Haney v. Neace-Stark Co.

BBOWN, J. The brief of the defendant NeaceStark Company asserts that the court erred in decree — 106 — ing that plaintiffs Haney and Astner were the owners, of a water right, with date of priority as of the year 1910, with right to divert and nse from the natural flow of the waters of Powder River and its tributaries, by means of a retention dam and pumping plant, sufficient water, to the extent of 4.37 cubic feet per second, for the irrigation of certain lands described in the decree. The court’s decree is based upon its findings of fact and conclusions of law, and is well supported by the evidence. In fact, the defendant does not attempt to point out in its brief wherein the evidence fails to support the findings of the court. We have read the record in its entirety, and we find that the court decided the question alluded to by Neace-Stark Company according to the weight of the evidence. The Neace-Stark Company relies chiefly, if not wholly, upon the defense of former adjudication. Prom the ¡statement it will be noted that all the defendants .pleaded former adjudication, in bar to the plaintiffs’ right to prosecute the present suit. The court sustained that defense as to the state officials and the Water-master. We will now examine the issues, the evidence received at the former hearing, the findings of fact and conclusions of law, and the decree entered in the former suit, with special reference to the issue above referred to. On the seventeenth day of November, 1919, a complaint was filed in the Circuit Court of the State of Oregon for Baker County, in which Herman C. Haney, John E. Astner, J. W. Cornelius and Arvid Saterbury were plaintiffs, and Neace-Stark Company, a corporation, Percy A. Cupper, State Engineer, Rhea Luper, Assistant State Engineer, and Loy M. Turner, — 107 — Water-master, were defendants. Plaintiffs’ complaint set ont a description of the lands owned by each of them respectively and alleged that each of the plaintiffs owned a water right appurtenant to his tract of land described in the complaint, and named the date of priority of such water right. It also averred the place, method and means of diverting the waters from Powder River to the lands of plaintiffs. The complaint alleged that the predecessors of Neace-Stark Company, defendant therein, maintained dams in Powder River, Baldock Slough and other sloughs, and that since the adjudication of the water rights belonging to said defendant company, it had, contrary to plaintiffs’ rights, diverted and used water which plaintiffs had a prior right to use, and that the State Engineer, his assistant, and the Water-master, had aided and abetted the defendants, to plaintiffs’ injury. The defendant Neace-Stark Company, answering the allegations of wrongful use alleged in the complaint, denied the same, and, in its answer, described tracts of land owned by it and asserted its claim to a water right as appurtenant thereto. It alleged the maintenance of dams by its predecessors in interest, as well as by itself, and asserted that the water rights claimed were exercised and used by means of such dams, together with pumps. Defendant’s brief, relative to its answer in the former suit, says: “The water rights and method of use are pleaded merely defensively, and (the answer) concludes merely with a prayer for dismissal of the suit.” After the joinder of issues by the parties to that suit, it came on for trial, and the court thereafter made its findings of fact and conclusions of law, and — 108 — entered a decree of dismissal. That decree was never appealed from. We will refer hereafter to the court’s findings of fact and conclusions of law filed in that case. On January 27, 1921, two of the four plaintiffs in the former suit, Herman C. Haney and John E. Astner, commenced a suit in equity in the Circuit Court of the State of Oregon for Baker County, hy filing a complaint averring their cause of suit as set forth in our statement herein. It will be noted that in the latter pleading the right of plaintiffs is pleaded with some particularity. It contains specific allegations as to the quantity of water and the nature of the right claimed, which were not found in the original pleading. The answer filed in this suit by the defendant Neace-Stark Company is almost identical with that in the former suit, except that it contains a more accurate description of its asserted water rights, and the former judgment is pleaded as an estoppel, in bar of this suit. The present case was tried in the same court and the evidence in the former suit, including stipulations, maps and exhibits, offered in the former suit, was received as testimony in the present suit. However, there was some additional testimony offered in this cause. The Circuit Court found that the plaintiffs were not barred from the prosecution of this