Arizona citizen., 1874-02-07
SUPREME COURT DECISION.


 given with little or no abridgment. The cause is entitled John G. Campbell and James NJ. Baker, appellants, against David w. Shivers, respondent, and involves the right to water for irrigation and incident ally the power of the supreme court to fix the times for holding the district courts, and is deemed the most important case passed upon by the court at it's late ses- sion. Gov. Bashford was attorney for ap- pellants and James E. McCafTry and John A. Rush for respondents. The case was appealed from the district court for Yaya- pal county. The opinion was written by Titus and Tweed concurred in the judg- ment.
 A judgment for the defendant, Daniel
 ". Shivers, in the district court of the
 third judicial district, at the suit of the
 plaintiffs, John c. Campbell and James
 NJ. Baker, for the alleged unlawful use of
 water in irrigating, is the cause Of this ap-
 peal The appellants here were the plain
 fiiiS below; the defendant there is the re-
 SpCndent here; and the record by the tran
 script disclOses the following conclusions +of fact: In the month of March, 1867. the
 defendant moved to Chino valley, in the
 county of YaVapai, near Fort Whipple
 about ,tSyenty-ive miles north of Prescott, took possession of the ranch which he
 now occupies and has ever since occupied.
 Along with his ranch, he has ever since
 used and still continues to use for purpoS-
 eS Of irrigation, One-fOurth of the water
 which flows through the defendants
 ranch, but also to or through the ranch of
 Robert Postle, George Bangh2Tt and the
 rarcl of the plaintiffs. The use Of one-
 fourth O. the water flowing. through the
 ditch or drain above described from Feb
 ruary l, 1870, to January l, 1872, is the
 wrong of which the plaintiffs complain;
 and they claim with their costs damages
 in the sum of $2OGo, which they aver they
 have suffered by that alleged unlawful use
 Of the water described. The defendant de-
 nieS that his use of the water was unlaw-
 ful at all; denies that he has damaged the plaintiffs and asks to be dismissed with
 his costs.
 This is the issue tried in the court below,
 and the correctness Of the verdict and
 judgment thereupOn in favor of the Gefen-
 dant, is the question to be reviewed by
 this court. It is to be regretted that the settlement in Chino valley, Of which the property in question constitutes part, was
 not more fully and correctly described than it is in the record Of the case. The ranch of the plaintiffs in two of the deeds submitted in evidence on the trial of the case, is described as situated west or Po5- ties ranch, while the same ranch, in two othe- deeds submitted in evidence on the
 trial, is described as situated north Of Pos ties ranch. The order of the several ranches on the ditch or drain which con ducts the water for their common lrrlga- tiCn, is not given; while their bOundarleS are evidently omitted, not only in the pleadings and evidence, but even in such deeds of them as have been submitted in evidence on the trial of this case. The
 water right in controversy IS wholly omit ted from the original deed of the plain tiffS' title, as the same appears in evidence, while their counsel is found denying the deiandant's claim to contest this very | right with them because of the same omlS- | sion from his own deed. The court is thus 1 left to conjecture, and counsel are lnVolV- ed in absurdity On matters of the utmost | importance in the discussion of questions such as this case presents. It seems that PoStle's ranch is above ali others on the ditch or drain which is the common me dium of supply, and about three-quarters Of mile from the mass of the water upon which all depend. The relative positions l of the ranches of the plaintiffs and de- | fcndant, do not appear except from con- l lecture. Of all those who depend on single drain or ditch for water, 1t is impos- sible for any one to exhaust or reduce the l supply of others, excepting such as are be- 1 low him on the same ditch or drain. The plaintiffs claim that the defendant has done this for them. From this it would seem to be presumption or facI that the ranch Of the defendant is higher up the ditch or drain and nearer the common source of the water supply, than the ranch of the plaintiffs. Of ranches located or l situated for purposes of irrigation, other l things being equal, those nearest the wa | ter supply are first chosen. From this It | would also seem to be a presumption Of 1 fact that the ranch of the defendant must have been located if not anterior at least cOtemporaneouS with that of the plain | tiffS. The legal deductions from these pre- sumptiOnS of fact will be stated hereafter. | Further references to the facts of this case l will be made in conclusion with the points
 to which they pertain.
 | No assignment of errors has been made i in this case excepting such as appear Ill | the briefs of counsel. There were seven points presented by the counsel of the ap- | pellants against the judgment; but the 1 court proceeded to examine the last or seventh point first, which is as follows:
 The court should have sustained the ob- | jectiOn of the plaintiffs that the court was not legally in session, giving as reason l that as the above cited exception is first in practical order and if allowed must 1mpel | this court to reverse the judgment in the case, it is here considered first. The legiS- lature of this Territory has from its origin
 assumed that it is authorized to fix the | terms of the supreme and district courts. Till the present case, no conflict has arlS- en on this subject between this court and the legislature, because the practice of the court has been to adopt and ratify the ac- | tion of the legislature in regard to the terms of the district court. The opinion then quotes the act of the legislature fix | ing the terms of the district courts, and proceeds as follows: This distribution of l the terms of the district courts was un- doubtedly defective execution of the order of Congress, because 1t contained no limitation to the sessions of the court. It