Consolidated Canal Company v. Mesa Canal Company/Opinion of the Court

While the title to any portion of the Mesa canal may not have been changed by this contract, yet for convenience we shall speak of that portion thereof under the control of the appellant as its canal, and of the balance as the appellee's canal.

In view of the finding of the supreme court we need not stop to consider any question in respect to the influence of the dam placed by appellee upon the flow of water in appellant's canal, and this notwithstanding the fact that in the trial of the case much of the testimony, pro and con, was in reference to that matter. We are concluded as to the question of fact by the finding, and it is familiar law that injunction will not issue to enforce a right that is doubtful, or to restrain an act the injurious consequences of which are merely trifling. Parker v. Winnipiseogee Lake Cotton & Woollen Co. 2 Black, 545, 552, 17 L. ed. 333, 337.

We pass, therefore, to the only substantial question, which is whether the dam built by appellee, having the effect as it did of raising the flow of water in its canal so as to destroy the water power obtained by appellant through the construction of its canal, was an infringement of the rights secured to appellant by the contract of January 10, 1891. The appellant seems to be of the opinion that by that contract it had a right to raise its canal to such an elevation as it saw fit, while the appellee had no such liberty. We search the contract in vain for any express stipulation to that effect. If the appellant had a right to raise the grade of its canal 5 feet, we see nothing to forbid the appellee to raise its grade to the same height. There is no reference in the contract to water power. Obviously the only matter then contemplated was a supply of water for irrigation purposes. The appellee is styled 'an irrigating corporation, and as such. . . operating the Mesa canal.' The expressed purpose of appellant was 'obtaining water thereby through said canal.' The water power was evidently an afterthought, suggested by the condition of things when the appellant had finished the reconstruction of its canal. The appellant must point to some stipulation in the contract which the action of the appellee has broken, for the entire right given by it to the appellant is declared to be 'without in any way interfering with the rights, titles, interests, or privileges of said party of the first part in and to said canal and the water flowing through said canal, except as hereinafter provided.'

No right passed to the appellant except that which was expressly named. All other rights, titles, interests, or privileges were retained by the appellee. The appellant was to deliver the 7,000 inches of water out of the enlarged canal, and the appellee was to receive and pay therefor. The appellant was to increase the carrying capacity of the canal not less than 10,000 nor more than 40,000 inches, and this surplus water it had a right to use. But the appellee reserved the right if it saw fit at any time to still further enlarge the carrying capacity of the canal, and the only limitation in respect to such enlargement was that it should not 'interfere with or lessen the rights' granted to the appellant. What were those rights? Obviously the right to take and use the surplus over 7,000 inches of water flowing through the canal, as enlarged by appellant.

It may be that neither party to this contract could change the grade of its canal so as to compel the other to make a like change of grade. Thus, when the appellant, in the first instance, enlarged and reconstructed its canal, it raised the grade 5 feet. If it had seen fit to lower the grade 5 feet, instead of raising it, doubtless, in order to fulfil its contract of delivery, it would have had to provide some pumping arrangements, and could not have demanded that the appellee lower its grade 5 feet in order to receive the water. And so it may be that the appellee could not now raise its grade 10 feet and then demand that the appellant either raise its grade 5 feet more or put in pumping works to insure the delivery of the water. But as to any action which does not interfere with the delivery of water by the appellant to the appellee, there is nothing in the contract to restrain at least the appellee from doing as it pleases with its canal.

It does not appear that the appellee was acting maliciously and for the mere sake of injuring the appellant. On the contrary, its purpose as disclosed was to irrigate lands which it had not theretofore been able to irrigate from its former elevation, and we know of no reason why it had not a right to do so. It made no stipulation as to the lands which it should irrigate. It had the same right which it had before the contract of enlarging or reducing the number of acres rached by the flow of its water. It does not appear that the lands which it was seeking to irrigate by raising the elevation in the upper part of its canal could have been reached in any other way, and it was not bound to desist from any enlargement of its own business for the mere benefit of the appellant or to enable the latter to enjoy something which was not conveyed to it by the terms of the contract.

We need not stop to inquire what are the rights of separate appropriators of water in the absence of a contract. We are dealing with those which grow out of this contract, bearing in mind that all rights are reserved to the appellee which are not in terms granted to the appellant. If 7,000 inches of water was more than sufficient to supply the territory which it was then irrigating, there is nothing which forbade the appellee to enlarge that area, and in order to enable it to reach that larger area it might make any change in the construction of its canal-at least any change which did not interfere with the free delivery of the water by the appellant.

We see no error in the decision of the Supreme Court of Arizona, and its judgment is affirmed.