Hough v. Porter

• Decision Date: 29 June 1909
• Citation: 102 P. 728,51 Or. 318
• Parties: HOUGH et al. v. PORTER et al.
• Court: Oregon Supreme Court

102 P. 728

51 Or. 318

HOUGH et al. v. PORTER et al.

Supreme Court of Oregon

June 29, 1909

On petition for rehearing and to reopen case. Petition denied.

For former opinion, see 95 P. 732, and 51 Or. 318, 98 P. 1083.

Coovert & Stapleton, Benson & Stone, and Lionel R Webster, for petitioner.

KING, J.

Geo. H Small, by his counsel at the former hearing, aided by Benson & Stone and Lionel R. Webster, whose services have since been procured, petitions for a rehearing, in support of which it is insisted that we are in error (1) in our findings as to the date of Small's appropriation and the quantity of water awarded him; and (2) that the case was originally tried upon the theory that each of the parties was a riparian owner, with reference to which it is suggested that this court, in its construction and application of what is known as the "Desert Land Act" (Act Cong. March 3, 1877 c. 107, 19 Stat. 377 [[U.S.Comp.St.1901, p. 1548]) promulgated a doctrine heretofore unknown, and that, not anticipating such ruling, the same testimony was not adduced as would otherwise have been, by reason of which it is insisted that the case should be reopened for further taking of testimony. It is announced, however, in the opening of the typewritten argument, that no fault is intended to be found with the law as thus enunciated, making further consideration thereof unnecessary. See, also, Boquillas Land & Cattle Co. v. Curtis, 213 U.S. 339, 29 Sup.Ct. 493, 53 L.Ed 822, where Hough v. Porter, 51 Or. 318, 98 P. 1083, is cited on this point with implied approval.

The petition is accompanied by an ex parte showing by Small, consisting of his affidavit to the effect that he hired and paid an attorney, there named, to appear for him in this court, who failed to do as agreed, and that not until after the first hearing on appeal did he learn that the attorney thus employed neither appeared here, nor filed a brief for him in this court. It is therefore argued that, as Small was, at an inopportune time, compelled to employ other counsel, who, on account of the brief time then remaining, and for other reasons given, were not in position to give his interests the attention essential to a full presentation of his rights, his claims were not fully presented, and that his interests are, by reason thereof, materially impaired. This point we do not deem well taken. We are aware, however, that by being compelled, while litigation is pending, to make a change in attorneys often results in much embarrassment to the party thus affected. But such occurrences are not unusual; and it is obvious that to make such inconvenience a basis for granting a rehearing, or for a reopening of a cause for further proceedings, could but result in establishing a precedent which, in place of facilitating business and promoting justice, would too often tend unnecessarily to increase the labors of courts, and in the delay of the always to be desired early determination of legal controversies, without corresponding benefits to the contestants. While at the first argument in this court the petitioner was not represented by counsel, he was at the reargument thereof represented by able counsel, who filed briefs in his behalf, asserting, clearly and concisely, upon both the law and facts his claims under the doctrine of adverse possession and prior appropriation; these being the grounds upon which he still maintains his rights. Again, his situation, with reference to counsel, is not unlike that of practically all others whose interests, with his, have been determined; for, with the exception of W.J. Moore, whose name appears on appellant's brief only, and J.C. Rutenic, who came into the case after the taking of the testimony in the suit as first brought by Annie C. Hough, none of the counsel who appear for the contestants in this court were connected with the trial in the court below. Furthermore, recognizing the disadvantages under such circumstances necessarily accruing as a result of a change in attorneys, together with the voluminous record, and corresponding opportunity for oversights and errors in the preparation of briefs and in the presentation of the cause on appeal, extraordinary precautions were taken here for the protection, in this respect, of not only all who appeared by counsel, but for the safeguarding of the rights of the numerous parties not represented by counsel (see 51 Or. 366, 98 P. 1108), by carefully examining into, and in the preparation of a synopsis of, the testimony bearing upon the numerous and conflicting claims and interests, respectively, of all parties to the suit. But notwithstanding the thorough investigation made in this respect, we have, in connection with the petition for rehearing and points there urged, again carefully examined the record, with the result hereinafter indicated.

