Mays v. District Court ex rel. Butte County
200 P. 115
Idaho
1921
Check Treatment
McCARTHY, J.

Plaintiffs apply for a writ of prohibition, to restrain defendants from proceeding further in an action brought by the Blaine County Investment Company.

In October, 1920, the Blaine County Investment Company filed an action in the district court of Butte county, against a large number .of defendants, among whom were the plaintiffs herein, to quiet title to the waters of Little Lost River. A demurrer to the complaint was overruled. Answer was then made in which the allegations of the complaint were not controverted, but matters by way of abatement and estoppel and in bar of the proceedings were set up. The answer first alleges three decrees of courts of competent jurisdiction adjudicating the rights to the use of the water of the said stream, to which the company was not a party, and that, if said company has any right to use said water, it has been acquired subsequent to said decrees; next, that C. S., sec. 7036, provides an exclusive remedy for the determination of rights to the use of water acquired subsequent to such a decree. The district court sustained a demurrer interposed by the company to this answer. Upon application of petitioners setting up the above facts, and claiming the district *205court is proceeding in excess of its jurisdiction, an alternative writ of prohibition issued. Defendants demur to petitioners’ application.

The question raised is whether the statutory provision (C. S., sec. 7036), for a supplementary adjudication of water rights subsequently acquired, excludes the right of the company to bring an action to quiet title under sec. 6961, or is merely cumulative.

The district court has original jurisdiction in all cases, both at law and in equity. (Const., art. 5, see. 20.) “The legislature shall have no power to deprive the judicial department of any power or jurisdiction which rightly pertains to it as a co-ordinate department of the government.” (Const., art. 5, sec. 13.) One has a right to invoke the jurisdiction of the courts to protect his right to the use of water for irrigation purposes, and to secure an adjudication of the priority of his right as against the rights of others. Such an action would exist independent of statute. (Farm Inv. Co. v. Carpenter, 9 Wyo. 110, 87 Am. St. 918, 61 Pac. 258, at 269, 50 L. R. A. 747; Farmers’ Union Ditch Co. v. Rio Grande Canal Co., 37 Colo. 512, 86 Pac. 1042.) However, the action to ascertain, determine and decree the extent and priority of a right to the use of water partakes of the nature of an action to quiet title to real estate as provided by sec. 6961. (Taylor v. Hulett, 15 Ida. 265, 97 Pac. 37, 9 L. R. A., N. S., 535.) It is this character of action that the Blaine County Investment Company has instituted in the district court.

C. S., see. 7036, provides for a summary supplemental adjudication of water rights where priority rights upon a stream have been determined by a decree, and thereafter it appears that any person having a right to use the water was not included in the decree as a party thereto, or that any person has subsequently acquired a right to its use. One bringing such action must accept, as binding upon him, the former decree. The action is brought against the water-master or the Department of Reclamation. The right estab*206lished by the decree shall not be deemed adjudicated, but prima facie merely, and may be attacked by suit brought in a court of competent jurisdiction, at any time, by any person deeming himself aggrieved thereby. The petitioners claim that the remedy furnished by this statute is exclusive and the only one open to the Blaine County Investment Company. A special statutory remedy is not exclusive unless such intent is clearly manifested. (Jaffe v. Fidelity etc. Co., 7 Ala. App. 206, 60 So. 966.) If a statute creates a remedy for the protection of a pre-existing right, which is entirely adequate, it may be exclusive, if so provided. If a statute creates a new remedy for a previously existing right, it is held to be merely cumulative, unless the contrary intention clearly appears. It cannot be otherwise than cumulative, if it is not entirely adequate for the protection of the previously existing right. (1 C. J., sec. 101, p. 988 et seq.; 1 R. C. L., Actions, sec. 9, p. 323; Van Buskirk v. Red Buttes etc. Co., 24 Wyo. 183, 156 Pac. 1122, 160 Pac. 387.) Sec. 7036 did not create any new right to the use of water. That right existed before. Nor did it for the first time create a remedy for the protection of such a right. An adequate remedy existed. It created a new remedy of a very narrow and restricted nature. The action is brought, not against other water users, but against the administrative officers who distribute it. The decree does not adjudicate any right. It simply gives a‘ prima facie right to the 'delivery of so much water. It may be attacked by suit brought in a court of competent jurisdiction at any time by any aggrieved party. There is no language used in the statute expressly providing that the remedy shall be exclusive. The party invoking the remedy is forced to admit the binding force of a decree to which he was not a party. All these facts make it appear that the legislature did not intend the remedy should be exclusive, did not intend to take away from a water user an adequate remedy and substitute this inadequate one; but merely intended that, as a cumulative remedy, one who was a stranger to the decree or any subsequent ap*207proprietor might, if satisfied with the earlier decree, accept its terms, and avail himself of a summary and inexpensive remedy to establish his prima facie right. These considerations far outweigh the fact that sec. 7036 refers to the former decree as fixing the permanent rights in the said stream. That language undoubtedly means permanent between the parties to the decree or permanent in effect as distinguished from the prima facie effect of the remedy provided by that section. Petitioners argue that, since sec. 6961 is a general statute and sec. 7036 is a specific statute, the latter governs. It does, so far as its subject matter goes, but it does not pretend to cover the scope of sec. 6961. We conclude that the legislature did not intend the remedy provided by sec. 7036 to be an exclusive remedy for parties in the situation of the Blaine County Investment Company.

