Arizona weekly journal-miner., 1901-07-17
THE DUKE WATER SUIT.
4 Decision Rendered Today Adverse tc Plaintiff in His Suit for Damages
 Against the City.

!
 to its water system, also for a perpe |, ual injunction restraining the cit = from usiug said water. The plainti
 was represented by Campbell & Jo
 and the city by ex-City Attorney l
 W. O'Sullivan and H. D. Ross. Tn 9 case was tried some time since an $ the court has had it under advisemen , until today. The decisisn is in fayo r of the city and is as follows:
 5 The determination of this. case, il . the judgment of the court, turns up 5 on question of fact, which is: Doe the evidence show plaintiff to hav been deprived of water for the irriga ton, during the years 1899 and 1900 ; of the lands claimed by him and de scribed in the complaint, by the ac , of the defendant city through tn maintenance and operation of tn, pumping plant and water works sit uated on the bank of Granite creek , the common source of water claimed
 by the respective parties hereto unde
 their several appropriations.
 The evidence shows that the watel
 which the city of Prescott through
 its said water plant has taken and di
 verted from Granite creek is from thu
 subterranean flow and not from the
 surface flow in said creek; that at nc
 time has the diversion of the water
 exceeded three miners inches, per
 petual flow; that this water is i'm
 pounded by means of tunnel run
 underneath the bedrock constituting the channel of Granite creek in such a way as to take in dry seasons prac- tically the entire subterranean flow The head of plaintiffs ditch in in the neighborhood of mile farther down the channel of Granite creek.
 There is evidence tending to show that at the head of plaintiffs ditch there is a natural basin formed by two reefs of rock which cross the creek and which are but a few feet beneath the surface. It is contended by plaintiff that the natural reservoir thus formed is the source of his sup ply of water during the dry seasons, and that prior to 1899 the supply thus furnished him was sufficient to enable him to cultivate his lands and grow crops thereon, both grain and alfalfa, and irrigate fruit orchard. That the pumping of the water from the subterranean flow of Granite creek by the city's pumping plant during the years 1899 and 1900 re- suited in his not being able to obtain water in any quantity sufficient for the irrigation of any of his crops or of his orchard. and consequently caused him to lose his crops for said year as well as his said orchard.
 The quantity of water which the city pumped daily during the irrigat- ing seasons of 1899 and 1900 was shown with reasonable accuracy and certainty to have been not greater than three miners inches measured under six inches pressure, and that this amount was only available for a portion of the said seasons, it being less in the year 1900 than in the year 1899. It has been shown that both of said years were extraordinarily dry years; the rainfall being less than one-half of what the government statistics show to be the average yearly rainfall for this section. Not only so, but the year preceding, to- wit, 1898, was also a dry year.
 In order that the plaintiff show a right to the damages claimed by him it is necessary for him to show, con ceding his appropriation to have been older and superior to that of the city, that three inches of water flowing underneath the surface in the chan mel of Granite creek for a distance of one mile, caught in the natural basin between two reefs of rock and diverted by means of an open ditch and carried in said open ditch from one-half to three-quarters of mile, would have enabled him to cultivate his land or any portion thereof.
 This we think he has failed to do. The testimony leaves it doubtful that three inches of water diverted from Granite creek into plaintiffs ditch at the head of his ditch could have been utilized by him in the irrigation of his land or any portion thereof, with any appreciable benefit.
 ! The testimony tends to establish that the city pumping plant impound- ed the entire subterranean flow in the channel of Granite creek. There is no testimony showing that any appre- ciable amount of water Is taken into
 the channel of Granite creek between
 the head of plaintiffs ditch and the
 pumping plant. It seems to me un- reasonable to assume, in the absence
 of proof, that the entire subterranear
 flow of GIanite creek, if left undis
 turbed, would be caught and diverted
 by the head of plaintiffs ditch con
 structed, as it was, in the sands anC gravel in the basin caused by tho rock reefs crossing the channel, con ceding this basin and reservoir tC
 have been proven to exist.
 It has not been proven by plaintiff that the diversion of water by the city during these years has had any appre : ciable effect upon the amount of wa ter available to him through his ditcl . for the irrigation of his lands; on thu . contrary it seems reasonable from thu . testimony that the extreme droutl during these years was the sole caus' . of the scarcity of water in the channe of Granite creek available to hin through his ditch; and that he would , not have been any better off had tn , water diverted by the city been per mitted to flow unobstructed and per ? mitted to percolate through the sand 7 and gravel along the channel O , Granite creek.
 For the reason that plaintiff ha f failed to show any damage, presen f or prospective, from the diversion o 2 water from Granite creek through tn l city's pumping plant, judgment mus 20 for the defendant, dismissini g plaintiff complaint, and for costs c I suit.
 $ (Signed) Richard E. Sloan, I Judge. Barlton Meyers, a West Liberty . TOvv., bOv was caupht bv a rODa Of