Arizona republican., 1910-03-02
The Water Decision.


 Judge Rents decree and decision in the case of Hurley vs. Abbott, handed down yesterday Ccopy of which in full, except as to the accompanying tables and map. appears in today's Repub- Iican) marks an epoch in the indus trial development of the Salt River valley
 Almost from the very beginning of irrigation in this valley there has been litigation over the use Of water. Suit has followed suit. and ranchers have expended thousands upon thousands of dollars in attorneys fees and court costs; but never until the rendition of this decision was there satisfactory adjudication of rights It is true that as carly as 1892 Judge Kibbey. then on the bench of this district, rendered a decision which opened the door to d settlement of the vexatious questions involved. In that decision Judge Kib- bey for the first time laid down the doctrine that the common law rule of riparian rights (the ownership of streams by abutting land owners) did  not apply in Arizona; that the carrier of water-i c. the canal uwner-ac- quires no ownership of the water itself; that water for irrigation is not q commodity to be transferred by one person to another independently of the land it is supposed to irrigate: that such ownership" of water as may be acquired is an appurtenance of the land. and the right thereto is dependent upon beneficial use; that the appropriation" of water is the physical taking thereof; that priority of appropriation is an important fac tor to be considered in the distribu- ton of water and that in times of scarcity the prior" appropriator must, so far as practicable, have first con- sideration. This decision was con- sidered revolutionary in all the states in which irrigation was practised. and contrary decisions in other states have served to complicate the questions in volved in suits subsequently, brought in this territory. Moreover. the cele- brated "Kibbey decision" was never owners, following the rendition of that decision, got together and by an agree ment among themselves for a division of the waters of the Salt river effected a practical abrogation of the decree.
 But since the "Kibbey decision" was rendered the courts of all the states have gradually fallen into line in ac- cepting the soundness of the principles therein laid down.
 To Mir. Chief Justice Kent. sitting as the trial judge of the Third Judicial district. belongs the inestimable credit of finally settling the water question" in this valley-for that it will be re- garded as settled by this decision we have. not a particle of doubt. A less conscientious and industrious judge would have embraced one of the many opportunities to let the case go off on some incidental question and thereby avoid the cxacting and fatiguing task of trying it on it's mer- it's To Judge Kent fell not merely the task of presiding throughout an exceedingly tedious case which occu pied almost endless months. but the far greater burden of carefully sitting the great heap of testimony.
 Judge Kibbey. the attorney of the Salt River Valley Water Users asso- citation, has obliged us by kindly fur nishing a careful analysis of the Kent decision. which will be helpful to lay readers. although the decision itself is in such clear language that it would seem to need no interpretation.