Hough v. Porter

*445 Decided June 29, 1909.

On Motion for Rehearing

(102 Pac. -)

Mr. Justice King *

delivered the opinion of the court.

Geo. H. Small, by his counsel at the former hearing, aided by Benson & Stone, and Lionel R. Webster, whose services have since been procured, petitions for a rehearing, in support of which it is insisted that we are in error, (1) in our findings' as to the date of Small’s appropriation and the quantity of water awarded him; and (2) that the case was originally tried upon the theory that each of the parties were riparian owners, with reference to which it is suggested that this court, in its construction and application of what is known as the Desert Land Act, promulgated a doctrine heretofore unknown; and that, not anticipating such ruling, the same testimony was not adduced as would otherwise have been, by reason of which it is insisted that the case should be reopened for further taking of testimony, It is announced, however, in the opening of the typewritten argument, that no fault is intended to be found with the law as thus enunciated, making further consideration thereof unnecessary. See also: Boquillas Land & Cattle Co. v. Curtis, 212 U. S. -, (29 Sup. Ct. Rep. 493), where Hough v. Porter, 51 Or. 316 , ( 98 Pac. 1083 ), is cited on this point with implied approval.

The petition is accompanied by an ex parte showing by Small, consisting of his affidavit to the effect that he hired and paid an attorney, there named, to appear for him in this court, who failed to do as agreed, and that not until after the first hearing on appeal did he learn that the attorney thus employed neither appeared here, nor filed a brief for him in this court. It is, therefore, argued that as Small was, at an inopportune time, compelled to' employ other counsel, who, on account of the brief time then remaining, and for other reasons given, were not in position to give his interests the *446 attention essential to a full presentation of his rights; that his claims were not fully presented; and that his interests are, by reason thereof, materially impaired. This point we do not deem well taken. We are aware, however, that by being compelled, while litigation is pending, to make a change in attorneys, often results in much embarrassment to the party thus affected. But such occurrences are not unusual; and it is obvious that to make such inconvenience a basis for granting a rehearing, or for a reopening of a cause for further proceedings, could but result in establishing a precedent which, in place of facilitating business and promoting justice, would too often tend unnecessarily to increase the labor of courts, and in the delay of the always to be desired' early determination of legal controversies, without corresponding benefits to the contestants. While at the first argument in this court the petitioner was not represented by counsel, he was, at the re-argument thereof, represented by able counsel, who filed briefs in his behalf asserting, clearly and concisely, upon both the law and facts, his claims under the doctrine of adverse possession and prior appropriation; these being the grounds upon which he still maintains his rights. Again, his situation, with reference to counsel, is not unlike that of practically all others whose interests, with his, have been determined; for, with the exception of W. J. Moore, whose name appears on appellant’s brief only, and J. C. Rutenic, who came into the case after the taking of the testimony in the suit as first brought by Annie C. Hough, none of the counsel who appear for the contestants in this court were connected with the trial in the court below. Furthermore, recognizing the disadvantages under such circumstances necessarily accruing as a result of a change in attorneys, together with the voluminous record, and corresponding opportunity for oversights and errors in the preparation of briefs and in the presentation of the cause on appeal, *447 extraordinary precautions were taken here for the protection, in this respect, of not only all who appeared by counsel, but. for the safeguarding of the rights of the numerous parties not represented by counsel (see 51 Or. 366 : 98 Pac. 1108 ), by carefully examining into, and in the preparation of a synopsis of the testimony bearing upon the numerous and conflicting claims and interests, respectively, of all parties to the suit. But notwithstanding the thorough investigation made in this respect, we have, in connection with the petition for rehearing and points there urged, again carefully examined the record, with the result hereinafter indicated.

Counsel for Small maintain that we should have held him entitled to a greater quantity of water than here awarded him, in reference to which it is asserted that he has established title by ten years adverse use thereof, and that the testimony clearly discloses an appropriation and actual application prior to 1884, of a much larger quantity of water than the entire amount decreed him. The conclusion reached in the main opinion as to Durand’s claim as an adverse user ( 51 Or. 433 : 98 Pac. 1107 ), including the reasons given therefor, applies with equal force to, and disposes of Small’s contention oh this point. It is argued in connection with his claim as to the date of his appropriation that the admission in Small’s testimony relative to the filing of the declaratory statement, made in'connection with his desert land entry, should not be taken as having any bearing upon his testimony fixing the date of his original diversions and appropriations. His sworn declaration, filed at the time, after stating that the land was desert in character, and would not produce crops without irrigation,, etc., adds, “that no portion of said land has ever been reclaimed by conducting water thereon * * This declaration, it is admitted by Small, was filed by him in the land office in the spring of 1884, and, when *448 construed along with the direct and positive testimony of other witnesses, to the effect that the ditch constructed for use on this land was not commenced earlier than 1884, some fixing it at a later date, can leave but little doubt upon the subject.

