Plain City Irr. Co. v. Hooper Irr. Co.

• Decision Date: 05 December 1935
• Docket Number: 5580
• Citation: 87 Utah 545,51 P.2d 1069
• Court: Utah Supreme Court
• Parties: PLAIN CITY IRR. CO. v. HOOPER IRR. CO. et al. JEREMY v. RASMUSSEN et al

51 P.2d 1069

87 Utah 545

PLAIN CITY IRR. CO. v. HOOPER IRR. CO. et al.

JEREMY v. RASMUSSEN et al

No. 5580

Supreme Court of Utah

December 5, 1935

Appeal from District Court, Second District, Weber County; L. A Wade, Judge.

Action for determination of water rights by the Plain City Irrigation Company against the Hooper Irrigation Company and others, in which Ethan J. Jeremy and James R. Rasmussen administrator of the estates of Jens P. K. Rasmussen and Christine Rasmussen, protested the proposed determination. From a judgment in favor of Ethan J. Jeremy, James R Rasmussen, administrator of the estates of Jens P. K Rasmussen and Christine Rasmussen, deceased, and others appeal.

Judgment affirmed as to matters determined between Ethan J. Jeremy and James Rasmussen, as administrator of the estates of Jens P. K. Rasmussen and Christine Rasmussen, deceased, and as to other parties or interests or issues, judgment not binding.

Wm. A. Hilton, of Salt Lake City, for appellants.

P. G. Ellis, of Salt Lake City, for respondent.

MOFFAT Justice. ELIAS HANSEN, C. J., and FOLLAND, and EPHRAIM HANSON, JJ., WOLFE, Justice, concurring.

OPINION

MOFFAT, Justice.

In 1921 an action was brought by the plaintiff, Plain City Irrigation Company, against the defendant Hooper Irrigation Company to ascertain and determine the respective rights, priorities, and uses of water between the original named parties. While it does not appear that the state engineer had either begun or completed a survey of the Weber river system as the suggested procedure is outlined by section 21, c. 67, Laws of Utah 1919, it does appear that by stipulation of the original parties and upon an order of the court, the state engineer was directed to take proof and report a proposed determination of the rights and priorities of the water of the Weber river system; including its tributaries, pursuant to a procedure outlined by section 22, c. 67, Laws of Utah 1919, and other sections of the same chapter relating thereto.

The matter involved in this appeal relates to two or three small tributaries of East Canyon creek which latter is tributary directly to the Weber river. The issues on this appeal are limited to the rights to the use of the water of these tributaries.

Ethan J. Jeremy, Jens P. K. Rasmussen, Christine Rasmussen, and James R. Rasmussen each subscribed a statement of claim as provided by the statute, which are found on file herein. Jens P. K. Rasmussen and Christine Rasmussen both died after the original action was begun. James R. Rasmussen is the administrator of both estates. The area involved in the dispute herein is a restricted and isolated district remote from other users and claimants of water rights, and, in so far as the records disclose, no other parties contend for any claims or interests in the particular streams except as such rights are subject to the rights here sought to be determined and then only as the unused waters thereof may be tributary to the river system.

The notice of appeal refers to one Osmond Rasmussen, but nowhere else does he appear as a party to the proceeding, neither originally nor as having filed a statement of claim. It also refers to James R. Rasmussen; but James R. Rasmussen, although he filed a statement of claim, has not personally protested the proposed determination. No one's rights may be determined upon the present appeal except those who are parties to the action and made parties to the appeal and have rights adversely affected thereby, and no one's rights, except those of Ethan J. Jeremy and the estates of Jens P. K. Rasmussen and Christine Rasmussen, of which James P. Rasmussen is the administrator, and appellant, who appear to be the only parties to the record on appeal, may be held to be bound by the judgment. They are parties hereto and are bound as between themselves.

