Arizona republican. [volume] (Phoenix, Ariz.) 1890-1930, 1907-08-24
A COUNTER
INJUNCTION
BY Judge Mccormick In
Broadway Ditch Case
The Order Of Judge Sloan
Held to BE Without
Effect.

After the adjourned hearing in the
case OF the complaint OF Vernon l.
Clark and w. s. Pickereli against The
Bartlett Heard Land and Cattle COM
pany, Frank p. Trott and Aaron Cum
minis the application of the plaintiff $
for an injunction restraining Mr.. Trott
and others from interference with the
water supply on the plaintiffs at the
head gate OF the Broadway ditch was
granted by Court Commissioner Nc
Cormick.
The commissioner rendered written
decision into which he read the COM
plaint of the plaintiffs. The commits
sioner declared that the injunction
which Judge Sloan had ordered on the
application OF Water Commissioner
Trott against Messers. Clark and Pick
erell restraining them from interference
with the head gate was declared to be
void for want OF Jurisdiction. The COM
missioner sustained the answer OF the
defendants in the Sloan injunction case
in which they contended that under
the statutes a judge residing out Of the
district could not grant or modify an
injunction unless proceedings in the
case had already been begun. 1t ap-
peared to be the doctrine of the de-
PENDANTS that the proceedings could not
originate with the filing OF the COM
plainu but with the issuance OF the
order.
The commissioner further found on
this point that a nonresident Judge
-. n.
4 district in which there was a Judge
or commissioner empowered to issue
such orders. In support OF this view
the commissioner said that an appli-
cant for an INDUCTION might in that
case make a circuit of the territory in
his search for judge who would grant
him the order.
But the decision went mainly TO the
restraint of Mr.. Trott from interfering
with the Broadway ditch gate. The
commissioner assumed as a basis that
the plaintiffs in the pending case were
entitled to water not by virtue of any
agreement which had been entered in
to with the other canals but by virtue
of an appropriation " hich went back to
1863. The complaint had alleged on in
formation and belief that the three
quarter sections of which they were in
control were entitled to 800 inches
OF water, continuous flow. The COM
missioner however. found that they
were entitled to 225 inches. This find
ing was based upon custom which
has sprung up regarding the distribu-
tion Of water according to the area
OF the land to be irrigated.
The above mentioned agreement
with The other canal companies the
commissioner held to be a one sided
affair and that the plaintiffs were not
bound by II but that they could rely
upon the rights of their predecessors
in interest to the amount OF water
allowed them by prior appropriation.
The commissioner alluded to the fact
that in the Kibbey decision 1t
was shown that only twenty
eight quarter sections in the valley an
tedated in appropriation the tract con-
trolled by the plaintiffs; that for those
twenty eight sections 1900 inches were
required and therefore the commission
er held that the Broadway tract could
claim the amount Of its appropriation
after the older tracts had received the
1900 inches appropriated for them.
Coming TO the authority Of the water
commissioner over the water in the
Broadway ditch. the commissioner held
that since the Broadway land had not
been brought into case 70S, better
known as the Wormser ease. the decis-
ion in that case out Of which emanated
the powers OF the water commissioner
did not apply to the Broadway prop
erty or ditch.
The Bartlett-Heard company Is also
restrained from taking out into the
San Francisco ditch any part OF the
amount Of water to which the plain
tins have been found to be entitled.
The decision apparently leaves the
distribution OF the water Of the Mil
ditch without control. The commits
sioner cannot regulate the head gate
OF the Broadway ditch and the plain
tiffs cannot take more than 225 inches
Since the commissioner is relieved of
his duties at that point. II the plain
tits therefore take more than 225
inches 1t will be their own fault.
There Is considerable curiosity as to
the course Judge Kent will pursue with
respect to this injunction. He is ex-
pcted home now at any time. 1t was
rather thought that he would arrive
from the east yesterday morning as
mail had been forwarded for him from
Denver by f. S. Dunlevy. The Judge
will probably not remain in town long
but will go on to the coast where he
VIII remain until the middle of Sep
tember. 1t is thought though that he
will stop here long enough to review
the action Of the commissioner.
No agreement has been made be-
tween the parties to this action with
respect to the Sloan injunction. There
was a proposition that Commissioner
Trott and Judge Jamison the attorney
for Messrs. Clark and Pickrell go be-
fore IudRa Sloan ON a Inaftion hY Iudge