Nor are we able to agree with counsel for petitioner concerning the second point presented. If all, or even a large per cent, of those whose interests here involved wrere petitioning on that ground for the reopening of the cause we might feel disposed to “acquiesce therein; but Small is the only party to this proceeding seeking either a rehearing or reopening thereof. Assuming that his interests were not properly represented, and that his cause was tried under the adverse circumstances suggested by his affidavit and argument of his counsel, we would be impelled, in response thereto, to take into consideration the fact that this suit, when computed with the effect of the delay incident to the petition under consideration, has been pending in the courts for ten years; that such delay has not only, to a large extent, resulted, thus far, in a denial of justice to many whose interests are involved, but that during the many years which have elapsed since the testimony was taken, death has removed not only some of those most vitally interested, but other important witnesses as well, to say nothing of those who, during that decade, may have moved to parts unknown, thereby depriving the litigants satisfied with the result heretofore announced of the additional testimony likely, in the event the cause should be reopened, to be desired. It is obvious, therefore, that at this late date, in the absence of some extraordinary showing therefor, it would be very inequitable to permit a few of the parties tó the suit remaining in the vicinity of the property involved, who may be dissatisfied with the result, to furnish additional testimony on their part, while others, for the reasons stated, would not have an equal opportunity to rebut such evidence as may thus *449 be offered. It is evident, therefore, that less injury will ensue from a decision upon the testimony presented and before us, taken when all parties in interest and their witnesses were living and available, than to reopen the cause.

Under the fundamental law of our land all persons are entitled by due process of law to protection in their property rights, and to a speedy hearing of any controversy in respect thereto: Constitution, Oregon, Article I, § 10. It is'clearly manifest, therefore, that after this cause has dragged along through the courts for a decade, to remand it to the court below for another indefinite journey would not only be to disregard the letter and spirit of the section of the Bill of Rights cited, but, in effect, to declare it obsolete. And, in this connection, it should not be overlooked that, during the many years which have elapsed since the institution of this proceeding, some have been deprived of the use of water to which they were entitled, while others, and prominent among them this petitioner, have received much more than their legal quota, for which reason, if for no other, without discovering more than ordinary reasons therefor, we would not be justified in again delaying the final determination hereof.

But there is another and more potent reason why petitioner’s demands in this respect should not be granted. The only parties, if any, to which the skillful arguments presented by his counsel can under any system of logic be deemed applicable, are making no complaint as to the result heretofore announced; they do not seek a rehearing or reopening of the cause in- any manner, and the reasons presented therefor by counsel for Small can have no application to his situation. The cause was tried by some, it is true, upon the theory that the doctrine of riparian rights, with reference to irrigation, prevailed and was applicable to their lands; but not so with petitioner. He sought to defend as an *450 adverse user and prior appropriator only, his pleadings being held sufficient for that purpose ( 51 Or. 424 , 433, 438, 439: 98 Pac. 1104 , 1107, 1109), and his proof not only went to the question of adverse possession, but to prior appropriation as well; his efforts in this direction being, to say the least, as ably and as fully presented as is usual in cases of this kind. Much testimony was offered on his behalf for the purpose of establishing the dates of his settlements, of his filing, of his final proof, of the initiation of his various rights, the size of his ditches, the quantity and character of land irrigated, including the quantity of water required for the proper irrigation thereof, and it is evident therefrom that he relied in his proof principally upon his claim as a prior appropriator, even to the extent of securing a stipulation to the effect that he was prior in time and superior in right to the plaintiffs. (See 51 Or. 338 , 424: 95 Pac. 737 ; 98 Pac. 1104 , 1109.) The same may be said of the few others who have informally, and not in compliance with any of the rules of this court, presented and signed a statement suggesting that Small’s petition should be granted, for which reason their request, even if legally entitled to consideration, is devoid of merit.

In our first opinion, 51 Or., at page 380, ( 95 Pac. 751 ), we stated that since the cause was “tried largely on the theory that riparian rights have attached to the lands, the evidence seems inadequate for the purpose of making an equitable distribution under that rule,” which statement we supplemented with suggestions as to the character of proof desired in that connection; but we subsequently held the doctrine of riparian rights to be inapplicable to any of the rights involved. Had we held to the opposite view, then, for the reasons there suggested with reference to the proof necessary for distribution among riparian owners, it would probably have resulted, sua sponte, in remanding the cause for *451 the further taking of testimony; but when the question of riparian rights became eliminated the reasons for the taking of additional testimony ceased. It is nothing unusual for litigants to discover on appeal for the first time that they have tried the cause on a wrong theory in the court below, and especially is this true in suits in equity; but whatever may be the hardships occasioned thereby none by reason thereof have resulted in the case under consideration. (See 51 Or. 439 : 98 Pac. 1109 .) It is evident, however, from an inspection of the record, that this cause, like most water suits, was tried upon the theory that each should avail himself of whatever defense the court after trial might discover he had, and, as a result, some pleaded all defenses and rights available, with the apparent hope and expectation that they might, at least, come within hailing distance of some of them; and this dragnetic system of pleading and proof is not unusual in the trial of this class of cases. Pursuant to such policy, the litigants appear, so far as deemed essential, to have introduced all evidence at hand deemed likely to have any bearing upon the case, regardless of the claim of right or defense under which their proof might eventually be classed, the principal defect in which, as indicated, was that the proof offered was insufficient to enable this court to make an equitable adjustment of the rights of the respective parties in case they were to be determined under the riparian doctrine, as anticipated by some and as subsequently attempted by the trial court. True, the showing made at the trial by some of the parties to the suit, under the issues ■ subsequently held inapplicable, was very meager and indefinite, but, as hereinbefore stated, none of those injured thereby, if any, are complaining, from which we must infer that they are satisfied with the result, and certainly Small, who fortunately is not thus situated, is not in position to complain for them; esnecially since their lack of diligence at the trial, it is clear, in no way works to his prejudice.