Appellant assigns error because the court refused to make the state of Utah a party. By a previous order and the published notice, the state of Utah was made a party. The trial court so indicated and refused to make a further order on the matter. It was not error to do so. In this proceeding the state is not an adverse party. Although the last sentence of section 38, c. 67, Laws of Utah 1919, provides, "In any action for the determination of water rights the State of Utah shall be joined as a necessary party," such provision does not make the state in its governmental capacity a necessary party. Were the state claiming a proprietary right to the use of water as an appropriator or user, the situation would be a different one. The state is interested in the unappropriated waters of the state, but not the appropriated waters beneficially applied and economically used; that is, used without waste. In the case of Huntsville Irr. Ass'n v. District Court of Weber County, 72 Utah 431, at page 439, 270 P. 1090, 1093, this court said:

"Inasmuch as the state is vitally interested in conserving the unappropriated waters of the state in order that such waters may be definitely known and subjected to the supervision and control of the state engineer, it is reasonable to suppose that the purpose of making the state a party was to safeguard the rights of the state to such unappropriated waters and provide means whereby the state might have the opportunity to see that water users in their claims were restricted to a beneficial use of the water. The fact that the statute requires that the state should be a party is hardly sufficient to justify the conclusion that, therefore, the purpose of the statute was to provide a procedure solely for the purpose of determining the rights of claimants as against the state. Not only does the statute fail in any of its provisions to convey that impression, but there are many reasons against it. It can hardly be presumed that the Legislature would deliberately enact a law that would involve the agricultural communities of the state without their consent in expensive and long protracted litigation for the sole purpose of determining whether or not there was any unappropriated water. If such was the purpose, then the statute was enacted solely for the benefit of the state as an entity and in no sense for the benefit of the water users themselves. Such a presumption finds little or no support in any provision of the statute."

At the beginning of the hearing and before the taking of testimony, appellant made a motion that notice be given to all parties claiming water rights, presumptively all claiming rights on the river system, of the hearing. This motion was denied and error assigned. It may readily be seen that if any such matter was before the court as would, or possibly might, affect the rights of others, that such an order should be made. The issues before the court related to the dates of priorities as between the parties then before the court, the matter of amendments as to locations, etc., and quantities of land and water. No matter what the decision might be as between the parties here involved, no diminishing of the contributing supply to the river system affecting others was involved, the total flow of the tributary streams being claimed and not questioned. No other parties were interested. Notwithstanding such situation, appellant maintains that notice should have been given "to all claimants." The question is, What was intended by section 34, c. 67, Laws of Utah 1919, said chapter being the one under which the original proceeding was instituted? Section 34 provides:

"If any contest or objection on the part of any claimant or claimants shall have been filed, as in this Act provided, the court shall give not less than fifteen days' notice to all claimants, stating when and where testimony will be taken, provided that such testimony shall be taken in the county in which said action is pending. The court may grant adjournments from time to time as occasion may require." (Italics added.)

The statute was designed to bring about an expeditious and economical adjudication of water rights where a large number of users from a given river system were involved. Whenever one's rights are or may be affected or drawn into question, the owner or claimant of such right is entitled to notice and has the right to be heard before he may be bound by a judgment affecting his rights. Ordinarily, the law does not require the doing of a useless or futile thing. It would seem that a contest between A and B upon the headwaters of Chalk creek, a tributary to the Weber river, as to the date of priority, quantity, or place of use, could not affect any right sought to be litigated between C and D who were users of water upon the sources of East Canyon creek, another tributary, or any other right above the confluence of either with the Weber river proper. Each of the tributaries drain different and unrelated watersheds in so far as the tributaries themselves are concerned. Should the contest between either A and B or C and D affect the flow or draw in question the relative priorities or other rights affecting appropriators or users of the Weber river system as a whole then under the statute not less than fifteen days' notice must be given "to all claimants" whose rights might be affected. We think the intent of the statute is to require notice to all adverse claimants, or all claimants whose rights would be affected or drawn in question. It would also seem that if a claimant or claimants have objections or their rights could be affected adversely, such claimant or claimants are entitled to notice as required by the statute, otherwise such claimant or claimants would not be bound by the judgment. It may further be observed that such notice is required for the benefit and protection of adverse claimants. Appellant has not here...