Arizona Copper Co., Ltd. v. Gillespie, 230 U.S. 46 (1913)
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Arizona Copper Co., Limited v. Gillespie
No. 106
Argued January 27, 28, 1913
Decided June 16, 1913
230 U.S. 46
APPEAL FROM THE SUPREME COURT
OF THE TERRITORY OF ARIZONA
Syllabus
In Arizona, by statute, all rivers, streams, and running waters are declared public, and may be used for purposes of milling, mining, and irrigation. The first appropriator is first in right to the extent necessary for his purposes, and neither the user for mining purposes nor the user for agricultural purposes is placed upon a higher plane than the other.
Where users of waters are placed, as in Arizona, upon the same plane, the rights of lesser users are not subordinated to those of greater users, nor is a wrong done by one to the other condoned because of the magnitude or importance either of the public or the private interests of the former.
Where one of several users of waters is wrongfully injuring the others, there is a remedy either at law or in equity, the latter depending upon circumstances, including the comparative injury of granting or refusing an injunction.
Where, as in this case, the record does not show the damage which the injunction might cause the defendant, but does show that the interests of complainant and others of his class might be irreparably injured by a continuance of the nuisance, equity may grant relief.
The limitation of necessary use on the right of an appropriator of water applies to quality as well as quantity, and the right to use necessary water does not include the right to so destroy the quality of all the water not used as to continuously injure the property of the other appropriators.
The maxim sic utere tuo ut alienum non laedas applies in Arizona and elsewhere to the use of water by one appropriator as against another. Although the nuisance may be a public one and others may be damaged thereby, one who shows that he suffers a special grievance not borne by the public may maintain a separate action for equitable relief.
In this case, held that the contamination of waters in Arizona by a copper plant constituted a nuisance as to the lower appropriators and, under the circumstances, an injunction was properly granted, the supreme court of the territory having provided in the decree that the defendant might have the injunction modified on constructing remedial works to prevent contamination. Georgia v. Tennessee Copper Co., 206 U.S. 230.
12 Ariz. 190 affirmed.
The facts, which involve the relative rights of appropriators of water in Arizona and the jurisdiction of a court of equity to enjoin the contamination of the water by an upper appropriator using the water for mining purposes in favor of a lower appropriator using it for agricultural purposes, are stated in the opinion.