*1 Chewatjcan Oct. re River. Waters whatever made document is not authentic. is that the say, its that the court exercised therefore, We cannot erroneously it interlocu- function when set aside the tory taking order off default. good 7. Besides all a reason this, however, inspection an record, is
court’s action found justified holding as erroneous the so that it was opening order It is a well-established default. applications to an rule this state that all leave accompanied by be the answer swer after default must proposed: Oregon Mortgage Kel Investment & Co. v. 762). (166 us Pac. The record before ler, 85 Or. ap presented with the the answer was not shows that during plication was filed answer, for leave to but ought application The to have next term of court. place. Conceding, therefore, in the first been denied argument, given that the reason for the sake of yet letter was not sound, we the court based good cor for the court’s in the record a reason discover recting appealed from must The decree own error. its affirmed. Affirmed. Harris, JJ., C. J., and Benson and concur. McBride, 5, argued appeals March rehearing аllowed on Motions to dismiss July 17, appeals appeals dismissed dismiss October motion to 1918. OF CHEWAUCAN RIVER. In Re WATERS 402; 421.) (171 175 Pac. Pac. Parties—Intervention, Appeal. Appeal on Error — and appellate jurisdiction court of Supreme only, a 1. strangers who were proceeding interveners to the admit and cannot original jurisdiction. exercise of would be below, as that Appeal Appeal Parties. Error —Notice and —Adverse rights may injuriously bo Anyone whose affected the modi- 2. party adverse appealing, decree one of a fication should and appeal. be served In ke Chewaucan Appeal notices failed the ing page 161, provides the Circuit may be taken to the upon notice of equity, Circuit Court. and on notice numerous users determine script Court of the days *2 board, before parties an A to and except from the proceeding appeal jurisdiction serve notice of appeal the relative from the contest, the accompanying Court, Error —Notice of were that notice of board Section from to all entry put whole was commenced before the board of control of and thе a decree Supreme in issue who rights of the users of 6650, in the after appeal upon entered a decree evidence. of were subject which decree two of the L. O. appeal Appeal hearings, Circuit Court the decree, appeared Court by proceedings suit L., the matter. —Parties—Dismissal. must Held all the and Section 556 as amended shall appeals, etc., below the be same as in other eases that, modifying separately appeals parties be served filed deprived tried as the failure record was by the their claims appearing from the decree and the parties appear- Laws appealed, provides the filed findings of the Supreme of to filed within of all river, tran- 1913, give but in Appellate Appeal Appeal. and Jurisdiction —Notice of Error — Supreme give jurisdiction, 4. To the Court notice appeal of must upon every be party. served adverse Appeal Right Appeal and of Error — —Conditions. privilege appeal 5. The of is or constitutional, not inherent but only by statute, exists virtue the of if and the statute is burdensome respect in expenses, of appeal, etc., to notices province it is not dispense espe- of the cially to amend it or requirements, court with its to 550, in view of Section L. L., by O. as 1913, amended Laws of page 617, granting privilege giving of appeal oral of open rendition court at of final decree. Appeal Appeal and Error —Notice of —Contents. appeal enough A notice of contain 6. should in its terms to show party presenting really that sought the same a party is to the record to reversed modified. ON REHEARING. Right Appeal
Appeal of and Error — —Statute. appeal right, of 7. exists matter No but must on be founded statute. Appeal Appeal Policy Error —Dismissal of and of Court. — In view the statute and rules of which, 8. good where provide for shown, perfect faith is amendment necessary to appeal appeal Supreme notice of and after after acquired Court has Supreme policy jurisdiction, Court’s sustain rather than dis- appeal. an miss Appeal Appeal Supreme and Error —Notice of Court —Jurisdiction —Statute. appellate legal court has no 9. discretion over service of Supreme appeal, give jurisdiction and the notice on cоmpliance there must be á 550, merits strict with Section In of Chewaucan Oct. ee 1913, page 617, providing by L., 0. as amended Laws L. appeal. of notice service Appearance.” Appearance —“General express implied de- from “general appearance” must be 10. A or detri- a cause himself taking step some ‘beneficial to fendant’s only, contesting jurisdiction one other than plaintiff mental to the cause. substantial relation to purpose must bear some of which Appeal Appeal “Party”—Statute. Error —Notice of — and, with, complied law were 11. Where sections of water all actor, statement, an he 14, his became under a claimant filed Section juris- right Court’s appeared to Circuit and submitted his water right certificate, and adjudication obtain his diction and to L., as proceeding 550, L. O. party entitled under Section was a in view of 6650 as 1913, page 617, Laws of amended amended 1913, appeal. notice of page 161, to Laws of Appeal Party.” Appeal- Error —Notice —“Adverse 1913, L., page 12. as amended Laws of Under Section L. O. party” every party “adverse notice of entitled to appealed judgment from is in con- whose interest in relation to the every sought appeal; party flict interested with modification or reversal sustaining judgment. Appeal Appeal Party” and Error —Notice of —“Adverse —Statute. Every who filed statement claimant his with water board a proceeding law, adjudicated under water whose water was *3 by Court, by decree, though Circuit that decree is bound not ex- cepting Court, party 550, in adverse Circuit and is an within Section L., by page 617, O. appeal. as amended Laws L. entitled to a notice
From Lake: Bernard Daly, Judge. n LaBanc. Statement Mr. by Justice Burnett.
