Herriman Irr. Co. v. Keel

• Decision Date: 19 July 1902
• Docket Number: 1354
• Court: Utah Supreme Court
• Parties: THE HERRIMAN IRRIGATION COMPANY, a Corporation, Appellant, v. GEORGE W. KEEL, FELICITAS KEEL, and THE BUTTERFIELD MINING COMPANY, a Corporation, Respondents

69 P. 719

25 Utah 96

THE HERRIMAN IRRIGATION COMPANY, a Corporation, Appellant, v. GEORGE W. KEEL, FELICITAS KEEL, and THE BUTTERFIELD MINING COMPANY, a Corporation, Respondents

No. 1354

Supreme Court of Utah

July 19, 1902

Appeal from the Third District Court, Salt Lake County.--Hon. H. H Rolapp, Judge.

Action to restrain the defendants from continuing to divert water from Butterfield creek, the use of which the plaintiff claims by right of prior appropriation. From a decree in favor of the defendants, the plaintiff appealed.

MODIFIED.

Judgment affirmed.

Messrs King, Burton & King for appellant.

Andrew Howat, Esq., for respondents.

BARTCH J. MINER, C. J., BASKIN, J., concurring.

OPINION

BARTCH, J.

This action was brought to restrain the defendants from continuing to divert water from Butterfield creek, the use of which the plaintiff claims by right of prior appropriation.

It appears from the record that, about the year 1852, various persons settled upon lands where the village of Herriman is situated, and appropriated all the water of Butterfield creek for the purposes of irrigation and domestic use. Afterwards those entitled to the use of the water organized the plaintiff corporation, for the purpose of controlling its use and distribution according to the respective rights of the shareholders; and the corporation is the owner of the water so appropriated, and represents all the parties beneficially interested in the appropriation and use thereof. All the water running in the natural stream was so used, by those persons and their successors, from the time of the first appropriation until about the year 1894, when, about two miles above the point of diversion of the plaintiff, the defendants erected a head gate in the natural channel of the creek, and diverted about one-half of the water then flowing in the stream, and from that time until the commencement of this suit the defendants have continued to divert such portion of the stream. Prior to the diversion of any water by them from the creek, the defendant company had become the owner of a number of mining claims, and to develop these claims, and for the purpose of extracting minerals therefrom, the mining company had driven two tunnels upon its own land; the one, the Queen tunnel, extending into the mountains about 2,900 feet, and the other, or Butterfield tunnel, over 8,200 feet. In the construction of these tunnels the water in dispute was developed, turned into the creek, and, after flowing in the natural channel for a considerable distance, diverted by the defendants, at their point of diversion, by means of the head gate. The plaintiff claims, and introduced evidence tending to show, that the construction of the tunnels caused a number of springs, out of which water theretofore flowed into the creek, to dry up and cease flowing, and that, except for the tunnels, the water flowing from them would flow from the springs. The defendants introduced evidence tending to show that, in the vicinity of where the springs in question are claimed to have formerly existed, springs are still flowing; that the construction of the tunnels did not have the effect of causing any springs to cease flowing; that, if any springs ceased to flow, it was the result of other causes, such as less precipitation for several successive years, the destruction of timber and undergrowth, which formerly retarded the snow from melting and retained moisture, etc.; and that the streams of water flowing out of the tunnels came from percolation and small undefined and unknown subterranean streams. The evidence shows that water comes into the Butterfield tunnel from innumerable places beyond a point therein about 5,500 feet from the mouth thereof. There appears to be no surface indication of any channel or water course between the springs in question and the tunnels, and the springs claimed to have been affected are situate from nearly a mile to a mile and a half distant from the tunnels. At the trial the court entered a decree in favor of the defendants, and the plaintiff appealed.

