Smith v. District Court of Second Judicial Dist. in and for Morgan County
| Decision Date | 03 May 1927 |
| Docket Number | 4517 |
| Court | Utah Supreme Court |
| Parties | SMITH v. DISTRICT COURT OF SECOND JUDICIAL DISTRICT IN AND FOR MORGAN COUNTY et al |
Original proceeding by Hyrum Smith for writ of prohibition directed to the District Court of the Second Judicial District of Utah, in and for Morgan County, and Hon. James N Kimball, one of the judges thereof, prohibiting them from exercising jurisdiction to try a case pending in the district court of Morgan county.
WRIT DENIED.
C. R Hollingsworth and Joseph E. Evans, both of Ogden, for plaintiff.
Pratt & Pratt, of Ogden, for defendants.
FRICK, J., did not participate.
This is an original proceeding for a writ of prohibition directed to the Second judicial district court of Utah, in and for Morgan county, and Hon. James N. Kimball, one of the judges thereof, prohibiting them from exercising jurisdiction to try a case pending in the district court of Morgan county. The case so pending in Morgan county was commenced in August, 1925, and is entitled Conway Morris et al. v. Hyrum Smith, the plaintiff herein. Said action was instituted to determine the right to the use of the waters of certain springs situated in Morgan county and for damages for interference with said waters, in the sum of $ 1,000, and for injunctive relief. The defendant in such action, plaintiff herein, filed his answer to the complaint in said action, and alleged, in substance, that he was the prior appropriator of said waters and the owner of the right to the use thereof; that plaintiff had interfered with his use of said waters to his damage in the sum of $ 1,500, for which sum he prayed judgment, and for equitable relief. In addition to the above-stated matters, alleged in the answer by an amendment thereto, it was alleged that there was an action pending in the district court of Weber county in said Second judicial district to determine the rights to the use of the waters of the Weber river system, and that the waters of the springs in controversy in the action filed in Morgan county are a part of the waters of said Weber river system; that said action is entitled Plain City Irrigation Co. v. Hooper Irrigation Company, and was commenced in January, 1921, in conformity with the provisions of chapter 67, Ses. Laws Utah 1919. It is further alleged in the answer that the action filed in Morgan county is barred by the action filed in Weber county by the provisions of said chapter 67.
The pleadings filed in the action in Morgan county are attached to and made part of the application filed by plaintiff herein. For convenience hereinafter the action pending in Morgan county will be referred to as the "Morgan county action" and the action filed in Weber county will be referred to as the "Weber county action." Parts of the pleadings in said action not already stated will be referred to hereinafter, in so far as they appear to be material.
It is alleged in the application for the writ that in June, 1926, the Morgan county action came on for trial in the district court of Morgan county before Hon. George S. Barker, one of the judges of said district court; that defendant therein objected to the court proceeding with the trial, upon the grounds that the issues in said cause should be tried in the Weber county action then pending in the district court of Weber county, and that the action in Morgan county was therefore barred by the provisions of chapter 67, Sess. Laws 1919. The court sustained the objection of defendant in that action, on the grounds stated in the objection, and declined to proceed with the trial. It is then alleged by plaintiff herein that said order of said court is still in force and has not be vacated or set aside, and that no proceedings have been instituted to review or modify the same.
It is further alleged in the application that thereafter the district court of Morgan county and Hon. James N. Kimball, one of the judges thereof, set said Morgan county action for trial for November 29, 1926, upon the issues as framed in said action, that it would require many days to try the same at great expense to the parties thereto, and that it would be an idle proceeding. It is furthermore alleged that the state of Utah has not been made a party to the Morgan county action, and that plaintiff herein has no plain, speedy, or adequate remedy in the ordinary course of law, and that said trial and proceeding would be without and in excess of the jurisdiction of said court and judge thereof.
An alternative writ was issued restraining the defendant from further proceeding in the Morgan county action pending the further order of the court.
It appears from defendants' answer herein that an injunction was issued on behalf of the plaintiffs in the Morgan county action when the action was commenced, restraining the defendant therein from further commission of the wrongs alleged in the complaint, and that the same has never been vacated or dissolved. It also appears that the defendant Hon. James N. Kimball, as one of the judges of the district court in and for Morgan county, was called upon to hear a contempt proceeding in the Morgan county action, in which it appeared that the defendant in said action was charged with violating said injunction; that instead of trying said contempt proceeding the court set the case for trial on its merits, as alleged in the answer.
In addition to their answer defendants entered a general demurrer to both the application and the alternative writ. In support of their demurrer defendants contend that plaintiff has a plain, speedy, and adequate remedy by appeal in the event a judgment is rendered against him in the Morgan county action. It is further contended that it was within the power of said court to set aside its former order of June, 1926, staying proceedings in said cause and to proceed to a trial of the action.
No doubt it would have been more regular and more in accordance with orderly procedure if the court had first vacated the order made by Hon. George S. Barker, as judge of said court, made and entered in June, 1926, declining to proceed with the trial. But the failure to observe meticulous propriety in courts of justice ordinarily does not present a question going to the jurisdiction of the court. No doubt Hon. George S. Barker, as judge of said court, could have vacated and set aside his order of June, 1926, and set the case for trial. If he could do so, any other judge of the same court had the same power. In our opinion, as far as that ruling is concerned, it was not even reversible error on appeal unless prejudice was shown, much less an excess of jurisdiction for which a writ of prohibition should issue. This feature of the case is not a question of serious controversy between the litigants. The principal question is, Was the Weber county action, in pursuance of the provisions of chapter 67, Sess. Laws 1919, a bar to the action filed in Morgan county?
Sections 21 to 38, inclusive of chapter 67, supra, apparently present a comprehensive plan for the determination of water rights pertaining to a river system or other source of water. The form of action was evidently intended to apply where many persons claim rights to the use of water from such source of supply. One of the purposes of the statute was to prevent piecemeal litigation in the determination of water rights and determine them all in one action. Such is the only effectual method of determining them in order to prevent a multiplicity of actions in which the same party is oftentimes compelled to try his rights over and over again until all persons claiming rights are made parties to the action. Another purpose of the statute, evidently, was to make a permanent record of such rights by decree of court instead of permitting the evidence thereof to rest in parole. For these purposes the statute is in the highest sense remedial and will no doubt prove to be of great benefit to those persons who are owners of water rights in the systems to which that form of action applies.
It is impracticable to refer in detail to all the provisions of the statute constituting the form of action provided by the statute; nor is it necessary to do so, inasmuch as its validity is not in question and is treated here as an established form of action. It is necessary, however, to make reference to the general plan, for the nature and scope of the action is material to a decision of the questions involved.
The statute provides for a survey of the river system or water source by the state engineer. Then an action may be commenced by the state engineer by filing a statement with the clerk of the district court, which statement must show that a complete survey has been made, together with the names and post office addresses of the persons claiming rights to the use of water as far as known to the engineer. If an action is commenced by some other person the engineer must be notified thereof by the clerk, and if the survey has not theretofore been made the state engineer must proceed to make it and file with the clerk a similar statement to that above referred to. In either case the clerk of the court shall publish notice in some newspaper for a specified period of time and also serve written notice by mail to each of said claimants. The notice is to the effect that each claimant must within 60 days after the service of the notice file a written statement with the clerk setting forth his claim to the use of water. Said notice shall also be personally served and shall serve as a summons in the action. Such claimants to the use of water, within the time stated in the notice, must file their statements...
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