A was proceeding commenced before tbe board under L. to control, seq., Sections 6635 et deter- L.,O. mine relative the users of the water in County. Responding River Lake Chewaucan board virtue of notice of the issued filed users of their claims before the water ninety-nine notices of also thirty contest were Some board. ex- body that and after and hearings filed before the statute thus the record provided aminations filed in the board was Circuit Court of up made fixed hearing A date for same was County. Lake Chewatjcan Erras. In se Waters oe given by tbe court and notice thereof was to all tbe appeared proceeding. claimants who bad tbe After bearing parties taking tbe and further evidence tbe Cir- findings cuit Court modified tbe of tbe board and en- accordingly. tered a decree Prom this decree and tbe Company whole thereof tbe Northwest Townsite and Irrigation Company, appearing parties Portland tbe sepa- both before tbe board and have the Circuit Court, rately appealed. Neither of them served its notice of appeal upon appellant tbe indi- other nor on all of tbe appeared viduals who before board tbe Cir- tbe and seventy cuit Court. In fact, there are about claimants parties upon to tbe record tbe Circuit Court by anyone, whom no such notice been has served parties upon paper Some of tbe whom that was appeal ground served have moved to dismiss tbe on tbe parties that it was not served tbe other to tbe record before tbe Circuit Court named tbe motion. ground specified by Another of dismissal another motion is that not contain tbe does tbe names parties nothing tbe tbe suit that there tbe paper promulgating to show that one itself tbe it was party proceeding any stage. Separate tbe at on motions were made behalf of certain individuals proceeding were not made who tbe at applied stage to this court for tbe first time for to intervene dismiss tbe of tbe leave Port- Company ground they Irrigation on tbe land bad buy contract with that concern into entered land irrigation project a certain included in in- were sundry representations ample so to do duced *4 appurtenant they were to tbe tracts which buy, but that contracted said statements were had amounted to fraud them. untrue These appeared filed in affidavit this court matters op Oct. In re Chewaucan River. ground on the affiants move dismiss prolongation litigation
that the would involved company defer with with which their settlement they emanating had contracted. We also have a brief Attorney from the officeof the General and that of the resisting curiae, .land as amici board, state desert contending appeals, motion to dismiss the proceeding will award water this materially proposed irrigation projects interfere contemplated authorities. statе
Appeals Dismissed. Montague, Cookingham, Wood, Hunt &
Messrs. appellants, Company Northwest Townsite and Port- Irrigation Company. land
Mr. Reames, E. T. Miller W. et al. Alfred Thompson, Elsey Mr. LairW. for Fred T. et al. and Company. Chewaucan Land & Cattle Mr. Conrad P. Olsen, for J. Wenstrom et T. al. Attorney George Mr. M. Brown, Mr. General, and Percy Cupper, Secretary A. Assistant Desert State Land Amici Curiae. Board,
BURNETT, interveners, J.—1. The motion of the Company who attack the Northwest Townsite Irrigation Company Portland for the first time to, appeals in this in an effort remove court, their to their obstacle settlement with the latter con not entitled to consideration cern, here. This court appellate jurisdiction only. is one It cannot *5 In re Waters of Chewaucan Eiver. admit as that he an interveners, would exercise of original jurisdiction. parties If concerned in this participate litigation motion had desired to duty apply was their to at least to the Circuit Court, Acting if not to the water hoard. under Section 38, preserve L. O. and to L., the matter in involved appeal jurisdiction, over which it has this court has parties in some instances substituted when the suit by or action would otherwise abate the death or other disability party aof transfer of some inter- est if therein the cause of action survived, but that strangers is not like the case before intrude us, where upon litigation, seeking not substituted be any party making upon one but attack thereto, new litigants. principle
The statement of court one that this is appellate jurisdiction only and that to admit strangers participate litigation in would be here original jurisdiction the exercise of is to dis- sufficient parties miss motion of such from further consid- eration. question chief
2, be decided whether appeal upon parties failure to serve notice of all appeared prevents juris in who the Circuit Court attaching subject diction this matter. appears anyone conceded It be all may injuriously whose affected a modi party fication of the decree is adverse to the one appealing should be served with notice. L. 6650, L.,
It is said Section O. as amended February Chapter Laws of 21,1913, act 1913, procedure treating sort of of this that: may “Appeals Supreme be taken to the in the same manner and decrees the same equity, except in other cases effect notice of op re Chewaucan Oet. days sixty from
aрpeal filed within be served and must entry decree.” that: O. L., L. said It also given “Upon conrt decree from a transcript upon the anew the suit shall be tried accompanying evidence it.” *6 appeal in instance here that each We the note, also, the that thereof, is from the whole so the decree and in called Court is entire determination the Circuit question. adjustment the rela- the words, other rights parties trial before the of all the concerned tive respecting of the Chewaucan River the waters necessarily put appeals. in- This at stake the question and all examination entire volves the of the proceeding. The whole affair is sub- issues the jected jurisdiction readjustment, if we have appealing parties with. The are dissatisfied same. two They in more the Circuit Court. want the settlement they for favorable terms the use of what water or more If this means the award successful, have. parties in The will disturbed some measure. other be Irrigation Company, enterprise Portland irrigation limits of the must be within instance, appellant suppose that this is suc- will stream. We securing modification of the so that decree, ~a cessful acquire If water. such is the result it will more it will pro which will flow the amount down lessen tanto only appropriation, open to future not stream parties notice, served with but also who are those already and who not served have or are those who may to the stream. fact obtain access hereafter appropriations tracts of as re- land, for certain have been involved, established to all others lated deprive their owners of the not does decree In be Waters of Chewaucan River. appropriations to mate additional if future, appropriated applied water is there to be and can be to beneficial uses. This is true of both those below any existing appropriator. those above Those below him appro- are entitled to the water his excess of priation; those him are above entitled, course, to original rights