Quigley v. McIntosh , 110 Mont. 495 ( 1939 )

I concur in most, but not all, of the foregoing opinion. To some extent I think it amounts to a modification or impeachment of the decree of 1913. It is, of course, elementary that this cannot be done. That decree was final and conclusive on the matter then in issue and litigated as between the parties and their successors, and subject to correction only on motion or by an appeal within the proper time. (Long on Irrigation, secs. 232, 242; Weil on Water Rights, 3d ed., sec. 1233.)

I recognize that when the decree is conditional, resort may be had to the facts upon which it was based in order to determine whether the condition was complied with. The following cases are typical: Drach v. Isola, 48 Colo. 134, 109 P. 748;Crawford Clipper Ditch Co. v. Needle Rock Ditch Co.,50 Colo. 176, 114 P. 655; and see Estes v. Crann, 73 Colo. 438,216 P. 517.

The decree of 1913 was not conditional but absolute. That decree, at least so far as it concerns the Kimmerly water right, decreed a stated number of inches for the purpose of irrigating lands described in the pleadings. It was without restrictions or limitations of any kind. To now resort to the evidence on which that decree was based and to restrict the right to the proof then introduced amounts to reading into that decree restrictions and limitations which should have been, but were not in fact, written into the decree. In my opinion that may not be done at this time. If this can be done, then there is but little, if anything, accomplished by securing an adjudication of water rights.

Rehearing denied July 8, 1940.