Fall River Irrigation Co. v. Swendsen

*688 GIVENS, J. — This action was commenced in 1921 to have a decree, rendered in 1910 adjudicating the water rights on Snake Biver, north of American Falls, and its tributaries north of the Blackfoot Biver, giving appellant a priority of 1889, changed to 1885 on the ground that the court had originally so intended. Appellant claims it did not learn of the mistake until 1919,- though the distribution of water had been made every year in accordance with the decree, because there was no shortage of water until 1919, when appellant for the first time became affected by the decree and hence became apprised of its contents. There were some 566 parties to the original action whose water rights were fixed by the original decree. While the court has the power to correct a clerical mistake in its judgments and decrees (DeCastro v. Richardson, 25 Cal. 49), it may not in so doing correct a judicial error and the evidence must be clear and convincing that a clerical and not a judicial mistake was made. (Martindale v. Battey, 73 Kan. 92, 84 Pac. 527, at 529; Murphy v. Stewart, 2 How. (U. S.) 263, 11 L. ed. 261; Breene v. Booth, 6 Colo. App. 140, 40 Pac. 193; Co-wok-ochee v. Chapman, 76 Okl. 1, 183 Pac. 610.) One of the former attorneys for appellant, so employed at the time of the original trial, testified that he told the referee *689 upon the submission of a tentative decree by the referee that the date therein written, 1889, was wrong and should be changed to 1885, and that the referee directed his reporter to note and make such correction and the attorney supposed it had been done and so did not later examine the final decree as filed and knew nothing of the mistake until after 1919; and another witness, president of another canal company, testified to having héard the conversation between the attorney and the referee. The referee stated that he did not remember that a correction was asked in regard to appellant’s priority, that he did remember counsel suggested a correction but thought it referred to another water right. The referee stated that he kept a large index-book with notations of the various steps taken and orders entered with respect to each water claimant and that if he had made a note or change it would probably appear on this book. This record was not produced or accounted for by appellant, though the burden of proof was upon appellant. If this matter was called to the referee’s attention it is indeed strange that after his reporter had made the notation on the tentative decree such correction should have been overlooked in the final decree, since the adjustment of the record was the only purpose of the. hearing on the tentative decree. If this matter was not before the referee there is no showing that he intended giving a different priority date than 1889. In either event the evidence is not clear and convincing. The finding by the trial court that no mistake was made was justified and will not be disturbed, and it is so ordered. Costs awarded to respondents. Wm. E. Lee, Budge and Taylor, JJ., concur. Petition for rehearing denied.