Anderson v. Dewey

• Decision Date: 02 March 1960
• Docket Number: No. 8824,8824
• Citation: 350 P.2d 734,82 Idaho 173
• Parties: William C. ANDERSON, Plaintiff-Appellant, v. E. Lee DEWEY and Ervine L. Dewey, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 734

350 P.2d 734

82 Idaho 173

William C. ANDERSON, Plaintiff-Appellant, v. E. Lee DEWEY and Ervine L. Dewey, Defendants-Respondents.

No. 8824.

Supreme Court of Idaho.

March 2, 1960.

Rehearing Denied March 29, 1960.

Merrill & Merrill, Pocatello, for appellant.

S. T. Lowe & Kales E. Lowe, Dean Kloepfer, Burley, Parry, Robertson & Daly and Bert Larson, Twin Falls, for respondents.

TAYLOR, Chief Justice.

Plaintiff (appellant) brought this action to quiet title to his claimed right to the exclusive use of 480 miner's inches of the waters of Marsh creek between the dates of January 1st and April 1st of each year, and to enjoin the defendants (respondents) from interfering with his use thereof. The cause was tried to the court without jury. Findings, conclusions and decree were entered in favor of the plaintiff and against the defendants.

Thereafter, after the judge before whom the cause was tried had retired from office and his successor had been elected and qualified, the defendants filed a motion for a new trial. After hearing the motion, in lieu of granting a new trial, the successor judge made an order vacating and setting aside the findings of fact, conclusions of law and decree, and directed the entry of, and thereupon entered findings, conclusions and decree in favor of defendants. Plaintiff appealed from the order vacating the findings, conclusions and decree of the trial judge, and from the decree entered by the successor judge.

Marsh creek rises approximately fifteen miles above plaintiff's lands, in Cassia county, and runs northerly and westerly through the lands of the defendants and others before reaching the property of the plaintiff. The rights to the use of the waters of Marsh creek were adjudicated by decree made by District Judge C. O. Stockslager under date of March 21, 1892, and entered April 11, 1892. Plaintiff is successor in interest of J. W. Lamoreaux, whose rights were set out in the decree as follows:

'5 J. W. Lamoreaux Sixty inches from Marsh creek April 16th 1881. J. W. Lamoreaux Sixty inches from Marsh creek July 21st 1884. J. W. Lamoreaux Four hundred and eighty (480) inches from Marsh creek from January 1st to July of each year when not in use by prior appropriators.'

The decree fixes no date of priority for the 480 inches of water decreed to Lamoreaux. However, in the conclusions of law the 480 inch water right is set out as follows:

'* * * and to 480 inches of the waters of said Creek for like purpose to date from June 25th 1887 said last mentioned water to be used only from January 1 to July 1 of each year.'

The trial judge found that as to the 480 inches plaintiff was entitled to a priority date of June 25, 1887, as determined in the conclusions of law entered by Judge Stockslager. This finding was not altered by the successor judge.

The defendants are the successors in interest of S. R. Gwin, Minnie Gwin, R. L. Wood and Mary R. Norton. The rights of the defendants' predecessors are set out in the Stockslager decree as follows:

'7 S. R. Gwin, fifty inches from Marsh creek, June 5th, 1875. S. R. Gwin, one hundred and thirty-three and one-third inches from Marsh creek, May 30th, 1879. S. R. Gwin, five hundred (500) inches from Marsh creek, April 20th, 1881.

'8 Minnie Gwin, five hundred (500) inches from Marsh creek, April 20th, 1881.

'18 * * * R. L. Wood, 160 inches of the waters of Marsh creek from the 30th of April, 1873, and 45 inches of the waters of Marsh creek, from the 31st day of March, 1878.

'19 Mary R. Norton, one hundred (100) inches of the waters of Marsh creek, from the 30th day of April, 1874.'

Thus, the Stockslager decree fixes the priority dates of all of defendants' water rights at times prior to the right given to plaintiff's predecessor for the use of the 480 inches in issue.

Defendants assert their right to the use of the water as against the plaintiff on two grounds: first, by the terms of the Stockslager decree, their right to the use of the 480 inches of water in question is prior and superior to plaintiff's right; second, since January, 1915, they have acquired the right to the use of the water adversely to plaintiff by prescription.

As to defendants' first contention, the trial court construed the Stockslager decree as giving plaintiff an exclusive right to the use of the 480 inches of water from January 1st to April 1st of each year. This conclusion was based upon the trial court's finding that the irrigation season in Idaho begins on April 1st and continues to November 1st. From this finding the court concluded that defendants' prior rights under the Stockslager decree were effective only during the irrigation season and for that reason did not take precedence over plaintiff's preseason or winter right between January 1st and April 1st.

