Mays v. District Court of Sixth Judicial District of Idaho

• Decision Date: 27 July 1921
• Citation: 34 Idaho 200,200 P. 115
• Parties: ROBERT G. MAYS et al., Plaintiffs, v. DISTRICT COURT OF THE SIXTH JUDICIAL DISTRICT OF IDAHO, IN AND FOR BUTTE COUNTY, and RALPH W. ADAIR, Judge of said Court, Defendants
• Court: Idaho Supreme Court

200 P. 115

34 Idaho 200

ROBERT G. MAYS et al., Plaintiffs, v. DISTRICT COURT OF THE SIXTH JUDICIAL DISTRICT OF IDAHO, IN AND FOR BUTTE COUNTY, and RALPH W. ADAIR, Judge of said Court, Defendants

Supreme Court of Idaho

July 27, 1921

WATER RIGHT-PRIORITY SUIT-SUPPLEMENTARY ADJUDICATION-STATUTORY REMEDY-EXCLUSIVE OR CUMULATIVE-DUE PROCESS-ESTOPPEL BY DECREE-NOT BINDING ON STRANGER.

1. The remedy provided by C. S., sec. 7036, is cumulative, and not exclusive.

2. C S., sec. 7036, does not preclude one whose right to use the water of a stream antedates a priority decree, but who is a stranger to the action, or one whose right has been acquired subsequent to such decree, from bringing a priority suit in the nature of an action to quiet title.

3. A decree adjudicating water rights does not bind one who is a stranger to the action.

APPLICATION for Writ of Prohibition. Alternative writ issued. Demurrer to application. Demurrer sustained and alternative writ quashed.

Application sustained, and the alternative writ of prohibition quashed. Costs awarded to defendants. Petition for rehearing denied.

Whitcomb Cowen & Clark and E. J. Dockery, for Plaintiffs.

The legislature intended that the subsequent special statute provided an exception to the general statute and that the remedy provided by the special statute should be held to be the exclusive remedy provided by the legislature for the conditions prescribed in the special law. (36 Cyc. 1151; 44 Cent. Dig., Tit. "Statutes," sec. 305; Dwarris on Statutes (2d ed.), 514; Crane v. Reeder, 22 Mich. 322; Rodgers v. United States, 185 U.S. 83, 87-89, 22 S.Ct. 582, 46 L.Ed. 816.)

The remedy provided by sec. 7036 was intended by the legislature to be the exclusive and only remedy permitted to a claimant in the situation of the Blaine County Investment Co. in its action. (Humiston v. Smith, 21 Cal. 129; Grigsby v. Barr, 77 Ky. (14 Bush) 330; Montel v. Consolidation Coal Co., 39 Md. 164; Thayer v. Kitchen, 200 Mass. 382, 86 N.E. 952; Clancy v. Board of Fire & Police Commrs., 150 Wis. 630, 138 N.W. 109.)

A party may not relitigate a question which has passed into final adjudication. "The courts will not assume, in an independent action, to determine anew the rights of parties, which, as between themselves, have been settled by the decree of the board of control,--at least, in the absence of fraud, or a showing of facts sufficient to vitiate a judgment." (Farm Investment Co. v. Carpenter, 9 Wyo. 110, 87 Am. St. 918, 61 P. 258, 50 L. R. A. 747; Farmers' etc. Co. v. Rio Grande etc. Co., 37 Colo. 512, 86 P. 1042.)

The proceedings to adjudicate water rights are in rem and not in personam. (2 Wiel, Water Rights, p. 1125, sec. 1228.)

The technical action to quiet title will not lie where the special proceeding is provided. (2 Wiel, Water Rights, p. 1126, sec. 1228; Fluke v. Ford, 35 Colo. 112, 84 P. 469.)

