Nault v. Palmer

BURNETT, J. 1. From the record it appears that the rights and priorities of the parties were fixed and determined in the original decree. This, however, could not effect other users of the waters of Powder River and its tributaries who did not participate in that suit. The decree was binding only upon the parties to it. Tt was' competent, therefore, for the water board on proper petition, as is admitted, to examine and determine the rights and priorities of all users of that water system, including the creeks mentioned. The water rights and priorities of the immediate parties to this suit were preserved, not impaired, but declared, by the ensuing decree of the Circuit Court. From that point on it became a question of the administration of those rights. We cannot give to either of the users of the water any right separate or different from that which the decree has declared. Nothing is' gained by piling decree upon decree. So far as the users themselves are concerned, one means for the enforcement of the decree is found in the provisions of Section 411, L. O. L., reading thus: “A decree requiring a party to make a conveyance, transfer, release, acquittance, or other like act within a period therein specified shall, if such party do not comply therewith, be deemed and taken to be equivalent thereto. The court or judge thereof may enforce an order or decree in a suit, other than for the payment of money, by punishing the party refusing or neglecting to comply therewith, as for a contempt.5 ’ — 544 — Another method of executing the terms of the decree is through the operations of the water-master as hereinafter noted. The part of the water code embodied in Chapter VI of Title xliii, L. O. L., treating of the administration of water rights, provides substantially that the water board shall cause a survey of a stream system to be made upon the petition of individuals interested, and that, after giving a proper notice and hearing all parties concerned, it shall make a report to the Circuit Court, setting forth the rights and priorities of all users of water involved. Notice of the filing of such report is provided for and opportunity is given to be heard in support of or objection to the report, with the final result of a decree rendered upon the report, either affirming or modifying the same; and that decree is a determination of the rights and priorities of all parties to the proceedings the same as any other adjudication of that tribunal. For the administration of the rights thus perpetuated, a water-master is provided, whose duty it is to see that the water is used in accordance with the court’s determination. His duties are summed up in Sections 6617 and 6618, L. O. L., as they stood at the times narrated in the pleadings herein. They are here set down: ‘ ‘ Sec. 6617. It shall be the duty of the said water-masters to divide the water of the natural streams or other sources of supply of his district among the several ditches and reservoirs, taking water therefrom, according to the rights of each respectively, in whole or dn part, and to shut and fasten, or cause to be shut and fastened, the headgates of ditches, and shall regulate or cause to be regulated, the controlling works of reservoirs, in time of scarcity of water, as may be necessary by reason of the rights existing from said streams of his district. The water-master shall have authority to regulate the distribution of — 545 — water among the. various users under any partnership ditch or reservoir, where rights have been determined in accordance with existing decrees. Whenever, in the pursuance of his duties, the water-master regulates a headgate to a ditch or the controlling works of reservoirs, it shall be. his duty to attach to such headgate or controlling works, a written notice properly dated and signed, setting forth the fact that such headgate or controlling works has been properly regulated and is wholly under his control, and such notice shall be a legal notice to all parties interested in the division and distribution of the water of such ditch or reservoir. It shall be the duty of the district attorney to appear for, or on behalf of the division superintendent or any water-master in any case which may arise in the pursuance of the official duties of any such officer within the jurisdiction of said district attorney. ‘ ‘ Sec. 6618. Said water-master shall, as near as may be, divide, regulate and control the use of the water of all streams within his district by such closing or partially closing of the headgates as will prevent the waste of water, or its use in excess of the volume to which the owner of the right is lawfully entitled, and any person who may be injured by the action of any water-master, shali have the right to appeal to the Circuit Court for an injunction. Such injunction shall only be issued in case it can be shown at the hearing that the water-master has failed to carry into effect the order of the board of control or decrees of the court determining the existing rights to the use of water.” 