suit by the judgment in the former suit, and, based upon its findings of fact and conclusions of law, made the decree hereinbefore set out. We find the issues attempted to be made in the pleadings in the former suit to be the issues joined in this suit. Hence, if a final adjudication was made by the Circuit Court, on the merits of the controversy between the parties, and that adjudication remains — 109 — unreversed, it is a bar to the prosecution of this suit. The Circuit Court was a court of competent jurisdiction. It rendered a judgment dismissing the cause. But was the judgment rendered by the court reached upon the merits of the cause, with full opportunity for a fair hearing? We will now recur to the findings and conclusions upon which the judgment of the lower court in the former suit was based, and we find it there recorded that the court expressly refrained from adjudicating the cause upon its merits, except as to certain issues hereinafter noted. From Finding No. 18 we quote: “That the extent of appropriations and application and use of water accomplished or perfected by the respective parties since, and beginning with, the year 1911, during which period said plaintiffs Haney and Astner and defendant’s predecessors in interest operated said electric pump and ditches under an agreement as a joint enterprise, cannot be determined in this proceeding from the pleadings and evidence submitted; and for like reasons the respective rights and priorities as between said parties incident to said joint use since and beginning with the year 1911 cannot be determined or governed by any decree in this proceeding.” From paragraph 1 of the court’s conclusions of law, we copy: “That the extent of said plaintiffs’ priority as of the year 1910 is prior to said defendant’s right, to the extent that diversion, application and use were perfected at the time said agreement was entered into, and subject to said agreement; the relative rights and- extent thereof as between said parties not being herein determined and not subject to determination from the pleadings and evidence in this proceeding, and that said priorities apply only to the natural flow of said Powder River and its tributaries, when the waters thereof are needed by the parties, and do — 110 — not apply to waters lawfully captured and stored during the periods when not used for irrigation under existing rights.” It it not necessary for us to determine the theory of the court in refusing to decide that issue. The question is: Did the court decide that issue between the parties? There was a controversy between the litigants relating to certain relative rights to the use of water for purposes of irrigation. That issue in that controversy remains undecided. The court invoked the doctrine that— “In order to give a judgment the merit of finality of an adjudication between the parties, it must be responsive, not only to the proofs, but to the issues tendered by the pleadings, because pleadings are the very foundation of judgments and decrees.” 15 E. C. L., p. 607. In the former case the plaintiffs pleaded not facts, but a conclusion, as to their ownership of the water right. Moreover, in suits involving title to water rights, it has been said: “The description of the right of the plaintiff should be pleaded with great particularity. The full extent of the right should be stated, the purpose for which the water is used, and the amount necessary for that purpose. * * The quantity of water claimed should be stated in cubic feet, acre feet, inches ox-gallons, or in some other definite measurement of water. # # In fact, in order to enable the court to make a decree quieting- the title to a water right, which will be definite and certain, it must have before it specific allegations as to the nature and extent of the water right claimed, which, of course, must be sustained by the proof.” 3 Kinney (2 ed.), pp. 2786, 2788. — 111 — But, regardless of the deficiency in the pleading, the pertinent fact is that the court refused to decide a specific issue upon its merits; and, hence, there being no decision, there was no adjudication as to that issue. To adjudicate is: “To settle in the exercise of judicial authority. To determine finally. Synonymous with ‘adjudge’ in its strictest sense. United States v. Irwin, 127 U. S. 125 (32 L. Ed. 99, 8 Sup. Ct. Rep. 1033, see, also, Rose’s IT. S. Notes).” Black’s Law Dictionary. In the former suit the court did not settle, in the exercise of its judicial authority, the relative rights of Herman C. Haney and John E. Astner and the Neace-Stark Company, to divert and use, during the irrigation seasons, the quantities of water required from the natural flow of Powder River and its tributaries, with a priority of 1910. The court having-failed to adjudge the issue, it follows that there can be no successful defense of