Perkins v. Kramer

• Decision Date: 16 June 1948
• Docket Number: 8767.
• Parties: PERKINS v. KRAMER et al.
• Court: Montana Supreme Court

198 P.2d 475

121 Mont. 595

PERKINS v. KRAMER et al.

No. 8767.

Supreme Court of Montana

June 16, 1948

Rehearing Denied Oct. 28, 1948.

Appeal from District Court, Third District, Powell County; William R. Taylor, Judge.

Action for declaratory judgment by John E. Perkins against Joe M Kramer and others. From a judgment of dismissal, the plaintiff appeals.

Reversed and remanded with directions.

S. P Wilson, of Deer Lodge, for appellant.

W. E Keeley, Maurice J. MacCormick, and Joseph A. McElwain, all of Deer Lodge, for respondents.

J. B C. Knight, of Anaconda, and Fred W. Schmitz, of Townsend, amici curiae on petition for rehearing only.

ANGSTMAN, Justice.

This is an appeal from a judgment of dismissal with costs to defendants entered after the defendants' demurrer to plaintiff's complaint was sustained and after plaintiff elected to stand upon his complaint. The complaint asks for a declaratory judgment and for relief from the judgment entered in the district court of Powell county in cause No. 2839 after the decision of this court on the appeal reported in Woodward v. Perkins, 116 Mont. 46, 147 P.2d 1016 that defendants be restrained from interfering with plaintiff in pursuing the relief here sought.

In substance the complaint alleges that plaintiff owns lands in the Dempsey Creek area in Powell county on which there are depressions or 'pot holes' forming natural reservoirs holding water for long periods of time but which eventually escapes through the porous gravelly soil to the bottom of a plateau where it can be picked up in drains and measured in amount and returned to the stream to be recaptured and used for irrigation; that beginning in 1908 and continuing to 1939 plaintiff diverted waters from the upper reaches of Dempsey Creek during periods when the water would not be applied to any beneficial use by any appropriator but which would otherwise run to waste and flowed such water into the 'pot holes' by means of ditches; that as it seeped out of the 'pot holes' to the foot of the plateau it was picked up in drains and used by plaintiff for irrigation purposes; that had plaintiff not thus captured the water it would have run to waste into Deer Lodge river without anyone having beneficial use thereof; that the issue in cause No. 2839 was whether the waters picked up in the drains at the foot of the plateau were the same waters which plaintiff diverted from Dempsey Creek and transported into the 'pot holes,' as claimed by this plaintiff in his cross-complaint in that action; that the district court in cause No. 2839 held in favor of this plaintiff, defendant in that action, but on appeal (Woodward v. Perkins, 116 Mont. 46, 147 P.2d 1016) this court reversed the trial court and held that plaintiff failed to submit sufficient proof to substantiate his claim that the waters picked up in the drains were the same waters as those put in the 'pot holes' and that the proof was too speculative. The judgment was reversed and the cause remanded with instruction to enter a decree for plaintiff (defendant here) and restraining this plaintiff from asserting any claim of right based upon his cross-complaint.

Plaintiff here alleges in his complaint that the judgment entered by the trial court after remittitur from this court was too broad in that it permanently restrains him from using any of the drains to collect water and from doing any of the things complained of in the complaint in that action and in that it orders all waters seeping or escaping from the pot holes shall be distributed to and among the water users of and from Dempsey Creek and in that it perpetually restrains plaintiff here from asserting any claim of right based upon his cross-complaint in action No. 2839.

Plaintiff alleges that since the decree was entered in the district on December 30, 1944, he has not stored any waters in the 'pot holes' and in consequence there has been no water seeping into the drains and that the waters which he would have run into the 'pot holes' has been permitted to run to waste which were it not for the restraining order he would have put to a beneficial use. He alleges that he reason there is not now any water at the foot of the plateau to be picked up in the drains is that he ceased to run water into the 'pot holes' and that such water which he formerly placed in the 'pot holes' now runs to waste. He alleges that he is able now to furnish demonstrative proof that the waters picked up in the drains was water placed in the 'pot holes,' but that he is prevented from making further experiments by the restraining order in question.

