Brasher v. Gibson

DONOFRIO, Judge.

On October 18, 1965 we filed our opinion in Brasher v. Gibson, 2 Ariz.App. 91, 406 P.2d 441, to which a motion for rehearing was timely filed. This motion was resisted by the appellants. The Arizona Interstate Stream Commission was allowed to file a motion for rehearing as Amicus Curiae.

Both motions for rehearing are in part concerned with the application of a rule of riparian rights in Arizona. We again expressly state that a private individual can acquire no right to make a beneficial use of water under any theory of riparian rights. The rule applied will exist only in very limited circumstances. Specifically, the rule involved in this case is that the defendant, who has without right built structures upon public waters, cannot do so to the detriment of the plaintiff in the use of the waters by himself and his customers. This will not prevent a person from acquiring a water right in compliance with the Arizona Statutory procedures or acquiring a water right by a contract with the Secretary of Interior under the procedures set forth in State of Arizona v. State of California, 373 U.S. 546, 83 S.Ct. 1468, 10 L.Ed.2d 542 (1963); 376 U.S. 340, 84 S.Ct. 755, 11 L.Ed.2d 757 (1964) for obtaining a water right to the mainstream waters of the Colorado River.

The Arizona Interstate Stream Commission as Amicus Curiae has also directed our attention to the possible confusion that may result from a cursory perusal of the opinion. The Commission points to the opinion as leading an untutored reader into believing the opinion stands for the proposition that the mainstream waters of the Colorado River are subject to appropriation under the Arizona Water Code. Such is not the law. The mainstream waters of the Colorado River are controlled by the Boulder Canyon Project Act as set forth in State of Arizona v. State of California (supra).

With the above explanation the opinion is reaffirmed as written.

STEVENS, C. J., concurring.