Counsel for Small maintain that we should have held him entitled to a greater quantity of water than here awarded him, in reference to which it is asserted that he has established title by 10 years' adverse use thereof, and that the testimony clearly discloses an appropriation and actual application, prior to 1884, of a much larger quantity of water than the entire amount decreed him. The conclusion reached in the main opinion as to Durand's claim as an adverse user (51 Or. 433, 98 P. 1107), including the reasons given therefor, applies with equal force to, and disposes of Small's contention on, this point. It is argued in connection with his claim as to the date of his appropriation that the admission in Small's testimony relative to the filing of the declaratory statement, made in connection with his desert land entry, should not be taken as having any bearing upon his testimony fixing the date of his original diversions and appropriations. His sworn declaration, filed at the time, after stating that the land was desert in character, and would not produce crops without irrigation, etc., adds: "That no portion of said land has ever been reclaimed by conducting water thereon. ***" This declaration, it is admitted by Small, was filed by him in the land office in the spring of 1884, and, when construed along with the direct and positive testimony of other witnesses, to the effect that the ditch constructed for use on this land was not commenced earlier than 1884, some fixing it at a later date, can leave but little doubt upon the subject.

Nor are we able to agree with counsel for petitioner concerning the second point presented. If all, or even a large per cent., of those whose interests here involved were petitioning on that ground for the reopening of the cause, we might feel disposed to acquiesce therein; but Small is the only party to this proceeding seeking either a rehearing or reopening thereof. Assuming that his interests were not properly represented, and that his cause was tried under the adverse circumstances suggested by his affidavit and argument of his counsel, we would be impelled, in response thereto, to take into consideration the fact that this suit, when compared with the effect of the delay incident to the petition under consideration, has been pending in the courts for 10 years; that such delay has not only, to a large extent, resulted, thus far, in a denial of justice to many whose interests are involved, but that during the many years which have elapsed since the testimony was taken death has removed, not only some of those most vitally interested, but other important witnesses as well, to say nothing of those who, during that decade, may have moved to parts unknown, thereby depriving the litigants, satisfied with the result heretofore announced, of the additional testimony likely, in the event the cause should be reopened, to be desired. It is obvious, therefore, that at this late date, in the absence of some extraordinary showing therefor, it would be very inequitable to permit a few of the parties to the suit remaining in the vicinity of the property involved, who may be dissatisfied with the result, to furnish additional testimony on their part, while others, for the reasons stated, would not have an equal opportunity to rebut such evidence as may thus be offered. It is evident, therefore, that less injury is apt to ensue from a decision upon the testimony presented and before us, taken when all parties in interest and their witnesses were living and available, than to reopen the cause.

Under the fundamental law of our land all persons are entitled by due process of law to protection in their property rights, and to a speedy hearing of any controversy in respect thereto. Const. Or. art. 1, § 10. It is clearly manifest, therefore, that, after this cause has dragged along through the courts for a decade, to remand it to the court below for another indefinite journey would not only be to disregard the letter and spirit of the section of the Bill of Rights cited, but, in effect, to declare it obsolete. And in this connection it should not be overlooked that, during the many years which have elapsed since the institution of this proceeding, some have been deprived of the use of water to which they were entitled, while others, and prominent among them this petitioner, have received much more than their legal quota, for which reason, if for no other, without discovering more than ordinary reasons therefor, we would not be justified in again delaying the final determination hereof.

But there is another and more potent reason why petitioner's demands in this respect should not be granted. The only parties, if any, to which the skillful arguments presented by his counsel can under any system of logic be deemed applicable are making no complaint as to the result heretofore announced. They do not seek a rehearing or reopening of the cause in any...