Arizona republican., 1903-05-28
The Van Fossen Decision.


 It appears that many ranch owners, since reading in Tuesdays Republican the text of Judge Rents decision in the Van Fossen case, have hastily con- cluded that the decision in effect de- stroys the value of all water rights in the irrigating canals of this valley. That conclusion is very general, judg- ing from the large number of inquiries which have come to this office
 There is, however. no reason for any such interpretation of the decision. It is true that Judge Kent decided that Van Fossen, non-owner of water right, was entitled to demand water from the Salt River Valley canal for the irrigation of his ranch, but the Van Fossen ranch and small number of other ranches similarly situated stand in a peculiar relation to the canal, and we find nothing in the opinion whereon to found the conclusion that the courts hold, or will hold, that water rights are of no importance or value. It is clear, on the contrary, that Judge Rents de- cision Is closely limited in its applica- ton to the comparatively few ranches which are on all-fours with the Van Fossen case.
 And the decision by no means places Van Fossen on an equal footing with the owners of water rights. It is de- clared that he must not be deprived of water, but it is absurd to suppose that the court would require the water to be delivered to him at the same rate as to the owners of water rights.
 The facts can be stated In a few words. There are, under the old canals near Phoenix some two or three dozen ranches to which no water rights are attached The ownership of these ranches has changed from time to time. but the various owners failed, for one reason or another, to buy water rights. The governing reason, perhaps, was a belief that it was cheaper to rent, from year to year, the use of a water right than it was to buy one outright at an expense ranging from s1,5OO to 5000. The existence of number of floating" or unattached water rights. owned by other ranchers. brokers and bankers, made it possible for non-owners to rent
 
 tween the parties to each transaction. Having paid for the use of a water right for a season, the rancher would go to the canal company and pay the regular rate for water.
 Thus, counting the cost of water right rentals, these ranchers some sea- sons paid nearly double the rate that was paid by owners of water rights, but everybody was satisfied. so long as the scarcity of water was not acute, and iourishing and valuable ranches were developed under these conditions. To deprive single one of these ranches of any opportunity to obtain water at this late day would be wrongful against the individual, and against public policy.
 And few of these ranches, including the Van Fossen ranch, are in a much stronger position than above stated. They had at one time valid appropria- tlons of water, taken out from the river through a canal known as the Griffin ditch. The construction of the Salt ID. ticable to supply the lands through the new canal. but it has always been con- tended. and the court holds, that the Van Fossen ranch has never relln- quished its original appropriation.
 Finally, within the last year or so, the canal company interpreted court decisions to mean that it could not longer furnish water to ranchers who merely rented the use of water rights, and the company insisted that these ranchers must buy rights or go without water.
 About the time this issue was raised by the canal company. the ranchers decided that they would not only re- fuse to buy water rights but that they did not care longer to rent them, and they rendered to the can al company the usual rates paid by owners of water rights. Both parties sought relief in the courts. The Van Fossen case. except as to its stronger position by reason of having an original appropriation from the old Griffin ditch, was typical of all. and was made a test case. After hearing the evidence, Judge Kent held:
 "The evidence sufficiently establishes the contention of the plaintiff, that the defendant canal company has been supplying water for irrigation to per-