State Ex Rel. McKnight v. District Court , 111 Mont. 520 ( 1941 )

It is my opinion that the district court was correct in making the order complained of. I concede that a decree in a water right suit is res adjudicata only upon the parties to the action, and their successors, and that it is not binding upon those who were not made parties unless they make their appropriation after the decree. (Sec. 7128, Rev. Codes.) In such a situation, however, our statute provides a remedy for the person not made a party. This is found in section 7124.1, Revised Codes, which provides: "At any time after the entry of any decree, any person, not a party to such decree, who, prior to the entry of such decree, had or claimed a valid water right upon the stream or source or supply affected by such decree, or who subsequent to the entry of such decree had made a valid appropriation of water from said stream or source of water supply affected by such decree, may petition the court which entered such decree for an order making him a party to such decree and establishing his right thereunder, and in relation to the other rights affected by such decree. Upon filing such petition, such notice shall be given and procedure had as is provided in sections 7119, 7120, 7122, 7123, and 7124 of this Code."

Until the remedy sought under section 7124.1 has been pursued, I think the decrees must be accepted as prima facie correct and must be enforced by the court having jurisdiction. Otherwise there is no purpose in obtaining a water right decree. And where there are two or more decrees in the same water district, "they are to be treated as one for the purpose of distribution according to priority." (67 C.J. 1073.)

Here relatrix does not contend that the priorities provided for by the decree in question are not proper. Her main contention is that under the facts the use by her of the waters will not interfere with the use by those situated below on the stream, and particularly the West Side Canal Company, because the waters after being used by the relatrix return to the bed of the stream and flow down to where the canal company can use them. If this be the fact, the matter can be adjudicated under section 7124.1. It does not militate against the right of the court to order the water commissioner to distribute the water pursuant to the decrees until such time as the one or the other of the decrees is modified.

The rule properly applicable here was announced in the case ofFarmers' Independent Ditch Co. v. Agricultural Ditch Co.,22 Colo. 513, 45 P. 444, 55 Am. St. Rep. 149. The syllabus in that case accurately summarized the opinion of the court as follows: "The Irrigation Act of 1887, in requiring superintendents of irrigation to enforce the rights of the owners of ditches in accordance with their priorities of appropriation, as established by decrees of the courts in their respective districts, does not make such decrees conclusive, but prima facie evidence only, of right of priority as between ditches drawing water from a common source, but situated in different irrigation districts, the owners of which were not parties to the decrees entered in the other districts; and the Act is not unconstitutional as depriving the owners of their property without due process of law." While the statute considered in that case specifically provided that the decrees are not conclusive but prima facie only of right of priority, I think in essence that is the effect of our statute and that section 7124.1 provides a method by which the prima facie showing may be overcome with the right of all parties concerned to be notified and have due process and a day in court.

If this is not the proper view to take, then I do not see how the water commissioner can function at all. He is stymied. If the rights of the canal company cannot be enforced because relatrix was not a party to the action in which its rights were determined, then how can the commissioner award any water to the relatrix since the canal company was not a party to the action in which her rights were adjudicated?

In the majority opinion it is stated: "It should be noted by this proceeding relatrix seeks, not to subject to her adjudicated right, the water rights of the parties in the two later suits, but to defeat their attempt to subject her right to theirs." This ingenious statement does not adequately present the picture. The practical question confronting the water commissioner is this: How shall he distribute the waters of the stream? He is not seeking, nor did the court authorize him to take water or subject the water right of one party to that of another. The fact is that either relatrix or the canal company is entitled to the first right as between themselves. By what process of reasoning may relatrix be given priority over the canal company? The canal company right is adjudicated to be prior in point of time to that of relatrix and the adjudication preceded that in which the right of relatrix was determined. The canal company right was adjudicated in 1894 and the right of relatrix was not adjudicated until in 1899. True, relatrix was not a party to the proceeding wherein the adjudication of the rights of the canal company was made, but neither was the canal company a party in the action in which the right of relatrix was determined. Her right was adjudicated to be later than that of the canal company and whatever right she has was also adjudicated without the canal company or its predecessor in interest being a party. On the record, then, however weak the position of the canal company may be as to its right of priority it is stronger than that of relatrix.

It is my view that the respective decrees involved herein establish prima facie the rights of the appropriator in each case, and that the court was right in ordering the water commissioner to enforce each of the decrees.

Contention is also made that relatrix was entitled to notice under section 7150 before the court could make the order in question. I concede that under section 7150, Revised Codes, the water user is the interested party and should ordinarily be entitled to notice. This is particularly true if there be a difference of opinion regarding the interpretation of the decree or decrees under which water is distributed. But here there is no difference of opinion as to the meaning of the several decrees. Each fixes the date as of which the right involved accrued. If they mean anything they mean that until modified or changed they fix the priority of the several rights, at least prima facie. The court has the continuing duty to enforce its decrees in water rights cases. (Weiland v. Reorganized Catlin Con. Canal Co.,61 Colo. 125, 156 P. 596; State ex rel. Swanson v. DistrictCourt, 107 Mont. 203, 82 P. 779, 781.) Had the court done otherwise than order the commissioner to distribute the waters in accordance with the decrees, or had there been any question raised as to the proper interpretation of the decrees, then the water users were entitled to notice under section 7150. In the absence of any specific directions, it was the duty of the water commissioners to distribute the waters according to the decrees.

It does not appear to me to be necessary for the court to call in all the water users on a stream every time he instructs the commissioner with respect to his duties plainly provided for in the decrees. Of course, if the court attempted to order the distribution otherwise than as the decrees provide, a different rule would obtain. At any rate if the majority opinion correctly announces the law, then the order in question here would not be warranted even if notice were given to the water users. This conclusion, I think, is fundamentally wrong.

If the majority opinion is correct, then a water right decree has no more sanctity than a twentieth century international peace pact. It becomes nothing more than a scrap of paper.

It will not do to say that since the decree is good between the parties, it has at least some efficacy. That conclusion does not follow. Either relatrix or the canal company under the facts here has the first water right. The court records show that the canal company has the first right. If it has not, then how does relatrix happen to have it? If the district court was in error in making the order it did, it would be interesting to know what instructions the court should have given to the water commissioner.

I think the writ applied for should be denied.