their appropriate and also to unappropriated, necessary otherwise quota. and not to fill his presence If the necessary of these was jurisdiction exercise Court, of the Circuit it is none the less essential to the of the lim- exercise aрpellate authority ited of this court. The reason is very litigation that the essence of decree par- is the determination of the relative right being ties. This element of each relative to all persists beginning others from end of such litigation, plaint party so that one must affect greater degree. all others in a or less *7 may put The uses to which water are manifold and variable fluctuate as much the rise as fall important every of so that itself, the stream it is at stage proceeding for the to have before court thing it all whose attach the to submitted the to adjustment. quality variability for court of was This apparent legislative power pro- to so the it that has L. 6654, L., in O. as vided Section follows: “Within six months from the of date the of decree determining any rights upon the the Circuit appealed stream, or if within six from de- months the Supreme Court, of cision the the of or control, board apply may party interested, the to Circuit Court rehearing upon grounds ap- to be stated in for a the plication. Thereupon, if in discretion of the the court good grounds appear are the that there it shall judge rehearing, Court, thereof, shall the Circuit Oct. In re оe Chewaucan when snch fixing place appli- make an order a time heard.” cation shall be
5. 4, This, however, does not alter the rule estab long lished in respect in in proceedings court, this that jurisdiction order to it give act, ap the notice of is peal must be It every served adverse upon party. contended that this involves such a great expense, that it owing large parties, practi the number cally the destroys appeal. This privilege, exists not nor constitutional. It however, is inherent only if application virtue statute the it is not enactment burdensome the province its amend or to dispense courts to the same requirements. legis must be found in the remedy Code, government. Moreover, lative branch L. 319, O. amended L., Chapter oral grants privilege giving Laws of at of final decree the rendition open extraordinarily expensive. certainly cannot be which the contents of the notice of appeal, Respecting document should contain such a seem would in its terms party presenting to show enough really to the record to be sought party same Otherwise, modified. could stranger reversed or interest having any intrude without proceeding more widely open same. It would whatever under the the court who come before door to those curiae, amid they when are reality designation far as bearing gifts.” So “Greeks bitter partisans they are concerned, before us of the notices the terms It strangers. been veriest given have might however, of this decision, the purposes is sufficient *8 has not ac- principle it upon rest re oe Chewaucan quired jurisdiction because many the adverse have not been served with notice of appeal. appeals must dismissed.
Appeals Dismissed. Mr. Justice Bean concurs result.
Mr. Justice Mr. McCamant Justice Benson no took consideration of this case. part
Appeals dismissed October Rehearing.
On (175 421.) Pac. Judge.
From Lake: Bernard Daly, In Banc. proceeding
This founded what is known as the system providing “An water law of act entitled, regulation, for the control, distribution, use, use water, to the for the determination of exist ing Oregon, providing thereto within the State of penalties money appropriating its violation and for ’9 thereof. That the maintenance creates two law water superintendent provides for one divisions, for each provides his and defines duties. The act division also engineer appointment a state who, superintendents, shall constitute a boаrd of control board), (now state called the hereinafter re supervision which shall board, as the have ferred appropriation, state, waters of dis thereof. and diversion tribution subject ap- said board shall be “The decisions Supreme peal Circuit which Courts, *9 Chewatjcan In re of Oct. Waters governed practice equity, in the suits of un- shall he ’’ specified herein. otherwise less petition provides upon a board one more water users of re- stream, filed questing or rights the of the
the determination of claim- duty shall be the the ants to waters of thereof, the justify, a if it the to make board, finds deter- facts taking fixing rights, of the time for the mination said testimony making of an of and the such examination rights the of the as will to determine various enable it claimants. Proceedings: The 12. Notice board “Section of setting prepare forth the notice, the date when
shall engineer begin investigation flow will of the of the diverting therefrom, water and of the ditches stream and a superintendent place when and a time certain the water situated division which stream testimony taking rights begin of of as to the shall parties claiming therefrom. Said notice published in of one оr more news- be two issues shall general papers having which such stream circulation counties publication of the last situated, days thirty prior begin- to the superintend- notice to be at least said testimony by ning taking division of said stream the or for the measurement of the state ent, superintendent taking engineer, or assistant. The his power adjourn testimony to shall have testimony place taking from from time to time and place, to those interested.” to suit convenience shall to Claimants: It be “Section 13. Notice duty superintendent regis- to send said division corporation, person, firm or tered mail to each herein- designated claiming to be claimant, after to the use stream, waters said person, corporation owning being firm or each possession bordering having lands on access in so tributaries, said stream or its ants and owners and ably far as such claim- persons possession can reason- setting similar forth the ascertained, notice ee Chewaucan Biver. engineer begin the state date when or his assistant will diverting the the waters of the stream examination and the ditches the.super- and also therefrom, the date when testimony will intendent take as to water of said stream. Said must be mailed at days thirty (30) prior least date therein set making taking the examination of-the stream the testimony.” of such *10 14. “Section Statement The Claimant: division superintendent said shall, addition, in inclose with notice a blank form which on said claimant or owner necessary present writing particulars shall all the right for his the determination of the waters of lays stream to which he in- claim, the said statement to following: clude the postoffice
“The name and “The nature of the of the claimant. address right or which is use on the claim based. “The time of initiation of such com- distributing mencement of such and if are use, works required. ‘1 beginning date of of construction. completed. “The date when beginning enlarge- completion “The date of and ments. originally “The dimensions of ditch as con- enlarged.