former adjudication. By analogy, the following excerpt from O’Hara v. Parker, 27 Or. 156, 164 (39 Pac. 1004, 1005), is in point: “It is * * well settled # * that when an essential allegation is wanting in a complaint to which a demurrer is sustained, followed by a decree of dismissal, which allegation is fully supplied in the second suit, the decree in the first is not a bar to the second, and this is so although the respective suits were instituted to enforce the same right, for the reason that the merits of the case as disclosed in the second complaint were not heard and decided in the former suit: Gould v. Evansville etc. R. R. Co., 91 U. S. 526, 534 (23 L. Ed. 416); Gilman v. Rives, 35 U. S. (10 Pet.) 293 (9 L. Ed. 432, see, also, Rose’s U. S. Notes); Black on Judgments, § 707.” — 112 — In Burnett v. Marrs, 62 Or. 598, 602 (125 Pac. 838), the above case was cited with approval, as were the following authorities: 23 Cyc. 1152; 1 Freeman on Judgments (4 ed.), 267; Hughes v. Walker, 14 Or. 481 (13 Pac. 450); Hoover v. King, 43 Or. 281, 286 (72 Pac. 880, 99 Am. St. Rep. 754, 65 L. R. A. 790). In Pruitt v. Muldrick, 39 Or. 353 (65 Pac. 20), it is said that a judgment cannot be set up in bar of a subsequent action unless it was a final judgment on the merits, adjudicating the rights in litigation in a conclusive and definite manner. In rendering the opinion the court, speaking through Mr. Justice Wolverton, wrote: “ ‘In order that a judgment may constitute a bar to another suit,’ savs Mr. Justice Field in Hughes v. United States, 71 U. S. (4 Wall.) 232 (18 L. Ed. 303, see, also, Eose’s U. S. Notes), ‘it must be rendered in a proceeding between the same parties or their privies, and the point of controversy must be the same in both cases, and it must be determined on its merits. If the first suit was dismissed for defect of pleading, or parties, or a misconception of the form of proceeding, or the want of jurisdiction, or was disposed of on any ground which did not go to the merits of the action, the judgment rendered will prove no bar to another suit.’ Adopting this statement of the law, about the correctness of which there can be no controversy, if it can be gathered from the record that the merits of the controversy were not passed upon in the first proceeding, or that the judgment may have been given upon some point not affecting the merits, it does not rise to the authority of res judicata, and cannot be interposed as a bar to a second action for the same cause.” See 22 Am. & Eng. Ency. of Law (2 ed.), p. 769. In Crow v. Abraham, 86 Or. 99 (167 Pac. 590), Mr. Justice Moore said: — 113 — “To entitle a party successfully to invoke the plea of res adjudícala, the decision of a prior suit or action between the same parties must have been rendered upon the merits of the controversy.” Citing Van Fleet’s Former Adjudication, §30; Glenn v. Savage, 14 Or. 567 (13 Pac. 442). Again, this court has said: “It is not the recovery by the defendants that constitutes the bar or estoppel, but the decision upon the merits of the question which is in dispute between the parties: Dawley v. Brown, 79 N. Y. 390; King v. Townshend, 65 Hun, 567 (20 N. Y. Supp. 602); same case, 141 N. Y. 358 (36 N. E. 513.)” Hoover v. King, 43 Or. 281 (72 Pan. 880, 99 Am. St. Rep. 754, 65 L. R. A. 790). The legality of the transfer of an adjudicated water right appurtenant to a certain tract of land owned by Joseph Borton to a tract owned by the predecessors in interest of Neace-Stark Company was not adjudicated in the former suit, as is plainly disclosed by the court’s findings and conclusions in that case. But in the present cause the court decided that contention in favor of the defendants, and the plaintiffs appeal. From the pleadings and the evidence in this case, it appears that Joseph Borton was the owner of an adjudicated water right appurtenant to eighty acres of land in section 35, township 8 south, range 40 east of the "Willamette meridian, and that William Pollman, the predecessor in interest of the defendant Neace-Stark Company, and Joseph Borton, under date of February, 1919, made and filed an application to the State Water Board, requesting that the board permit the transfer of the place of use of the water right appurtenant to the lands of Joseph Borton, to a tract of eighty acres in section 2, township 8 south, — 114 — range 39 east of the Willamette meridian. The application set forth the reasons for such change, and stated facts showing that it had become impractical beneficially to use water for the irrigation of the Bortón lands, to which the water had been adjudicated. Based upon this application and the recommendation of an official of the board, the water right was transferred by the State Water Board. The plaintiffs assert in their cross-appeal that— “Recent cases and legislation in Oregon restrict