Davis v. Brittain

373 P.2d 340, 92 Ariz. 20
CourtArizona Supreme Court
DecidedJuly 13, 1962
Docket6728
StatusPublished
Cited by9 cases

This text of 373 P.2d 340 (Davis v. Brittain) is published on Counsel Stack Legal Research, covering Arizona Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Davis v. Brittain, 373 P.2d 340, 92 Ariz. 20 (Ark. 1962).

Opinions

LOCKWOOD, Justice.

This is the decision upon rehearing of the case originally decided by this court on December 30, 1960 and reported in 89 Ariz. 89, 358 P.2d 322.

In 1957 landowners in the "Queen Creek Area” of Arizona’s Pinal and Maricopa Counties petitioned the Pinal County Board of Supervisors (hereafter called the Board) . to organize an electrical district. It is undisputed that: the proposed district comprises about 51,000 acres; the land therein is incapable of being farmed in its natural state and is almost entirely under cultivation through irrigation; the water is pumped from deep wells by means of electric or gas power; electricity is furnished by Arizona Public Service Company and Salt River Project Agricultural Improvement and Power District and gas is supplied by Arizona Public Service Company and Magma Gas Company; the entire district is within a critical groundwater area as designated by the State Land Department so new lands therein cannot now be brought into cultivation.

The motive behind the formation of the district is to obtain power at a lower cost. There was uncontradicted testimony that the water table was becoming lower and thus it was becoming impossible to pump water for irrigation except at greater expense. This increasing cost was in turn forcing back to the desert the cultivated lands of those unable to meet the higher power prices. Districts, such as the one being sought by the landowners, are able to obtain first priority rights to electrical power available to the Arizona Power Authority, thereby: a) enabling them to purchase power at lower rates, and b) giving them a preference in time of a shortage. [24]*24Based upon the costs to farmers in other electrical districts, the savings through the formation of a district would be about twenty-five per cent of the present cost of power. Landowners testified that the savings would enable them to pump water as the level lowered and thus would keep farmers in business and lands in cultivation which would otherwise be forced out.

On October 21, 1957 the Board denied the landowners’ petition on the grounds that the requirements of A.R.S. § 30-505, subd. A (1956) had not been complied with. This section reads :

“A. At the hearing on the petition called by the board of supervisors, it shall first proceed to determine whether the operations as proposed will constitute a public use. The board shall for such purpose determine :
“1. Whether the lands in the proposed district are arid lands.
“2. Whether they are fertile and reclaimable.
“3. Whether there is a supply of water which can be made efficiently available by the proposed power system.
“4. Whether the development reasonably certain to result from the production of power is of such interest and benefit to the whole district as to impress it with a public use.”

The landowners thereupon appealed to the Superior Court of Pinal County which, after a trial de novo, vacated the Board’s, order and decreed that it proceed to organize the electrical district.

The Board then appealed to this court assigning eight errors, and we reversed, the trial court, stating:

“It seems clear to us and we so hold that these fertile arid desert lands which have already been brought under cultivation and which are producing agricultural crops as a result of an irrigation system and having in fact been reclaimed from their natural state must in law be considered as reclaimed lands and thus not ‘reclaimable’ as intended by the Arizona statute.
“The conclusion of the trial court under the second requirement of the statute in question was, therefore, error. Consequently, it is unnecessary, under our practice, to consider further questions raised by appellants.” 89 Ariz. at 99, 358 P.2d at 329.

Motion for rehearing was granted to correct certain errors in the original decision. We reaffirm our holding concerning the nature of a trial de novo, but reconsider each of the other assignments of error made by the Board. In part I we [25]*25deal with the four assignments involving the trial court’s findings that sub-paragraphs (1), (2), and (3) of A.R.S. § 505, subd. A, supra, have been complied with, .and in part II with three assignments which pose a single question: May there he a public use when the formation of a district will not result in the bringing into production of theretofore uncultivated lands ?1

I

A.R.S. § 30-505, subd. A(1), (2) and (3) requires a finding that the lands in the proposed district are arid, fertile and reclaimable, and that there is a supply of water which can be made efficiently available by the proposed power system. The Board contends that since the land is already under cultivation it can no longer be found to be “arid” or “reclaimable”, and that there was no evidence that the proposed system would make water efficiently available.

We believe that the words “arid” and “reclaimable”, as used in the statute, must be read as referring to the very nature of the land, which is not changed by subsequent irrigation and cultivation. The United States Supreme Court in Fallbrook Irrigation District v. Bradley, 164 U.S. 112, 17 S.Ct. 56, 41 L.Ed. 369 (1896), a case involving the validity of California’s “Wright Law”,2 was faced with this question: could an irrigation district include “all lands, no matter how fertile or productive, so long as they are susceptible, ‘in their natural state,’ of one mode of irrigation from a common source, etc.” ? 3 In answering “yes” the Court quoted with approval from Board of Directors of Modesto Irrigation Dist. v. Tregea, 88 Cal. 334, 353, 26 P. 237 (1891):

“We construe the act to mean that the board may include in the boundaries of the district all lands which in their natural state would be benefited by * * * one system, * *

Although the fact situations in both the Fallbrook 4 and Modesto5 cases are distinguishable from the case at bar, they [26]*26nevertheless clearly demonstrate an intention to allow lands which in their natural state could be benefited by irrigation, to be included within districts.

It was with these cases in mind that this court in Kinne v. Burgess, 24 Ariz. 463, 211 P. 573 (1922) found unconstitutional the 1915 Arizona law under which an electrical district had been formed. We said in 24 Ariz. at 469, 211 P. at 575:

“Before the principle, upon which gravity irrigation districts are upheld, could be applied to a power irrigation district, it would be necessary that the lands proposed to be irrigated be arid lands susceptible of irrigation.” (Emphasis added.)

The following year the act that is presently A.R.S.

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Davis v. Brittain
373 P.2d 340 (Arizona Supreme Court, 1962)

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Bluebook (online)
373 P.2d 340, 92 Ariz. 20, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-brittain-ariz-1962.