Neil v. Hyde

Decision Date01 April 1919
Citation186 P. 710,32 Idaho 576
PartiesJ. M. NEIL, Respondent, v. MICHAEL HYDE et al., Appellants
CourtIdaho Supreme Court

WATERS AND WATERCOURSES-APPROPRIATION-PRIORITY-ABANDONMENT-EVIDENCE-DUTY OF WATER-RES ADJUDICATA.

1. A decree will not be disturbed because of conflict in the evidence if the proof in support thereof, if uncontradicted would be sufficient to sustain it.

2. A decree is none the less conclusive because it is entered on stipulated facts, and water rights therein determined cannot be again litigated between the same parties in a subsequent suit in which the same or other water rights are questioned by other parties.

[As to what judgments are res adjudicata, see note in 14 Am.St. 250]

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

Action to quiet title to use of water. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs awarded to respondent.

J. J McCue, J. C. Johnston, J. G. Watts, D. A. Dunning and Hawley & Hawley, for Appellants.

The decree and judgment is not res adjudicata, for the reason that no judgment can be pleaded as an estoppel or res adjudicata unless it was pronounced by decision of the court upon the merits and is his conclusion upon the facts after a final hearing of the case. There is nothing entered in the decree but the facts stipulated between the plaintiff and defendant therein, and the stipulation was made a part of the decree and entered as stipulated and agreed upon by the parties. (Laguna Drainage District v. Chas. Martin Co., 5 Cal.App. 166, 89 P. 993; City of Oakland v Oakland Water Front Co., 118 Cal. 160, 220, 50 P. 277; Water, Light & Gas Co. v. Hutchinson, 160 F. 41, 90 C. C. A. 547. 19 L. R. A., N. S., 219; Robb v. New York & C. Gas Coal Co., 216 Pa. 418, 65 A. 938; Kinney on Irrigation and Water Rights, pp. 28-30; Union Mill & Min. Co. v. Dangberg, 81 F. 73; 2 Black on Judgments, sec. 617; 24 Am & Eng. Ency. of Law, 2d ed., 775, 778; Lillis v. Emigrant Ditch Co., 95 Cal. 553, 30 P. 1108; Josslyn v. Daly, 15 Idaho 137, 96 P. 568.)

Oppenheim & Lampert, for Respondent.

Where it is shown that the evidence is conflicting and there is competent evidence to sustain the findings, the appellate court will not disturb the lower court's decision. (Cameron Lumber Co. v. Stack-Gibbs Lumber Co., 26 Idaho 626, 144 P. 1114; Pine v. Callahan, 8 Idaho 684, 71 P. 473; Sabin v. Burke, 4 Idaho 28, 37 P. 352; Miller v. Blunck, 24 Idaho 234, 133 P. 383; Robbins v. Porter, 12 Idaho 738, 88 P. 86; Heckman v. Espey, 12 Idaho 755, 88 P. 80; Dougan v. Seattle, 76 Wash. 621, 136 P. 1165, 51 L. R. A., N. S., 214; Karges Furniture Co. v. Amalgamated Wood Workers' Local Union, 165 Ind. 421, 6 Ann. Cas. 829, 75 N.E. 877, 2 L. R. A., N. S., 788; Jones on Evidence in Civil Cases, 2d ed., sec. 393.)

A judgment by consent has the same force and effect as any other judgment. (23 Cyc. 729; Continental Bldg. & Loan Assn. v. Woolf, 12 Cal.App. 725, 108 P. 729; Langdon v. Vermont & C. R. Co., 54 Vt. 593, 606; Jenkins v. Purcell, 29 App. Cas. (D. C.) 209, 9 L. R. A., N. S., 1074, 1076; Clark v. Southern Can. Co., 116 Md. 85, 81 A. 271, 36 L. R. A., N. S., 980, and note.)

The true tests of an estoppel on account of a former water adjudication are, first, the identity of the rights sued for; second, the identity of the cause of action; and, third, the identity of the persons and parties to the action. Where these conditions are present, former decrees which are final and unreversed, are res judicata of the subject matter of the suits as then decided between the parties thereto and their successors in interest, and that, too, whether the court based its decree upon a correct or erroneous view either of the law or of the facts. (Kinney on Irrigation and Water Rights, 2d ed., sec. 1563.)

MORGAN, C. J., BUDGE, J. Rice, Budge, JJ., and Morgan, C. J., concurring.

OPINION

MORGAN, C. J.

