Anderson v. Cummings, 8748

• Decision Date: 25 June 1959
• Docket Number: No. 8748,8748
• Parties: Rulon J. ANDERSON and Leona Anderson, his wife, Plaintiffs-Appellants, v. Clifford CUMMINGS and Nancy Cummings, his wife, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 1111

340 P.2d 1111

81 Idaho 327

Rulon J. ANDERSON and Leona Anderson, his wife, Plaintiffs-Appellants, v. Clifford CUMMINGS and Nancy Cummings, his wife, Defendants-Respondents.

No. 8748.

Supreme Court of Idaho.

June 25, 1959.

A. A. Merrill, Idaho Falls, for appellants.

Holden, Holden & Kdwell, Idaho Falls, for respondents.

SMITH, Justice.

During April, 1957, appellants (plaintiffs) brought an action in the district court of Butte County seeking an adjudication of their right to the use of certain waters for irrigation purposes, and to compel removal of a dam obstructing the flow of the waters allegedly constructed by respondents (defendants) during the spring of 1957. This case resulted in a decree, entered April 11, 1958, favorable to appellants, the relevant portions thereof reading as follows:

'It is ordered, adjudged and decreed, that the plaintiffs, Rulon Anderson and Leona Anderson, were at all times since March 1, 1939, and now are the owners and entitled to the possession and use of approximately 50 miners inches of water, the major part of which arises, springs up and seeps into a certain ravine, which ravine heads in the northwest quarter of Section 6, Township 3 North, Range 27, E.B.M., Butte County, Idaho, owned by Frank Goodman and the balance of said water springs up and seeps into said ravine in the extreme southeast corner of defendants' [Clifford Cummings and Nancy Cummings, his wife] premises described as the northeast quarter of section 1, township 3 north, range 26, E.B.M., Butte County, Idaho. That said water has run into and upon plaintiffs' premises for over 20 years, and has been used by them and their predecessors in interest, and put to a beneficial use for the purpose of irrigation, by the sub-method; the plaintiffs' land [is] described as the southeast quarter of section 1, township 3 north, range 26, E.B.M., Butte County, Idaho.'

The decree quieted in plaintiffs the title to the use of the referred to 50 miners inches of water, against the claims of all persons, including defendants, save only defendants' right to water their domestic animals from said stream; and provided that should defendants in the future desire to utilize to a beneficial use the seepage and waste water from their own lands referred to in the decree, that they may apply to the court by appropriate proceedings for such purpose. The decree then recites:

'* * * that the defendants are required to remove said dam within 15 days from date hereof and restore the said channel and/or water course to its former state and to the position it was in prior to the defendants having constructed said dam and prior to the commencement of this action and upon their failure to so do, the plaintiffs may remove said dam and restore said ravine or channel to its natural state and have judgment against the defendants for the reasonable cost thereof, * * *.

'* * * that title to said 50 miners inches of water is quieted in the plaintiffs, except as herein above provided * * *.'

The dam referred to in this decree is herein sometimes referred to as the lower dam.

July 23, 1958, appellants moved the court for an order amending the aforesaid decree to provide that two other small dams, sometimes herein referred to as the upper dams, referred to by plaintiffs in the motion as 'constructed prior to and after plaintiff filed suit,' be removed. This was upon the theory that when respondents removed the lower dam, referred to in the decree, the water belonging to appellants, and decreed to them, could not flow to appellants' premises because of the two small upper dams, and that appellants had been unable at the time of the trial to determine that the upper dams would retard or block the flow of appellants' decreed water, after removal of the lower dam. The trial court, after a hearing, denied the motion.

Appellants then filed the instant action alleging the prior action and entry therein of findings of fact and conclusions of law, followed by the decree quieting title in appellants to the use for irrigation purposes of the 50 miners inches of water, subject to respondents' limited use as provided in the decree. Appellants further allege that during the late spring of 1957 respondents constructed the three dams in such a manner that, at the time of the former suit, appellants were not aware that the flow of their decreed water would be stopped by the two upper dams because they were covered with water at the time of the trial, and that appellants did not become cognizant thereof until after the lower dam, referred to in the decree, had been removed.

Appellants, in their complaint, also refer to the portion of the decree in the prior suit, hereinbefore set out, particularly that portion requiring respondents to restore said channel or water course to its natural state. Appellants allege in effect that respondents refused so to restore the channel or to allow appellants to restore it; and prayed that respondents be required to do so.

Appellants pleaded a second cause of action which they have abandoned.

Respondents generally demurred to the complaint; also moved to dismiss it on the ground that on its face it showed that the issue sought to be presented thereby is res judicata. The trial court, upon a hearing, granted the motion to dismiss, followed by a judgment dismissing the complaint. Appellants appealed from the judgment.

Appellants' assignments raise the single question whether the court erred in dismissing the action.

Respondents, in support of the theory of res judicata, argue that in the former action the trial judge considered matters presented relating to the two upper dams and whether they interfered with the flow of water in the channel or water course; they direct attention to the memorandum decision in the prior action wherein the trial judge referred to the two small dams situate above the point where 'the present dam is located'. The crux of the court's memorandum decision is to the following effect, as recited by the trial judge:

'* * * defendants [respondents] desire the water flowing from and through their land for the beneficial use of watering their livestock. Apparently they are unable to capture the water to further irrigate their land. However, they [respondents] had such use of the water before and have gained no additional use by damming the stream. * * * It is difficult to see where they [respondents] are creating a new beneficial use by such damming, and instead seem to be depriving the plaintiffs [appellants] from such water as may be available to the plaintiffs of the water arising on the land of Goodman. This would seem to be a large share of the water available.' (Emphasis supplied.)

The decree which the trial court then entered in addition to quieting title in appellants to the 50 miners inches of the water flowing in the channel or water course subject to respondents' limited use thereof, then decrees, in further safeguard of appellants'...