structed and irrigation “The date when water was first used purposes, irrigation, or other beneficial if used for year, the amount of land reclaimed the first the amount subsequent years, with the reclamation, dates of general the amount and location of the land such ditch irrigate. to intended crops “The soil character of the and the kind of сompli- and such cultivated, other as will show facts acquiring right.” ance with law in verify required Under Section the claimant is “statement,” furnished, his which blanks shall be superintendent authorized to administer specified oath. Under Section date Oct. re of Chewaucan Kiver. begin superintendent shall the tak- the division
notice, testimony ing until com- and shall continue of such pleted. provides shall claimants that the Section pay fee of so much for an additional certain fees, irrigated per land. for each acre acre ‘‘ upon Completion Testimony: 18. Notice taking testimony by Upon completion superintendent, duty it shall be his at once division by registered give mail to the claim- notice various place not ants that at a time named days thereafter, all of said shall less than ten evidence open inspection be claimants or own- various keep superintendent said shall said evidence ers, and open places days, inspection said not less than ten at super- notice. and such other as fixed the Said time county in in said notice the intendent shall also state which be of the board of control will the determination provided, that said Court; heard the Circuit county in cause shall or some heard in the which said stream part thereof is situate.” any person, corpo- “Section Contests: Should persons owning irrigation works, ration or *11 claiming any in interest the stream or streams involved rights in the the desire to contest determination, persons, corporations of the or associations who have superintendent submitted evidence to the as their persons, corporations associations, such or aforesaid, -days expiration period of the shall within five after the inspection, notify public as fixed in the notice for the writing, superintendent stating with reasonable cer- tainty grounds proposed contest, the of their which shall the affidavit of the con- statement be verified attorney, agent the said division his or and testant, superintendent notify the said contestant and shall rights person, corporation are association, or whose appear him at such convenient before contested, designate place superintendent in said shall as the notice.” filing provide of contests 20 and
Sections hearings thereon. notices thereof before the board, In re or Chewаucan IJpon 22. Transmitted: the ex- Evidence “Section kept piration period for the evidence is of the which original open inspection, hear- in the the evidence ing superintendent, taken and the evidence before superin- by the all be transmitted shall contests, person, board of control tendent to the officeof the thereupon by registered or mail. Such evidence shall be filed the board.” duty engineer or it the of the state makes specified there- at the time assistants,
his and the stream of the to make an examination for, diverting which shall include therefrom, works discharge of said stream, the measurement of capacity carrying canals, ditches and of the various irrigated and “to take lands, of the ah examination gather steps information other such other proper may understand- to a essential be and data as rights ing interested,” relative writing; and to make reduced which shall be all of showing map plat each ditch location of or irrigated legal of the lands subdivisions and the canal irrigation. susceptible of are or which Determining Bights: Water Order “Section compilation practicable after the of said as As soon filing evidence, of said it shall be the data, duty to make,- control and cause board of determining an order office, in its of record entered establishing to the waters of said the several practicable thereafter As soon certified stream. copy shall be filed the office said determination county county in which stream, of each said clerk of the or any tributary, any part is situated, thereof original filed with the board of evidence control together clerk of the board and, certified shall be copy determination, of said shall be certified with a of the Circuit Court which court with the clerk filed *12 heard. The determination is to be such determination in full be force and effect from the shall of board the op Oct. re Chewaucan entry date of board, of the unless its records stay stayed by operation until provided a as its shall be bond filing by Upon for act. of the evi- this the county dence the Court of in which with Circuit the procure thereof, be had, the determination is to an order from said Circuit the board shall any judge or Court, fixing determination be the time at which the shall by Copies court. this certified order, heard in said of as the сlerk of said shall be filed the board court, county practicable in the of clerk of as office the soon county in each which said determination is filed.” Right Upon 25. Water the “Section Certificate: rights to final determination of the the waters of secretary it shall be the of the duty stream, board of control to the person, issue each association corporation represented in such determination, or president signed to be the board certificate the secretary under seal of said dress extent and attested the control, setting postoffice name forth the ad- board, right; priority date, owner of the the right; purpose of such and if and irrigation such water purposes, description legal be appur- of land which said water subdivisions shall be certificate transmitted tenant. Such president, of control, other member of the board or by registered county person to the mail, in clerk county located, which and it shall of the county receipt duty clerk re- be cording as of one dollar collected hereinbefore fee especially provided, the same a book to record thereupon рurpose, kept prepared for that respective immediately transmit certificates ’’ owners. the in the From and after Procedure: “Section filing Circuit and order determination of the evidence nearly proceedings as be shall Court, except equity, may in a suit in like those be may including entry proceedings, of a decree, force and effect as same had vacation thirty days filing from the of such within such Within term time. evidence Court, and order in Circuit may good allow, time as the cause further Or. 43 89 — *13 op
674 In ee Waters Chewaucan River. any party may exceptions file the determination. If exceptions day no shall be the court shall the filed, on hearing affirming set for enter decree determina- the tion the board. parties may upon “All be heard the counsel con- _ exceptions. may, sideration of the if The court neces- sary, remand the case such further evidence to be superintendent taken the of the water division as may may require it direct, and a further determination hearing, the board. After the the court shall enter affirming modifying a decree or order the the board Upon may hearing, of control. the the assess adjudge may against any party such costs just. may Appeals Supreme deem be taken the from Court decrees the same manner and with except equity, the same effect as other cases in sixty appeal notice of must be served and filed within days entry from the of the decree.” Transcript “Section Cleric Shall Transmit Cleric The clerk of the Circuit imme- Court, Board.: diately entry upon by the decree the Circuit judge the thereof, shall transmit certified secretary copy of said decree to the of the board of secretary immediately control. The shall enter the upon same the records such officeand the en- state gineer superintendent shall forthwith issue the superintendents of water divisions instructions com- ’’ pliance and in decree, said execution thereof. During “Section 28. Distribution: time the hearing pending order board of control is copy Court, and until a certified Circuit judgment, order or decree of the Circuit Court trans- control, mitted to the board of division of water the stream in such shall from involved be made in accordance with the order of the board.” provides after
