Joyce v. Murphy Land & Irrigation Co., Ltd.

• Decision Date: 01 June 1922
• Citation: 208 P. 241,35 Idaho 549
• Parties: MATTHEW JOYCE and ANNA JOYCE, Appellants, v. MURPHY LAND AND IRRIGATION COMPANY, LIMITED, a Corporation, and L. M. PORTER, Receiver of Said MURPHY LAND AND IRRIGATION COMPANY, LIMITED, Respondents
• Court: Idaho Supreme Court

208 P. 241

35 Idaho 549

MATTHEW JOYCE and ANNA JOYCE, Appellants, v. MURPHY LAND AND IRRIGATION COMPANY, LIMITED, a Corporation, and L. M. PORTER, Receiver of Said MURPHY LAND AND IRRIGATION COMPANY, LIMITED, Respondents

Supreme Court of Idaho

June 1, 1922

RES ADJUDICATA-WATER RIGHT-CHANGE OF PLACE OF USE-ABANDONMENT-VESTED RIGHT TO USE.

1. In an action upon the same claim or demand as litigated in a former action between the same parties, the former adjudi- cation concludes 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.

2. A change of place of use of a decreed water right to lands other than those upon which such water right was formerly used does not constitute abandonment.

3. Held, that respondent corporation in this case has a vested right in the waters formerly decreed to it, and a right to apply such waters to a beneficial use upon any lands available under its irrigation system.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Charles P. McCarthy, Judge.

Action to enjoin change of place of use of water. Judgment of nonsuit. Affirmed.

Judgment of the trial court affirmed, costs awarded to respondents. Petition for rehearing denied.

Perky &amp Brinck, for Appellants.

A senior appropriator may not change place of use or point of diversion to the detriment of subsequent appropriators. (Walker v. McGinness, 8 Idaho 540, 69 P. 1003; Bennett v. Nourse, 22 Idaho 249, 125 P. 1038; Hall v. Blackman, 22 Idaho 556, 126 P. 1047; Last Chance Min. Co. v. Bunker Hill etc. Min. Co., 49 F. 430; United States v. Union Gap Irr. Co., 209 F. 274; Southern California Inv. Co. v. Wilshire, 144 Cal. 68, 77 P. 767; Farmers' High Line etc. Co v. Wolff, 23 Colo. App. 570, 131 P. 291; Fort Collins Mill etc. Co. v. Lorimer etc. Irr. Co., 61 Colo 45, 156 P. 140; Durkee Ditch Co. v. Means, 63 Colo. 6, 164 P. 503; In re North Powder River, 75 Ore. 83, 144 P. 488; Featherman v. Hennessy, 43 Mont. 310, 115 P. 983; Gassert v. Noyes, 18 Mont. 216, 44 P. 959; Roeder v. Stein, 23 Nev. 92, 42 P. 867.)

Oppenheim & Lampert and Jay M. Parrish, for Respondents.

In an action upon the same claim or demand, the former adjudication concludes 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. (24 Am. & Eng. Ency. of Law, 714; Shields v. Johnson, 12 Idaho 333, 85 P. 972; King v. Co-operative Sav. etc. Assn., 6 Idaho 766, 59 P. 557.)

"It is presumed that a judgment disposed of all matters in controversy." (Towne v. Towne, 6 Cal.App. 697, 92 P. 1050.)

It was error for the court to admit evidence tending to show that the defendants' dam cuts off the underflow and percolation; also with reference to all matters which did not occur subsequent to the prior adjudication. There was no evidence offered which tended to show abandonment. (O'Brien v. King, 41 Colo. 487, 92 P. 945.)

BUDGE, J. Rice, C. J., and Lee, J., concur. McCarthy, J., did not sit at the hearing nor take part in the opinion.

OPINION

BUDGE, J.

This action was brought by appellants to enjoin respondents from changing the place of use of certain waters of Sinker Creek, decreed to respondent corporation in a former action between appellants and respondents. The trial was had to the court without a jury and resulted in a judgment of nonsuit, from which this appeal is prosecuted.

Appellants assign as error the action of the court in sustaining respondents' motion for nonsuit and in rendering judgment thereon.

From the record it appears that in 1908 respondent corporation constructed across Sinker Creek an impervious, concrete dam, thereby preventing the percolating waters of said stream, arising above the dam, from the irrigation of the Matthews and Dupont ranches, from flowing on down to the lands of the appellants, thereby depriving appellants of the use for irrigation purposes of such percolating waters. Respondent corporation purchased the Matthews and Dupont claims, to which was decreed in 1912, in an action between appellants and respondent corporation (see Joyce v. Rubin, 23 Idaho 296, 130 P. 793), a prior right to the use of eighty inches of the waters of Sinker Creek, to be used for the irrigation of said ranches. After the construction of the dam practically all of the Matthews and Dupont claims were submerged with water and used by respondent corporation for the purpose of storing the flood waters of Sinker Creek, to be conducted upon what is known as the Murphy Flats, some distance from the reservoir. In the decree in the Joyce-Rubin case, the waters decreed to appellants were to be delivered to them through the dam of the respondent corporation.

It is insisted by appellants that under the decree heretofore rendered they are entitled to have delivered to them such portion of the eighty inches of water decreed to respondent corporation as would percolate into Sinker Creek from the irrigation of the Matthews and Dupont ranches, and further, that by reason of the fact that respondent corporation has converted the lands comprising the Matthews and Dupont ranches into a reservoir site and no longer irrigates the same, that it thereby abandoned the right to the use of the eighty inches of water decreed to it to be used upon these lands, and that appellants are therefore entitled to the use of said eighty inches of water, upon the theory that respondent corporation abandoned the same, or, in other words, that since the decree awarded to respondent corporation a prior right to divert eighty inches of water upon specific lands described in the decree, that it cannot change the place of use of such waters or divert the same to any lands, other than described in the decree, or deprive the appellants of the percolating waters that would flow into Sinker Creek by reason of the irrigation of the specific lands mentioned in the decree.

From an examination of the pleadings, findings of fact, conclusions of law and decree in the case of Joyce v. Rubin, which are made a part of this record, it is clear that the trial court took into consideration in decreeing the waters of Sinker Creek both the surface and subflow of said stream, as well as the loss to the appropriators below the dam of any percolating waters that would reach that stream by reason of the irrigation of the Matthews and Dupont ranches.

If we are correct in the construction that we place upon the findings of fact, conclusions of law and the decree in the Joyce-Rubin case, and the construction placed thereon by this court, the trial court did not err in granting respondents' motion for a nonsuit upon the theory that the issues in the instant case were before the court in the former action, and the rights of the parties to the use of the waters of Sinker Creek determined, which being true, said decree constituted a previous adjudication of the right of respondent corporation to retain all of the eighty inches of water decreed to it, and would be res adjudicata.

It will be remembered that the dam was constructed in 1908, and it is conceded by appellants that it cut off all of the subflow of Sinker...