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home : blogsold : verde heritage May 24, 2016

Verde Heritage
By Glenda Farley, Cottonwood, AZ
Local historian Glenda Farley guides us on a journey back in time to discover fascinating moments that make up our Verde heritage and history.
Friday, March 1, 2013

1910: DECISION IN A WATER SUIT, Hurley vs. Abbott; March 1.

Verde Heritage

In 1905, a suit was instituted by plaintiff Patrick T. Hurley, who claimed to be an early appropriator of water, asking to have his title quieted to the use of enough water to cultivate the land owned by him. He made the defendants of this suit Charles F. Abbott (The Salt River Valley Water Users' Association) and a large number of land owners in the valley. After the suit began, the United States, having acquired ownership of canals on the north side of the river, and in its capacity as guardian of the Indian settlers on the reservations, intervened as a party in the suit, asking for a judgement establishing the rights of each individual defendant and each parcel of land to the use of water in the river. The individual land owners, some 4,800, were served with process in the suit.

Hurley vs. Abbott was heard before Chief Justice Kent, sitting as District Judge. Evidence was taken before the Court concerning the duty of water and the dates of reclamation of the various parcels of land in the irigable district from 1869 to 1909, with testimony taken over two and a half years. The purpose of this suit was to determine the rights of various parcels of land and their owners to the use of water flowing in the Salt and Verde rivers and related streams.

"The Hon. Reese M. Ling, of Prescott, passed through Jerome today on his way to the Verde Valley on professional business in connection with the suit against the water users along the streams in the valley. He and Attorney Rutherford have been retained to look after their interests." (Jerome News; December 7, 1907; page 4, column 2.)

"Attorneys Ling and Rutherford, who represent over one hundred and fifty of the water users in the Verde Valley in the Hurley vs. Abbott water suit, recently returned from Phoenix where they filed a demurrer to the complaint of the plaintiff. They will return in the near future to make arguments before Judge Kent upon same. Both gentlemen are confident of winning the case for their numerous clients. L. A. Willard, who was appointed chairman of the committee selected by the ranchers to make all arrangements for the suit, reports that $1,250 of the $1,500 attorneys' fees has been collected and paid over. Nearly every rancher or water user in the Verde Valley has signified his intention of being represented by the above named counsel." (Jerome News; February 1, 1908; page 3, column 2.)

"Surveyor Park Latimer is making a survey of all the irrigated land in the Verde Valley for the settlers, who are defending a suit brought against them by the Water Users' Association of Phoenix, contesting their right to use the waters of the Upper Verde. --- Coconino Sun." (Jeome News; April 25, 1908; page 3, column 4.)

The various dates of the application of water to the land, the amount of water necessary for the economical cultivation thereof, the duration of such cultivation, and the supply of water available, were important facts affecting all questions arising in this case. The nomal flow of the streams and the Verde River, less the amount of water appropriated in the Verde Valley, would partly determine how much water would be available to be appropriated for use downstream.

"THE PRIORITY SUIT --- The hearing of the case of Hurley vs. Abbott and others occupied the greater part of the day in district court yesterday. Proof was taken, concerning the rights of the Indians of the McDowell reservation. George W. Hance of the upper Verde was present to represent the interests of himself and fellow settlers." (Arizona Republican; Phoenix; October 8, 1908; page 6.)

In Arizona Territory, the right of the owner of land to divert from a natural non-navigable stream the flow of the water therein and to apply the water to beneficial use upon the land, is and always has been recognized. Whatever may be the steps necessary to take to initiate such a right or to evidence the intent to initiate it, the appropriation becomes complete and vested when the water is actually diverted from the stream and placed to a beneficial use upon the land. The right given, is not a right to the water itself, but a right to the use of the water. The application of the water to a beneficial use upon the land is as necessary in order to complete the right, as is the diversion of water from the stream.

Since the land to which the water is to be applied is a necessary part of the appropriation and a factor by which the amount of the water appropriated for use is measured, it follows that when the water is no longer applied to the land for which it was diverted, the right of appropriation of such water for the land ceases.

Further and Complete Information: Hurley vs. Abbott, No. 4564; Decree filed March 1, 1910.

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