Weiser Irr. Dist. v. Middle Valley Irrigating Ditch Co.

• Decision Date: 12 February 1916
• Citation: 155 P. 484,28 Idaho 548
• Parties: WEISER IRRIGATION DISTRICT, a Municipal Corporation of Washington County and State of Idaho, Respondent, v. MIDDLE VALLEY IRRIGATING DITCH COMPANY, a Corporation, and GEORGE F. SMITH, JOHN L. SMITH, DAVID P. MUIR, ROBERT T. MUIR, WILLIAM H. MUIR and SUNNYSIDE DITCH COMPANY, a Corporation, Appellants
• Court: Idaho Supreme Court

155 P. 484

28 Idaho 548

WEISER IRRIGATION DISTRICT, a Municipal Corporation of Washington County and State of Idaho, Respondent, v. MIDDLE VALLEY IRRIGATING DITCH COMPANY, a Corporation, and GEORGE F. SMITH, JOHN L. SMITH, DAVID P. MUIR, ROBERT T. MUIR, WILLIAM H. MUIR and SUNNYSIDE DITCH COMPANY, a Corporation, Appellants

Supreme Court of Idaho

February 12, 1916

FINAL JUDGMENTS-APPEALABLE ORDERS-STATUTORY PROVISIONS FOR.

1. Where a complete determination of the rights of all water users on a stream cannot be had without their presence, it is the imperative duty of the trial court, under sec. 4113, Rev Codes, to make the necessary order to bring them in, that their rights may be adjudicated. It is left largely to the trial court to determine in the first instance whether such an order should be made.

2. Held, that an appeal will not lie directly from the district court to the supreme court from an order of the former court refusing to bring in additional parties, for the reason that the same is not a final judgment within the meaning of subdivision 1 of sec. 4807, Rev. Codes, as amended, Sess Laws 1915, p. 193, neither is it one of the orders designated in subdivision 2 of that section. Such an order can be reviewed on appeal only after final judgment.

[As to who are injured or interested parties so as to be entitled to appeal, see note in 119 Am.St. 741.]

3. The right to an appeal at law is purely statutory, and the legislature may, under sec. 13, art. 5, of the state constitution, prescribe in what cases, under what circumstances and from what courts appeals may be taken, and the manner of taking them.

Held that, in the absence of a statutory provision so authorizing an order denying a motion to bring in additional water users on a stream as parties to an action is not appealable before final judgment.

4. The settled construction of sec. 9, art. 5, of the constitution, providing that "The supreme court shall have jurisdiction to review, upon appeal, any decision of the district courts, or the judges thereof,...." is that the phrase "any decision" does not mean all decisions made by the courts or judges thereof during the progress of a trial, but only such as are final, or such as are specifically provided for by statute from which a direct appeal may be taken prior to final judgment.

5. All orders or decisions of the district court or judges thereof that are not final judgments or orders or decisions specifically provided for by statute from which a direct appeal may be taken prior to final judgment, if duly excepted to or deemed to be excepted to as provided by law, will be reviewed by the supreme court on appeal from a final judgment, or from an order granting or denying a new trial.

APPEAL from the District Court of the Seventh Judicial District for Washington County. Hon. Ed. L. Bryan, Judge.

Appeal from an order denying a motion to bring in additional parties. Motion to dismiss appeal upon the ground that the order made was not appealable. Sustained. Appeal dismissed.

Appeal dismissed and costs awarded to respondent.

Hawley & Hawley, B. S. Varian, and Frank D. Ryan, for Appellants, file no brief or motion to dismiss.

Lot L. Feltham, for Respondent.

"The right to appeal is statutory, unknown to the common law, and it cannot be extended by courts to cases not within the statute." (General Custer Min. Co. v. Van Camp, 2 Idaho 40, 3 P. 22.)

"Const., art. 5, sec. 9, giving the supreme court jurisdiction to review on appeal any decision of the district courts, or the judges thereof, does not authorize a direct appeal from every decision of the district courts or judges thereof." (Maple v. Williams, 15 Idaho 642, 98 P. 848; Utah Assn. of Credit Men v. Budge, 16 Idaho 751, 102 P. 390, 691.)

