Arizona republican. [volume] (Phoenix, Ariz.) 1890-1930, 1907-08-25

the law as 1 understand it. water is
appurtenant to the land in this terri
tory, and a lease of land necessarily
includes lease of the water necessary
TO irrigate the land.
1t was also urged by the counsel that
the allegations or allegation OF the
plaintiffs on information and belief as
10 the amount of water that had been
conveyed upon these lands was not
sufficient. 1t seems to me that II
would be requiring too much of the
plaintiffs to allege this fact in any
other way than on information and be-
lief. because unless they were experts
in the matter of measuring water. they
could not make the allegation any
stronger: and 1t Is rather proof of their
care in making statements than a fact
TO be urged against them. / think, that
they made this allegation on informa-
tion and belief.
OF course. it will be remembered that
upon a final hearing of this case
which is the result to be expected from
a proceeding of this kind-stricter
proof on many matters of detail would
be required than would be required in
an application OF this kind. That re-
mark will apply to a good many things
that have been referred to in the
course of the presentation of this mat
/ ter by the counsel on both sides of the
case.
Considerable was said by the coun-
sci in his argument, and considerable
emphasis was placed upon the fact. as
stated by him, that Mr.. Trott regulated
the flow of the water with the knowl-
edge and consent Of the court, as well
as with the knowledge and acquies-
cence of the parties. Now. the court,
although ii might have knowledge of
the manner i'm which the water com
missioner was performing his duties,
would not of itself, ordinarily. at least.
and on its own motion move TO correct
this manner OF distribution OF the wa
/ ter until some complaint had been
made to the court, or some action,
some proceeding like this had been
I commenced: and II would seem to me
| to be no argument why the court
might not grant an order when it was
applied for-it would be no argument
( to say that the court had known some
thing about this beforehand, when no
to change this manner of distribu-
( tion; in other words the court does not
ordinarily take action until some pro-
ceeding is commenced before it asking
( for such action.
| The>counsel for the defendant Mr..
Trott urged with a good deal of en-
/ phasis the proceedings before Judge
Baker. wherein a Mr.. Hayden was ar
raigned in contempt proceedings. I
have examined the record OF that pro-
ceeding. and | do not think that a fair
examination Of it would entitle it to
be considered as any precedent Of any
+ kind.
Now coming to what / consider to
be the main defense on Mr.. TrOtt's
part--this is. that he was acting as
water commissioner-and in this part
OF the answer he practically admits
what the complaint charges: that is.
1 that he did shut down the gate of this
canal which conveys water. to the
plaintiffs lands so that only 125 inches
flows through 1t; that it was interfered
with by the plaintiffs and that he shut
it down again. Now. / cannot, with
the most thorough investigation I can
4
has any authority whatever as water
commissioner over this head gate. 1t
does not appear that the Broadway
! land was considered in any way in
the case in which Mr.. Trott was ap-
! pointed court water commissioner.
! The owner of the land at
! that time was not a party to
! that suit. and no order made
/ by the court in that case could affect
/ his rights. No adjudication of the
! amount of water to which this land
| is entitled has ever been made. so far
as ! have been able to find out. and
so far as anything shows in this case.
and so far as the fact is. The water
commissioner had no authority to dis
| tribute any water not included in the
Judgment and order of the court by
which the office Of water commissioner
! was created.
Now il is alleged again. as it was
In the former case here, that there was
an agreement entered into BY which
/ this l25 inches of water was delivered
1 to the plaintiffs lands. and in the-I
don't know whether 1t is stated in this
affidavit. but it is in the other. which
is made a part of the proceedings-that
that was a temporary agreement III
it was. then it did not even bind the
| parties to il any longer than they
sought to rescind it. much less could it
bind those who were not parties to
that agreement. as it seems TO me
that is, the plaintiffs in this action. In
| that connection it might be proper and