ARS 45-173(A) Interpretation

In West Maricopa Combine, Inc. v. Arizona Department of Water Resources, 200 Ariz. 400, 26 P.3d 1171 (App. 2001), the Court concluded that A.R.S. 45-173(A) allows a party to use another's real property to run water down the naturally existing Hassayampa riverbed. 200 Ariz. at 402-04, PP 1-15, 26 P.3d at 1173-75. the landowner contended that the proposed action constituted a governmental taking and a trespass. Id. at 409-10, PP 42-47, 26 P.3d at 1180-81. The Court held that the plain language of A.R.S. 45-173(A) contemplates that private property may be used to carry "water of another or used for the location of an underground storage facility." Id. at 405, P 18, 26 P.3d at 1176. The Court also held that allowance of West Maricopa Combine's use of another's real property to transport water did not constitute a taking. Id. at 409, P 42-45, 26 P.3d at 1180. As the Court pointed out, any taking inquiry must first resolve whether the private party ever possessed the right that assertedly has been taken. Id. at P 44.