2. It is true enough that under the latter section injunction will lie against the water-master if he fails to carry into effect the decree of the court in determining existing rights to the use of the water. It is true also that the adverse owners of water rights would be proper parties to such a suit as far as their rights were involved. But the essential party to such proceeding for injunction would be — 546 — the water-master. Conceding, without deciding, that the pleadings here show malfeasance by that officer, yet, as the plaintiff has voluntarily dismissed the suit as to him, no relief can be awarded against him in this litigation. As stated, the rights of Palmer and Denham and of the plaintiff have been adjudicated by the decrees already rendered, beyond our power of change. Under the present status of adjudication, the only dispute that can arise concerns the administration of the decree; and, not having before us the only official in charge of that administration, we cannot do anything which would affect him. Complaint is made in a general way that the plaintiff has been arrested, and that the defendants propose to arrest him as often as he opens his head-gate. In Hall v. Dunn, 52 Or. 475 (97 Pac. 811, 25 L. R. A. (N. S.) 193), it is said: “The rule is quite general that a court of equity has no jurisdiction by injunction to restrain the enforcement of criminal proceedings.” 3. The exception to that rule is also pointed out in the same case, and can be stated generally to be that, where public officers are undertaking to enforce a void statute, injunction will lie, not against the state, but against them, because they do not in fact represent the state, for it has not sanctioned any such proceeding; the supposed statute being void and constituting no genuine utterance of the lawmaking- power: See, also, Denton v. McDonald, 104 Tex. 206 (135 S. W. 1148, 34 L. R. A. (N. S.) 453). Here no attack is made upon the validity of the legislation under which the water-master is proceeding. The regularity of the decree which he is supposed to enforce is confessed. It is plain, therefore, that the case made by the plaintiff is not within the — 547 — exception to the general rule that equity will not undertake to control criminal proceedings. The guilt or innocence of a criminal charge can be successfully established by the ordinary course of the law. 4, 5. Anyone having priority in the use of water is entitled so to use it that its highest duty will be effected. He can employ it to the best advantage of the tract to which it is appurtenant. He cannot be compelled to use it in advance of such a situation. On the other hand, he cannot postpone the use of water at its best upon that tract in favor of a separate parcel junior to another which in turn is junior to the first tract, and then, after having used it on the tract junior to all, take it up and give belated use on the first tract, to the injury of the intermediate user. This would be a perversion of the order of priority, constituting a legal waste; in other words, it would be wasting the senior appropriation as against the immediate junior and in favor of one junior to. all others. It is the duty of the water-master under the statute to preserve the priorities and the quantities consistently with the highest duty of water, as applied to all concerned. 6. Great stress is laid by the plaintiff on the provisions of the original decree declaring that the voluntary diversion of water to a tract to which it was not appurtenant would be conclusive evidence that the water was not needed by the prior appropriator for fifteen days thereafter, and it is upon this assumed state of facts that the plaintiff predicates his right to open his headgate. So far as that is concerned, the Circuit Court in the original suit was called upon to determine the rights and priorities of the parties respecting the streams there involved. — 548 — It had no authority to establish an arbitrary rule of evidence or to prescribe penalties for future violation of priorities. Those matters were not pertinent to or included in , the issues in that case. 7. The only questions that arise on the record as here disclosed are those of administration of the previous decree. The administrator, namely, the water-master, is not before us. As to the parties who remain in court, we cannot make any adjudication additional to or different from those already rendered by a court confessedly having jurisdiction of the parties and of the subject matter. The same was true of the Circuit Court as to’ this suit, for there can be no appeal from the Circuit Court to the Circuit Court, and especially to the same Circuit Court. Under the circumstances, the trial court was right in dismissing the suit, and its order will be affirmed, without prejudice to the rights of any party to operate by injunction or other proper procedure against the water-master or any party to the decree as to the administration thereof. Neither party will recover costs or disbursements from the other here or in the Circuit Court. Affirmed. Justice Johns was present at the hearing but did not participate in the decision of this case.