Taylor v. Tempe Irrigating Canal Co.

ROSS, J. We designate the parties as plaintiffs and defendants because they occupy the same position here in relation to the issues as in the trial court. The plaintiffs, as husband and wife, are the owners of a half section of farming land located under the canal of the Tempe Irrigating Canal Company, an unincorporated association, a defendant, the other defendants being the board of directors of said company, vested with complete power to manage its affairs. By the suit plaintiffs seek to mandamus the defendants, as public carriers of water, to deliver to them forty-eight inches of water, constant flow or its equivalent, for each one-quarter section, or ninety-six inches for the half section, for the purpose of irrigating the 1917 crops growing on their land, contending that in what is known as the Kent decree they were awarded that quantity of water, and thereunder it is made — 576 — the legal duty of the defendants to give that quantity of water to the plaintiffs. The defendants’ answer sets forth several defenses. The trial court disposed of the case upon the construction of the Kent decree, holding that said decree “does not impose upon defendants the duty to distributé water in any particular method or according to the priority claimed by the plaintiffs.” In that connection the court construed the Kent decree as going “no further than to provide for a distribution as between canals.” The court, after a trial of the issues, also sustained the defendants’ defense that plaintiffs were estopped by permitting and acquiescing in a system of distributing the waters of the Tempe canal according to shares of stock owned in the canal company and not according to priority, thus waiving their priority. The plaintiffs appeal, contending the views adopted by -the court were erroneous. We have come to the conclusion, after much reflection, that plaintiffs cannot be permitted to pursue the remedy of mandamus, because the Kent decree itself has pointed out for them and others in like situation another, better, speedier and more .adequate remedy, by formal application in the case in which that decree was entered. We quote from the decree the following excerpts: “The court retains jurisdiction of the cause and of the issues embraced herein, and, upon good cause shown, may from time to time modify, enlarge, or abrogate any portion or feature of this decree, or of the decision and tables filed herewith as a part hereof, by order or supplemental judgment or decree to be entered at the foot hereof. . ’. . “At any time any party to this suit, or any canal company acting as the carrier of the water distributed, may apply to the court or the judge thereof for an interpretation, modification, enlargement, or annulment of any order, direction, or action of the commis — 577 — sioner in the carrying ont of the provisions of the decree. . . . “The decision and decree in this case, from the nature thereof, is of necessity a continuing one. The court retains jurisdiction of the case and of the issues embraced therein. From time to time, as conditions may require, an enlargement or modification of the decision and decree, application for such modification or enlargement may be made to the court, and, if granted, the same shall be entered at the foot of the decree herein.” A few words concerning the circumstances that gave cause for the Kent decree we think not amiss. It was entered in the district court of Maricopa county March 1, 1910, in the case of P. T. Hurley v. Chas. F. Abbott and 4,800 Other Persons, the United States being an intervener. The United States had theretofore acquired title to the Roosevelt dam and reservoir site, and to most of the irrigating systems of the Salt River Valley, and was also interested, as guardian, in certain Indians who had settled in the Salt River Valley and were consumers of waters of the Salt and Verde Rivers. The other parties to the suit were or had been owners of land and appropriators of some of said waters. It was thought necessary, before the project was complete and ready to serve patrons, that those entitled to service should be ascertained. It was also necessary to ascertain the amount of water that had been theretofore appropriated for beneficial purposes in order to determine the water subject to storage. These things could be accomplished only by one big suit in the form of an action to quiet title of all the users and appropriators of the waters of said rivers; hence the Hurley-Abbott suit. This suit was pending and in course of trial for more than three years before the learned trial judge entered what is known as the Kent decree; “the testimony,” as the court says, “being taken intermittently during a period of two and one-half years. ’ ’ — 578 — At the time of the entry of the decree the dam was not completed. The data before the court as to the service of water was based upon an insufficient supply during the irrigating season every year theretofore. The court was without any guide to inform him what effect an ample supply, which was expected from the reservoir for every year, would have upon the duty of water, but doubtless entertained the idea that it would be much increased. He also knew that the amount, extent, duration and priority of the use of water by the different parties to the suit, as found, was based largely upon the ex parte testimony of each of said parties. Moreover, the impounding, diversion and distribution of the waters to the various canals were made a function of the officers of the United States under the supervision of the court. Thus a different system was to be inaugurated than theretofore prevailing with every reason to expect radically different results. This new system had not been tried out, and its effect, when applied, was problematical. The court therefore retained jurisdiction of the United States and its officers and all the other parties to the suit and the subject matter of the suit, with the power to interpret, modify, enlarge or annul “any order, direction or action of the commissioner in carrying out all the provisions of the decree,” and also upon “good cause shown from time to time to modify, enlarge or abrogate any portion or feature of the decree or of this decision and tables filed herewith as a part hereof by order or supplemental judgment of decree to be entered at the foot hereof.” More than any other question, in a case bristling with intricate and vitally important questions, the question of the duty of-water was found by the distinguished trial judge the most difficult to solve. He' so stated, and also said the duty of water fixed by him was experimental. Listen to his words: — 579 — “The amount of water necessary for proper and economical irrigation