Louden Irrigating Canal Co. v. Handy Ditch Co. , 22 Colo. 102 ( 1896 )

Chiee Justice Hayt

delivered the opinion of the court.

. After the district court had overruled a'plea to its jurisdiction and a plea of res judicata, and before trial, the interposition of this court was sought by an application for the extraordinary remedy by prohibition. This writ-was, however, denied, for the reason that the petitioners had an adequate remedy at law by appeal or writ of error to the final judgment of the district court, in case siich judgment should be against the defendants or either of them. The People ex rel. v. The District Court, 11 Colo. 574.

The questions of jurisdiction and of res judicata each involve a construction of certain provisions of our irrigation laws, and for convenience may be considered together.

The argument of counsel in support of the judgment of the district court may be briefly summarized as follows: The present action is in the nature of a bill of peace or an action of quia timet, and is quite analogous to an action to quiet title to real estate ; that the action was permissible in this class of cases prior to the enactment of the irrigation laws of 1879 and 1881; that this suit was commenced within .four years next after the statutory decree, and that the statute gives any person the right to bring such a suit at any time within such period; that the district court of Larimer county, in common with all other district courts of the state, was given jurisdiction by section 11, article 6, of the state constitution, “ of all causes, both in law and in equity; ” and that the legislature is powerless to take away such jurisdiction, and that it has not attempted so to do; that the ditches involved in this suit are mostly in Larimer county, and nearly all the parties are residents of said county, and the district court of that county ^offered the most convenient forum for the trial of the present action ; that the legislation of this state bears within it evidence of an intention of the lawmaking body not to limit actions like this to the district court which may have jurisdiction of the statutory proceeding.

Reliance is also placed upon section 1786, General Statutes 1883, page 580, wherein permission is given the district court or judge to make rules “from time to time during the progress of the casé.” It is argued that it is evident from this language, and from the whole tenor of the act, and from the title, that only the statutory proceeding was in the legislative mind. Nothing in the title of the act, it is said, indicated an intention to deprive any court of jurisdiction, and even if such had been the intention of the legislature, such intention should have been clearly expressed in the title, as required by the constitution. The object of the section relating to jurisdiction, it is argued, was to avoid any possible conflict with respect to the proceeding therein provided for, and not to confer, for all time to come, exclusive jurisdiction upon any one court. Again, it is said that the very section relied upon as conferring exclusive jurisdiction refutes the contention, as it provides that the court shall retain jurisdiction “until,” etc.; the argument being that the court in no event is to retain such jurisdiction after the termination of that proceeding.

In opposition to this argument, appellants contend that the 19th section of the act of 1879 by its terms vested jurisdiction exclusively in the district court of a particular county, and when any water district shall extend in two or more counties, the district court of the county in which the first regular term after the first day of December in each year shall soonest occur shall have such exclusive jurisdiction; the district court of Boulder county being such court on the admitted facts of this case.

The irrigation act of 1881, it is said, recognized and supplemented the exclusive jurisdiction of one court in the district, as provided by the act of 1879; that this is evidenced from the first section of the act of 1881, providing, as it dpes, for the filing of a statement of claim by the owner of any ditch “with the clerk of the district court having jurisdiction of priority of rights to the use of water for irrigation in such water district,” and by the 4th section of the act, which provides that the owners of a ditch in an irrigation district may present “ to the district court of any county having jurisdiction of priorities of right to the use of water for irrigation in such water district, according to the provisions of ” the act of 1879.

It is urged that this act does not limit the exclusive jurisdiction to the statutory proceeding, but extends to the whole subject-matter of priorities of right to the use of water in such district; that the 22d- section of the act provides for “ application to the court having jurisdiction ” by any party not offering evidence originally in the statutory proceeding; that these three sections show conclusively a continued legislative purpose to exclude the jurisdiction of more than one court as provided by the act of 1879.

As to section 34 of the laws of 1881, specially relied upon by appellee, appellants say there are no words therein which in expressed terms or by implication repeal section 19 of the act of 1879. The former, in the order here mentioned, it is claimed provides only that nothing in the act or in the decree rendered under it shall prevent any person “ from bringing and maintaining any suit or action whatsoever hitherto allowed in any court having jurisdiction to determine any claim or priority at any time within four years after the rendering of a final decree.”

It is urged that this language does not confer jurisdiction upon any court, but leaves the jurisdiction as fixed by the preexisting law, and that it refers to such law so far as this subject is concerned.