Section determination of operation may stayed by therеof the board any judge the-filing order of the Circuit Court approved anof bond. op
Oct. In re Chewaucan provides that within six months from appealed, date of the decree of the Circuit or if Court, Supreme within six months from the decision of party may apply Court, interested to the Circuit rehearing upon grounds specified Court for a to be application. 33. Conclusive, “Section When: The determination *14 of the pro- board of control as confirmed or modified as by proceedings vided to this act shall be conclusive as prior rights, rights all existing and the of all claim- body lawfully ants stream or other of water embraced in the determination.” Duty Right “Section Water Claimants: proceedings "Whenever shall be instituted for the de- rights any termination of the use of it water, duty shall be the of all claimants interested therein to appear proof respective and submit of their at claims, required by the time manner law; and appear proceed- such claimant who shall fail to in such ings proof and submit of his claims shall be barred and estopped subsequently asserting rights from there- acquired upon body tofore the stream or other of water procеedings, embraced and shall be held to have rights forfeited all claimed to the use of said water theretofore * * ” by him. upon petition provided
Based as for in 11, Section adjudicate rights the board undertook to the water County. Chewaucan River Lake The record shows compliance spirit a literal with both the and intent of pursuant law and the water under notice, Sec- eighty-nine tion 14, claimants made and filed hun- one sixty proofs respective dred and of claim of their rights in and to the waters of stream. After the filing taking large of the “statements,” the of a amount testimony hearing and the of a number of contests, “determining the board its order made and establish- ’’ ing the several to the waters of the said stream, provided as and thereafter filed certified op re Chewaucan River. findings copies with the taken and of its of the evidence pro- County, for Lake of the Circuit Court clerk fixing May court 15,1916, an order from that cured hearing in said on the -determination the date for hearing place of such of the time and court. Notices twenty-five duly given dif- and under Section were and filed in the Circuit Court claimants made ferent findings exceptions of the different nineteen application ex- an order the court made board. On exceptions hearing tending for the on such the time parties August who made such when the 28,1916, until respective exceptions appeared attor- their taking neys. made an order for the court also testimony all who consent of additional attorneys, exceptions the with their court, filed such inspection waters of stream and said made and canals. After the ditches tributaries, its various testimony taking offered as was then such additional findings and filed 2,1916, on December made court, many materially modified in and which fact findings a de- and made and rendered board, *15 adjudicating findings upon the modified, the as cree among the different claim- of the stream water respective defining interests. their ants and per cubic foot of water second allowed one The board one the Circuit Court allowed land; 40 acres of to each not make 25 acres. The board did to each cubic foot any findings of water which should to the volume as during irrigating upon of land acre be used claimants found that the were but the court season, ranging from 3.9 to 4.8 acre-feet entitled to amounts during irrigation of land еach acre to be used each on period irrigating is a there material As to the season. findings those of the board and difference between Court. of the Circuit op 677 In re Waters Chewaucan
Oct. 1918.] Portland board the “statement” filed its Company, appellants, Irrigation that claims one right to land and the the owner of acres of 12,037 pres- water under six-inch 15,000 use inches September right 30,1905, was initiated ; sure per continuous second and that 375 cubic feet of water necessary storage for the are flow acre-feet 42,800 proper irrigation found that The board of its lands. irrigation for it had purposes, used water never whatever right, an inchoate condi- but that it did have application future of such waters to a tional found that it did not have beneficial use. whatever. appel- Company, Townsite the other The Northwest year Proof claimed lant, 129, 1881, under as y2 per second; 130, cubic foot of water under Proof as per 2 under Proof 131, cubic feet 1885, second; y2 per irrigation pur- for foot second 1886, cubic poses per and 30 cubic feet second all of the time power purposes; under Proof as of 132, 11,1897, June per irrigation purposes. second for cubic feet 11.75 2 .43 cubic foot under Proof 129, The board allowed cubic feet under Proof .17 cubic foot under Proof power pur- all of time for 131 and cubic feet poses, Proof 4 cubic feet. and under The court prior at no time were more than 160 found that irrigated through of land Conn ditch; acres any irrigated through land that ditch additional since by permit engineer state was issued enlargement thereof, and that 1912 for the the water purposes power should be returned used quantity,” substantial diminution in “without stream changes findings material also made other board. *16 In ee Waters oe Chewaucan After the was decree rendered the Circuit Court sixty days, and within the the Northwest Townsite Company Irrigation Company and the Portland under- they appeal, took to served the maintained appeal upon any notice of the claimants who and all of exceptions con- filed But it is Circuit Court. appeal the notice of ceded and the record shows that file was not not served claimants who did exceptions upon affidavits, Based the Circuit Court. duly by num- motions to dismiss the were filed ber of the claimants for the reason that and all persоns who made and filed with the board “state- proofs ments” or of claim of their water had appeared in and were decree Cir- bound parties appellants cuit Court and adverse were to the that each of such claimants been should have served .appeal. motions sub- The were typewritten mitted to this court on briefs and were opinion by an Mr. ante, sustained in Justice Burnett, p. (171 402), appeals Pac. were dismissed. very Appellants’ vigorous then filed a counsel able and rehearing, petition granted. for a which was Printed by opposing were then filed briefs counsel and an oral argument sitting was made before this court in banc. squarely presented question as to whether proof filed their “statement” or claimants who exceptions and who did with the board not file claim appel- are Court adverse in the Circuit the facts shown whether record con- lants appearance such claimants in stitute them as to entitle to be served with a Circuit appeal. Appears notice of Dismissed. Thompson, Mr. Lair Evan Mr. W. Reames and Mr. for the motion. Rothchilds, Walter *17 Oct. In kb of Chewaucan Webster, Lionel B. and Mr.