Defendants contend that plaintiff is now precluded from maintaining this action because of the holding in the case of Woodward v. Perkins, Mont., 171 P.2d 997. That was an appeal from the judgment entered in the trial court after reversal of the case by this court in the opinion reported in 116 Mont. 46, 147 P.2d 1016.

It is true that the question there presented is the same as the question here presented. But the court did not in that opinion preclude plaintiff from relief. True two members of the court thought he was not entitled to any relief. Two thought he was entitled to relief. The fifth member of the court, whose opinion was necessary to constitute a majority of the court, had this to say :

'Cheadle, Justice (concurring).

'I concur in the result arrived at by the majority, because I feel that there must be an eventual end to litigation, and that whether the decision of this court, reported in 147 P.2d 1016, was correct or otherwise, so far as this court is now concerned the matter is res judicata. Should changed conditions justify a modification of the decree herein, any such modification, I feel, must be after appropriate and proper proceedings in the court of original jurisdiction. Whether decrees in water right cases as between the parties must be regarded as forever conclusive, regardless of change in conditions subsequent to entry of the decree, presents an interesting and important legal question, properly determinable by a court of original jurisdiction. This court's investigation of the original case was confined to the record on appeal, and we now have no authority to reconsider the matter on facts subsequently discovered.

'I feel also, under the circumstances of this case, that should the appellant here consider that the judgment of the trial court, after remittitur, is not in accord with the decision of this court, his recourse is by appropriate original proceeding in this court.' 171 P.2d 997, 1005.

Perkins then started an original proceeding in this court for a writ of supervisory control. The alternative writ was denied without opinion by a three to two order, being case No. 8701. He thereupon brought this proceeding. He has not yet had a judicial determination by a majority of this court whether the judgment of the trial court in cause No. 2839 after remittitur, is in accord with the decision of this court. Thus far plaintiff has been deprived of relief not on the merits of his application but because he had chosen the wrong remedy.

The criticism applied to the Illinois procedure by the special concurring opinion of Mr. Justice Rutledge joined in by Mr. Justice Douglas and Mr. Justice Murphy in Marino v. Ragen, 332 U.S. 562, 68 S.Ct. 240, 243, 92 L.Ed. 170 (decided December 22, 1947), might well be applied to the procedure in this state as applied to this case.

In that case Mr. Justice Rutledge in speaking of the offered remedies in that state said, '* * * it offers too many, and makes them so intricate and ineffective that in practical effect they amount to none. The possibility of securing effective determination on the merits is substantially foreclosed by the probability, indeed the all but mathematical certainty, that the case will go off on the procedural ruling that the wrong one of several possible remedies has been followed.' And again he said that the confession of error leads to the conclusion that 'the Illinois procedural labyrinth is made up entirely of blind alleys.'

The majority of the court take the view that the only proper judgment for this court to have ordered entered in cause No. 2839 was one ordering a new trial (sec. 9397, subd. 6) or for a nonsuit as to the cross-complaint in action No. 2839.

A defendant who files a cross-complaint becomes the plaintiff with reference to the relief demanded in the cross-complaint (17 Am.Jur., p. 63), and failing to submit sufficient proof, a nonsuit as to the cross-complaint is proper but this would not bar another action for the same relief. 17 Am.Jur., p. 98, and see secs. 9317 and 9320, Rev.Codes.

It is of course elementary that a natural depression may be utilized as a reservoir if no one is injured thereby. Larimer County Reservoir Co. v. People, 8 Colo. 614, 9 P. 794.

It is in the public interest that all land in the state susceptible to irrigation should be irrigated. Allen v. Petrick, 69 Mont. 373, 222 P. 451. If plaintiff can prove his allegations he can show that by his system of storing water he can irrigate some of his land with waters which otherwise run to waste and without injury to anyone.

The doctrine of res judicata, if applicable, does not prevent the court from correcting manifest error in its former judgment. Thus in Cluff v. Day, 141 N.Y. 580, 36 N.E. 182, 183, the court said: 'There is no iron rule which precludes a court from correcting a manifest error in its former judgment, or which requires it to adhere to an unsound declaration of the law. It may, for cogent reasons, reverse or qualify a prior decision, even in the same case. But the cases in which this will be done are exceptional, and the power should be sparingly exercised.'

When the prior decision is by...