If the remedy provided by sec. 7036 were intended to be exclusive, the section would be clearly unconstitutional. No person may be deprived of his property without due process of law. (Const., I, 13.) Due process of law requires that-one be heard before his rights are adjudged. (Cooley’s Const. Lim., p. 506.) Except for that limited class of actions which are strictly in rem, a decree is not, and cannot be made, conclusive, as to parties who are strangers to it. (15 R. C. L., Judgments, sec. 481, p. 1006; 12 C. J., Const. Law, sec. 1003, p. 1227; Ray v. Norseworthy, 23 Wall. (U. S.) 128, 23 L. ed. 116; In re Sharp, 15 Ida. 120, 96 Pac. 563, 18 L. R. A., N. S., 886.) The same principle applies to decrees rendered in proceedings to adjudicate rights to the use of water, they not being strictly in rem. (Stocker v. Kirtley, 6 Ida. 795, 59 Pac. 891; Josslyn v. Daly, 15 Ida. 137, at 146, 96 Pac. 568; Frost v. Idaho Irr. Co., 19 Ida. 372, 114 Pac. 38; Lambrix v. Frazier, 31 Ida. 382, 171 Pac. 1134; 2 Wiel, Water Rights, 3d ed., sec. 1233, p. 1137.) The contention that one’s rights can be affected by a decree to which he was a stranger is repugnant to a fundamental principle of our jurisprudence, that no one will be judged until he has had a hearing. The operation of this principle cannot be *208defeated by the mere fact that it will put other parties to some added trouble or expense.

The authorities cited by petitioner do not bear out the contention that the legislature may give such decrees binding force as against strangers. In Farm, Inc. Co. v. Carpenter, supra, it was held that an order of the board of control, an administrative body with power to decide priorities, was not binding on one who was a stranger to it. The question as to whether a proceeding could be provided by statute, strictly in rem, by which the rights of every existing claimant could be adjudicated, discussed, but not decided in that ease, is not before us for decision. There is no such statutory proceeding in this state. The decrees which petitioner relies on as a bar were ordinary decrees, obtained in the ordinary priority suit. In Farmers’ Union Ditch Co. v. Rio Grande Canal Co., supra, and in Broad Run Inv. Co. v. Deuel etc. Co., 47 Colo. 573, 108 Pac. 755, water decrees had been obtained in a statutory proceeding, which provided for an adjudication of the rights of all existing claimants, upon service of process as directed by the statute. (Mills Ann. Stats, of Colorado, vol. 1, secs. 2399-2408.) In the first-named case it was held that, on collateral attack, by a party who claimed a right to use the water, and did not appear in the original proceedings, it was presumed that proper notice had been given. If we had such a statutory proceeding, if the method of service provided by it constituted due process, and if the decrees relied on by petitioners were obtained in such a proceeding, the question would be far different. Such are not the facts.

The defendants’ demurrer to plaintiffs’ application is sustained, and the alternative writ of prohibition is quashed. Costs awarded to defendants.

Rice, C. J., and Budge, Dunn and Lee, JJ., concur.

Petition for rehearing denied.