Collier v. Arizona Department of Water Resources

722 P.2d 363 (1986)

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Collier v. Arizona Department of Water Resources

Arizona Court of Appeals
722 P.2d 363 (1986)

Facts

Watts and Lucille Collier (plaintiffs) owned property in Arizona. In 1979, a former stream bed of Kirkland Creek sprouted a spring on their property. The Colliers responded by creating a pad to drive over the wet area. They built an ever-higher pad that dammed the spring water as the water backed up. The Colliers then applied to the Arizona Department of Resources (the department) (defendant) to appropriate the spring water for irrigation. The running sections of Kirkland Creek were already appropriated, and appropriative-water-rights holders downstream objected to the Colliers’ application. The downstream right holders argued that Kirkland Creek’s flow was often insufficient to satisfy their existing water rights and therefore the Colliers’ actions would harm them. The Colliers argued that (1) the spring water must be deemed percolating groundwater and therefore not subject to allocation like surface waters, and (2) once the groundwater percolated to the surface, it must be considered new water subject to appropriation. Arizona law allowed for the appropriation of surface waters but not groundwater. The department determined that the new spring would feed into Kirkland Creek and contribute to its surface flow if left unblocked. They also noted expert testimony that asserted that the underground flow in that area, now manifested in the spring, had always contributed to the surface flow of Kirkland Creek. Based on these findings and the adverse impact on the downstream water-rights holders, the department denied the application. The Colliers appealed to the Arizona superior court, which upheld the department’s decision. The Colliers appealed to the Arizona appeals court.

Rule of Law

Issue

Holding and Reasoning (Kleinschmidt, J.)

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