Egan v. Estrada , 6 Ariz. 248 ( 1899 )

STREET, C. J.

(after stating the facts).—1. It is a well-settled rule that all parties defendant shall be included in a writ of error when it is sought by the appeal to reverse a judgment in which all the parties are interested. The nature of this action calls for a separate judgment. The prayer of the complaint is that the whole question of priorities to the use of the water be examined into, and judgment rendered, for or against each of the parties to the action according to facts found. A court of equity is empowered and has placed upon it the duty of rendering a judgment in favor of plaintiffs as against some of the defendants, and in favor of some of the defendants and against plaintiffs, if the facts so warrant, each defendant being in that particular a separate party; and when a court of equity renders a judgment for plaintiff against certain defendants, and for some other of the defendants against the plaintiff, there would be no technical reason for, or equitable purpose in, making those defendants against whom a judgment had been entered parties to a writ of error brought by plaintiff against other defendants, in whose favor a judgment had been rendered against him. The judgment sought in this ease to be corrected is a judgment between plaintiffs and the defendant Estrada alone, as to the priority of right to the use of water; and hence does not come within the rule that “all parties to the judgment should be made parties to the writ of error.” Wherefore the motion of defendant in error to dismiss the writ will not be entertained.

2. Paragraph 784 of the Revised Statutes of Arizona prescribes that “a verdict of the jury is either general or special. A general verdict is one whereby the jury pronounces generally in favor of one or more parties to the suit upon all or any of the issues submitted to them. A special verdict is one wherein the jury find the facts only on the issues submitted to them under the direction of the court.” Paragraph 785 of the Revised Statutes of Arizona prescribes: “The special verdict must find the facts as established by the evidence, and not the evidence by which they are established; and the finding must be such that nothing remains for the court but to draw from such facts the conclusions of law.” Paragraph 786 of the Revised Statutes of Arizona prescribes: “A special verdict so found shall, as between the parties, be conclusive as to the facts found.” Under those provisions of the law, and especially under paragraph 786, it is contended by the defendant in error that the special verdict finding that he had been in the adverse use of the water as against the plaintiffs in error for five continuous years is binding between the parties, and that the court would be compelled to enter a judgment in accordance therewith, and not treat it, under the equity rule, as advisory only. We do not understand that the provisions of paragraph 786 above referred to are a modification of the well-known rule in equity trials, that where a court submits certain questions to the jury to be answered the answers are advisory only, and that the court may disregard the answers, and find for itself different from the findings by the jury. In this ease we have read the evidence taken at the trial carefully from beginning to end, and we nowhere find any evidence which would support the findings of the jury that the defendant Estrada had been in the adverse use of the water, as against the rights and claims of plaintiffs, for five consecutive years. The evidence shows that the plaintiffs had been in the use and enjoyment of water running through a ditch taken from the Santa Cruz River for a long period of time, running back possibly as early as 1872, certainly as early as 1875 and 1876, and that defendants, from the opposite side of the same river, had been in the use and enjoyment of water running through a ditch since a period as early as 1878, but it fails to show that there had been an adverse user of the water until 1894. When there is sufficient water in the river to supply all parties, there can be no such thing as adverse use of the water to start the statute of limitations running. Each is entitled to the use of the water, and it is only when the water becomes so scarce that all of the parties cannot be supplied, and that one appropriator takes water which by priority belongs to another appropriator, that there is an adverse use. The statute commences to run from the time when such adverse use is made of the water, the adverse use being only of that water which the prior party is entitled to. When there is a sufficiency of water in the river, the prior appropriator is not entitled to the water used by the subsequent appropriator, and the subsequent appropriator can use under his appropriation without being an adverse user. We can only account for the verdict that Estrada had been in the adverse use of the ditch, as against plaintiffs, for five years, from the following instruction given by the court: “If you find that defendant Estrada was, for any five consecutive years after he built his ditch, in the year 1878, and before the commencement of this action, in the peaceable and adverse possession of his ditch, and of the waters which he should divert from the Santa Cruz River by means of said ditch, and did for any such period of five years use and employ such water in irrigating and cultivating his land, then you are instructed that such adverse use, for such period, gave him a good and valid right to said waters against the plaintiffs, and made his right to use such water a prior right to any right that plaintiffs may have, and in that event only you will find for the defendant Mateo Estrada.” The instruction as given is erroneous. It does not define adverse use of water. It clearly had the tendency to lead the jury to the conclusión that, if the defendant had been in the peaceable possession of his ditch for five years, such possession would grant him a prior right. Under this instruction, we would either have to reverse the case, and remand it for a new trial, or correct the judgment ourselves.

3. Paragraph 949 of the Revised Statutes of Arizona, under the chapter relating to judgments rendered by the supreme court, provides: “When the judgment or decree of the court below shall be reversed, the supreme court shall proceed to render such judgment or decree as the court below should have rendered, except when it is necessary that some matter of fact be ascertained or damage be assessed, or the matter to be decreed is uncertain, in either of which cases the cause shall be remanded for a new trial in the court below.” All of the evidence being before this court, and there not being any new facts to be discovered, this court will proceed to do that which the district court should have done, which was to have disregarded the finding of the jury that the defendant Estrada had been, in the adverse and peaceable possession of the right to divert sufficient water from the Santa Cruz River for a period of five successive years from the time he first built his ditch, using the same adversely to plaintiffs, as not being supported by the evidence. It is not in harmony with the findings of fact that Estrada was subsequent in his right of appropriation to ■ plaintiffs, and not in harmony ■ with the general verdict. The judgment of the district court as to defendant Mateo Estrada is reversed, and judgment is ordered for plaintiffs Edwin Egan and Rafael Vasquez against the defendant Mateo Estrada for the prior right to the use of water from the Santa Cruz River through the ditch used by plaintiffs.

Sloan, J., Davis, J., and Doan, J., concur.