Mays v. District Court of Sixth Judicial District in and for Butte County

• Decision Date: 29 May 1925
• Citation: 40 Idaho 798,237 P. 700
• Parties: ROBERT G. MAYS et al., Plaintiffs, v. THE DISTRICT COURT OF THE SIXTH JUDICIAL DISTRICT IN AND FOR THE COUNTY OF BUTTE, Honorable RALPH W. ADAIR, Judge, Defendant
• Court: Idaho Supreme Court

237 P. 700

40 Idaho 798

ROBERT G. MAYS et al., Plaintiffs, v. THE DISTRICT COURT OF THE SIXTH JUDICIAL DISTRICT IN AND FOR THE COUNTY OF BUTTE, Honorable RALPH W. ADAIR, Judge, Defendant

Supreme Court of Idaho

May 29, 1925

WRIT OF REVIEW-INQUIRY LIMITED TO QUESTION OF JURISDICTION.

1. On writ of review the inquiry is limited to the sole question of whether or not the court below exceeded its jurisdiction, and for that purpose only will the facts be inquired into. Such errors as the court may have committed upon the trial are subject to review upon appeal from the final judgment.

2. Held, that the temporary order of the lower court in this case, directing distribution of the waters of the streams in question, it not being made to appear that the court exceeded its jurisdiction in making such order, cannot be reviewed upon writ of review.

Original proceeding for writ of review of temporary order distributing waters of streams among users. Motion to quash writ sustained.

Motion to quash the writ granted. Costs awarded to defendant.

Whitcomb Cowen & Clark, for Plaintiffs.

In order to give the court jurisdiction to make an order of this character, the issue must be tendered by the pleadings. (15 C. J., p. 734., sec. 34, notes 85 and 92; Hutts v Martin, 134 Ind. 587, 33 N.E. 676; Charles v White, 214 Mo. 187, 127 Am. St. 674, 112 S.W. 545; State v. Muench, 217 Mo. 124, 129 Am. St. 536, 117 S.W. 25; Sache v. Wallace, 101 Minn. 169, 118 Am. St. 612, 11 Ann. Cas. 348, 112 N.W. 386, 11 L. R. A., N. S., 803, and case note; Reynolds v. Stockton, 140 U.S. 254, 11 S.Ct. 773, 35 L.Ed. 464; 15 R. C. L., p. 604, sec. 43, title "Judgments"; North Western Clearance Co. v. Jennings, 106 Ore. 291, 209 P. 875, 210 P. 884.)

The court has no jurisdiction to enter any order having the effect of an injunction or restraining order before final decision, without requiring a bond. (Price v. Grice, 10 Idaho 443, 79 P. 387; Wiles v. Northern Star Min. Co., 13 Idaho 326, 89 P. 1053; MacWaters v. Stockslager, 29 Idaho 803, 162 P. 671.)

Peterson & Coffin for Respondents.

The purpose of the writ of review is not to correct judicial errors or mistakes of the inferior tribunal, the review authorized by the statute being restricted to the sole legal questions as to whether such inferior tribunal has regularly pursued the authority conferred upon it by law; and if such inferior tribunal has exceeded its lawful jurisdiction, have the petitioners for the writ a plain, speedy and adequate remedy by appeal or otherwise than by the writ of review? (C. S., sec. 7249; McConnell v. Board of Commrs., 11 Idaho 652, 83 P. 494; Canadian Bank of Commerce v. Wood, 13 Idaho 794, 93 P. 257; Gunderson v. District Court, 14 Idaho 478, 94 P. 166; Coeur d' Alene Min. Co. v. Woods, 15 Idaho 26, 96 P. 210; Utah Assn. of Credit Men v. Budge, 16 Idaho 751, 102 P. 390, 691; Lansdon v. State Board, etc., 18 Idaho 596, 111 P. 133.)

BUDGE, J. William A. Lee, C. J., Wm. E. Lee, Givens and Taylor, JJ., concur.

OPINION

BUDGE, J.

In October, 1920, Blaine County Investment Company, for convenience hereinafter called the company, commenced an action in the district court of the sixth judicial district for Butte county to quiet its title to the use of the waters of Little Lost River and tributaries, in which action Robert G. Mays and others were defendants, among whom are all plaintiffs herein.

The case being at issue, the cause was referred to Hon. L. E. Glennon, as referee, to take testimony and to report to the court his findings of fact and conclusions of law and submit a proposed form of decree. The referee on June 28, 1924, submitted his preliminary report, in which he made definite findings on the rights of all parties to the use of the waters of the streams, and recommended that the court immediately enter a temporary order for the direction of the water-master in the distribution of water for the 1924 irrigation season, and also that the court retain jurisdiction of the cause for one year for the purpose of determining the remaining questions in the case, and for the purpose of correcting any errors made by the referee in his determination of the matter.

Upon motion of the company, the making of a temporary or interlocutory order following the recommendation of the referee came on for hearing before the judge of the court at Blackfoot on July 1, 1924, all parties interested appearing by their respective counsel. The judge on that date made a temporary order by which the water-master was directed to distribute the waters of the streams in controversy according to the terms of the order for the remainder of the 1924 irrigation season.

To review this order of July 1, 1924, as amended by subsequent order of July 9, 1924, a petition for writ of review was filed by the plaintiffs in this court on July 22, 1924; the writ was granted August 12, 1924. To the writ a motion to quash was filed April 2, 1925.

The temporary order awards to Perry Basinger and others of the same priority a right to the use of 22 second-feet of the water of Dry Creek and further provides that when the natural flow at the intake of the pipe-line of the company in less than 49 second-feet, the right to the use of the waters of said creek allowed to Basinger et al. shall be reduced 22/49 of such deficiency. Petitioners' objection to the temporary order is directed against the clause providing for reduction in case of shortage in the natural flow.

It is first urged that this latter clause in the order violates the rights decreed to some of the petitioners in the case of Basinger et al. v. Taylor et al., 36 Idaho 591, 211 P. 1085, upon the theory that since this court in that case awarded Basinger and other parties in interest 22 second-feet of the waters of Dry Creek diverted at the intake of the pipe-line of the company, they are entitled to receive that amount at that diversion point under all circumstances. In the case above referred to, the rights of the appellants therein inter se were not litigated; the right decreed petitioners was a right decreed as against Taylor et al. The court had not before it the question as to what proportion of a possible shortage in the natural flow of Dry Creek should be borne by petitioners and by the...