Joseph Henry Kibbey - Associate Justice

Associate Justice

Health concerns prompted Kibbey to move to Florence, Arizona Territory, in 1888. There he worked as secretary and attorney of the Florence Canal Company, which was owned by a family friend. For the remainder of his career, Kibbey specialized in corporate and water law.

In 1889, newly elected President Benjamin Harrison implemented a policy of only appointing residents of the territory to positions in territorial government. While Kibbey was newly arrived in the territory, his family connections were enough to secure his appointment to the bench. His father's influence can be seen in a telegram to Harrison, preserved by the National Archives and Records Administration, stating that "Joe prefers the District in which he lives – that is Judge Porter's District." Kibbey was nominated by Harrison to become an Associate Justice of Arizona Territorial Supreme Court on August 5, 1889. He was assigned the second district, composed of Pinal, Graham, and Gila counties.

During his time as a judge, Kibbey was well respected and gained a reputation for being the least overturned judge to sit on the Arizona bench. He wrote nineteen opinions during his term, dealing with a wide variety of topics. Santa Rita Land and Mining Company v. Mercer, 3 Arizona 181 (1890) determined that the territorial appellate courts would not hear issues not previously raised during trial in a district court. Putnam v. Putnam, 3 Arizona 195 (1890), Tietjen v. Sneed, 3 Arizona 195 (1890), and Wores v. Preston, 4 Arizona 92 (1893) dealt with other procedural issues. Yavapai County v. O'Neill, 3 Arizona 363 (1892) and Behan v. Davis', 3 Arizona 399 (1892) both involved pay disputes. The former dealt with Sheriff Buckey O'Neill's right to be paid for expenses incurred in the pursuit of his duties, while the former dealt with a salary dispute between Superintendent Johnny Behan and the commissioners of the Yuma Territorial Prison. Kibbey's ruling in Don Yan v. Ah You, 4 Arizona 109 (1893) set an early Arizona precedent in the field of wrongful death claims.

Kibbey's most renowned ruling came when he was assigned to Phoenix, where he heard Wormser et al v. Salt River Canal Company, Case No. 708 (1892), Federal District Court for Arizona, 3d Judicial District. The case involved a dispute in which the canal company was accused of treating water from the Salt River as corporate property and delivering it in times of drought to customers with ownership interest in the company in preference to customers who had historically used the water. The ruling, which became known as the "Kibbey Decision," established the principle that "water belongs to the land" and could not be used as "floating" property to be divided by decision of the canal company. Water rights were thus linked to the various parcels of land where the water was used and not to the owner of land. The role of the canal company likewise became that of a simple delivery agent and water was allocated to the various tracts of land based upon the principle of prior appropriation. The decision was not appealed, and the canal companies instead attempted to ignore the court decision. The Kibbey Decision was later upheld by Arizona Territorial Supreme Court in Slosser v. Salt River Canal Company (1901), 7 Arizona 376 and Thomas Brockman v. The Great Canal Company (1904), 8 Arizona 451.

During his time on the bench Kibbey developed a small number of detractors who, as was common for the day, mounted an effort to have the judge removed from the bench. However, the effort failed to gain significant traction. It was instead the inauguration of President Grover Cleveland that led to the judge's removal in August 1893. For the rest of his life Kibbey preferred to be addressed by the title "judge," feeling that presiding over a courthouse was a more prestigious position than even his later role as governor.