171 P. 404 | Or. | 1918
Opinion
This suit was begun July 22, 1908, to restrain the destruction of a dam built in Cogswell Creek, Lake County, Oregon, at the head of an irrigating ditch which diverted from that stream water and conducted it to the plaintiff’s lands where it was used for raising crops. An amended complaint was filed October 22,1908, and an answer was put in April 5,1909, when the-defendant filed his affidavit, showing that designated persons were asserting rights to the use of water from that creek. The defendant’s counsel thereupon moved that the persons so indicated be brought in and made parties, as plaintiffs or defendants. A reply was filed May 10, 1909, when the plaintiff L. G-. Thomas submitted a counter-affidavit opposing the making of the persons named as parties. Two days thereafter the defendant filed a supplemental and amended affidavit, indicating the interest of the designated persons in the subject matter of the suit. An order was made by the court December 27, 1910, requiring that there should be brought in and made parties, as plaintiffs or defendants, Anna McGrath, George Barrington, Wm. Barrington, Eliza McCready and D. E. Henderson, or the grantee or successor in interest of either, and that a copy of the order, certified by the clerk, should be served by the sheriff upon- the persons so named, who were commanded to appear and plead on or before March 1, 1911. The return of that officer shows that he served a duly certified copy of the order upon H. Yernon and Ed Hartzog, the successors in interest of Anna McGrath; that he also delivered a like copy thereof to all the other persons named therein, except
The question to be considered is whether or not the interest of such persons, in relation to the decree which has been brought up for review is in conflict with a modification or a reversal thereof: The Victorian, 24 Or. 121 (32 Pac. 1040, 41 Am. St. Rep. 838). See, also, Van Zandt v. Parson, 81 Or. 453 (159 Pac. 1153), where other like discussions upon this subject are collated. One of the errors assigned in the abstract of the defendant’s counsel reads in part:
“That the court erred in denying appellant’s motion # * for permission to file an amended answer, setting up appellant’s rights as against the new parties, Elma E. Hartzog, Ed Hartzog, Hurley Yernon, George Barrington, William Barrington and Eliza McCready, for the reason that said parties, and each of them, were necessary .parties to the adjudication, and without*654 whose presence the rights of the respective parties, to the waters of said stream, conld not be adjudicated. ’ ’
‘ ‘ The court may determine any controversy between parties before it, when it can be done without prejudice to the rights of others, or by saving their rights; but when a complete determination of the controversy cannot be had without the presence of other parties, the court will cause them to be brought in”: Section 41, L. O. L.
The defendant’s affidavit also states that George and William Barrington, who are minors, and Elizabeth McCready own specified parcels of real property, and for more than three years they have been and are using under a claim of right, a part of the waters of the creek in irrigating their lands, by an extension of the Anna McGrath ditch.
The affidavit further shows that D. E. Henderson is the owner of particularly described land and at the
In Hough v. Porter, 51 Or. 318 (95 Pac. 732, 98 Pac. 1083, 102 Pac. 728), which was a suit to determine the right to the use of flowing water for irrigation purposes, it was held that under Section 41, L. O. L., the court properly exercised its discretion and was authorized to make an order requiring all interested parties to submit their claims for adjudication.
In Williams v. Pacific Surety Co., 66 Or. 151, 155 (127 Pac. 145, 131 Pac. 1021, 132 Pac. 959, 133 Pac. 1186), it was ruled that while at common law only one judgment could be given in favor of all plaintiffs or defendants, the court, under Section 41, L. O. L., might give judgment for or against one or more of several defendants, or for or against one or more plaintiffs, as justice might require, and determine the ultimate rights of the parties between themselves.
It will be borne in mind that one of the plaintiffs filed an affidavit against the making of an order to bring in new parties.’ In view of this hostility it is not reasonable to suppose that in the absence of a command by the court to that effect, the complaint would have been amended so as to charge the parties, who were ordered to be brought in with any infringement of the plaintiffs’ right to the use of water for irrigation. No alteration having been made in this respect in the plaintiffs’ primary pleading, the demurrers interposed thereto by the new parties were necessarily sustained. This action did not leave the defendant remediless and his counsel taking advantage of the situation moved for leave to amend the answer so as to charge the parties who had been brought in with the use of water to his prejudice from the creek for irrigation, which motion was denied. If the notice of appeal had been served upon the new parties, it would have been necessary in reviewing the decree, if the alleged error had been assigned, to consider the action of the court in denying the motion, and if it were found that discretion had been abused in this particular, a reversal of the decree would have been inevitable, and the cause could have been remanded to correct the error, for an appeal brings up all intermediate orders that have been made preceding the final disposition of the cause: Section 558, L. O. L.
Appeal Dismissed.