Mr. C. E. S. Wood contra. appeal matter as a J. —7-9. No exists
JOHNS, right. upon After It must a stаtute. be founded appeal ac notice of has has been served and this court jurisdiction, quired and the rules this both the statute provide good is court, shown, where faith necessary may be to or correction which amendment appeal. showing perfect under and On such a always policy provisions of this such it has been appeal, but court to sustain rather than to dismiss appeal, through is and service of the notice jurisdiction, only, acquires this court and service specifically points out and defines how and the statute be when and served, served should upon all whom it should be the authorities served, any legal appellate court does not hold have that the appeal, of the notice service discretion over jurisdiction give this court hear and and that to de on merits there must com a case strict termine pliance provisions all with of the terms statute. things, Among L. other Section O. L., provides: amended, appeal may desiring party “The a notice, cause attorney, signed or to be himself on served such appeared party as have or action adverse attorney, any place his their or at suit, оr or original, proof file the of service state, clerk with the thereon, court which
indorsed judgment, decree or order entered,” 6650,L. O. as amended L., the Laws of provides that: may Supreme “Appeals be taken Court from manner and with same the same decrees In re Waters of Chbwaucan River. equity, except as in effect other cases in that notice of appeal the days sixty must be within served and filed from entry of the decree.” question presented: 10. Hence the First, who did appear in the Circuit Court? who are And, second, ad parties? verse general appearance express “A must be or arise
implication seeking, taking from the defendant’s agreeing step proceeding some in the cause bene- *18 plaintiff ficial to himself or detrimental to the other contesting jurisdiction only. pur- one than pose appearance, of this however, must bear some sub- stantial relation to the cause. words, other it must purpose merely be a cause, within the not collateral general appearance a thereto. As what constitutes conferring jurisdiction person, over the the test accord- ing Supremе ato late decision of the Federal is whether the defendant an became actor in cause”: p. § 2 R. C. 7. 327, L., Light
In the case of Heat & B. Merchants’ Co. v. J. (51 Sup. & 204 Sons, Clow U. 290 Ed. S. L. 27 283, 488, Rep. 285), Ct. said:
“There in the is some difference decisions as to when becomes so an actor a defendant far as to submit jurisdiction, prop- are but we aware none as to the proper that when he does in osition an actor a become ’’ sense he submits. having right When an 11. individual receives water specified in the notice Section of the water law of does not 1909 and make and file his “statement” as provided in 14, he knows Section a matter of law as in he is default and that he will that lose his water provided right, in having as Section But when one right specified the notice a water receives Section provided his statement of and files claim as 12, makes pays required, 14 and the fees he Section knows as investigate will of law that board his matter water op In ee Oct. Chbwaucan practicable right as as soon and that under Section investigation, deter- order such it will make after copy mining right of its and file a certified his water county county findings clerk officeof the right in and and that located, in which his water provided subsequent proceedings, Section as county make an order will the approving Court of Circuit findings, modifying based there- such finally adjudicating his water a decree on will render his right; then receive 25 he will under of the board, under the seal certificate water postoffice address, forth name and his which shall set purpose priority of his the extent and date, description right, the land to which it is and a water appurtenant, certificate is and that entitled provides public knows that Section And he record. that: of the board control as con- “The determinations proceed- provided this act in
firmed or modified ings rights, prior as to all and the shall be conclusive existing the stream claimants all lawfully body embraced the deter- other mination.” *19 adjudicated right is a solemn then
His water and the evidence of that the Circuit Court decree of formerly parol right then becomes and existed which pur- by public perpetuated record. It was for is adjudicated right per- having and pose water his public petuated record and to obtain such a cer- in a public filed record that he his “statement” and tificate paid 14 proof and the fees under Section claim requires. the statute whiсh 73 Cochran, v. Or. Livestock Co.