and cultivation of a given amount of land is perhaps the most difficult of satisfactory solution of all the various questions arising in the case.” Again: “Such a standard [forty-eight inches per quarter-section], while perhaps not permitting of a precise conformity with existing conditions, can for the present at least experimentally be tried, and hereafter changed as it may be found to be inadequate or too great. ... I therefore fix upon and determine such to be the duty of water for the purposes of this case,' subject, however, to an increase or decrease of such standard upon application to the conrt in this suit hereafter as conditions may require and develop after due trial of such amount as such standard.” (Italics ours.) That the court entering the Kent decree did not intend finally to fix the service of water at forty-eight inches per quarter-section is certain; that he did intend that this amount should be only tentatively fixed for the purpose of trying it out experimentally under the new conditions is likewise certain. We cannot ignore this intention so clearly expressed and hold that forty-eight inches of water, continuous flow or its equivalent, was finally awarded these plaintiffs for each quarter-section of their land. The Kent decree was entered in the form we find it without complaint or objection by the plaintiffs or any other of the litigants to the suit at the time or since. The Salt River Valley water service has been carried on under its provisions, and every day since it was entered the court has been open to any or all the parties thereto, and is now open, to have it modified, changed or altered, upon good cause shown. By the decree the plaintiffs and others in like situation doubtless have a perpetual water right in amount “necessary for proper and economical irrigation” of their land, but — 580 — the exact amount has not been finally fixed and settled by the'Kent decree. In view of the acceptance of the decree by all parties, we must conclude they were satisfied with its terms and became thereby bound to apply to the court that entered it, in the manner therein provided, for any relief under its terms. In the new conditions and circumstances, this form of decree must have been thought by the court and litigants the best suited to attain the highest and best results to all those who own land and water rights under the Koosevelt project, as it would afford an opportunity to ascertain the greatest service that could be imposed upon the amount of water available for irrigation, and by actual experiment bring to light any improvident or inequitable provisions of the decree. As to whether the experiment should demonstrate that forty-eight inches of water per quarter-section was too little or too much or the proper amount for economical irrigation and cultivation thereof, the court retained the power to say “upon application to the court in this suit hereafter as conditions may require and develop after due trial of such amount as such standard.” The defendants as public carriers of water, were not given by the decree any power to decide upon the experiment. They were- not authorized to say the experimental standard of forty-eight inches was the proper amount or too much or too little. The court only would pass upon that question, after due trial of the standard and upon application. This, of course, would involve the forming of issues, the submission of evidence, and a trial. The rule is: “The party applying for a writ of mandamus must show a clear, legal right to have the thing done which is asked for, and it must be the clear legal duty of the party sought to be coerced to do the thing he is called on to do.” People v. Butler, 24 Colo. 401, 51 Pac. 510. — 581 — The excerpts quoted from the Kent decree show not only that plaintiffs have no clear, legal right to have done what is asked, hut no legal duty upon defendants to do it. It would he an anomaly in the administration of the law to permit a party claiming a right in an action over which the court retains jurisdiction, as in the Hurley-Abbott case, to seek the protection or enforcement of that right in a different and independent action. Why not apply for relief or protection in the pending action? What reason or excuse may be suggested to justify another and different action? If the right asserted has been fully ascertained and determined, the court, upon application, or, for that matter, upon its own motion, possesses the power to. protect or enforce it and to that end it may make orders and punish for their disobedience. If the right asserted has not been finally ascertained and determined or is in doubt, the court possesses the .power, in disputes and controversies, to do justice and equity between the parties. The -remedy is simple and at hand. In an application to the court for a confirmation or enforcement of the experimental standard or for a change of that standard, “as conditions may require and develop,” all of the appropriators and users of water under the defendant canal company’s canal should be served with notice and permitted to appear; for it is apparent that all such are vitally interested. On that important question all water users under the Tempe irrigating canal should have an opportunity to be heard, whether in support of or in opposition to the application. Squire v. Livezy et al., 36 Colo. 302 85 Pac. 181. It is clear that the learned trial judge was strongly of the opinion that the proper remedy for the plaintiffs was by way of a direct application to the court in the Hurley-Abbott case. He said: — 582 — “To such, a decree the rule that the judgment of a court becomes final and not subject to a change or modification after the term at which it was rendered has no application. It is of necessity a continuing decree and subject to modification or enlargement or change at any time that proper showing may be made therefor. But the plaintiffs, or others in like situation, have at least twice made application to this court in the case of Hurley v. Abbott for the relief or similar relief to that sought in this action, and each time this court has denied the application on the ground that it had no jurisdiction to grant it because the judgment was not subject to modification after the term at which it was rendered.” The. judge who used this language had been called in from another county to try the case, and, as a matter of course, followed the ruling of the local judge. The fault, if any, lies with the plaintiffs or others who had theretofore made application for relief under the decree, in failing to appeal from the ruling denying the application. The judgment is reversed and the case is remanded, with directions to dismiss the plaintiffs’ complaint. BAKER, J., concurs.