55 P.2d 697 | Mont. | 1936
This case was tried by the respondents, and evidently the trial court agreed with them upon the theory that under the provisions of the decree in Ravalli Land Irrigation Co. v.Nicols, dated July 29, 1916, the company owned not only the right to use the water upon the lands for which it was appropriated for irrigating, but it owned the corpus of the water which it could deal with as it pleased anywhere, any time and for any purpose, regardless of the rights of others. Evidently this was the concept of the founders of the company as shown by its articles of incorporation. Their idea was that by purchasing the early rights taken out of Skalkaho and supplying the lands to which the Skalkaho water was appurtenant with water from the Bitter Root River, they could change the points of diversion of the Skalkaho waters, and by taking them out high upon that stream carry them to other lands, far beyond the Skalkaho watershed. Thus they could irrigate large areas beyond the reach of their ditches out of the Bitter Root River. That theory is erroneous. It is not only in the teeth of the statute, but is contrary to the oft-repeated declarations of this court that an appropriator does not own the water but has a right of ownership in its use only. (Creek v. Bozeman Water Works Co.,
The law is that a subsequent appropriator has a vested right as against his senior to insist upon the continuance of the conditions that existed at the time he made his appropriation. (Handy Ditch Co. v. Louden Irr. C. Co.,
Granting that the company purchased the water separate from the lands, such severance and conveyance did not extend or enlarge the rights, and by its purchase it acquired the right to do only those things which the original owners of the water right might have done. (Maclay v. Missoula Irr. Dist., supra;Middle Creek Ditch v. Henry,
The trial court in its findings of fact expressly affirms the right of the company to exchange water. No such right is recognized by the decree. The respective appropriators of the waters of Skalkaho Creek who have sold to the company owned only the right to use the water, but the company takes the corpus of the water and carries it farther away from the stream. The original appropriators had no such right. The company, by purchasing the rights, got just what the appropriator sold; it "acquired the right to do only those things which the original owner of the water right might have done." (Maclay v. MissoulaIrr. Dist., supra.)
When the appellants showed that the water commissioner distributed the water by filling each right to its maximum and continued to do so without interruption as long as there was water in the stream, disregarding the necessity therefor, and regardless of conditions existing when the appellants made their appropriations, the water commissioner acted contrary to law, and the court erred in finding that the commissioner acted in strict accordance with the decree.
The appellants start out with the suggestion that it is our claim that under the decree of July 29, 1916, the Ravalli Land
Irrigation Company owned the corpus of the water decreed to it, as distinguished from the mere right to use it. We make no such claim. We fully understand the rule announced by the cases cited by the appellants to the effect that only the right to use water as distinguished from its ownership can be acquired. The appellants, however, fall into error in asserting in the first place that the right to use water is limited to the lands for which it was first appropriated; and in the second place, they overlook the rule firmly established in Montana that the right to the use of water may be sold and that water rights may be appropriated or acquired for the purpose of sale; that the ownership of land *555
is not a prerequisite of the right to use water, and that this right may be transferred separate and apart from the land. The company was incorporated for the purpose of acquiring and selling the right to use water. This power may be lawfully exercised by corporations in Montana. (Sec. 5903, Rev. Codes 1921.) The right of such a corporation to acquire rights in this state and to dispose of them to others is established by the leading case ofBailey v. Tintinger,
The fact that the decree mentions no particular ditch through which the water was being diverted at the time of the decree in no way affects its validity. (Thrasher v. Mannix,
A decree, like a contract, or other written instrument, must be interpreted in the light of the circumstances existing at the time it was rendered. (Gans Klein Inv. Co. v. Sanford,
Regardless of what the proper interpretation of the decree may be, taking the decree at its face value without reference to existing facts and circumstances which we submit are properly considered in interpreting the decree, the appellants here have no standing for the reason that the matters about which they complain have all been adjudicated against them. The appellants, and all others adversely affected, had the opportunity of pointing out the error and having the same corrected, or they could have appealed. Not having done so, they are now in court claiming a change in the place and manner of use, and the only change of which they can produce any evidence is one occurring many years prior to the time the decree was rendered. This they cannot do whether the decree was right or wrong. (Peterson v.City of Butte,
It is a well-established rule that a judgment is conclusive not only as to all matters litigated but as to all matters which could have been litigated. (Northern Pacific R. Co. v.Slaght,
The principle has been recently applied to water litigation in the case of Thrasher v. Mannix,
The right of users to exchange water was recognized in the case of Middle Creek Ditch Co. v. Henry,
*557
The suggestion is made that the use of water for the purpose of furnishing the city of Hamilton is a different use from that for which the water diverted at the reservoir was originally appropriated. This contention is answered by the provisions of the decree authorizing the use of the water decreed to the Ravalli Land Irrigation Company for irrigation or other useful purpose upon its own or other lands. The water in this particular case is used for irrigation and domestic purposes by residents of the city of Hamilton. If appellants felt that this use of the water, which was going on at the time of the decree, was detrimental to them, objection should have been made at that time. If we were now trying the original water suit and the question of whether or not the furnishing of water for the city constituted a detrimental change of method of use, then under the authorities such change is permitted up to the point where detriment occurs. (Peoples Ditch Co. v. Foothill Irr. Dist.,
Skalkaho Creek rises in the Sapphire Mountains and runs in a generally western direction to the Bitter Root River into which it empties between Grantsdale and Hamilton. Settlers along this creek used water for irrigation, beginning with 1865. The stream runs in a narrow valley for several miles, then emerges from the hills and runs through the Bitter Root Valley to the river.