In Pacific through speaking 668), (144 Mr. Chief court, this Pac. Justice said: McBride, In re of Chewaucan Eiver. failure “It is evident that a the claimant of a prop- right appear and submit his claims when
water erly required after right there- to do bars his to assert it so party who extent that a is barred the same proceed- default in a makes after service of summons * * rights ing at law. A the water determination of finally report Court, a stream as a to the Circuit ends court.” and a decree of final determination party If a who fails to make and file his “statement” provided his and loses for in 14 is barred right, anyone it make and must who does follow proof required by that section his file of claim as right, and that not making and lose his barred does not pay- filing and the such “statement” subsequent pro- required ment of the fees ceedings he then Court, and the Circuit of the board adjudication thereby of his and the submits himself jurisdiction right of the Circuit Court. appear How can failed to and file claimant who right proof of his water unless his of claim be barred judicial proceeding? How can the determina- confirmed or modified tion of board as the- Cir- rights cuit be conclusive as to all аnd the prior existing claimants unless stream, of all jurisdiction Court have the board and the Circuit respective rights? claimants and their claimant makes and files a Under Section writ- particulars necessary of all of the ten statement right: of his water First, determination of his name postoffice address; second, nature his claim is based; third, on which and use initiation right; the daté fourth, when he of his commenced completed; when construction; the date fifth, sixth, completion any enlargement; commencement originally of the ditch as the dimensions con- seventh, enlarged;-eighth, the date when he structed first *20 op Oct. In kb Chewattcan 683 irrigation purposes, used water for or other beneficial irrigated and the amount of the first and sub land sequent years land; and the location of his ninth, crops, character of the’ kind of and other soil, the showing acquired right. facts how he his water complaint, upon This constitutes his formal which the investigation board makes findings, its which are approved by modified or the Circuit Court and Up which its including decree is rendered. to and findings of the board, our water law is almost a literal copy of Wyoming. that of the State of But thereafter there is Wyo this differencе between the two: the ming provides appeal statute findings from the of the water board to the District Court and our stat provides filing ute findings for the of the board in the officeof the clerk of the Circuit Court, and based subsequent proceedings, on after notice thereof, approve Circuit modify Court shall then findings and render a decree opin thereon. In an exhaustive ion in the case of Farm Carpenter, Investment Co. v. Wyo. (61 9 Rep. Pac. 110, 147 Am. 258, 87 St. Supreme 747),
L. R. A. Court of that state held: may “It be assumed the and that, absence of fraud actually legally collusion, matter determined judicata, the final decree of the board becomes res public, parties participating at as to the least proceedings.” findings If the from board, which the judicata Wyoming res exists, are under they judicata statute, should be res under fortiori requires them our which to be statute, filed in, by, approved the Circuit Court. validity law has been its construed,
Our constitutionality upheld assailed, was in Wattles County, (117 417); Pringle Or. 255 v. Baker Pac. (128 Patterson, Falls Power v. Or. 474, 484 Co. Pac. *21 River. Or. 684 In re Waters of Chewaucan (133 Claypool 527); 65 511 O’Neill, v. Or. Pac. 820, 132 349); 417 Pac. 73 Or. Cochran, Livestock Co. v. Pacific (144 (144 668); 592 Creek, Pac. In 74 Or. re Willow 475); 505, River, Pac. 146 Pac. In re North Powder (144 475), 83 75 Or. Pac. 146 Pac. the case 485, Oregon 241 Board, Livestock Co. v. Water Pacific (60 Sup. Rep. 637), 440 U. S. L. Ed. 36 Ct. opinion which the was Mr. written Justice Van jurist, prior appointment That to his Devanter. Supreme Court of the United was resident States Wyoming, and Chief Justice of after that state enacted pages water 241 453 of S., its law. On 451 and U. opinion says: “It is intended to be in a universal and to result complete existing rights, ascertainment of all may end: First, that the waters be distributed, under public supervision, among the lawful claimants accord- ing respective rights to their without needless waste controversy; rights may Second, that the of all by appropriate public evidenced certificates and rec- readily always may depend- ords, ent accessible, and not be testimony upon recognized of witnesses with its * * infirmities and uncertainties. All the evidence laid goes it is to be ac- court, before the where before corded proper weight state, That the its and value. may consistently process thus commit law, due preliminary proceedings and -the final to the board hearing adjudication the court is not debatable. * * purpose to secure discloses a fixed The statute timely step of each material notice to all claimants opportunity in re- proceeding full to be heard the. validity, spect extent of all that bears ’ ’ priority claims. of their (144 74 592 Creek, of In re Willow In the case (page report 505), page 512 of 611 of the 144 on Pac. says: Pac.), this advisory findings rather than of the board are “The only of the courts state It when the
authoritative. op Oct. 1918.] be Waters Chewaucan subject jurisdiction matter have obtained a decree persons and rendered interested, strictly speak- determining that, the matter ing, ’’ adjudication made, final determination (144 Cochran, 73 Or. and in Livestock Co. v. Pacific report (page page 668), 672 of 429 of the Pac. on Pac.) it is said: rights to a stream “A determination report
finally a de- Circuit Court and as a ends court.” determination cree of final *22 law sections have that when all other holdWe complied 14 the claimant under with and been proof claim, or “statement” has made and filed his himself and an actor and submits he then becomes jurisdiction right court, to the his water thereby having purpose appears in court for the adjudicated and to obtain his water his water right a сlaimant has and that certificate, proceeding party appeared within and is a meaning 550 of the Code. of Section Thompson parties? In adverse who are Second, Y.) (N. 1 Barb. the court said: Ellsworth, 627, v. Ch. * * party party in- means the whose “The adverse subject appeal to the is in con- terest in relation appealed or decree reversal order flict with the sought appeal.” modification or the from, approved Mr. and followed Jus is That decision De 38 Bernal, case of v. tice Sanderson Senter is said: where it 641, Cal. every ag- party who is allows “Our Code anyone joining appeal grieved no mat- else, without judgment against may character of the be the ter what respect, joint in this several; and, whether
him, practice, change is former but he from the works required in parties notify are who interested all other appeal, his seeks opposing he relief which 686 In be Waters oe Chewaucan Or. they formally appeared if have action appeal, court below, or his as to those not served, will prove ineffectual, and also as to those if the served, sought relief is of such a character that it cannot be granted being granted as to the latter without as to ’’ the former also. approved by
And that case is this court in The Vic (32 Rep. torian, 24 Or. 128 41 121, Pac. Am. 1040, St. 838). Moody (33 402), v. 24 Or. Pac. Miller, 179 this court said: abrogated “The statute has not the common-law requiring persons
rule affected all whose interests would be the reversal or of the decree modification appeal, brought to be made and to be into court.” approved Logus,
This was in Osborn v. 28 302 Or. (37 997): Pac. 38 Pac. Pac. party’ “An ‘adverse entitled to notice of every party and decree judgment the whose interest in relation to the appealed from is in conflict with modi- sought by appeal; every party
fication or reversal sustaining judgment interested decree”: & and authorities Phrases, 224, "Words there cited. legal principle On the case1of Hamilton v. Blair, (31 197), very 64-66 Pac. similar to the instant *23 case. court there said: This equity, in suits the case “As must be tried anew any appellate change any tribunal, modifica- any by reversal of the decree this tion court would necessarily destroy the effect to have disturb or proportion established it to the ratable uted be distrib- depositors among and render а new division necessary. depositors It would follow that all the who suit in the trial court would were have be interest to affected such decree of a substantial appellate presence as to render their tribunal necessary.” In Oct. re of Chewaucan River.