the water rights inseparably to the original place of use,” and cite, in support thereof, Williams v. Altnow, 51 Or. 275 (95 Pac. 200, 97 Pac. 539); Whited v. Cavin, 55 Or. 98 (105 Pac. 396); Section 5764, Or. L. These citations do not sustain plaintiffs’ assertion. The court said, in Williams v. Altnow, supra: “And he may change the point of diversion or the place of use so long as it does not prejudice the rights of subsequent claimants: Bolter v. Garrett, 44 Or. 304 (75 Pac. 142); McCall v. Porter, 42 Or. 49 (70 Pac. 820, 71 Pac. 976); Long, Irrigation, § 50.” And, in Whited v. Cavin, supra: “A change in the point of diversion and place of use may be made when it can be done without prejudice to the rights of others: Hough v. Porter, 51 Or. 318, 438 (95 Pac. 732, 98 Pac. 1083, 102 Pac. 728).” Section 5764, Or. L., reads: “All water used in this state for irrigation purposes shall remain appurtenant to the land upon which it is used; provided, that if for any reason it should at any time become impracticable to beneficially or economically use water for the irrigation of any land to which the water is appurtenant, said right may be severed from said land and simultaneously transferred and become appurtenant to other — 115 — land without losing priority of right theretofore established, if such change can be made without detriment to existing rights, on the approval of an application of the owner to the State Water Board. Before the approval of such transfer, an inspection shall be made by the State Engineer, his assistant, or a water master, who shall submit his report to the State Water Board, whereupon, by order, the Board shall approve or disapprove such transfer and prescribe the conditions therefor. Such order shall be subject to appeal as in this act provided.” The plaintiffs then invoke In re North Powder River, 75 Or. 83 (144 Pac. 485, 146 Pac. 475), as supporting their contention that a water right is an inseparable appurtenance to land. The opinion in that case should be read in the light of the facts upon which the case was decided. In deciding that case, this court said, at page 95 (75 Or. 144 Pac. 489): “Therefore, the milling company, not having used or needed the water in July after the 10th, and during August of each year, we find that it is not entitled thereto during that period of time. The water is subject to use by the appropriator next in priority. The milling company owned no interest therein that it could sell or transfer to others, and therefore the purchasers of a portion of the milling company’s appropriation may not change the point of diversion. The purpose of its use or claim of priority therefor, from 1870, as disclosed by the facts in this case, and the attempt to change the point of diversion and the character of the use by Dalton, Smith and Mc-Phee, was in violation of the rights of others.” The water right of Joseph Borton was a valid property right that might be sold and transferred separately from his land: 1 Wiel, Water Rights (2 ed.), § 550; 2 Kinney, Water Rights, § 872. The following quotation from the leading case of Johnston v. Littlehorse Cr. Irr. Co., 13 Wyo. 208 (79 — 116 — Pac. 22, 110 Am. St. Rep. 986, 70 L. R. A. 341), is a concise statement of the law: “The only limitation upon the right of sale of a water right separate from the land to which it was first applied, and to which it has become appurtenant, laid down by any of the authorities, is that it shall not injuriously affect the rights of other appropriators. In other words, the burden upon the use must not be enlarged beyond that which rested upon it under the original appropriation, and while in the hands of the original appropriator, as he was entitled to and did use it.” It was said in Slosser v. Salt River etc. Co., 7 Ariz. 376 (65 Pac. 332): “Natural justice * * is subserved by recognizing the right of a water right holder to change his appropriation, under such circumstances, to lands capable of profitable cultivation, or to sell his right to another, to be used by the latter for a beneficial use recognized by the statute.” To similar effect is Hard v. Boise City Irr. & Land Co., 9 Idaho, 589 (76 Pac. 331, 65 L. R. A. 407). It is settled beyond dispute that a water right may be sold and transferred and its place of use changed, when such change does not injure the rights of others. In further support of the above, see case of Squaw Creek Irr. Dist. v. Mamero, 107 Or. 291 (214 Pac. 889), and authorities there cited. » The transfer of the water right in question was made in accordance with the mode prescribed by statute, and the rights of all were safeguarded by the decree of the court, by reason of the diminution in volume, if any, on account of the additional distance which the water flows to the new point of diversion. — 117 — The next point refers to waters impounded