Water decrees are prima facie evidence as to those not parties to the former adjudication. (Lower Latham Ditch Co. v. Bijou Irr. Co., 41 Colo. 212, 93 P. 483; Broad Run Inv. Co. v. Deuel & S. Imp. Co., 47 Colo. 573, 108 P. 755; O'Neill v. Northern Colorado Irr. Co., 56 Colo. 545, 139 P. 536; Consolidated Home Supply D. & R. Co. v. Town of Evans, 59 Colo. 482, 149 P. 834; Ft. Lyon Canal Co. v. National Sugar Mfg. Co., 68 Colo. 36, 189 P. 252; O'Neil v. Northern Colorado Irr. Co., 242 U.S. 20, 37 S.Ct. 7, 61 L.Ed. 123.)

Peterson & Coffin, for Defendants.

The remedy provided by sec. 7036 is cumulative and not exclusive. (Jaffe v. Fidelity Deposit Co., 7 Ala. App. 266, 60 So. 966; 1 C. J. 988; 1 R. C. L. 323; Brandon v. Carter, 119 Mo. 572, 41 Am. St. 673, 24 S.W. 1035; Luder v. State (Tex. Civ. App.), 152 S.W. 220; Wehmeier v. Mercantile Banking Co., 49 Ind.App. 454, 97 N.E. 558; Gilbert v. Peck, 162 Cal. 54, Ann. Cas. 1913C, 1349, 121 P. 315; Rosin v. Lidgerwood Mfg. Co., 86 N.Y.S. 49, 89 A.D. 245.)

"A statute instituting a new remedy for an existing right does not take away a pre-existing remedy without express words or necessary implication." (Bergman v. Gay, 79 Vt. 262, 64 A. 1106; Richardson v. People's Life etc. Ins. Co., 28 Ky. Law Rep. 919, 92 S.W. 284; State v. Cosgrave, 85 Neb. 187, 122 N.W. 885, 26 L. R. A., N. S., 207; Chicago etc. Ry. Co. v. Chicago, 148 Ill. 141, 35 N.E. 881; Bowles v. Neely, 28 Okla. 556, 115 P. 344; King v. Pomeroy, 121 F. 287, 58 C. C. A. 209; Field v. City of Milwaukee, 161 Wis. 393, 154 N.W. 698; Collard v. Hohnstein, 65 Colo. 158, 174 P. 597.)

"An existing claimant is not concluded as to his water right by a determination of the board of control in adjudication proceedings under the statute, wherein they have not been considered, and by a decree which is perforce silent respecting them." (Farm Investment Co. v. Carpenter, 9 Wyo. 110, 87 Am. St. 918, 61 P. 258, 50 L. R. A. 747; Van Buskirk v. Red Buttes Land & Live Stock Co., 24 Wyo. 183, 156 P. 1122, 160 P. 387.)

The several decrees adjudicating the rights to the use of the waters of Little Lost River are not, and cannot by legislative enactment be made, conclusive as to parties who were strangers to such proceedings. (15 R. C. L. 1006, and cases cited; 12 C. J. 1227; Archuleta v. Archuleta, 52 Colo. 601, 123 P. 821; Carstens v. Pillsbury, 172 Cal. 572, 158 P. 218; Ray v. Norseworthy, 90 U.S. (23 Wall.) 128, 23 L.Ed. 116; Humes v. Scruggs, 94 U.S. 22, 24 L.Ed. 51; Johnson v. Powers, 139 U.S. 156, 11 S.Ct. 525, 35 L.Ed. 112; Pardee v. Aldridge, 189 U.S. 429, 23 S.Ct. 514, 47 L.Ed. 883; In re Sharp, 15 Idaho 120, 96 P. 563, 18 L. R. A., N. S., 886.)

If one is not a party to the hearing and proceeding, under all the recognized rules of legal procedure, he is clearly not bound by the judgment, and none of his rights is precluded. (2 Wiel, Water Rights, 2d ed., sec. 1233, p. 1137; 3 Kinney on Irrigation, 2d ed., sec. 1563, p. 2830; Stocker v. Kirtley, 6 Idaho 795, 59 P. 891; McLean v. Farmers' Highline Canal & Reservoir Co., 44 Colo. 184, 98 P. 16; State v. Steiner, 58 Wash. 578, 109 P. 57; Frost v. Idaho Irr. Co., 19 Idaho 372, 114 P. 38; Weiser Irr. Dist. v. Middle Valley Irrigating Ditch Co., 28 Idaho 548, 155 P. 484; Lambrix v. Frazier, 31 Idaho 382, 171 P. 1134.)

