Arizona republican., 1907-08-25
BROADWAY DITCH CASt ITSPREStNTADJUSTMtNT
Continued From Pass 1.

mean, that he can go into the adjoin-
 ing district when the court commits sioner appointed by the judge of his
 own district Is there ready to act in the matter. In other words, l believe
 that the word judge" there properly. | and by fair interpretation. includes
 court commissioner" within the scope
 of the commissioners powers. To ac- cept any other interpretation, or adopt
 any other interpretation, brings about
 an absolue conflict of jurisdiction, and
 certainly the legislature did not intend to do that. And If any such conclu- sion can be drawn from this act of the legislature. then that section cannot be amended too soon.
 So I should be compelled to hold. as to that order issued by Judge Sloan,
 without going any further into the
 matter. was absolutely void. But am not left even to that in this case; for
 this section provides. or this paragraph provides, that it is only in a case of a
 suit or proceeding pending in another
 judicial district that the judge is au-
 thorized to act outside of his own county. And 1t appears from the rec
 ord here that this complaint was not filed until the day after this order was
 issued; so there was no suit or pro-
 ceeding pending at the time this order
 was made, and that makes it void.
 Now l should hesitate to announce such a view as this, were it not for the
 grave and serious consequences that
 flow from any other view. Why, if the
 theory which the counsel adopted in
 this action is true, then he can apply
 to the court commissioner in his own
 county. and if he does not get the kind
 of an order he wants there, he can go
 Into another county and apply to that
 judge, and if he does not give him the
 order he wants there he can start out on a journey over the territory until he finds some judge somewhere that will. upon an eX parte showing, without
 notice to the other parties, grant the
 kind of an order he seeks. I do not
 believe that that kind of a result was contemplated by the legislature in enaSting that statute.
 And so. for these reasons, I wish to say that I consider the order urged here as a reason why should not act in this matter, as absolutely void and of no effect.
 I was very much impressed by the argument of the counsel for the Bart lett-Heard company. It was an able argument and showed a thorough un- derstanding of the matters Involved in this action; but it did not convince me that I ought not to include the Bartlett-Heard company in any order that l might make. In the first place. it seems to me that any order made affecting Mir. Trott's conduct here must affect the Bartlett-Heard company. and that on the general practice of saving a multiplicity of suits. they ought to be included in this action. The counsel urges, with a great deal of force, that in the allegations affect ing the Bartlett-H Heard company or referring to the Bartlett-Heard com pany. there was not sufficient ground to include them in any order. I think the counsel overlooked the fact that almost all the allegations of the com- plaint. without referring to them in each case applied to them with almost the same force that it did to the de- fendant Mir. Trott-not simply the al- legations. as urged by counsel. where the Bartlett-Hear company was men, tioned. As to any injury that would result to them, that can be covered by a bond: which is the usual proceeding in these cases, until the matter can be heard and determined. It seems not to be disputed at all that the Bartlett Heard company is getting at least part of this water of which the plaintiffs complain they are deprived by Mir. Trott's action. An injunction against Mir. Trott therefore directly affects the | interests of the Bartlett Heard com | pany. because he is turning part of this water to that defendant.
 Now there has been a good deal of | discussion-and very properly-I was | very glad of that discussion, and very glad to be enlightened upon that point | as to the amount of water to which | these plaintiffs are entitled. In that | matter I shall adopt the practice, the | rule. that has been adopted here in the | valley-that is, 64 inches is sufficient 1! water to irrigate 160 acres of land, | making a reasonable allowance for the | loss of water from the head gate to the land of the plaintiffs; and with | what information I have-I have not | been as we'll informed in regard to | that as I would like to have been-I | have made it, I think. within proper | limits, at least. I think that 225 inches | constant flow, or its equivalent, would | be in keeping with that rule. Of course. that order will not affect the defendant l Cummins. who has not been served, as I understand, in this action.
 The counsel for the plaintiffs may | draw an order enJoining the defendants Mir. Trott and the Bartlett-Heard Land :, adn Cattle company from interfering | with the head gate of what is known