In In River, the case of re Silvies Fed. says: Mr. Justice Bean subject “The con- water is the res or matter of the troversy. among It claim- is be divided the several according respective rights. ants to their Each claim- vitally only directly interested, ant is and not therefore establishing validity in but in claim, of his own and extent having The all of the other claims. determined partition proceeding essentially is for the a suit * * respective among waters It owners. of the stream sundry parties en- a case are is where divers and they a stream titled to use of the waters of as so much put purpose is to ascer- have to beneficial use and the simple, respective rights by economical, tain effective, a their comprehensive proceeding, not' is controversy separable between different claimants.” proceeding the waters this Chewaucan subject persons and the who Rivеr are the matter, provided “statements” filed their parties in claimants of such waters and the are the compliance with The shows interest. record provisions of 1909, water law all of the that says conclu- the decree of the Circuit law adjudicated and all such between as to sive upon the stream. the claimants that each claimant was entitled to found
The board per each 40 of water second to acres one cubic foot finding and al- modified Circuit Court land; the each cubic foot water to claimants one lowed per acre to used of water amount The 25 acres. important. very In its vital claimant each Irrigation Company Portland “statement,” feet of right the use of 375 cubic water claimed the averring irrigate per 12,037 land, acres second September 30,1905. initiated was that such Company in its “statement” Townsite Northwest per together feet of 30 cubic sec- claimed, *24 Chewatjcan In kb oe Eiver. power purposes, right ond time for all of the irrigate giving water to sufficient acres of land, the date of when 11, 1897, June the time its last appears water was initiated. It from the find- ings of the hoard and the decree of thе Circuit Court eight that there were at least different who claimants exceptions did not file Court, Circuit but did claiming file their “statements” with the board, water rights September initiated after which is 30, 1905, priority Irrigation date of claimed the Portland Company, respective and their claims were sustained approved by the board, the Circuit and made part appears findings decree. It also from the of the board and decree that at there were least twenty-three different claimants who did not ex- file ceptions in the Circuit Court but filed who their claiming “statements” initiated after June latest date on which the Northwest Company right, Townsite claimed a water and that proofs ap- of all such claimants were allowed, proved part and became a of the decree. Hence it must follow as to claimants there a con- priorities appellants. flict as to between them and the duty per The volume water acre to be used dispute. are also The board allowed one cubic foot per each 40 of water second for land, acres of and the per cubic decree awarded one foot water second fоr finding importance each 25 acres. That vital every claimant. There is a material difference be- findings tween the board and the decree of the period irrigating court as which season, the character location of varies with the claim. important. point diversion is also legally were If served this and be jurisdiction, the case would then tried had *25 ' 689 In Oct. 1918.] re of Chewaucan only it would be the merits, its and not novo de duty and province also, its -to settle court, this but of priorities the as between record determine from the per any foot, use of water cubic and the claimants, all per point of and how diversion, the volume acre, the all of which matters are when it be used, should every very and as to claimant, vital and material to every a conflict between the find- one of which there is ings Court, board and the of the Circuit of the decree would be strife and a contest and over which there purpose The intent court. whole of the water this provide plain law was to a method effective any persons having claiming right which and all particular of the waters of the use stream were brought the Circuit Court and to be into before rеspective rights investigation of after each every the court should then and there claimant which would forever and define render a decree settle only rights of claimant, not the each but settle and rights of all as the water claimants between each define legal the of and that was force and effect the other, appeal of the lower court from which the decree purpose of is to have this court taken. findings priorities and different make other as duty as all between the claimants, point per of diversion and acre, water, volume period irrigating place and the use, season, will which a decree more favorable and to render respective rights. appellants to their water appears from the that It record claimants filed only under 14; two 160 “statements” sought appeal from decree; claimants have Irrigation Company, ap- one that the Portland right pellants, to the use of 375 cubic claims the feet Sep- contending that such was initiated water, 89 Or. —44 In re Waters oe Chewaucan River. yet appears
tember 30, 1905, and from both the findings of the board and those of the Circuit Court they that аt the time were made, in Portland Irrigation Company at, had never used any purpose appears time or for whatever. It also findings from the and the decree of the Circuit Court Company that the Northwest Townsite was allowed per one cubic foot water second for each acres actually irrigated, of its land which had been and that other allowance was made on the same basis all claimants. every opinion who claimant are of the We *26 board with the whose
filed his “statement” right adjudicated by was the decree of the Circuit Court party is bound that decree and is an adverse within meaning provi L. L. O. Under the appeal may given of that section, sions notice open provide simple and it was enacted to court, serving method of and effective notice and to apply particular appel this of a case. If, kind they lants’ counsel were not advised claim, the court when decree was as to rendered, .the and therefore appeal by giving open denied the were remedy legislature. with the court, appeals are dismissed. Dismissed. The late Mr. Moore took Justice no part the hear- or consideration of this ing case.