South Boise Water Co. v. McDonald

Decision Date27 February 1931
Docket Number5614
Citation50 Idaho 409,296 P. 591
PartiesTHE SOUTH BOISE WATER COMPANY, a Corporation, Appellant, v. JAMES MCDONALD, Respondent
CourtIdaho Supreme Court

JUDGMENT-RES JUDICATA-ADDITIONAL PARTIES-TRIAL-FINDINGS.

1. Adjudication of ditch rights held res judicata notwithstanding that name of ditch may have been mistakenly pleaded.

2. Judgment in former action on merits held res judicata as to plaintiff in former action, notwithstanding coplaintiff in former action was not party in subsequent action.

3. Former adjudication of same claim between same parties concludes parties and privies as to matters which might and should have been litigated.

4. In suit involving ditch rights, admission of order of board of county commissioners fixing maximum rates for use of water was not prejudicial under facts (C. S., sec. 5641 et seq.).

5. Where findings upon other issues could not countervail findings made or judgment rendered, there was no necessity for such findings.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Dana E. Brinck, Judge.

Action for injunction and recovery of money paid under protest. Judgment for defendant. Affirmed.

Judgment affirmed; costs to respondent.

J. B Eldridge, for Appellant.

Before a former judgment can be said to be res judicata and work an estoppel there must be identity of the thing sued for, and identity of the cause of action, and identity of the parties and it must appear clear that the identical issues were passed upon and if not so, estoppel cannot be invoked. (Jensen v. Berry & Ball Co., 37 Idaho 394, 216 P. 1033; 34 C. J., p. 805, sec. 1226, p. 811, sec. 1231, p. 815; Lillis v. Emigrant Ditch Co., 95 Cal. 553, 30 P. 1108.)

Karl Paine, for Respondent.

The judgment in the former action is a bar to this action.

The court found both as a fact and as a conclusion of law that the subject of the action was res adjudicata; that the rental charge of $ 436.00 was a reasonable charge, and that appellant had acquiesced in the making of said charge by respondent. These findings disposed of the necessity of findings upon the other issues tendered by appellant. (Cleveland v. Mochel, 48 Idaho 37, 279 P. 410.)

VARIAN, J. Lee, C. J., and Givens and McNaughton, JJ., concur.

OPINION

VARIAN, J.

Appellant brought this action to recover from respondent, the owner of a canal and water right furnishing water to certain lands in South Boise, $ 436 paid under protest as rental for carrying its water through the Ridenbaugh-Rossi Mill Ditch, for the year 1928 and a like sum for the same service in the year 1929. The complaint also prayed that respondent be enjoined from interfering with the diversion of water through the Drake-Miner and Porter Ditch and headgates. Appellant alleged a right to 400 inches of the waters of Boise River, measured under a four-inch pressure and appropriated through said last-named ditch with priority of date 1865. The answer denied generally the allegations of the complaint and plead res adjudicata as a defense. Plaintiff appeals from a judgment for defendant. There is no dispute as to the facts, respondent relying upon his plea of res adjudicata.

On July 24, 1920, appellant and one M. Fitzpatrick, as plaintiffs, commenced an action in the third judicial district court, for Ada county, against William Ridenbaugh and Bird Calloway, defendants, wherein findings of fact, conclusions of law and judgment were entered from which no appeal was taken. In said action plaintiffs alleged that they were the owners of a water right of approximately 400 inches measured under a four-inch pressure taken from the south side of the Boise River through what is known as the Ridenbaugh-Rossi Mill Ditch, and also owners of a sufficient interest in said ditch to carry said 400 inches of water. The defendants in said action denied said allegations and affirmatively plead res adjudicata and also set up an order of the board of county commissioners of Ada county made pursuant to the provisions of C. S., sec. 5641 et seq., fixing maximum rates of compensation for the use of water from "Ridenbaugh Mill Ditch and Water Right" dated April 12, 1915, which order had not been appealed from and was in full force and effect. In said former action the court found there had been theretofore awarded said Ridenbaugh-Rossi Mill Ditch, for the irrigation of the lands under it, 460 inches of the waters of Boise River, with a priority date of June 1, 1865, for the irrigation of lands under said ditch, including the lands of the plaintiffs in said former action, in an action wherein the Farmers Co-operative Ditch Company was plaintiff and Riverside Irrigation District Ltd. and others were defendants, including W. H. Ridenbaugh and A. Rossi, the grantors and predecessors in interest of Bird Calloway. (Farmers' Cooperative Ditch Co. v. Riverside Irr. Dist., 16 Idaho 525, 102 P. 481.) The court herein found that said "Ridenbaugh Mill Ditch and Water Right" is the ditch referred to as the "Ridenbaugh-Rossi Mill Ditch" in the amended complaint in the former action; that after said order of the board of county commissioners was made and before said former action was commenced the Ridenbaugh-Rossi Mill Ditch and water right was conveyed to Bird Calloway and that W. H. Ridenbaugh, one of the grantors, was made defendant in said former action under the name of William Ridenbaugh. By the findings and judgment in the former action it was ordered that Bird Calloway was the owner of said Ridenbaugh-Rossi Mill Ditch, and that neither of the plaintiffs therein owned any interest in, nor any right to convey water through said ditch, nor to have water delivered through said ditch except upon payment of a reasonable rental therefor.

It was likewise adjudged in said action that M Fitzpatrick was the owner of the right to the use of nine-tenths of one cubic second-foot of the waters of Boise River, to be delivered through said Ridenbaugh-Rossi Mill Ditch at a point described therein; and that plaintiff, South Boise Water Company was the owner of the right to the use of seven and one-tenth cubic second-feet of water, to be diverted from said river and delivered through said canal at two certain lateral headgates diverting waters from the Ridenbaugh-Rossi Mill Ditch described in the said findings. The court in the instant case likewise found, upon sufficient evidence, that the reporter's notes of the testimony of said former action were not on file with the clerk of the court as required by C. S., sec. 6559; that their whereabouts were unknown; that the causes of action in said former action and in the present action are the same, the South Boise Water Company, claiming in both actions the right to convey water, in substantially the same amount, under the same water right, to the same lands for the same purpose,...

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