It is also urged that there are many provisions of the section which clearly show such to have been the legislative intent, if considered in the light of familiar rules of construction. For instance, it is said the continuing force and validity of such decree is for many purposes recognized, and that the legislature could not have intended that any other court of coordinate jurisdiction should, under this section, interfere with the distribution of water by the water commissioner under a decree previously rendered in the statutory proceeding; that a contrary construction would permit the several district and county courts to interfere with what had been previously and solemnly determined in the district court of Boulder county, thereby involving the distribution of water in hopeless uncertainty, and the water commissioner, Givens, in inextricable confusion.

This intention, it is said, is further manifested by the 28th section of the act, which provides that where testimony shall be taken in the statutory proceeding, the same shall be receivable in evidence in any subsequent proceeding; that this language is applicable to the present suit, the legislative understanding being that the action referred to would be pending in the court where the former evidence is on file and readily accessible.

Counsel contend that this construction is in accordance with the principle governing courts of concurrent jurisdiction, requiring that the one first obtaining jurisdiction must be allowed to dispose of the controversy without interference from a coordinate court, and that the district court of Larimer county was without jurisdiction of the present controversy for any purpose, and for this reason it was not necessary and would not have been proper to have applied for a change of venue to the district court of Boulder county, as suggested in the argument of appellees.

It is also claimed that the previous-decree is res judicata of the present controversy; that section 34 of the laws of 1881 was not intended to authorize a separate action by a party to the former proceeding to be brought against other parties thereto, but that the intention was simply to afford a concurrent remedy with that already provided.

We have given space to the leading, and, as we think, to all the salient, points in the argument of counsel, for the reason that the questions involved are of great importance, not only to the immediate parties, but also to many persons similarly situated with reference to decrees in other water districts.

Questions affecting the economical and orderly distribution of water for the purposes of irrigation in the arid region are not surpassed in importance by any controversies involving the property rights of individuals or communities. This importance is recognized by our state constitution, while the question of priorities and the economical adjudication of the same has from the first commanded a large share of legislative and judicial attention.

Early in the history of the state, the legislature, finding the ordinary processes of the law and the actions then known to the courts too expensive and also inadequate to meet the novel conditions incident to the appropriation of water for the purposes of irrigation, enacted what is known as the “Irrigation Statute of 1879,” the purposes of which act are concisely stated in its title, viz.: “ An Act to Regulate the Use of Water for Irrigation and for Providing for Settling the Priority of Right Thereto, and for Payment of the Expenses Thereof, and for the Payment of all Costs and Expense Incident to-Said Regulation of Use.”

The main features of this act have withstood the test of experience and criticism, and are still the law of this state. At the next biennial session of the legislature the act was supplemented by such additional provisions as experience had demonstrated to be expedient, if not absolutely necessary to the welfare of our agriculturists, and the quiet, orderly and economical distribution of water. The latter act is entitled “An Act to Make Further Provisions for Settling the Priority of Rights to the Use of Water for Irrigation in the District and Supreme Courts, and for Making a Record of Such Priorities and for the Payment of Costs and Expense Incident Thereto.” This act, as its title indicates, supplements and completes the act of 1879. The two together constitute a complete system of procedure that in operation has been found so salutary and free from unnecessary expense as to command the tacit indorsement of all subsequent legislatures.

One of the leading fundamental characteristics of this legislation is a provision for the appointment of a referee in each water district upon application by any party interested, and in case the judge cannot hear the evidence, it is made the duty of such referee to take testimony and present a decree to the district court determining the priorities to the use of- water in the particular district in which he is acting. The referee, before proceeding to take testimony, is required to give notice by publication, and also by posting notices, of the time and place appointed for the taking of testimony.

The party or parties moving such an adjudication are also required to cause a printed or written copy of the notice published as aforesaid to be served on every person, association or corporation shown by the statement of claim on file to be claimants of a right to use water in such water district.

The acts provide a complete system of procedure, with a right of appeal by any party whose rights are adversely affected by the decree, making only those parties who “ represent one or more ditches, canals or reservoirs affected in common adversely to the interests of appellants; ” thereby rendering it unnecessary to bring all parties into the appellate court, and requiring only so much of the evidence and proceedings to be certified to as may be necessary to determine the rights of those made parties to the appeal.

The acts also provide the manner in which any decree may be opened in the district court at any time within four years after the same shall have been rendered.