by the defendant Neace-Stark Company, and retained by the dams referred to in the pleadings herein, which waters were impounded from flood and from the surplus flow of waters at a time when not needed for irrigation. The court, in the present case, held and decreed that the defendant was entitled to these waters. The plaintiffs appeal from that part of the court’s decree. The defendant Neace-Stark Company answers by urging former adjudication as to all the issues in the case. The defendant’s right to the use of the stored waters is the same, whether that right is decreed in the former suit or in the present litigation. In this, as in the former suit, the court found in favor of the defendant Neace-Stark Company on that issue. So far as the stored waters are involved, we believe that the pleadings, the evidence offered in support thereof, together with the findings of fact, conclusions of law and decree, support the defendant’s contention of former adjudication, as to that issue. After describing the lands, the court found as a fact: “That ever since the commencement of the irrigation of said meadow lands the surplus waters coming down said Baldock Slough and not theretofore appropriated were captured and stored upon the said meadow lands by means of numerous dams in said slough; and that by reason of such water being so captured and stored, said meadow lands were flooded and irrigated thereby * * ; that immediately before the commencement of this proceeding the flow in the Powder Eiver and tributaries became too low to supply the required quantity of water for all the parties and the said plaintiffs thereupon demanded of said defendant to remove the planks in — 118 — said dams in said Baldoek Slough and. to let the water stored therein to come down for said plaintiffs’ use, and that upon defendant’s refusing so to do the said water master was requested to, and did, go upon the premises to assume charge of the distribution of said waters, and that upon said water master’s finding the flow in Powder River and tributaries being insufficient to supply any of the demands of the parties to this suit, and that said flow was sufficient only for owners of prior water rights below, caused said pumps to be closed, except that he permitted defendant to operate its pump for the purpose only of pumping such quantity of said stored water that had theretofore been captured and retained by said dams, since said water was so captured when not needed for irrigation, and that under said water master’s direction no water was permitted to be so pumped as to in any manner diminish the volume of said natural flow, and that said water so pumped was then used for the irrigation of said hill lands, and did not include any of the quantity of said natural flow, and did not diminish the same.” In this case the court held that the decree of former adjudication was well taken as to the water-master and the officials constituting the State Water Board. The decree in the former case went to the merits of the controversy relative to the lawful use of the impounded waters by the defendant Neace-Stark Company. It was never reversed. The findings of fact, conclusions of law and decree are in effect and hold that the use of the impounded waters by pumping the same on to the arid uplands of the Neace-Stark Company is lawful. To the same effect is the decree in the present suit relative to the impounded waters. Hence, it follows that the issue relating to stored waters having been determined in the former suit, that decision — 119 — is a bar to further litigation concerning that issue: Or. L., §§ 411, 756; Hill v. Cooper, 6 Or. 181. Every necessary question properly before the court that was tried and determined by the lower court in the former suit is conclusive of that same question in this proceeding: Runnells v. Leffel et al., 105 Or. 346 (207 Pac. 867); Taylor v. Winn, 104 Or.. 383 (207 Pac. 1096); United States Nat. Bank v. Shehan, 98 Or. 155 (193 Pac. 658); Stillwell v. Hill, 87 Or. 112 (169 Pac. 1174). As to when an adjudication in respect to an issue bars any further controversy in respect thereto, 1 Van Fleet’s Former Adjudication, page 512, says: “My own definition, which is deduced from all the cases, is this: If a material issue, which is not merely collaterally in question nor incidentally cognizable, is contested in a court of competent jurisdiction and determined by a final judgment on the merits, it will be at rest, as between the adverse parties and their respective privies, in all other judicial proceedings.” The decree entered by the court in this cause properly protects the interests of all the parties to the litigation. Hence, the judgment appealed from is affirmed, without costs to either party. Aeeirmed. Footnotes [2] Transfer of rights to use water for irrigation, see note in 65 L. B. A. 407.