This case was before us on a former occasion, and we then reversed it, and remanded it for a new trial. 19 Utah 453, 57 P. 537, 51 L.R.A. 930. At the former trial it was, the same as at this, decided in favor of the defendants, and the plaintiff then, same as now, was the appellant. On this appeal, the appellant in the first instance insists that, under the "law of the case," this court should set aside the findings and decree of the trial court, and order judgment entered as prayed for in the complaint; and that the questions now herein presented were adjudicated on the former appeal, and have become res judicata. The efficacy of the general rule here invoked is not to be doubted. The rule, however, is not entirely without limitations. It does not apply to expressions of opinions on questions the disposition of which was not necessary for the decision, or to the reasoning or illustrations in an opinion, however important in determining what was decided. Nothing in a decision which is merely obiter dictum is controlled by the rule. Nor does a decision, as to a question of fact, fall within the rule, when, upon the retrial, material evidence not offered at the first trial is introduced. So the doctrine of res judicata does not apply where a judgment is reversed and remanded for a new trial because material findings of fact are not supported by the proof, and when at the second trial additional evidence is offered and admitted. But upon all questions involved in the judgment the decision of the appellate court is conclusive. This appears to be the settled law.

In Elliott, App. Proc., section 578, the author, after stating that "it is a firmly settled principle that the decisions of the appellate tribunal constitute the law of the case upon all the points in judgment," says: "It is, however, to be borne in mind that the rule does not go to the extent of foreclosing a review of all the questions discussed, for it does not, by any means, go to that length. It is only such questions as were before the court for decision, and such as were expressly or impliedly decided, that are conclusively adjudicated. The reasoning or illustrations of the court do not constitute decisions, and hence the reasoning and the illustrations, although they may be important as aids in determining what was actually decided, do not constitute the binding adjudication." In Barney v. Railroad Co., 117 U.S. 228, 6 S.Ct. 654, 29 L.Ed. 858, one question was whether, on a former appeal, certain matters had been determined, and had become the law of the case. In an opinion written, on that appeal, by Mr. Justice FIELD, certain expressions were made upon certain legal questions involved in the case, but not then directly before the court for determination. The decree was reversed, and the cause remanded, with directions to take further proceedings in accordance with the opinion. 113 U.S. 618, 5 S.Ct. 606, 28 L.Ed. 1109. The lower court, on the retrial, it seems, considered itself bound by the expressions of opinion so inadvertently made, and disposed of the case accordingly. On the second appeal, it was urged that what was stated in the opinion of the appellate court had become the law of the case. On this question, Mr. Justice FIELD, who again delivered the opinion of the court, said: "We said, however, that the grant of these additional sections might be regarded as one of quantity--an inadvertence for which the writer of that opinion, who is also the writer of this one, is alone responsible. The statement was not at all material to the decision, which was that a deduction should have been made by reason of the intersection of the two grants, so far as the prior grant was located within the extension. We recognize the rule that what was decided in a case pending before us on appeal is not open to reconsideration in the same case, on a second appeal upon similar facts. The first decision is the law of the case, and must control its disposition; but the rule does not apply to expressions of opinion on matters, the disposition of which was not required for the decision." So, in Mattingly v. Pennie, 105 Cal. 514, 39 P. 200, 45 Am. St. Rep. 87, it was said: "It is settled beyond controversy that a decision of this court on appeal, as to a question of fact, does not become the law of the case. But plaintiff contends that the question thus presented of the insufficiency of the evidence to support a verdict for plaintiff was a question of law, and was the very fact in judgment on that appeal. Assuming, without deciding, that the view is correct, we are nevertheless of opinion that the point now presented is not the same as that so supposed to have been decided on the former appeal, and that we are therefore now entitled to consider it without being concluded by the former decision. We adhere to what was said on that subject in Wixson v. Devine, 80 Cal. 385, 22 P. 224, and will not extend the application of the doctrine of the 'law of the case' beyond the cases in which it has hitherto been held to apply." In Union School Tp. v. First Nat. Bank of Crawfordsville, 102 Ind. 464, 2 N.E. 194, it was said: "The principle that a decision on appeal governs the case throughout all its subsequent stages we fully recognize, but we do not understand it to be what appellee's counsel assert. In our judgment, a decision rendered on appeal does not conclusively determine merely incidental or collateral questions, but determines only such questions as are presented for decision, and are decided, as essential to a just disposition of the pending appeal." Wixson v. Devine, 80 Cal. 385, 22 P. 224; Clark v. Hershey, 52 Ark. 473, 12 S.W. 1077; Maddox's Ex'r v. Williams, 87...