Cundy v. Weber, 8390

• Citation: 68 S.D. 214,300 N.W. 17
• Decision Date: 07 October 1941
• Docket Number: 8390
• Parties: HARRY CUNDY, Appellant, v. JACOB WEBER, et al, Respondents
• Court: Supreme Court of South Dakota

68 SD 214, 300 NW 17 (1941)

HARRY CUNDY, Appellant v. JACOB WEBER, et al,

Respondents

South Dakota Supreme Court

Appeal from Circuit Court, Lawrence County, SD

Hon. A. R. Denu, Judge

# 8390– Reversed.

Robert C. Hayes, Alex Rentto, Deadwood, SD

Attorneys for Appellant.

Wm. G. Rice, Bernard K. Bettelheim, Deadwood, SD

Dan McCutcheon, Belle Fourche, SD

Attorneys for Respondents.

Opinion filed Oct 7, 1941, Rehearing Denied Nov 19, 1941.

SMITH, J.

The complaint of plaintiff alleges the right to divert and use sixty-nine miner’s inches of the waters of Higgins’ Gulch in Lawrence County for irrigation of his farm and for other uses, and that the defendants, during the years immediately preceding the commencement of this action, have wrongfully interfered with that right and have diverted all of the flow of that stream. Plaintiff prays for an adjudication of his right and that defendants be permanently enjoined from diverting water in derogation of that right.

The defendants’ answer alleges a prior appropriation and right to the use of waters of the creek, ownership of a certain dam located therein and of a ditch extending therefrom across plaintiff’s land to their respective farms, and that plaintiff has continuously interfered with their dam and ditch, and denies the alleged right of plaintiff. They pray that plaintiff be restrained from interfering with their water right and instrumentalities.

The learned trial court found for the defendants and against the plaintiff and decreed that plaintiff’s complaint be dismissed, that the defendants “are entitled to all of the water of Higgins Gulch that they can divert through their present irrigation system, and ..., that the plaintiff, Harry Cundy, is entitled to none of the water of Higgins Gulch, save and except such as may pass over the defendants’ dam,” and enjoined the plaintiff from interfering with the water which the defendants were entitled to divert under the right so awarded, or with their dam or ditches.

Within the limits of plaintiff’s assignments of error, we turn to a review of the decision of the trial court insofar as it adjudicates a water right in the defendants.

The answer of the defendants predicates their right upon an appropriation by one Toomey in 1877, and upon a decree entered in November, 1894, in an action in which Ellen Scott, plaintiff’s predecessor in interest, was plaintiff, and one Daniel J. Toomey, defendants’ predecessor in interest, was defendant. Cf. Scott v. Toomey, 8 SD 639, 67 NW 838. The trial court determined that plaintiff was bound by that decree and based its determination of the right of defendants thereon.

The force of the decree in Scott v. Toomey, supra, is challenged by the assignments in only two respects. It is firstly contended that the extent of the water right of Toomey was not in issue or litigated in the former action.

The entire record in that action, including the testimony and exhibits, was introduced in this cause and is before us. We have examined that record and have determined that the water right of Toomey was placed in issue and was actually litigated. From that record it appears that Toomey’s answer pleaded his alleged prior right affirmatively and prayed for an adjudication of that right.

The contention that the issue was not litigated is based upon the fact that there is little evidence in the record of the extent of the beneficial use to which Toomey applied the water under his notice and acts of appropriation. Whether we deem the evidence sufficient to sustain the findings, conclusions, and judgment there entered is not a matter of present concern, as an estoppel may be predicated upon an erroneous judgment. Based upon evidence of a notice of appropriation, of taking water into possession pursuant to that notice through the construction of a dam and irrigation ditches, and of use thereof, the court found such facts and decreed that “Daniel J. Toomey is as against the plaintiff Ellen Scott, the owner of a certain water right in Higgins Gulch ... and is entitled to so much of the waters of Higgins Gulch as can be diverted by the west ditch situated on ... (describing the land of Ellen Scott now owned by plaintiff), and that the said plaintiff Ellen Scott has no right, title or interest in or to said amount of water nor in the right of way for said west ditch across the above described tract of land and she is hereby enjoined from asserting any title in or to said amount of water or right of way for ditch across said described premises or from interfering in any manner with the same.”

It is secondly contended that this decree is too uncertain and vague to serve as the basis of an estoppel in that it fails to fix the quantity of water awarded for the use of Toomey. Under another phase of this appeal we shall presently treat more fully of the vulnerability of such a decree to direct attack on appeal therefrom. The decree is fairly open to criticism because it fails to contain such an exact and technical description of the adjudicated water right as to leave no room for difference of opinion or for controversy. We have concluded, however, that the measure adopted by the court is not so utterly uncertain as to warrant a holding that the judgment is a nullity, and that insofar as it adjudicates facts which were placed in issue and actually litigated, it should be accorded controlling force.

The salutary doctrine of estoppel by judgment has so established the adjudications of the courts in the confidence of mankind as to result in their universal recognition and acceptance as the highest order of indisputable evidence of rights. Such a judgment as is here under consideration which has stood as an unquestioned record of the priority and extent of a valuable property right in the use of water, and upon which successive grantees have depended as a record of title, should not be nullified except for the most cogent and impelling reasons.

A concise statement of the control ‘ ling rule appears in 34 CJ 902: “A judgment rendered by a court having jurisdiction of the parties and subject matter, whether correct or not, is conclusive and indisputable evidence as to all rights, questions, or facts put in issue in the suit and actually adjudicated therein, when the same come again into controversy between the same parties or their privies in proceedings upon the same or a different cause of action.” Cf. Keith v. Willers Truck Service et al., 64 SD 274, 266 NW 256, 104 ALR 1471.

As we have pointed out, the issues framed by the parties to the former suit embraced the water right of Toomey and that issue was litigated therein. The learned judge who tried that issue regarded the capacity of the ditch by which Toomey captured or took possession of the waters of the creek as the ultimate measure of his water right. That the theory thus adopted was erroneous (Cf. Stenger v. Tharp et al., 17 SD 13, 94 NW 402, and also Wiel, Water Rights in the Western States, 3d Ed., § § 139 and 476), is not significant. In pursuing and applying the adopted theory of law it became necessary for the court to determine the fact we now have under consideration, viz., that Toomey was entitled to divert waters of the stream in an amount equal to the maximum capacity of his ditch. That fact was determined and adjudicated. The findings identify the particular ditch denominated by the court as the “west ditch.” Its maximum capacity under the most favorable stream conditions represented a determinable volume of water. The parties litigant acquiesced in the theory of the court. Because the volume of that capacity expressed in standard units of measurement was not adjudicated, we may not close our eyes to the fact that this particular matter we have pointed out was determined and adjudicated. In out- judgment, all of the considerations which have influenced the courts in adopting and applying the doctrine of res judicata for the purpose of prohibiting the relitigation of a question once adjudicated impel the conclusion that this fact should be held to be indisputably established by the decree. We discern no controlling difference between the unconditional adjudication of this matter and the adjudication that Toomey’s appropriation was prior in time to the right of Ellen Scott, and the further fact that she was estopped to question Toomey’s right of way across her lands, both of which additional matters were settled by the decree. That the then maximum capacity of the west ditch remained unlitigated and undetermined is manifest. However, from evidence the sufficiency of which is not here questioned. the court determined that the capacity of defendants’ “present irrigation system” is no greater than that of the Toomey “west ditch.”

It is next said that in construing the questioned former decree the doctrine of beneficial use should be so read into its terms as to limit the extent of the water right awarded to such a beneficial use as Toomey made of the waters within a reasonable...