Stethem v. Skinner

AILSHIE, J. — This action was commenced in the district court for the purpose of obtaining a peremptory writ of mandate against the defendant, Martin B. Skinner, as water378 master of the Jessie creek district in L-nnhi county. It is alleged by thu bill or complaint that the defendant, as such water-master, has distributed to E. T. and W. S. Andrews, John Long and Elmer Manful certain waters out of the “left-hand fork” of Jessie creek, while in fact the distribution should be made to them out of the right-hand fork of that stream. It is alleged that in the year 1893, in an action then prosecuted in the district court in and for Lemhi county, wherein E. T. and W. S. Andrews were plaintiffs and John Martin et al. were defendants, a decree was duly and regularly entered adjudging and decreeing the respective rights and priorities of the various parties to that action in and to the waters of Jessie creek. It is claimed by the appellants in this case that the defendant water-master is not distributing the waters of that stream as directed by the decree in Andrews v. Martin et al. The plaintiffs have attached to their complaint a copy of the findings of fact and conclusions of law, and also of the judgment as entered in 1893 in the ease of Andrews v. Martin et al. The only question urged by the appellant is that the water-master distributes th- amount of water to which Andrews, Long and Manful are entitled out of the “left-hand fork” of Jessie creek instead of from the “right-hand fork,” from which appellants contend the distribution should be made. In Andrews v. Martin et al. the court found that the diversions and appropriations made by Andrews, Long and Manful were from the “right-hand fork of Jessie creek” in 1867 and 1868; but when we turn to the conclusions of law, we find that the court concluded as a matter of law that Andrews was entitled to one hundred inches of the waters of “Jessie creek,” and that Manful was entitled to seventy-five inches of the flow of “Jessie creek,” and Long to fifteen inches of the waters of “Jessie creek.” We also find the same language used in the decree, the court decreeing each the number of inches to which he was entitled out of the wateis of “Jessie creek” without reference to either the right or left hand fork of the creek. This decree has stood for twelve years without being questioned or attacked, and now the attack comes in a new actior and be [379] tween new parties. The respondent contends here that the judgment is clear and explicit on its face and that he can only be required to look to the judgment or decree for his instructions as to the amount of uater he shall distribute to each claimant. He also claims that the water users who are to be affected by the writ should be made parties to the action. It is certainly correct that the court could not properly enter a judgment directing the water-master to distribute the waters in any other manner than that expressed upon the faee of the decree without making the parties to be affected thereby parties to the action and bringing them into the ease. It is admitted by the appellants that if the court in this action is only to look to the decree entered in the case of Andrews v. Martin et al., that then the judgment in this ease should probably be affirmed. We think that position is correct, and we are also satisfied that in a ease like this where the decree upon its face is explicit as to the stream from which the waters are to be distributed, that the water-master cannot be required to look beyond the decree itself. The findings of fact, while a part of the judgment-roll under our statute, is not a part of the judgment. A party dissatisfied with a judgment entered by the trial court may have the same reversed, if not supported by the findings of fact, or modified, if it goes beyond that authorized by the findings of fact, or for the purpose of moving for a new trial, and on appeal may refer to the entire judgment-roll and may also do likewise where the question of res adjudícala arises, but it does not follow that a ministerial officer such as a water-master can be required to go beyond the plain provisions of a decree to ascertain whether or not the same is supported by the findings, or even to determine whether there be a conflict between the findings and decree. As bearing on this point, see Weehawken Ferry Co. v. Sisson, 17 N. J. Eq. 476; Crowell v. Sac County, 94 U. S. 351, 24 L. ed. 195; Mitchell v. Insley, 33 Kan. 654, 7 Pac. 201; Black on Judgments, secs. 609, 687; Denike v. Denike, 44 App. Div. 621, 60 N. Y. Supp. 110; Bank of Emporia v. Brigham, 61 Kan. 727, 60 Pac. 754; Auld v. Smith, 23 Kan. 65; Hollen [380] beck, v. McCoy, 127 Cal. 21, 59 Pac. 201; Lance v. Shaughnessy, 86 Hun, 411, 33 N. Y. Supp. 515. Indeed, a decree might stand without any findings whatever if no objection be urged against it by any party affected thereby within the time allowed for an appeal. The defendant’s demurrer was properly sustained, and the judgment entered thereon must be affirmed. Costs awarded to respondent. Stoekslager, C. J., concurs.