The trial court found the evidence insufficient to sustain defendants' claim of right to the use of the water by prescription.

Upon consideration of the motion for a new trial, the successor judge concluded that the irrigation season for the use of waters from Marsh creek was not limited to the period 'between April 1st and November 1st, or any other time,' and that the limitation of plaintiff's right to the use of the 480 inches of water set out in the Stockslager decree, to wit, 'when not in use by prior appropriators', is not confined to any irrigation season, but applies to the period from January 1st to April 1st as well as from April 1st to July 1st.

The successor judge made no finding or ruling on the issue of defendants' claim of prescriptive right to the use of the water in issue, but based the judgment for defendants exclusively upon his interpretation of the Stockslager decree.

Plaintiff contends that the successor judge had no power or authority to order the vacation of the findings, conclusions and decree of his predecessor, and to make and enter findings, conclusions and decree in favor of the losing party, without a new trial; that he had no authority to do so for the particular reason that he had not presided at the trial and had not seen or heard the witnesses; and that the action of the successor judge had deprived the plaintiff of property without due process of law.

The authority of the successor judge in the premises is governed by the following rules of civil procedure:

'A new trial may be granted to all or any of the parties and on all or part of the issues for any of the reasons provided by the statutes of this state. On a motion for a new trial in an action tried without a jury, the court may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct the entry of a new judgment.' Idaho Rules of Civil Procedure Rule 59(a).

'If by reason of death, sickness, or other disability, a judge before whom an action has been tried is unable to perform the duties to be performed by the court under these rules after a verdict is returned or findings of fact and conclusions of law are filed, then any other judge regularly sitting in or assigned to the court in which the action was tried may perform those duties; but if such other judge is satisfied that he cannot perform those duties because he did not preside at the trial for any other reason, he may in his discretion grant a new trial.' I.R.C.P. Rule 63.

Idaho Code, § 10-606, the former statutory rule governing the authority of the trial judge in ruling upon issues raised on motion for new trial, has been superseded and abrogated by Rule 59(a), supra. For that reason we consider only the two rules above set out in disposing of the present issue. See I.R.C.P. Rule 86.

Under Rule 59(a) a judge upon motion for a new trial is authorized to 'make new findings and conclusions, and direct the entry of a new judgment.' Freese v. Bassett Furniture Industries, 78 Ariz. 70, 275 P.2d 758; Krug v. Porter, 83 Ariz. 108, 317 P.2d 543; Phelan v. Middle States Oil Corp., 2 Cir., 210 F.2d 360; United States v. Standard Oil Co., D.C.Cal., 78 F.Supp. 850. Where the motion is heard by a successor to the trial judge, such successor may make new findings and conclusions and direct the entry of a new judgment under authority of Rule 63, subject, however, to the limitation therein contained; that is, if he 'is satisfied that he cannot perform those duties because he did not preside at the trial or for any other reason, he may in his discretion grant a new trial.' If the successor is not satisfied with the findings, conclusions and decree of his predecessor, and thinks such should be vacated or modified, but cannot do so because he did not see and hear the witnesses, then he is limited to the granting of a new trial.

In cases tried without a jury, the general rule is that a party litigant is entitled to a decision on the facts by a judge who heard and saw the witnesses, and that a deprivation of that right is a denial of due process. Eagleson v. Rubin, 16 Idaho 92, at page 101, 100 P. 765; DeMund v. Superior Court, 213 Cal. 502, 2 P.2d 985; City of Long Beach v. Wright, 134 Cal.App. 366, 25 P.2d 541; Bartholomae Oil Corp. v. Superior Court, 18 Cal.2d 726, 117 P.2d 674; David v. Goodman, 114 Cal.App.2d 571, 250 P.2d 704; Kelly v. Sparkling Water Co., Cal., 343 P.2d 257; People ex rel. Reiter v. Lupe, 405 Ill. 66, 89 N.E.2d 824; Mills v. Ehler, 407 Ill. 602, 95 N.E.2d 848; Smith v. Dental Products Co., 7 Cir., 168 F.2d 516; Federal Deposit Ins. Corp. v. Siraco, 2 Cir., 174 F.2d 360.

However, in a case where the successor judge, in resolving the issues raised by a motion for a new trial, is not required to weigh conflicting evidence or pass upon the credibility of witnesses, but can resolve such issues upon questions of law, or upon evidence which is not materially in conflict, he may exercise the same authority as could the judge who tried the case. People ex rel. Hambel v. McConnell, 155 Ill. 192, 40 N.E. 608; Meldrum v. United States, 9 Cir., ...