This is an action brought in Owyhee county to determine the rights to the use of the waters of Catherine Creek and its tributaries, all situate in that county, and the priorities of those rights between the original parties and such as might be properly brought in, and to restrain appellants from using the waters of said streams to the detriment of respondent.

All the appellants, some of whom were originally made defendants, and some of whom were afterwards brought in, by appropriate pleadings joined issue with respondent and by cross-complaint claimed rights to divert and use waters of the different creeks adversely to him. For convenience of the parties the trial was had in Ada county. A decree, fixing the priorities of appropriations and amount of water each party is entitled to use, and enjoining the parties from in any way interfering with the rights of the prior appropriators was rendered by the trial judge and entered. Motions for a new trial were made by appellants and, after the same were heard, the original decree was modified and the motions overruled. Appeals from the judgment and the order overruling the motions for a new trial were perfected.

Among the many errors assigned by counsel representing the different appellants are: That the findings of fact as to the amounts of water and priorities of the respondent are contrary to and not justified by the evidence in the following particulars: That the evidence shows neither respondent nor his predecessors applied all the waters awarded to him to a beneficial use within a reasonable time after appropriation; that respondent's predecessors lost any priority they had in the right to use certain of the waters by their failure to use said waters for beneficial purposes for a period of time, prior to the commencement of the action, sufficient to work a forfeiture or abandonment, while appellants, during such period, continually used said waters for beneficial purposes, adversely to respondent, thereby acquiring prescriptive rights; that respondent, since the original appropriation, has changed the point of diversion of some of his ditches to the detriment of intervening rights of some of the appellants, which intervening rights are, by the decree, ignored or declared inferior to those of respondent; that respondent's predecessors used the waters of various streams alternately on different lands, while the findings and decree give appropriations for the same water and at different dates upon different pieces of land; also that certain appellants are denied the right to use waters coming from springs arising on or near their land while the evidence shows that such waters, if uninterrupted, would not reach the points of respondent's diversion; that the evidence shows the use of the waters of the streams by appellants is beneficial, and not harmful, to respondent and other users of water in the lower valley; that the findings of fact and decree regarding appellants', Neiss & Torrance, right to the use of waters of Pickett Creek are contrary to the evidence, as well as that portion of the decree regarding the appellant Nora Linehan's right to the amount of and priority of right to the use of the waters of Pickett and Bates Creeks as affecting respondent and appellant Hardiman, and that the duty of water is not correctly found or decreed, All these assignments, on final analysis, go to the sufficiency of the evidence only, and the decision of each question involved must necessarily turn on the facts established. There is no contention made therein that the law has not been properly applied to the facts as found.

The record on appeal contains approximately 1,200 pages of transcript of testimony; the trial lasted from December 2 to December 16, 1913; upwards of forty witnesses were examined, much documentary evidence was introduced and the histories of the different rights involved were gone into from their inception, some as far back as the year 1864, with the result that there is much conflict in the testimony. From an examination of the evidence the conclusion is inevitable that there is sufficient proof to sustain each and all of the findings of fact. It is the rule in this state that a decree will not be disturbed because of conflict in the evidence if the proof in support thereof, if uncontradicted, would be sufficient to sustain it. (Cartier v. Buck, 9 Idaho 571, 75 P. 612; Hayton v. Clemans, 30 Idaho 25, 165 P. 994; Holland v. Avondale Irr. Dist., 30 Idaho 479, 166 P. 259; McKeehan v. Vollmer Clearwater Co., 30 Idaho 505, Ann. Cas. 1918E, 1197, 166 P. 256; Davenport v. Burke, 30 Idaho 599, 167 P. 481; Hemphill v. Moy, 31 Idaho 66, 169 P. 288.)

Special consideration has been given to assignment of error No. 6 which is in the following language: "That the district court erred in failing and refusing to specially find the method and manner of defendants Neiss & Torrance in appropriating the waters of Pickett Creek; the ditch through which it was appropriated, and likewise the original ditch of plaintiff's predecessors, appropriating the waters of Pickett Creek for use on the Tim Shea ranch; the land covered by said ditch and watered from it, the present method of obtaining water from said Pickett Creek on the lands formerly covered by the Tim Shea ditch and the lands covered by the Pitman ditch, now used by plaintiff in lieu of said Tim Shea ditch; and likewise erred in not so specially finding in the findings of fact and so announcing in the decree that the right of said Neiss & Torrance was and is superior in time and right to the waters of said Pickett Creek, used upon said Tim Shea ranch, than the right of plaintiff," for the reason that counsel for these appellants, in their brief, insist that there is no evidence justifying the award to respondent of waters from Pickett Creek of date as...

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