110 P. 170 | Or. | 1910
Lead Opinion
delivered the opinion of the court.
The question then arises whether Kelsey was a necessary party. There is no dispute between Kelsey and plaintiffs as to the quantity to which plaintiffs are entitled. It is conceded by all, including Kelsey, that plaintiffs were entitled to one-eighth of the entire flow, and Kelsey, insisting only that it be diverted to plaintiffs in the manner adopted, in no way attempted to interfere with plaintiffs’ use, but, on the other hand, endeavored to aid him in acquiring the supply required. He might properly have been made a party, but it cannot, under the record, be held that he is a necessary party, for, as indicated, a determination of the rights between plaintiff and Kelsey is not essential to the solution of the difficulty between Dalton and the Carnes. Section 41, B. & C. Comp. The only interference that plaintiffs were subjected to was by Dalton, hence it was not required that he make any one else a party defendant by reason of the trespass complained of.
It follows that the decree dismissing the suit must be reversed, and one entered enjoining defendant from
Rehearing
Decided July 12, 1910.
On Petition for Rehearing.
[HO Pac. 174.]
delivered the opinion of the court.
When viewed in connection with the contention and proof in the above case we fail to see any ambiguity in the language quoted from the decree. It decrees as clearly as is possible to do so that, as between Kelsey, on the one hand, and Dalton and Smith, on the other, Kelsey alone is the prior owner, and entitled as a first right to a quantity of water equal to one-half of the carrying capacity of the company ditch, and the part of the decree following the above excerpt enjoins Dalton and his then co-owner, Smith, from any interference therewith. This decree was offered in evidence by the plaintiff, and for obvious reasons must be considered in determining the rights of the parties hereto, but plaintiffs cannot in any way be held bound thereby, for neither they nor any of their predecessors in interest were par
The pleadings in this case concede, and the proofs fully establish, that the plaintiffs, Samuel and W. A. Carnes, have the first right to a quantity of water equal to one-eighth of the carrying capacity of the ditch involved; from which it necessarily follows, when taken in connection with the adjudication in the McPhee-Kelsey suit, that defendant Dalton cannot interfere with plaintiffs’ first right to the use of a quantity of water diverted through the plaintiffs’ division box, not exceeding a quantity equal to one-eighth of the supply capable of being diverted through the company ditch. As the former decree gives to Kelsey as against Dalton and his associates in the former suit four-eighths of the carrying capacity of the ditch, it must follow that when Kelsey and these plaintiffs are each using their respective water rights to the full extent allowed, there must be less than four-eighths left for the other owners. This would leave the condition such that when plaintiffs are using no water, then as between Dalton et al.,' on the one hand, and Kelsey on the other, each could, when the water is needed, use one-half thereof. That is to say the former decree, as between Kelsey and Dalton, is still effective. Kelsey, being first entitled to a “four-foot” supply, after which, when not needed by the Carnes’, Dalton et al. may receive, when available, a like quantity, but when required by the Carnes’, Dalton’s supply must be reduced in proportion to the carrying capacity of the Carnes’ foot-square division box, whether one-eighth or less.
In connection with the foregoing, reference is made to our statement in the narrative of facts, to the effect that Kelsey and Wilson were recognized as having one-half interest, and the defendant and his co-owners one-half. This statement, however, had reference only to the original understanding between the parties, and not
In the petition much discussion is entered into as to the alleged injustice in holding to the effect that defendant cannot divert water from the river into the company ditch or in any way interfere with or use the division head gate; that the division gate mush forever remain closed for the benefit of Kelsey and these plaintiffs, and defendant must accordingly lose his entire water rights, etc., etc. But there is nothing in the opinion from which such conclusions may be deduced. We merely held in substance, and so stated, that defendant should be enjoined from interfering with plaintiffs’ prior right to the use of the quantity of water capable of being run through the Carnes box one foot square, placed at their point of diversion a few feet above the Dalton-Kelsey division box; such quantity not to exceed one-eighth of the carrying capacity of the company ditch. If then there is at any time only sufficient in the ditch to supply the quantity awarded plaintiffs, then as between the plaintiffs and defendant the plaintiffs are entitled to close defendant’s side of the division-box in such manner as may prove essential to the diversion of such quantity through the Carnes division box. Again, when there is only sufficient to furnish Kelsey his four-eighths, and the Carnes the quantity awarded them, the Dalton side of the division box may, for that purpose, be closed entirely. But when all water capable of flowing through the company ditch, in excess of that required by either or both of the parties last named, is in the company ditch, the excess must be permitted to flow to defendant’s premises, and the boards in the head gate may be removed or arranged in such manner, whether by defendant, his
We do not wish to be understood as adjudicating in this suit any controversy between Kelsey and this defendant, for example, as to what lands and where Kelsey may irrigate, etc. We intend only to recognize their relative rights as expressed in the decree in evidence between them, and the rights thereunder are here considered merely in connection with, and only in so far as may be essential to a full understanding and determination of the controversy in hand. Nor can we at this time determine the relative rights of the plaintiffs between themselves, or as between plaintiffs and Dalton’s co-owners, or as against Kelsey, the reasons for which are obvious. Indeed it is unfortunate that all were not made parties either to the former suit, or to the one before us, where issues could, and should, have been framed with the view to a determination (during the lifetime of the witnesses) of the relative rights of all concerned, but in the absence of such presentation we are powerless to afford a complete remedy . for the many complexities possible to arise between all those interested.
It is argued that it is unnecessary, in order to furnish plaintiffs the water awarded them, to obstruct the flow through defendant’s division box. When the company ditch is used to its full carrying capacity this position is tenable, but to concede this contention, when the supply is inadequate for all, would be to question the law of gravitation, for the findings in the former suit recite that “the bottom of the Dalton box is 4 feet 4 inches wide, and has a rapid fall for a distance of 10 feet above the box and the same through the box”; hence when there is only sufficient in the ditch to supply plaintiffs, or to supply plaintiffs and Kelsey, as the case may be, and defendant’s head gate is left open, it must necessarily follow that a part of the water would flow through Dal
We appreciate the suggested difficulty possible to arise in carrying out and making effective the decree when entered, if all the parties involved and interested do not comply with the former decree, as well as the one here entered, but with that we have nothing to do. It is our function to interpret and not. to administer the law. In this connection, however, it may not be improper to note that, as supplementary to the usual method of dealing with those who may refuse to comply with a decree in this class of cases, an adequate administrative system appears to have been provided in the act of 1909. See Laws 1909, p. 319.
The petition for rehearing is denied.
Reversed: Rehearing Denied.