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Show 714 consistently held by the Arizona courts,10 although it does not appear that in any of the cited cases were the rights of rival owners of lands overlying a common supply of percolating water in issue. In one of these decisions there is a dictum favoring the rule of reasonable use.20 In 1948 the legislature enacted a law (which "may be cited as the groundwater code of 1948") providing for the regulation of certain uses of ground water, which specifically "does not include water flowing in underground streams with ascertainable beds and banks." 21 This act defines a "critical groundwater area" as a ground-water basin or desig- nated subdivision thereof not having sufficient ground water to provide a reasonably safe supply for irrigation of the cultivated lands in the basin at the then current rates of withdrawal, and provides for the designation of such areas. With certain exceptions, no irrigation well may be in- stalled in any critcal ground-water area without obtaining a permit therefor from the State Land Commissioner; and no permit may be issued for the installation of any irrigation well within any critcal ground-water area for the irrigation of lands which at the effective date of the act were not irrigated, or which had not been cultivated within five years prior thereto. Procedure for the determination of relative rights to the use of waters of streams or other water supplies, and for the reconciliation of deter- minations in different proceedings, is provided in the Water Code.22 "McKenzie v. Moore, 20 Ariz. 1, 5, 176 Pac. 568 (1918); Brewster v. Salt River Valley Water Users' Assn., 27 Ariz. 23, 41, 229 Pac. 929 (1924); Maricopa County M. W. C. Dist. v. Southwest Cotton Co., 39 Ariz. 65, 80-85, 4 Pac. (2d) 369 (1931); Fourzan v. Curtis, 43 Ariz. 140, 147, 29 Pac. (2d) 722 (1934); Campbell v. Willard, 45 Ariz. 221, 224-225, 42 Pac. (2d) 403 (1935). In the Maricopa case, supra, at 39 Ariz. 82-83, the supreme court stated that whether or not the statement in Howard v. Perrin was dictum, it had been accepted as the law in Arizona and still was the law. 20 The point was raised, but not decided, in the Maricopa decision, supra, at 39 Ariz. 83-84. In Fourzan v. Curtis, supra, at 43 Ariz. 147, the court stated: "It is the law of Arizona that percolating waters belong to the owner of the land on which they are found. * * * And he may convey them to other premises than those on which they are originally found, provided no other rights are injured thereby. * * *" [Emphasis supplied.] In this case plaintiffs were claiming as landowners and defendants as appropriators, the rights of owners of other overlying lands being not involved. 21 Ariz. Code Ann. 1939, Cum. Pocket Supp. 1949, §§ 75-145 to 75-160; Ariz. Laws 1948, 6th Special Session, ch. 5, approved April 1, 1948. In 1945 an act was passed providing, among other things, that all persons owning or operating irrigation or drainage wells should report certain data concerning such wells to the State Land Commissioner, and that in the future no person should drill or cause to be drilled any well for the development of ground water without first filing notice with the commissioner: Ariz. Code Ann. 1939, Cum. Pocket Supp. 1949, §§ 75-2101 to 75-2109; Ariz. Laws 1945, 1st Special Session, ch. 12. 22 Ariz. Code Ann. 1939, §§ 75-114 to 75-127. The constitutionality of the procedure was upheld, under attack, in Stuart v. Norviel, 26 Ariz. 493 226 Pac. 908(1924). |
