Howard v. Perrin

Statement by Mr. Justice Brewer:

This action was commenced on July 13, 1898, in the district court of Coconino county, Arizona, to recover possession of a quarter section of land, together with damages for its detention. The defendant, in addition to the denials in his answer of plaintiff's title, filed a cross complaint, praying a decree in his favor on account of certain alleged water rights. A trial resulted in a judgment for plaintiff, which was affirmed by the supreme court of the territory, to review which judgment this appeal was taken. A statement of facts was prepared by the supreme court, which statement was in substance that the land was within the place limits and a part of the land granted to the Atlantic & Pacific Railroad Company by act of Congress, approved July 27, 1866 (14 Stat. at L. 292, chap. 278); that the grant was accepted by the company, a map of definite location duly filed and approved, and the railroad completed and accepted in the year 1884; that in April, 1894, the lands along this part of the road were surveyed and this tract found to be the northwest 1/4 of section 15, township 25 north, range 3 west, of Gila and Salt river meridian; that the survey was accepted and approved by the Surveyor General, and also by the Commissioner of the General Land Office; that on June 27, 1896, this tract, together with others, was duly and regularly selected by the railroad company as a portion of the lands to which it was entitled under the act of Congress; that on July 27, 1896, the filing of the list of such selections was allowed by the register and receiver of the United States land office at Prescott, Arizona, by them approved, the land certified to be public lands of the United States within the place limits of the grant, and free from all other claims; that thereupon such list so certified was forwarded to the Land Department at Washington, and has since remained on file in that office; that the cost of the survey and all fees allowed by law had been paid; that the land is nonmineral in character, neither swamp land nor claimed as such, nor within any reservation, and that there is no valid claim against it on file or of record in the land office of the district in which it is situated; and that on January 13, 1897, the railroad company conveyed the land to the plaintiff. The statement of fact further shows that the only water upon the land is percolating water, oozing through the soil beneath the surface, in an undefined and unknown channel; that in 1889 the defendant's grantor entered upon the land, then unoccupied and unsurveyed, sank a well, and by running tunnels therefrom collected water in an arroyo, and conveyed the same by pipes to troughs and a reservior for watering stock; that in 1892 the defendant's grantor conveyed the land to him by quitclaim deed, and that on July 16, 1895, he posted on the dwelling house on the premises a notice in accordance with the territorial act of 1886 (Arizona Laws, 1893, p. 135), that he had appropriated all the water in a certain defined underground channel, and recorded a copy of such notice in the public records; that the defendant and his grantor had been in the exclusive, open, and notorious possession, with the knowledge of plaintiff, of the land, improvements, and water ever since the year 1889, claiming by right of possession only; that they had never diverted any water from the land, or used, or caused the same to be used, elsewhere by any person.

Mr. Everett E. Ellinwood for appellant.

Mr. Edward M. Doe for appellee.

Mr. Justice Brewer delivered the opinion of the court: