Arizona republican., 1903-05-28

TlBHl OWHerS III lHe Cdndi. 1nc lOTiIlcT means of delivery of the water having been discontinued through no fault of the plaintiff. and there being no other existing means of carrying the water from the river to the lands of the plain tiff except through the canal of the defendant company, the interests of the community and the economical dis
 tribution and use of the water in the river require the carrying of plaintiffs water through the canal of the defend- ant company and its delivery by such company to the land of the plaintiff. under such reasonable rules and regu- lations as it may provide.
 "The plaintiff having no contractual relations with the defendant should pay to the defendant for the carrying of his water such sum as the defendant shall require; provided. such charge Is not in excess of what is proper and reasonable for the service rendered."
 This decision means no more than 1t says. and the opinion bears evidence of the fact that the learned judge weighed lis words. As has been pointed out, the ranchers In question were pecu- liarly situated. After receiving water for years; after having acquired sub stantial and valuable rights through custom and user. and after having contributed largely to the upbuilding of the community, the non-own of water rights found themselves threat ened with absolute ruin. They ap- pealed to the court for protection against the destruction which would be wrought by withdrawal of the privi- leges heretofore extended. Taking into consideration the fact that the rental custom had been in vogue for years, a court of equity could not bring itself to assent to policy which meant property and the unnecessary ruin of good citizens. It would have been merely an evasion to say that at least some of the ranchers, by bidding nigh enough. could have bought water rights in the market, It was decreed, accord ingly, that these ranches must con- tinue to have water under such "rea- sonable rules and regulations" as the canal company may prescribe.
 And this. clearly. is an important res ervation. It sharply marks the distinc- tion between the rancher who owns a water right and the rancher who does not. Van Fossen, for instance. must not be deprived of water, for to deprive him would be unjust to him and against public policy. But having made no investment in a water right, he will have to pay more for his water How much more. remains to be decided here after, of course. Judge Kent specifical- ly says that the plaintiff having no contractual relations Ii. e., owning no water right with the defendant should pay to the defendant for the carriage of his water such sum as the defendant shall require; provided such charge is not in excess of what is proper and reasonable for the service rendered" Of course. should the canal company. in dealing with this class of ranchers, place its rates so high as to be extor- tionate, the equity court would again intervene.
 But it is obvious that 1t would not be fair to the owners of water rights to say to them, You are placed on an equal footing with the non-owners. It is true that by purchasing water rights years ago. and bearing your burden in the maintenance of the canal you were a public benefactor and you thought your investment was protected by law: but the ranch owners who stood out and refused to join you in your respon- abilities are now to have a premium set on their refusal, and are to be re- werded for evading the responsibilities which you have carried" No court of equity would assume such an atti- tude.
 In fact, the very meaning of the term water right is Limitation" When a buys a water right in a canal he buys, in substance. an assurance that the customers of the canal will be limited to a certain number, and that he is to receive his pro rata share of the water. Were the courts to de- clare that no such limitation could be set. and that a canal company, operat- ed under a short-sighted management, could go ahead supplying water to all applicants and thereby creating eqli- ties against Notwithstanding at will the number of partners in the firm, and subdividing over and over again the volume of water av;lilable-such a doc urine would be destructive of all the protective features which now surround the irrigation industry. Such a doc Urine would require, simply, that ranch owners, holding water rights which might represent the savings of life time, would need only to be complais- ant and negligent of their rights in or der for valid appropriations and equi- ties to be created in such numbers as would in time ruin all concerned.
 From the lay standpoint of common sense. Judge Rents decision is good law and good equity. No disinterested citizen expected that he would decree the ruin of anv ray,cb Ou,oar Taoh,;