Porter v. Small

• Decision Date: 23 January 1912
• Citation: 120 P. 393,62 Or. 574
• Parties: PORTER et al. v. SMALL.
• Court: Oregon Supreme Court

120 P. 393

62 Or. 574

PORTER et al. v. SMALL.

Supreme Court of Oregon

January 23, 1912

Appeal from Circuit Court, Lake County; Geo. Noland, Judge.

Action by Wesley F. Porter and others against George H. Small. From a judgment sustaining a demurrer to the complaint, plaintiffs appeal. Affirmed.

The inception of this proceeding may be referred to the case of Hough v. Porter, 51 Or. 318, 95 P. 732, 98 P. 1083 102 P. 728.

On October 8, 1900, Annie C. Hough began a suit against A.D Porter, plaintiff's ancestor, claiming the right as riparian owner to use 500 inches of the waters of Silver creek for the irrigation of her land, and alleging that Porter was unlawfully diverting the same. Porter answered claiming his diversion as a prior appropriator, and after a reply had put the case at issue it was referred, and on October 23, 1901, the court, after considering the testimony reported, came to the conclusion that it could not finally adjudicate the disposition of the waters of Silver creek without bringing in other parties, claiming water rights upon the same stream, and thereupon an amended complaint was filed, introducing several additional plaintiffs and a large number of defendants, aggregating in all about 45 additional parties to the litigation. The present defendant, George H Small, was one of those so brought in as a defendant, and he answered, claiming appropriation of 800 inches of the waters of Silver creek prior to those of the other defendants and plaintiffs.

After the case was again at issue, it was referred, and the testimony, which practically involved the investigation of a dozen or more conflicting claims to the water, was finally taken and submitted, and the court decreed, among other things, that Small was entitled to 650 inches of water and Porter to 100 inches. In the meantime, Porter died, and his heirs were substituted. An appeal was taken by them and others to this court, and an undertaking to "pay all costs, damages or disbursements which may be awarded against them or either of them on said appeal or a dismissal thereof" was duly filed. On January 5, 1909, a decree was made by this court, reversing the award of 650 inches to Small, and reducing his amount to 40 inches, and allowing the Porters 100 inches.

Plaintiffs bring this action, setting up the undertaking given by them on the appeal in Hough v. Porter, and alleging that during the years 1905, 1906, 1907, and 1909, respectively, there were 800 inches of water in Silver creek, of which plaintiffs were entitled to 100 inches, Small to 40 inches, Annie C Hough and John C. Porter to 100 inches each, without priority between them, Lucinda Egli, 120 inches, and Marion Conley, 100 inches, aggregating in all 560 inches, which was the amount allowed by the decree of the Supreme Court.

The complaint further alleges that during the period above mentioned defendant, with full knowledge and notice of the rights of plaintiffs, maliciously, unlawfully, and wrongfully, and without probable cause, and for the purpose of injuring and defrauding the plaintiffs by drying up their land and destroying the grasses growing thereon, suitable for hay, and to cause them to lose their hay crops on the land, and to compel them to obtain water for their stock from other sources, at additional expense, diverted the water from plaintiffs' lands, to their damage, etc. The complaint, which is of great length, contains six causes of action, of which the foregoing is the merest outline, but it serves to indicate its general scope. To this complaint, defendant interposed a general demurrer, which was sustained, and plaintiffs appeal.

E.B. Watson (W.J. Moore and Thos. S. Farrell, on the brief), for appellants.

W. Lair Thompson and John A. Carson (J.D. Venator, on the brief), for respondent.

McBRIDE, J. (after stating the facts as above).

