Jeffery v. Ouldhouse

• Decision Date: 03 June 1938
• Docket Number: 6487
• Citation: 59 Idaho 50,80 P.2d 685
• Parties: PERCY V. JEFFERY, HARRY C. GERRARD, ALEXANDER MITCHELL, Sr., MARY E. MITCHELL, THOMAS MITCHELL, SANDY MITCHELL, HENRY MCKEVITT, MARY CATHERINE MARTIN and BRIGID MARTIN, Respondents, v. CLAUSON P. OULDHOUSE and AL RICHENS, Appellants
• Court: Idaho Supreme Court

80 P.2d 685

59 Idaho 50

PERCY V. JEFFERY, HARRY C. GERRARD, ALEXANDER MITCHELL, Sr., MARY E. MITCHELL, THOMAS MITCHELL, SANDY MITCHELL, HENRY MCKEVITT, MARY CATHERINE MARTIN and BRIGID MARTIN, Respondents, v. CLAUSON P. OULDHOUSE and AL RICHENS, Appellants

No. 6487

Supreme Court of Idaho

June 3, 1938

JUDGMENT-PARTIES BOUND-IDENTITY OF SUBJECT MATTER-DISMISSAL-CROSS-COMPLAINT-PLEADING-AMENDMENTS-APPEAL AND ERROR-SUFFICIENCY OF RECORD ON APPEAL.

1. In action for adjudication of water rights, if predecessor through whom plaintiffs deraigned title was bound by former decree adjudicating water rights, plaintiffs would be equally bound thereby.

2. The dismissal of plaintiffs' cause of action does not carry with it the dismissal of an action based on a cross-complaint.

3. A defendant may voluntarily dismiss a cross-complaint at any time before any pleading filed by his adversary praying affirmative relief. (I. C. A., sec. 7-705.)

4. Where action for adjudication of water rights in "Mud Lake" was dismissed as to defendant who held certificate of water rights in "Mud Lake," on theory that his rights arose from another source, and such dismissal was treated as dismissal also of such defendant's cross-complaint seeking establishment of his water rights decree in such action was not res judicata of subsequent action by such defendant's successors for adjudication of water rights in "Spring Lake," which was connected with and originally considered a part of "Mud Lake."

5. In action for adjudication of water rights in lake, part of decree requiring defendant to construct headgate so that water from lake might be properly measured, regulated and controlled and waste thereof prevented was not erroneous.

6. In action for adjudication of water rights, allowing plaintiffs to strike paragraph from second amended complaint in order to conform to proofs was not prejudicial to defendants. (I. C A., sec. 5-905.)

7. An order denying motion to tax or "retax" costs was not reviewable, where record contained no certificate identifying affidavits, papers or files used on hearing of motion, or cost bill, or affidavit supporting cost bill or opposing affidavit made on motion to have court tax costs. (I. C. A., secs. 11-213, 12-113.)

APPEAL from the District Court of the Ninth Judicial District, for Jefferson County. Hon. C. J. Taylor, Judge.

Action for adjudication of water rights. Judgment for plaintiffs. Affirmed.

Judgment affirmed. Costs to respondents. Petition for rehearing denied.

Otto E McCutcheon and Arthur W. Holden, for Appellants.

The entry of the decree of the District Court of the United States in the case of Sauve v. Abbott was an adjudication of the water rights now claimed by the respondents Jeffery and Gerrard. The former adjudication concludes the parties and privies not only as to every matter offered and received to sustain or defeat the claim, but also as to every matter which might and should have been litigated in the first suit. (South Boise Water Co. v. McDonald, 50 Idaho 409, 414, 296 P. 591; Joyce v. Murphy etc. Co., 35 Idaho 549, 208 P. 241; Mason v. Ruby, 35 Idaho 157, 204 P. 1071.)

A cross-complaint stands as an independent action, and a dismissal by plaintiff of his action does not carry with it a dismissal of the action based on the cross-complaint. This rule also applies to a dismissal of one of several cross-complaints in the same action. (Brown v. T. B. Reed & Co., 31 Idaho 529, 174 P. 136; Savage v. Stokes, 54 Idaho 109 at 122, 28 P.2d 900; Penninger Lateral Co. v. Clark, 22 Idaho 397, 126 P. 524.)

Ralph L. Albaugh and O. A. Johannesen, for Respondents.

Under our Idaho statutes an "action" is commenced by filing a complaint (sec. 5-501, I. C. A.). This is not the action. The party or parties who are defendants may file a number of pleadings, and among these they may file their answer and cross-complaint (sec. 5-617, I. C. A.). These papers all constitute a part of the action, and when such an action is dismissed, it is a dismissal of the entire action as to the defendant or defendants against whom it is dismissed.

"Dismissal signifies the final ending of a suit, not a final judgment on the controversy but an end of that proceeding." (14 Cyc. 391; Bouvier's (Baldwin's Rev.) Dict., p. 307.)

