Arizona republican., 1895-11-21
WATER FOR POWER USES. Decision of the Supreme
 Court. Reversing the Famous Chand- Ter Injunction. Defendant Was Exercising an Abso- lute Right In the Use
 of Water.

has ever come before the courts of Ari- zona has been that of Austin against Chandler, or as it might more properly be stated the Tempe Canal company against the Mesa Consolidated Canal company. The plaintiffs sought to en- join defendants from delivering to i them their quota of the valleys water 1 supply, the Mesa company having con- structed for such purpose large canal. | The interest of the Mesa company largely lay in the fact that by such de- livery magnificent water power was gained. The injunction was granted by Judge Baker in the district court. | On appeal the case was reversed and the decision has just been handed down. Its full text is below given:
 In the supreme court territory of Arizona. Austin, ct al. vs. Chandler and the Consolidated Canal company on appeal from Maricopa county.
 Kibbey & Williams, attorneys for plaintiffs; e. F. Ainsworth and J. D. Pope, attorneys for defendants
 Bethune, IA. J.: The plaintiffs who are the appellees here are the prior ap- propriatoTs and users, as between themselves and appellants, of certain water of the Salt river, and conduct their water through what is known as the Tempe canal to the various points of use.
 Their appropriation and use of said water for the purpose of irrigation and turning a grist mill known as Hay den's mill
 Appellants having appropriated and otherwise secured the use of water from the river, subsequent to the ap- propriation of appellees, at a point in the river several miles above the point of division of appellees, for the pur- pose, among other things, of creating, generating, and perpetuating for pub lie and private use water power of not less than 800 horse power" now seek to mingle the waters of the appel lees with their own and run it from the river through their canal over a preci- pice having fall of forty or fifty feet, where the power plant is located, and deliver it back to appellees at a point in appellees' ditch above any place of use by appellees, and were so actually running and delivering said water when this action was commenced.
 An injunction was issued by the lower court, and, upon the final hearing of the case, made perpetual, restrain ing appellants from interfering with the water of appellees, except to use it for mechanical purposes: provided, that said water should, after such use be re- turned by appellants to the natural channel of the river above the mouth of appellees' ditch
 This requirement so far as we are aware, is in strict conformity with the provisions of the common law
 At common law probably no such thing as an irrigating ditch was known. Under its provision the usifuct is the only extent of a claim on water. The maxim water should and by right ought to flow where it has been accus- toned to fow'' expresses the spirit of the common law in regulating the use of water. So that the doctrine that water, after being used by any person to the extent permitted by the common law must be returned to it's original channel not perceptibly diminished in quantity and undeteriorated in quality was established.
 But the common law has no applica- tion whatever in the use of water with us. Not even the common law doctrine of a riparian right is acknowledged by us, but is expressly repudiated by para graph 3198 R. S. t@
 So the common law can furnish no under our system of the use ofc certain this territory. It seems to be admitted that there could be no objection to the use by a. subsequent appropriator of the waters of stream already appro- priafted, should the water be returned uninjured to the channel above the point of diversion of the prior appro- priation. But as we have seen, this rule springs from the common law which as already stated has no applica- tion in regulating our water rights.
 We cannot perceive any reason why under our system of the use of waiter, a person entitled to the use of a certain quantity of it should receive it at one place instead of another, provided his rights are in no way affected or cur tailed.
 The appellees claim a certain quan- tity of water for the irrigation of their lands and to run Hayden's mill; if they get it why should the manner in which they get it matter ito them especially when one may add useless burdens upon the exercise of the absolute rights of the appellants, and either way would equally subserve the rights of appellees
 In our view of the case no rights ot appellees are invaded by reason of the delivery of the water claimed by then into their ditch above the point of use by them The evidence fails to show that any damage has accrued or vii accrue to them by having their watel delivered ito them at the point appel lants were delivering it at the com Al tl, oti t hat t thcai-