Albion-Idaho Land Co. v. Adams

• Decision Date: 29 January 1945
• Docket Number: No. 992.,992.
• Parties: ALBION-IDAHO LAND CO. v. ADAMS et al.
• Court: U.S. District Court — District of Idaho

58 F. Supp. 579

ALBION-IDAHO LAND CO. v. ADAMS et al.

No. 992.

District Court, D. Idaho, S. D.

January 29, 1945.

A. H. Nielson, of Burley, Idaho, for petitioner Marlin H. Booth.

S. T. Lowe and Kales E. Lowe, both of Burley, Idaho, for objectors.

CLARK, District Judge.

This action was filed on May 20, 1922, to adjudicate the waters of Raft River and its tributaries. There were some four hundred parties involved in the proceedings. It necessarily followed, considering the number of water rights involved and the number of parties, that it took some time to bring the cause at issue. This was accomplished, however, shortly before September 18, 1928, and the decree was presented to the Court on stipulation of the parties and was signed on September 18, 1928, and filed October 23, 1928. Some of the parties appealed and the decree was affirmed by the Circuit Court of Appeals of the Ninth Circuit on October 21, 1930, 39 F.2d 37.

The motion now under consideration by this Court was filed October 5, 1943, by Marlin H. Booth and the motion requests the Court to correct an error made in the decree covering one certain water right decreed to the International Mortgage Bank. In the stipulation made between the parties prior to the entering of the decree it was stipulated that a certain decree made in the State Courts in the case of Kirk et al. v. Bartholmew et al., 3 Idaho 367, 29 P. 40, was to be copied in the decree. However, in the final decree presented to the Court by the attorneys for the respective parties, the water right in question was decreed with a date of priority of 1884 for 3.2 second feet to be diverted from Raft River from October 1 to October 15 of each year. While in the decree of Lee Kirk et al. v. A. Bartholmew it provided for a priority of 1884, with the water to be diverted from Raft River from April 1 to October 15 of each year. W. G. Bissell one of the attorneys appearing in the action originally, filed his affidavit, as did Marlin H. Booth, in support of the motion now under consideration. W. G. Bissell also testified to the same effect.

Marlin H. Booth is successor in interest to one Frank E. Crane, who is a successor in interest to the International Mortgage Bank. The motion is opposed by the Malta Land & Irrigation Company, a corporation, and others who were successors in interest to other parties to the decree. None of the original parties to the suit are before the Court, nor have they received notice of this motion. These parties objecting to the granting of the motion all were noticed to appear by Marlin H. Booth, who requested the correction of the decree.

The Court first heard this matter on a motion to dismiss but postponed action on the motion until the hearing on the merits and required the objecting parties to answer.

The matter was heard on the 6th day of December, 1944, and at the conclusion of applicant's testimony motion for nonsuit and dismissal was made by the objecting parties.

The Court postponed ruling on this motion and requested the objectors to put on their proof. At the conclusion of the hearing the entire matter was taken under advisement. The question before the Court was the same on the motion to dismiss; motion for nonsuit and on the issues as heard on their merits and can be treated as a whole in arriving at a decision. The applicant contends that he is entitled to the relief prayed for under rule 60, subdivision (a) of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c, and the objecting parties contend that rule 60, subdivision (b), is controlling.

It must be borne in mind that the rules of civil procedure govern actions brought after they took effect and this action was completed and final decree entered long prior to the effective date of these rules. Whether they apply does not need to be considered, however, as there is no material difference in the general rule covering matters of this kind prior to the enactment of the present rules.

This is clearly an error in preparing the decree; it is also negligence on the part of the attorney representing the International Mortgage Credit Bank in not more carefully checking the decree before submitting it to the Court. It is a serious error, as a water right with date of priority of 1884 with the right of the use thereof from April 1 to October 15 of each year is ordinarily a valuable right, while if the use is limited from October 1 to October 15 of each year the right would be worthless, as it is a recognized fact that the irrigation season would be nearly over before October 1 of each crop season.

There are two main questions involved here: Does the Court have jurisdiction, and, would it be equitable to grant the relief? In determining this what are the facts?

First considering the motion; it is made upon notice of motion to be served upon holders of water rights below the above described lands and the junction of Raft River and Cassia Creek in Cassia County, Idaho, and affidavits of Marlin H. Booth and W. G. Bissell attorney at law, which affidavits are hereinbefore referred to, also upon stipulations, pleadings, papers, records and files in the above entitled action. In addition to this, the oral testimony of Mr. Bissell was taken at the trial and other oral testimony received. Therefore, this motion is not based on the records of the Court alone, but proof outside of the record is submitted to the Court in support of the motion. In such a case it would seem to be settled by the preponderance of authority that notice should be given to all parties to the action. The error that is asked to be corrected is a substantive part of the decree, and the Court would not have jurisdiction to enter such an order in the absence of the parties to the action who would be effected by it. The Judge who originally entered the decree has retired and this Judge is his successor, so there is no independent recollection of the Court to be relied upon. If there was...