The complaint in this proceeding was filed by three water users. Brennan and Shuland were parties to the decree of 1916. Cash was the successor in interest of one Edwards, who was a party defendant. These complainants or their predecessors in interest were awarded certain rights under the decree. Many other rights were awarded under this decree which were prior in point of time to those of complainants.
In October, 1901, the Ravalli Land Irrigation Company was incorporated for numerous purposes and objects, among others "to purchase, hold, develop, improve, lease, sell, or otherwise dispose of water and water powers and rights and the sites thereof." This corporation was the plaintiff in the water right action in which the decree was entered under which the defendant Jones was appointed water commissioner to distribute the waters of Skalkaho Creek. Prior to the commencement of that action this corporation acquired by purchase certain of the early water rights apart from the lands to which they had theretofore been appurtenant. The corporation, by means of a ditch known as the "High Line ditch," diverted the waters under these rights thus acquired, or some of them, out of the Skalkaho watershed into the watershed of Girds Creek, where these waters were disposed of by the corporation to various water users for irrigation purposes. Prior to the commencement of this suit, the corporation also acquired another ditch known as the "Ward ditch," which had theretofore been constructed, and certain appropriations made through that ditch by the original appropriators to irrigate lands within the Girds Creek *559 watershed. Likewise prior to the commencement of the water right action the same corporation constructed two ditches known as the "Republican" and "Hedge" ditches, which diverted waters from the Bitter Root River. The course of these two ditches is across Skalkaho Creek in the valley of the Bitter Root.
It appears from the record that prior to the commencement of the original water right suit, the corporation entered into an arrangement verbally whereby certain of the water users whose rights were based on appropriations out of Skalkaho Creek, and whose lands lay below the "Republican" and "Hedge" ditches, obtained from these two ditches an amount of water equal of their rights out of the Skalkaho, and in exchange the corporation diverted from the waters of the Skalkaho an amount of water equal to that delivered to the water users below the two company river ditches. The corporation also owns and uses two other small ditches which divert waters out of the Skalkaho watershed. All of the waters diverted for the use of the company from this watershed are used to irrigate lands within the Girds Creek watershed.
The lands of the plaintiffs are located high up in the valley of the Skalkaho where the valley is narrow, and the lands irrigated by them lie in close proximity to the creek bed. The lands of complainants Brennan and Shuland lie above the points of diversion of all of the corporation's ditches. The lands of Cash lie below the point of diversion of the High Line ditch, but above the points of diversion of the other company ditches. The corporation is not, and at no time was, the owner of any lands on which the waters diverted from this creek are used for irrigation.
In the decree in the original water right suit the corporation was awarded certain water rights as successor in interest to the original appropriators. The court in that decree found the date of each right, the lands for the irrigation of which it was appropriated, the character of the land and the necessity for irrigation, the amount of the appropriation and diversion "by means of a ditch of sufficient size." With the exception of certain appropriations *560 made through the Ward ditch, no mention of any ditches by name or location is found in the findings or decree.