E. M. Wolfe, Amicus Curiae.

A judgment is binding upon the parties to it, and their privies, and conclusive among them as to the questions involved in the litigation, and no other. It is not conclusive and is of no effect beyond these bounds, even between the parties, as to any question which was not at issue in the suit. (Fort Lyon Canal Co. v. Arkansas Valley Sugar Beet & Irrigated Land Co., 39 Colo. 332, 90 P. 1023; Montrose Canal Co. v. Loutsenhizer Ditch Co., 23 Colo. 233, 48 P. 532; Handy Ditch Co. v. South Side Ditch Co., 26 Colo. 333, 58 P. 30; Long on Irrigation, 2d ed., sec. 232; Kinney on Irrigation and Water Rights, 2d ed., secs. 1563, 1581, 1645; Wiel, Water Rights in Western States, 3d ed., sec. 626; Frost v. Idaho Irr. Co., Ltd., 19 Idaho 372, 382, 114 P. 38; Neil v. Hyde, 32 Idaho 576, 186 P. 710; Reno v. Richards, 32 Idaho 1, 178 P. 81; Stocker v. Kirtley, 6 Idaho 795, 59 P. 891; Josslyn v. Daly, 15 Idaho 137, 146, 96 P. 568; State ex rel. McConihe v. Steiner, 58 Wash. 578, 109 P. 57; Council Improvement Co. v. Pacific & Idaho etc. Imp. Co., 29 Idaho 113, 157 P. 258; Day v. Combination Rubber Co., 2 F. 570). Sec. 7036 would be unconstitutional if its purpose was to make a judgment in one case where one set of persons were parties binding or of any effect against the rights and claims of other appropriators who were not parties to that suit. (Bear Lake County v. Budge, 9 Idaho 703, 108 Am. St. 179, 75 P. 614.)

MCCARTHY, J. Rice, C. J., and Budge, Dunn and Lee, JJ., concur.

OPINION

MCCARTHY, J.

Plaintiffs apply for a writ of prohibition, to restrain defendants from proceeding further in an action brought by the Blaine County Investment Company.

In October, 1920, the Blaine County Investment Company filed an action in the district court of Butte county, against a large number of defendants, among whom were the plaintiffs herein, to quiet title to the waters of Little Lost River. A demurrer to the complaint was overruled. Answer was then made in which the allegations of the complaint were not controverted, but matters by way of abatement and estoppel and in bar of the proceedings were set up. The answer first alleges three decrees of courts of competent jurisdiction adjudicating the rights to the use of the water of the said stream, to which the company was not a party, and that, if said company has any right to use said water, it has been acquired subsequent to said decrees; next, that C. S., sec. 7036, provides an exclusive remedy for the determination of rights to the use of water acquired subsequent to such a decree. The district court sustained a demurrer interposed by the company to this answer. Upon application of petitioners setting up the above facts, and claiming the district court is proceeding in excess of its jurisdiction, an alternative writ of prohibition issued. Defendants demur to petitioners' application.

The question raised is whether the statutory provision (C. S., sec. 7036), for a supplementary adjudication of water rights subsequently acquired, excludes the right of the company to bring an action to quiet title under sec. 6961, or is merely cumulative.

The district court has original jurisdiction in all cases, both at law and in equity. (Const., art. 5, sec. 20.) "The legislature shall have no power to deprive the judicial department of any power or jurisdiction which rightly pertains to it as a co-ordinate department of the government." (Const., art. 5, sec. 13.) One has a right to invoke the jurisdiction of the courts to protect his right to the use of water for irrigation...