20 P.2d 215 | Idaho | 1933
Respondents, appropriators themselves, or successors thereto, of water from Little Wood River, with priorities determined in or by proceedings supplementary to Frost et al. v. AlturasWater Co. et al., wherein a decree was entered in the district court of the fourth judicial district, Lincoln county, December 13, 1909, brought this action to have the portion of the decree therein (Plaintiffs' Exhibit C, page 22, first paragraph1) to the effect that Muldoon *668 Creek was a dry stream, not a tributary of Little Wood River, and appellants' rights to be exercised independent of the users of the main, or other streams, set aside as void, because beyond the pleadings, issues and evidence in that case, or interpreted to permit the waters of Muldoon Creek in excess of appellants' appropriations, alleging there is an excess, to flow from Muldoon Creek into Little Wood River, and thus be available to respondents.
Appellants by motions, demurrers and answers, resisted respondents' attack upon the Frost decree upon the ground ofres judicata and lack of jurisdiction to declare it void, or again litigate any of the questions determined therein.
The trial court refused to strike from the decree the portion complained of by respondents, hence we need not further consider that phase of the controversy.
As touching upon the issue of interpretation, respondents alleged that appellants were the only direct users from Muldoon Creek, which was not a dry stream, but was a tributary of Little Wood River, and that water would flow from Muldoon Creek into Little Wood River in excess of appellants' appropriations if uninterfered with by appellants, and that this surplus had been, and would be, wasted by appellants, but if allowed to flow into Little Wood River, could be beneficially used by respondents.
While appellants on oral argument commented upon the fact that all parties to the original Frost decree were not brought in here, no request was made of the trial court that they be brought in, and while they may have been proper parties (Frost v. Alturas Water Co.,
"It is true that in an action to determine the priority of rights of appropriation all parties claiming a right of appropriation should be made either parties plaintiff or defendant to the action; but it does not follow that a failure to make all persons parties who claim the right of appropriation affects the validity of a judgment rendered determining the *669
rights of such parties as have been made parties to the suit. An appropriator of water from a stream is a proper party to a suit affecting the right of appropriation to the waters of such stream, but such person is not an indispensable party, and a judgment rendered in said cause will be just as effective as to the rights and interests of all those who were parties to said action and whose rights have been adjudicated, as though other persons had also been made parties, and in this case the decree rendered by the trial court will be effective and binding upon all parties to the suit, and an adjudication of their respective rights as between such parties." (Frost v. IdahoIrr. Co., Ltd.,
Appellants' answer to paragraphs 32-37, inclusive, of respondents' complaint alleging water to be in Muldoon Creek in excess of appellants' appropriation, now wasted by appellants, and capable of beneficial use by respondents, was not a denial of such facts, but merely a denial of the efficacy of such allegations, because of the prior adjudication, contending that the Frost decree conclusively treated all of the waters of Muldoon Creek as of a dry stream and independent of other tributaries, or of Little Wood River itself. Respondents contend, on the other hand, that the Frost decree gave to appellants or their predecessors in interest only specified and definite amounts therein set forth, namely, to appellants Laidlaw, 1770 miner's inches, and by a later supplementary proceeding making him a party to the Frost decree, gave to appellant Watkins 110 miner's inches.
The court entertained this suggestion, and upon the basis that the allegations in the complaint alleging a surplus of water, were as facts not denied, thus obviating the necessity of proof, construed the Frost decree to give appellants only their decreed rights and that any excess thereof, if uninterfered with by appellants, and not necessary to fill their complete rights given in the Frost decree, and unimpeded, would flow down Muldoon Creek into Little Wood *670 River, and be available to users on that stream, or lower down.2
The trial court thus did not set aside, overrule or interfere with the Frost decree, but merely held that it meant as indicated above, which interpretation is correct for the reason that in the Frost decree and the supplemental decrees, appellants or their predecessors in interest were granted specific and definite rights, and while the court therein went on to state specifically that Muldoon Creek was dry, and not a tributary of Little Wood River, it is not indicated that the court intended if there was surplus water over and above the appropriations decreed to appellant, which otherwise would flow into Little Wood River, to deprive other users on the stream below of such excess water, and this ruling is consonant with the proposition that one is only entitled to that which he may beneficially use, and since it is alleged in the complaint that the excess of appellants' decreed rights are not being used beneficially by them, but wasted, then of course the other users on the stream would be entitled to such overplus, and this portion of respondents' complaint was, as to that fact therein stated, not denied. *671
If the Frost decree were otherwise construed, it would lead to this conclusion: that the specific amount decreed was not intended to define the respective appropriations, but in addition granted some indefinite, uncertain amount, making the decree void for uncertainty. (Lee v. Hanford,
If the waters of Muldoon Creek, over and above appellants' decreed rights, ever do flow into Little Wood River, appellants are not entitled to stop them. If there never is any excess water, they may take it all. In neither event are they in a position to object to the judgment as entered herein.
Judgment affirmed; costs awarded to respondents.
Morgan and Holden, JJ., and Babcock, D.J., concur; Budge, C.J., dissents.
Petition for rehearing denied.