If this suit can be maintained, the benefits to be derived from an adjudication of water rights in the manner provided by-statute will be of slight avail to protect the rights of water consumers.

There can be no misunderstanding of the contention of counsel or of the nature and necessary result of the doctrine announced by the district court; the effect being to declare all statutory adjudications as simply interlocutory, binding upon no one except for the time being, but with liberty to all interested parties to commence a new suit to quiet the title to water rights, although such rights have been adjudicated in the statutory proceeding.

Some idea of the expense and labor necessary to take the evidence and formulate a decree in some of our water districts may be gathered from the statement that in some districts, not only months, but years, have been consumed in doing the necessary work incident thereto, and we unhesitatingly say that a construction which will allow a party to such a proceeding to ignore the result therein reached, and the next day or the next year institute a new action for the purpose of readjudicating the rights already adjudicated,.is so at variance, not only with the general intention and purpose of the acts of 1879 and 1881, but so contrary to the ordinary rules covering decrees of courts, that it ought not to be indulged, if any other reasonable result can be reached.

The statutory proceeding is in the nature of an action in rem, and the well understood character and effect of judgments in such actions, as defined by the authorities, throw' light upon many of the provisions of the acts of 1879 and 1881. Freeman on Judgments (4th ed.), sec. 120 a; Herman on Estoppel and Res Judicata, chap. 5.

The doctrine of priority to the use of water for irrigation was not at the time of the passage o£ these acts, and is not yet, fully developed. To have given the statutory decree at once the force and effect of a judgment in rem would have been contrary to the best interests of the state, which, require an economical use of water in order that the largest acreage may be brought under cultivation. Lands when first irrigated require more water than after the soil has become thoroughly saturated by repeated flooding, and the exact amount required to properly irrigate a given tract of land can only be determined by experiment; hence the necessity for the various provisions of the statute allowing, a decree to be opened within certain fixed periods after its rendition. A conclusive adjudication at a time when.the practical application of the proceeding was a matter of conjecture might have been disastrous. To guard against results such as these, it is not unreasonable to suppose that the legislature would make some provision. And we think those portions of the statute relied upon by the district court to overthrow the plea of res judicata and to support its jurisdiction are clearly referable to an intent to provide against the conclusive character of the statutory proceeding for the period of four years, but in no way to interfere with the exclusive jurisdiction of the court first acquiring jurisdiction, or to be construed as giving permission to a party to such an adjudication to ignore the same and maintain an independent action, as is here attempted.

In the opinion of the court, the words of the 34th section, providing that actions may be brought “in any court having jurisdiction,” do not repeal the provision of the act of 1879 giving exclusive jurisdiction to a particular district court, but’ the “ court having jurisdiction ” is the court “ first acquiring jurisdiction,” as provided in section 19 of the act of 1879. Therefore, in view of the facts pleaded in the answer and admitted by the demurrer, the district court of Larimer county was without jurisdiction to entertain this action, and the demurrer should have been overruled. We are not ealled upon to determine, and we do not decide, what the effect would be in a cause commenced in a court other than the one designated by statute, if n.o proper objection is made in apt time.'

And we are also of the opinion that the former proceeding, unless opened in the manner and within the time provided by other sections of the act, is res judicata, at least in so far as it fixes the priorities of those who were parties thereto and participated in such proceeding.

But one other matter remains to be considered, viz. the constitutional provision giving the district court “original jurisdiction of all causes, both in law and in equity.” This certainly cannot, be construed as giving every district court in the state jurisdiction in every cause without regard to the place where the transaction occurred, the location of the property, or the residence of the parties, and were a contrary construction admissible it would not avail these plaintiffs, as under the rule governing courts of concurrent jurisdiction, the one first acquiring jurisdiction will retain it throughout. Haywood v. Johnson, 41 Mich. 598; Wells on Jurisdiction of Courts (1880), chapter XIX.

“The leading general principle as to concurrent jurisdiction is that whichever court of those having such jurisdiction first acquires possession of a cause will retain it throughout. It has been observed that ‘great caution should be exercised lest the powers of these coordinate courts should be brought into conflict, as it is apparent the evils of such collision would be of serious magnitude; and the safer, if not the only course is that each court shall never suffer itself to indulge in a cause, or in regard to a subject-matter, over which another has exercised its jurisdiction.’ ” Wells on Jurisdietion, see. 156.

The judgment of the district court is reversed and the cause remanded.

Reversed.