The court as to the plaintiff in that suit found that it was a corporation, created with powers mentioned supra, which were a public use, and that the plaintiff was engaged in carrying on and conducting such business. It further found in the decree that "the plaintiff, Ravalli Land Irrigation company, by sundry mesne conveyances, executed and delivered to its predecessors in interest and from said predecessors in interest to it, became and is now the owner of each of the water rights enumerated as having been appropriated by its predecessors in interest as of the date of said appropriations separate from the land for which the same was appropriated, and is entitled to the use thereof, and to sell, lease or rent the same, or the use thereof, for irrigation and other useful and beneficial purposes, upon lands for which same was appropriated or upon any other lands, in the usual and ordinary course of its business." It also appears that prior to the entry of this decree, a predecessor in interest of the Montana Power Company had been diverting, through an iron pipe, from the waters of Skalkaho Creek some 65 inches which was used for supplying the citizens of Hamilton with water. The predecessor in interest of the latter company in this enterprise was a party defendant to the water right suit. However, no water right was awarded to that company. Subsequent to the entry of the decree a conveyance of 350 inches of water by the irrigation company was executed in favor of the Montana Power Company. No mention is made in the decree of this particular right or use of the water for the benefit of the citizens of Hamilton.
The water commissioner, in distributing the waters of the creek, distributed first to the irrigation company the amount of its prior rights, in accordance with the priorities of the decree, and also the amount of water adjudicated to various water users to whom the company was delivering an equal amount of river water from the "Republican" and "Hedges" ditches. During the irrigation season the water commissioner delivered continuously *561 the amounts of these prior rights, so that unless there was a sufficient volume of water in the creek to supply continuously all of the prior adjudicated rights, the complaining water users would receive no water. It appears that the manner of taking waters both by exchange and under the rights which the irrigation company owned, was handled in the same way both before and after the commencement and termination of the water right suit. Much of the testimony developing these various facts was admitted over objection.
The plaintiffs in the court below and here contended that the irrigation company was without right to change the place of use and point of diversion of the waters under the rights which it had acquired; that it was without right to exchange water, and the water commissioner without authority to permit the exchange of water; that the irrigation company was without right to receive a continuous flow of water under these rights during the irrigation season; that, if plaintiffs were permitted to irrigate their lands a major portion of the waters used on the lands would ultimately return to the creek through the processes of drainage and percolation, so that 90 per cent. of the water placed upon the lands would be available for other water users down the stream. The latter contention was controverted by conflicting evidence.
After the conclusion of the hearing, in which a large mass of testimony was received, the trial court approved the manner of distributing the waters followed by the commissioner, and found against all the contentions of the plaintiffs. The appeal is from this order.
In general, this proceeding was in effect tried on the theory of the plaintiffs that the decree only adjudicated the matters appearing upon its face, and that the portion of the finding quoted supra, permitting the irrigation company to use these waters upon other lands, if considered as an approval of the use of these waters outside the watershed, was invalid as being in violation of section 7095, Revised Codes 1921. The theory, in effect, upon which the defendants tried the proceeding was that *562 all of these matters of which plaintiffs make complaint were being practiced long before the commencement of the action and had been continued without material change since the entry of the decree. Since they could have been litigated in the original water right suit, the decree is conclusive on all these questions. As we view the situation, neither theory was entirely correct. No attempt was made on the hearing to offer in evidence the pleadings or any part of the judgment-roll in the water right suit, aside from the decree which included the findings of fact and conclusions of law. Nor was there any attempt in any manner to advise the court as to what issues were in fact there litigated.