The foregoing is not a full statement of the issues presented by the complaint, but is sufficient to indicate the points involved in the decision of the demurrer. Briefly stated, the controversy is this: The circuit court, by the decree in Hough v. Porter, adjudged defendant, Small, to be entitled to 650 inches of the waters of Silver creek. Acting in pursuance of such decree, Small took about that amount, or so much of it as he wanted, to the detriment of plaintiffs' lands and crops, until the modification of the original decree, which gave him only 40 inches. If the modification of the decree by this court restores all parties to their original status, and attaches to all acts done in pursuance of it the same wrongful character which they would have possessed, had no such decree been rendered, then defendant is a trespasser ab invito, and the demurrer was not well taken. If, on the other hand, the decree of the circuit court was valid until reversed, and the defendant had a legal right to rely upon the correctness of it, his act in pursuance of it, if then lawful, will not become a tort by reason of a modification of the decree by an appellate court. The question is one of great difficulty, not heretofore passed upon by this court, and one upon which there is an astonishing scarcity of precedent in the decisions of other jurisdictions. The text-writers seem to be as much at sea upon the proposition as the courts. Thus, Freeman on Judgments (3d Ed.) § 481, states the general rule as follows: "The reversal of a judgment by any competent authority restores the parties litigant to the same condition in which they were prior to its rendition. The judgment reversed becomes mere waste paper; and the parties to it are allowed to proceed in the court below to obtain a 'final determination of their rights' in the same manner, and to the same extent, as if their cause had never been heard or decided by any court." Taken by itself, this would seem to settle the whole matter in favor of plaintiffs' contention, but in the succeeding section the following language is used: "Upon the reversal of the judgment against him, the appellant is entitled to the restitution, from the respondent, of all the advantages acquired by the latter by virtue of the erroneous judgment. The successful appellant is entitled to a restitution of everything still in possession of his adversary, in specie; not the value, but the thing. If money has been collected by the plaintiff in the judgment, under execution, an action lies against him to recover it back. *** But a subsisting judgment, though afterwards reversed, is a sufficient justification for all acts done by plaintiff in enforcing it, prior to the reversal. Thus, if the defendant be taken in execution, the subsequent reversal of the judgment will not render the plaintiff liable to an action for false imprisonment. For the act of imprisonment, where directed by the plaintiff, was sanctioned by a then valid judgment. But the plaintiff on the reversal is liable to an action to recover the damages occasioned by a sale of the defendant's property made under the judgment prior to its reversal. Where the plaintiff has purchased the property, and still has it in his possession, the defendant may, at his election, affirm the sale and have his action for damages."

In Williams v. Simmons, 22 Ala. 425, which was an action in assumpsit to recover money collected from an administrator's surety, by execution upon a decree which was afterwards reversed, the court say: "A judgment reversed is regarded as if it had never existed, and the parties are restored to their rights as they were before it was rendered. *** After the reversal of the first decree, then, the defendant in error held the position of a party who had possessed himself of the property of another, without even the color of right to retain it. True he had the right when he acquired the possession but he has since lost it, and his possession has become tortious. *** He was bound to see, and doubtless, as he supposed, did see, that his proceedings were legal. In the collection of the money, he stood strictly upon his legal rights, and he cannot complain that the plaintiff in error, after the judgment is reversed, stands upon his; nor can he be said to hold the position of one paying out money without notice that there was an adverse claim to it in his hands. The fact that he collected the money forcibly by law, and alone upon the ground of legal right in himself, must always affect him with notice, so far as respects the rights of the plaintiff in error."

In Hay v. Bennett, 153 Ill. 271, 38 N.E. 645, an administrator was directed by a decree of the court to pay out of funds in his hands $3,500 to one of the parties to the suit in which the decree was rendered. He paid the money while the decree was in force and according to its terms. Afterwards the decree was reversed, and subsequently a suit was brought against him to recover the money. He justified payment by reason of the decree, but the court held that he, having been a party to the original suit, was bound by such reversal, although he had paid the money, relying upon the validity of the decree. This case is cited with approval in Miller v. Doran, 245 Ill. 200, 91 N.E. 1039.

In Stanbrough v. Cook, 86 Iowa, 740, 53 N.W. 131, which was an action for crops taken by defendant under a judgment which was afterwards reversed, the court say: "To our minds, the appellant discovers and solves the problem thus presented for us when he says in argument: 'There is now however, a practical difficulty in the way of our relying on the former judgment, namely, that it has been reversed.' That is the true solution, and renders further comment unnecessary. An erroneous judgment, not final, would not protect the defendant in taking the property of the plaintiff. But it is said the former judgment for the defendant 'takes him...