200 P. 115 | Idaho | 1921
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
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
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
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.
Petition for rehearing denied.