We will first proceed to demonstrate the unsoundness of the[1] theory of the defendants, which is based upon the statement found in many decisions to the effect that a judgment is final and conclusive, not only as to the matter actually determined, but as to every other matter which the parties might have litigated. Mr. Freeman, in his work on Judgments, fifth edition, page 1421, has written: "Courts have, from time to time, endeavored to lay down general rules, or, more properly speaking, general descriptions, by which to determine what questions are and what are not settled by a former adjudication. These general statements, divorced from the facts which called them forth, are not always accurate or harmonious and have sometimes led to results which an application of correct principles would not sustain. A statement often made is that `an adjudication is final and conclusive not only as to the matter actually determined, but as to every other matter which the parties might have litigated and have had decided as incident to or essentially connected with the subject matter of the litigation, and every matter coming within the legitimate purview of the original action, both in respect to matters of claim and of defense.' Properly applied and within certain limits this statement is substantially accurate, but like all attempts to condense the doctrine of res judicata
into a single sentence, it omits important qualifications." On page 1422 of the same *563
work, it is said: "What is really meant by this expression is, that a judgment is conclusive upon the issues made or tendered and, so far as those issues are concerned, of everything which might have been urged for or against them." These views are in accord with our own decisions. (State ex rel. Sullivan v.School District No. 1,
It is elementary that for the purpose of determining the[2] operation and effect of a judgment, the entire judgment-roll may be examined. (Wallace v. Goldberg,
The cases of Thrasher v. Mannix Wilson,
The rule that a decree is conclusive only as to matters which were actually decided, but not as to matters which might have been decided, has been applied to water rights suits in other jurisdictions. (Kidd v. Laird,
It is well to bear in mind in this connection the distinction[3] between the effect of a judgment as an absolute bar to a cause of action, and as an estoppel as to particular facts relied on as evidence. The leading case defining this distinction is that of Cromwell v. Sac County,
Proceeding now to the theory of the plaintiffs that the decree[4, 5] which authorized the defendants to change the place of use or point of diversion to the damage of complainant appropriators was invalid as being in violation of a positive statute, namely, section 7095, supra. While decisions on abstract questions of law do not operate as res judicata when considered apart from the particular subject-matter to which the law was applied, if they are followed, it is under the doctrine of staredecisis; "but where the parties and the matter to be determined are identical, the former adjudication is res judicata and conclusive of the law as applied to that matter even though it is afterwards determined that the law was erroneously adjudicated and applied." (2 Freeman on Judgments, 5th ed., sec. 709.)
In the case of Mitchell v. First National Bank,
It has been held that where a state court has based its judgment on the unconstitutionality of a federal statute, a new action based upon the same cause of action cannot be maintained because the federal Supreme Court has subsequently, in another case, adjudged the law constitutional. (People v. Russel,
The primary questions for decision by the trial court were:[6] (1) What was adjudged in the former proceeding? and (2) Was the water commissioner proceeding to distribute the water in accordance with what was there adjudged? In view of the fact that the pleadings in the former proceeding were not offered in evidence, and no attempt was made otherwise to advise the trial court as to what issues were actually litigated in that proceeding, the trial court was in no position to determine the first question, and neither is this court, and until that *567 question was decided, there was no foundation upon which to base a decision on the second. Hence the cause must be reversed for further proceedings in the trial court, but we deem it appropriate in addition to lay down such rules as will be helpful to the trial court in a further consideration of the cause.
We are committed to the rule that the appropriator of a water[7] right does not own the water, but has the ownership in its use only. (Creek v. Bozeman Water Works Co.,
After an appropriator has used the water sufficiently to[8] answer the purposes of his appropriation, he may not take the water of the stream remaining which he cannot use for such purposes and sell it to other parties so that it will deprive subsequent appropriators of their right to use the same. (Galiger v. McNulty,
One who purchases a water right independent of the land to[9] which it was theretofore appurtenant does not thereby enlarge or extend the right, and one who so purchases such a right is entitled to do only those things which the original owner of the water right might have done. (Maclay v. MissoulaIrr. Dist., supra; Middle Creek Ditch Co. v. Henry,
A company such as the plaintiff in the original suit might[10] make an appropriation of water for sale or rental which *568
would enable the company continuously to divert water from a stream to the full amount of its appropriation. (Bailey v.Tintinger,
As we understand the record, the defendant water commissioner[11] has been accustomed, after supplying the right of the Montana Power Company for supplying the town of Hamilton amounting to approximately 65 inches, to allow the irrigation company to receive the difference between the amount actually delivered and the 350 inches conveyed. If the Montana Power Company, being the owner of the right to use 350 inches of the water, fails to use the full amount of its appropriation, such excess or surplus not used must be returned to the stream for the use of subsequent appropriators, and the water commissioner is without authority to deliver this water except to appropriators in accordance with their priorities under the decree and their needs.
The solution of the other questions discussed and argued may depend on further proof.
The cause is remanded to the district court of Ravalli county, with directions to vacate and set aside the findings heretofore made, and to afford the parties to this proceeding an opportunity to offer further proof within a reasonable time and upon reasonable notice; and if further proof is received, to proceed to make further findings in accordance with the evidence and the views herein expressed. If the parties, however, fail to produce further proof within the time ordered by the trial court, then the court is directed to instruct the water commissioner with reference to the right serving the town of Hamilton in accordance with this opinion, and to find that the complainants have failed in other respects to establish that the water commissioner is not distributing the waters under the decree in accordance *569 with its provisions. Each of the parties shall pay his costs on this appeal.
MR. CHIEF JUSTICE SANDS and ASSOCIATE JUSTICES MATTHEWS, STEWART and MORRIS concur.