This is an action brought by Lee Kirk, R. C. McCormack, the Raft River Land & Cattle Company, Stephen Keogh and J. W. Keogh against A. Bartholomew and numerous other defendants, to determine the priority of right to the use of the waters of Raft river, situated in Cassia county, Idaho. The complaint sets forth the rights under which each of the plaintiffs claim, and alleges that each of the defendants claim an appropriation of some of the waters of said Raft river, and that the appropriations under which defendants claim are subsequent in time to the aрpropriations made by the plaintiffs. The complaint further alleges that the defendants have deprived the plaintiffs of the use of the water of said river without their consent, to their great damage. The plaintiffs demand judgment determining the priority of plaintiffs’ rights to the use of thе water so appropriated by them, and demand that defendants be perpetually restrained from interfering with plaintiffs’ rights to the use of the waters of said river to the extent of their several appropriations. The defendants answered, and by cross-complaint sеt forth the rights claimed by them to the use of a part of the water of said river, by reason of their appropriations. The case was tried by the court without a jury, and judgment entered. A motion for a new trial was overruled, and thereafter the plaintiffs, the Raft River Cattle Company, Stephen Keogh and J. W. Keogh appealed from the order overruling said motion for a new trial, and from the judgment.
The appellants, in their specifications of error, assign three errors, and by reason thereof demand a modification of said judgment. The first error assigned is the insufficiency of the
The seсond and third errors assigned are as follows, and will be considered together: “2. Errors of law in denying appellants’ superiority of right, in view of found priority in time of appropriation. 3. Errors of law in scaling down amount of water to which appellants were entitled after June 15th of each year.”
The evidence clearly shows that the appropriations made by the various parties (plaintiffs and defendants) extended over a period of about seventeen years, commencing in 1870 and ending in 1887. The court failed to find the amount of water actually appropriated, for a useful or beneficial purpose, by each of the parties or their grantors (in case a party claimed by purchase), and also failed to determine the priority of right of each appropriation ovеr each subsequent appropriation, but simply allotted to each party a certain number of inches of water every season up to June 15th, and a certain number of inches to each from June 15th to July 15th of each year, and a certain number of inches to each party every year after July 15th, by a decreasing scale, regardless of the amount of water actually appropriated by each party, and regardless of priority of appropriation. The appellants contend that priority of appropriation gives priority of right, and cite the following authorities in suport thereof: Basey v. Gallagher,
“See. 8. All ditches, canals, аnd other works heretofore made, constructed or provided, and by means of which the waters of any stream have been diverted and applied to any beneficial use, shall be taken to' have secured the right to the waters claimed, to the extent of the quаntity which said works are capable of conducting, and not exceeding the quantity claimed, without regard to or. compliance with the requirements of this act."
Thus the rule that, as between appropriations of water, priority in time secures priority of right, became a statute law of the territory of Idaho on the tenth day of February, 1881, and has remained a statute law ever since. The Revised Statutes of Idaho of 1887, section 3159, declares as follows: “As between appropriators the one first in time is the first in right.” (See Hillman v. Hardwick, ante, p. 255,
Mr. Freeman, in his work on Judgments (section 96), in referring to a judgment like the one under consideration, says: “The interest of society demands that there should be a termination to eаch controversy. Courts have no power, after
ON MOTION TO DISMISS.
Motions to dismiss the appeal were interposed by respondents, the Durham Land and Cattle Compаny, appearing by their attorney, Arthur Brown, and by A. and hi. Bartholomew, appearing specially by their attorney, S. B. Kingsbury. The court, not passing upon the same before the case was called for hearing upon its merits, announced that it would consider said motions and the case together.
The motion to dismiss th'e appeal in this case is moved upon several grounds by the attorneys of the various groups of defendants. We have examined them with considerable care, in connection with the transcript; and while some of the grounds might apрear to be well taken, under a technical adherence to the rule of strict construction, we are advised by our statutes that we are to construe the same liberally, for the promotion of justice, and, acting under that injunction, we feel compelled to overrule the motions. It is urged that the notice of appeal was not served on all the adverse parties or their attorneys. The transcript shows that there were fifty parties to this action — five plaintiffs and forty-five defendants. The defendants were represented by some eight or ten different attorneys, several of whom resided outside of this state. It is evident the counsel for appellants made most strenuous efforts to make service on all proper parties or their attorneys, and, we think, succeeded, to the extent of bringing their ease within the provisions of the statute. The courts of Idaho have been very liberal in extending license to practice to nonresident counsel, and it may well be questioned whether the provisions of our statutes in regard to service of papers extеnd beyond the territorial limits of the state. Be that as it may, the service in this case was, in our opinion, sufficient. It is objected that the bond on appeal is insufficient. This defect has been cured by the filing of a sufficient