"The right of appeal is based entirely on statute, and the supreme court is prohibited from taking jurisdiction unless the appellant has a statutory right." (State v. State Bank & Trust Co., 36 Nev. 526, 137 P. 400; State v. Simpson, 69 Ore. 93, 137 P. 750, 138 P. 467; Livesley v. Landon, 69 Ore. 275, 138 P. 853.)

BUDGE, J. Sullivan, C. J., and Morgan, J., concur.

OPINION

BUDGE, J.

Respondent commenced a suit in the district court in and for Washington county, against each of the appellants here, for the purpose of having certain rights in and to the use of waters of Weiser river adjudicated between respondent and appellants. By agreement of counsel for all parties, these actions were consolidated for all purposes.

Prior to the order of consolidation, a motion had been made by the Middle Valley Irrigating Ditch Company in which it was sought to make certain other water users defendants. It is alleged in the cross-complaint of the appellants and also in the affidavit which was filed in support of the motion, that said water users should be brought in and made parties defendant, for the reason that each used and claimed a right to the use of the waters of Weiser river and its tributaries, which use and claim were adverse to both parties to this action. And it was further alleged that a complete determination of the rights of the plaintiff and defendants could not be made or had without each of said other water users being made a party to the action. This motion was argued to the court, submitted and denied. Thereafter the court entered an order to that effect which appears in the record. This is an appeal from that order.

A motion to dismiss the appeal has been interposed by respondent based on the ground that the order made by the trial court refusing to bring in additional defendants is not an appealable order, or subject to review before final judgment. Thus, the only question for our determination in this appeal is whether or not an order of the district court refusing to bring in additional parties, upon a showing made in support of a motion therefor, is a final order or decision from which an appeal will lie before final judgment has been entered in this case.

Counsel for appellants contend that the order of the trial court denying appellant's motion to bring in additional parties is a final judgment under sec. 4807, Rev. Codes, as amended by Session Laws of 1915, page 193, and may be appealed from directly to the supreme court as a matter of right and without waiting for the trial of the case to be concluded. It is their claim that in any event the refusal of the trial court to make this order would, on appeal, result in a reversal of the final judgment, and that being true, the expense incurred in the trial of the cause, and the time consumed thereby, would go for naught. In support of their contention a number of authorities are cited to the effect that the phrase "final judgment" as used in the statutes authorizes an appeal from a final order which disposes of the special matter involved, although not a final disposition of the action, or which disposes of a branch of the cause separate and distinct from the other parts of it, reserving no further question or direction for future determination by the court.

We think that one of the tests which must be applied to every ruling of a trial court to determine whether it may be made the subject of an appeal is whether it is inherent in the final judgment and may be presented on appeal from that judgment, or has been by statute specifically designated as one that may be appealed to the supreme court directly before final judgment. If the former, it must then be treated as an interlocutory order, subject to review only on the general appeal. Or it might be said that if the order is of such a nature as to prejudice the rights of the parties to such an extent that they will not be protected by appeal from the final judgment, then an appeal will lie directly from that order. In the case at bar, the rights of appellants and respondent may be fully determined in this action, and the order of the trial court denying appellants' motion could in no way affect their respective rights to the use of waters of the Weiser river.

While the contention made by counsel for appellants, when applied to a certain class of cases, is meritorious, yet such a rule of practice could well be subject to abuse, and result in numerous appeals being taken prior to and at various stages of the trial, as often as other users of the waters of a public stream were discovered. The users of water along the public streams of this state increase so rapidly that in many instances an appeal from an order of the trial court refusing to bring in additional parties on a stream to determine their priority of right to the use of water would result in delay in the trial of causes, and incur large and unnecessary expense. In some cases, of course, the determination of the rights of all the water users on a stream in one action would result in a saving of time and expense. And it has been left largely to the trial court to determine in the first instance whether an order to bring in additional parties should be made. But where a complete determination of the rights of all water users on a stream cannot be had without the presence of all such parties, it then becomes the imperative duty of the...