"A dismissal of an action is a final decision of the action, and it is a final determination of the action as against all claim made by it, although it may not be a final determination of the rights of the parties as they may be presented in some other action." (Leese v. Sherwood, 21 Cal. 151, 164.)

There is nothing in the findings of fact, conclusions of law or decree compelling the respondent Ouldhouse to maintain Spring Lake at any elevation. The court decreed that he must build a headgate in the intake of his extended ditch, so that the water flow can be regulated and measured. The case of Oliver v. Jordan Valley etc. Co., 143 Ore. 249, 16 P.2d 17, 22 P.2d 206, states that a subsequent appropriator must establish appropriate dams and diversion works so that the water of prior appropriators will not be interfered with. This appears to be the law.

AILSHIE, J. Morgan, Budge and Givens, JJ., concur. Holden, C. J., did not sit at the hearing or participate in the decision.

OPINION

AILSHIE, J.

This is an appeal by Clauson P. Ouldhouse and Al Richens from a decree adjudicating the rights and priorities of the respective parties to water appropriations from what is known as Spring Lake in Jefferson county. Respondents, Jeffery and Gerrard, deraigned their title from Thomas A. Wagoner who was the original locator of the water right from which respondents obtain their water supply. It was contended by appellants in the lower court and is urged here, that respondents were estopped to urge their claim in this action, by reason of a judgment entered in the United States District Court for the District of Idaho in 1930, in the case of Ernest Sauve v. W. H. Abbott et al. Appellants contend, and correctly so, that Jeffery and Gerrard, having deraigned their title from Wagoner, are in privity of title with him; and that if he was bound by the decree in the Sauve-Abbott case, respondents were equally bound by it. (Schuler v. Ford, 10 Idaho 739, 80 P. 219, 109 Am. St. 233, 3 Ann. Cas. 336; Smith v. Kessler, 22 Idaho 589, 593, 127 P. 172; Carver v. Ketchum, 53 Idaho 595, 599, 26 P.2d 139.)

Wagoner was made a defendant in the United States District Court for the District of Idaho in the case of Sauve v. Abbott et al., and he answered in that case with certain admissions and denials, then filed a cross-complaint, setting up his ownership in the land here involved and also alleging that on the 11th of July, 1914, he made application to the commissioner of reclamation of the state of Idaho for authority to appropriate and divert "from what is known as Mud Lake, 5.32 second feet of the waters of said Lake," for irrigation and domestic purposes. That the application was approved, permit issued dating from July 11, 1914; and that thereafter and on about the second of January, 1923, the commissioner issued a license and certificate of water right to Wagoner for "the use of 5.32 cubic feet per second of the waters of Mud Lake"; and then prayed for a decree establishing his right to the quantity of water covered by his permit, with a priority dating from July 11, 1914. It appears that thereafter, and during the pendency of that case, upon motion of counsel for plaintiff, the action was dismissed as to Wagoner. Although the findings and decree of the United States District Court are not before us in full, there was introduced a certified copy of a portion of the decree which reads as follows:

"That this action be, and is dismissed as against Thomas Waggoner. That the waters used by Thomas Waggoner are not tributary to, nor a part of Mud Lake."

The certificate of the United States District Court clerk certifies the foregoing "to be a full, true and correct copy of a portion of the decree filed and entered in the above entitled case in my office on the 1st day of November, 1930, pertaining to Thomas Waggoner."

While this entry and recital in the decree only specifies the action against Wagoner as being dismissed, it seems probable, or is at least presumable, that it was intended to cover not only the plaintiff's action against Wagoner but also Wagoner's cross-complaint; and so far as the record discloses, it appears that all the parties to the federal court action treated the dismissal of Wagoner, as a defendant, as also a dismissal of his cross-complaint as well; and no further proceedings appear to have been taken on his cross-complaint. It is true that dismissal of a plaintiff's cause of action does not carry with it a dismissal of an action based on a cross-complaint. ( Brown v. T. B. Reed & Co., 31 Idaho 529, 174 P. 136; Savage v. Stokes, 54 Idaho 109, 28 P.2d 900.) On the other hand, as to whether, after the dismissal by plaintiffs of their cause of action against one of the defendants, such defendant may abandon his cause of cross-complaint without further action or proceeding, we express no opinion; but it seems clear that he might voluntarily dismiss such cross-complaint, at any time before any pleading filed by his adversary praying affirmative relief. (Sec. 7-705, I. C. A.; Molen v. Denning & Clark L. Co., 56 Idaho 57, 50 P.2d 9.)

The fact that the decree adjudges or recites (according to the construction that may be given it), "that the waters used by Waggoner are not tributary to, nor a part of Mud Lake," makes it clear that, as the matter then stood the Wagoner appropriation or water right was thought to have its source from some other body of water or stream separate from and independent of Mud...