Arizona republican., 1903-05-26
WATER USERS WON
Judgment for Plaintiff in
 the Van FOSSen Case
He Has Valid Right to Water Though Not @ Water Right Owner Question of Priority Appropri-
 ation Not Considered.

G! Van FOsSen against the Salt River Valley Canal company, establishing the right of the plaintif though not the owner of q water right to receive water from the company which had denied him. The decision is an important one, one of whose effects will no doubt be to assist the Water Users association in procuring subscriptions to reservoir rights, inasmuch as it defines the status of water users who are non- holders of water rights.
 The plaintiff was one of many farm CTS similarly situated. There were in fact other suits Of the same kind brought but this is the only one that went to trial the plaintiffs in the others contributing to the payment of the ex- Penses oi this litigation.
 The predecessors in interest of the plaintiff had originally received water from the Salt river through tho old Griffin ditch. Conditions came about which made that means of procuring water wasteful and after that the wat CT for the land now owned by the plaintiff was taken through the Salt River valley canal. Neither the plain tiff nor his predecessor in interest own ed water right in the canal but they obtained water by leasing rights from the canal company or other water right holders until the company under its construction of the Sloan decision in the Slosser case established a rule that water could be delivered only to actual owners Of water rights. another reason being that at that time there was no more water available than the holders of water rights required.
 IT
 breaking was usheIed in which Judgc Kent soon suppressed in a manner which was quite satisfactory to both parties.
 This suit was begun by F.. W. Lewis in October of last year, acting for the Maricopa County Farmers association Alter the filing of the suit an order was made by which the plaintiff should secure water from the company upon depcsiting with the clerk of the court a sum sufficient to pay for it.
 The question of priority of appropria- tion was not vigorously put forward by the plaintiff. 1t being his contention that his right to the use of water had been recognized by the defendant in assuming to serve him through sever al years. It was contended on the oth- CT side that he had abandoned what ever right he may have had by ceas- ing to take water through the Griffin ditch and allowing that water way to fill up.
 On account of the importance of the case it was advanced on the docket and was tried last November The talk ing of evidence and the arguing of law points occupied five days. The argu- ments were made last March and Judge Kent has had the case under consideration ever since The judg- ment of the court is printed in full be- low:
 II think the evidence in this case is sufficient to establish the appropriation oi water by the predecessors in inter- est of the plaintiff as alleged in the complaint; and l do not think that there is sufficient evidence to warrant d finding of an abandonment of such an appropriation, CT that the acts of the plaintiff and his predecessors estop him from asserting his claim.
 4'''The right is therefore d valid sub sisting right and the plaintiff is en- titled to water sufficient for the culti- vation of his land.
 k The question of the priority of his appropriation. relative to that of other appropriations of water. is not in issue in this case, and is not determined
 The evidence sufficiently establishes the contention Of the plaintiff. that the defendant canal company has been supplying water for irrigation to per sons who are not stockholders or water right owners in the canal. The former 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 s water through the canal of the defend ant company and it's 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 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.
 Until the relative priority of rights of the plaintiff and others under the canal shall have been determined, the defendant company shall not be requir- ed to deliver to the plaintiff more wat CT for the cultivation of his land than it delivers to others. for the cultiva- ton of the same amount of land as that owned by the plaintiff"
 Judgment will therefore be entered for the plaintiff in accordance with the views expressed
 There was very little other business in court. The case Of C.. T. Hirst against J. c. Wasson was continued until May 26 The suit of Leon Bou- Vier against Jack Gibson and others was continued for the term. In the in junction suit of D. P. Jones and others against w. K. James and others to prevent the issuance to the defendant of a tax deed the bond was fixed at $500. In the case of l.. E. Payson against George F.. Godfrey, foreclosure was ordered and L. B. Christy was ap- pointed receiver under bond of $500.