Glendale Union High School District v. Peoria School District No. 11

That on or about the 1st day of April, 1935, and continuously for more than twenty years prior thereto, plaintiff was and had been in the lawful possession of those certain premises situate in the county of Apache, State of Arizona, and more particularly described as follows, to-wit:
The case came on for trial before the court sitting without a jury, and the court made findings of fact, including among them the following:
LOCKWOOD, J. This is an appeal by the state land commissioner and the state land department, hereinafter called defendants, from a judgment of the superior court of Maricopa county granting a peremptory writ of mandamus commanding them to issue certificates of purchase for certain lands owned by the state of Arizona, in favor of W. H. McGirk, Ella E. McGirk, Ora A. McGirk, and Gordon B. McGirk, hereinafter called plaintiffs. The Seventy-Six Cattle Company, a corporation, hereinafter called intervener, intervened in the trial court and has joined in the appeal.
Plaintiff and defendant are respectively the owners of certain tracts of land in Apache county, both of which are irrigated. The irrigation ditch used by defendant runs over the land of plaintiff, and has done so for many years. Originally it was only about one and a half feet deep and two feet wide, but owing to the character of the soil and the fall of the ditch, it has gradually eroded the land until in some places it is seven feet deep and twenty feet wide. Plaintiff has made repeated demands upon defendant that he so maintain the ditch that it would no longer erode, but, although defendant has made some effort to check the erosion, he has failed to succeed. Defendant alleged in his pleading that he was the owner of certain lands under contract of purchase from the state, upon which he could, and would, construct a ditch which would take the place of the one running over plaintiffs land, were in not for the fact that plaintiff was in possession of such land and refused to allow defendant to construct a ditch over it, and offered evidence to this effect, but the court excluded it as immaterial.
ROSS, J. This case has its uncommon features. The appellee, E. J. Warren, on or about June 19, 1937, was formally charged in Peoria Precinct, Maricopa County, with drunk driving upon the public highways in that precinct. On June 21st, he appeared by attorney and entered a plea of not guilty and at the same time orally asked for a change of venue, promising the justice of the peace to mail out an affidavit of bias." On June 24th the justice of the peace, not having any word from appellees attorney, disqualified himself and transferred the case to the justice court of Tolleson precinct. On July 6th the latter court set the case for trial on July 13th. On this date appellee appeared by attorney and objected to the courts jurisdiction. The objection being overruled, he announced ready for trial and thereafter a jury was impaneled, evidence introduced and the case having been considered by the jury it returned a verdict of guilty. On July 14th defendant was sentenced by the court to serve ninety days in the county jail.