session
Laws of 1929. Under the provisions of these
two amendments the state engineer now has
jurisdiction over the construction of all dams
and appurtenant works for" the impounding
or diversion of water where the dam·is fifteen
30
feet or more in height f!,om ~ound level ,to
spillway crest or where the impounding ca­pacity
will be more than ten acre feet, exept­ing
any dam, reservoir, or appurtenant works
constructed or used exclusively for watering
of live stock
CHAPTER 10
1934 Session Laws, Third Special Session,
Eleventh Legislature.
(Senate Bill No.5)
An Act. '
Extending the time for beginning construc~
tion under unexpired permits of state
water commissioner where permittee is
applicant for government funds; and
declaring· an emergency.
Be it enacted by the Legislature of the State
of Arizona:
Section 1. Definitions. Whenever used in
this Act, unless a different meaning clearly
appears from the context:
(a) The term "district" shall include any
irrigation district, drainage district, fioodcon­trol'district,
agricultural improvement dis­trict,
electrical district" water conservation
district, or power district, organized under
the laws of the State of Arizona.
(b) The term "Federal agency" shall
mean the United States of America, the Pres­ident
of the United States, the Federal Emer­gency
Administrator of Public Works, or any
such agencies or instrumentalities as. may
be designated or created to make grants or
loans, or both, pursuant to any Act or Acts
of the Congress of the United States of Amer­ica.
Se'ction 2. E'xtcnsion" of unexpired per­mits.
Notwithstanding the provisions of any
existing law, whenever the State Water Com­missioner
of Arizona shall have issued to any
district a permit to make an appropriation
of water, or reservoir permit, and actual
construction work under such permit has
not been begun, and the time prescribed in
said permit .for beginning such construction
work has not expired, and such. district has,
31
or before the. expiration of such prescribed
time shall have, made application .to any
Federal agency for a loan or grant, or both,
of moneys to be used for the construction of
its .works, or some part thereof, then the
time for beginning actual construction un..'
der. such permit is hereby extended until
. six months after the moneys so applied tor
.. shall become available to such district, but
in no event to exceed two years after the
time prescribed in such permit as that with­in
which actual construction must be begun .
. Sec. 3. Declaration of emergency and
time of taking effect. To relieve unemploy­ment
and preserve the public peace, health
and safety, it is necessary that this act be­come
immediately operative. It is therefore
declared to be an emergency measure, and
shall take effect' upon its passage in the man­ner
provided by law.
\.
INDEX
WATERS
Amendments, page 29.
Appropriation
, .
appeal from commissioner's decision, 3292.
application
approval, 3285
effect, 3286
contents, 3284
preferences, relative values, 3285
rejection, 3285
effect, 3286
certificates, issuance, 3290
33
after final determination of contest, 3303
construction work, beginning, completion,' 3288
permit, 3287
extension of time for beginning construction,
under, page 30
preferences, relative values, 3285
reciprocity;between states, 3291
right of, 3281 .
waters subject to, 3281
Appurtenant to land, 3314
Bed of stream, use as carrier, 3312
Beneficial use, standard, 3280
, Canals ,
cleaning, water users may clean, 3322 '
contract in excess' of carrying capacity prohib-ited,
3321,
repair, water users may repair, 3322
right to construct, 3319
users may clean and repair, 3322
Channels, natural, u~e to carry water, 3323
Commissioner
appeal from. decision, 3292
. appointment, 3282 '
, examinations, investigations by, 3295
fees, 3316
notice, water investigation, 3294
powers, 3282
records, stream 'floW" etc., 3283
regulations, 3283 .
'report, biennial, to governor, 3318'
salary; 3282 '
seal, 3283
survey, water resources, 3283
34
. Contest
certificate after final determination, 3303
determination, conclusiveness, 3302
order of, 3300, . '
reopening records after, 3306
division of water pending, 3302
estoppel, claimants not appearing, 3305
exception to determination, 3301 '
hearing, court, 3300
intervention by persons not notified, 3305
notice, 3299, 3300 '
proceedings, 3301
rehearing, 3304
remand for further testimony, 3301
reopening records after several determinations.
3306
Dams, storage and diversion
alteration, construction, page 29
inspection, page 29
outlet, capacity, required, page 29
stock watering, page 29
Disagreement of users, appeal to superintendent,
3313
Districts
creation', 3307
state to be divided into, 3307
superintendent
accounts, 3307
appeal to, by water users, 3313
appointment, 3307
arrest, right to, 3315
assistants, employment of, 3307
compensation, 3307
duties, 3308
injunction against, 3308
Ditches
right to construct, 3319
Diversion, unlawful, misdemeanor, 3315
Fees, commissioner, 3316
Interference with head gate, etc., 3315
Investigations by commissioner
claimants, statement of, 3297
contest, notice hearing, 3299
evidence, inspection, 3298
examination, extent, nature, 3295
notice, claimants, notice to, 3296
hearing, notice of, 3299
investigations, pUblication of, 3294
Measuring devices, 3309
Measurement, table of equivalents, page 2
Non-use, effect, 3280
Obstruction, unlawful, misdemeanor, 3315
Ownership, public, 3280
\
,\
Preference in case of scarcity, 3320
I '
Public ownership, 3280
Records, stream flow, etc., 3283'
, Reservoirs "
permits, applications for, 3289
Rights
appurtenant to land, 3314
conflicting,' determination of, 3293
date of, 3290
non:'use, effect of, 3280
transfer of, 3314
;' vested, not affected, 3317
35
Rights-of-way, acquisition by condemnation, 3319
Rotation,' 3313
Superintendent, water district, 3307, 3308
Survey, water resources, commissioner may make,
3283
Use
beneficial, basis of use, 3280
preference in case, of scarcity, 3320
relative values of, 3285
, rotation, .3313
unlawful, misdemeanor, 3315
Vested rights protected, 3317
Violations of law, misdemeanor, 3315
Waste of, misdemeanor, 3315
Water, table of equivalents, page 2.