*452 It is next maintained in the brief last filed in. support of the petition for rehearing that, since the beneficial use and the needs of the user are held to be the limit of his right, and that we have fixed the minimum and maximum quantity reasonably required for the proper irrigation of any of the lands involved, at from one and one-half to three acre feet, such quantity “might be too much for some of this land and not more than half enough for the other,” by reason of which it is argued that additional testimony should be taken to clear up, in this respect, the demands and requirements of each, by ascertaining “the áctual facts and leave nothing to general conjecture or vague supposition.” This contention manifestly overlooks our holding upon this subject, to the effect that when the water is not required by one or more it shall be at the disposal of others: 51 Or. 438 ( 98 Pac. 1109 ); Gardner v. Wright, 49 Or. 609, 637 ( 91 Pac. 286, 297 ). If, therefore, 11/2 acre feet is not required by some for the proper irrigation of their lands, the surplus must be available for others. For example, if one of the parties requires but a half acre foot, or one-third of the minimum quantity awarded, to properly irrigate his land, the supply remaining must be subject to use by others; and again, if after each shall have received the supply of water awarded him (if there is sufficient for that purpose), any surplus shall remain, such surplus, whatever it may be, as between the parties hereto, comes within the same rule and accordingly becomes available for their use in the order of the priorities heretofore determined.

Anticipating the obstacles, from time to time likely to arise in this respect, as climate and soils may change, and also being mindful of the fact that the evidence on some points is not as full and explicit as it might be, to say nothing of the unforeseen difficulties which in time always make their appearance in such cases, ample-provision was made in our former opinion ( 51 Or. 444 : 98 Pac. 1111 ), for the entry of such supplemental *453 decree, or decrees, not inconsistent with the views announced, as may, at any time, be found essential to meet emergencies as they may arise. The order of priorities, proportionate interests and limitation of the rights of each of the litigants is determined; but the question as to when a water user may be deemed to be acting within or without the scope of the decree, including the best manner and method of its enforcement, may make it necessary at times, in order to carry the spirit of the decree into effect, for the court below to require further evidence upon the disputed points. For example, it might become necessary from time to time to gather information concerning the acreage irrigated, as to what tracts require water, quantity necessary for the proper irrigation thereof, the best and most effective method of distribution, quantity of water available, amount actually applied, etc., etc. (See 51 Or. 380 , 444: 95 Pac. 751 : 98 Pac. 1101 , 1111), all of which may be done by and under the direction of the trial court, as in other cases, or in the manner recently provided for by legislative enactment. See Gen. Laws 1909, p. 319, Chap. 215, §§ 36, et seq. Evidence for such purposes, owing to its nature, will always be available, and accordingly is not subject to the objection hereinbefore alluded to in response to petitioner’s demands. It is obvious, therefore, that the emergency advanced for reopening the cause at this time, for the purpose of securing the class of evidence suggested as desirable, is fully recognized in our former opinion and provision will be made therefor in the decree to be entered here, making such proceeding at this time clearly unnecessary.

There is another feature, however, to which our attention has been directed, with reference to which we are inclined to adopt counsels’ view. Since filing the main opinion the Porters’ have placed on file with the clerk of this court, cost bills, taxing against Small and in their favor the costs alleged to have been incurred by them in both courts, aggregating the sum of $2046.70, *454 from an inspection of which it appears there is included the witness fees, including mileage, of nearly all who testified in the case in the court below. This is evidently attempted upon the theory that as all whose fees are thus taxed gave testimony which directly or indirectly had some bearing upon the Porters’ interests, their mileage and per diem should be included in the cost bill in his favor. Why the costs incurred in the court below are taxed here does not appear, nor can we surmise a reason therefor, unless it is upon the theory that since the statute provides that suits in equity shall be tried ele novo on appeal, it implies that the cost bill must be filed in this court. Such is not the usual practice; but whether it is the proper procedure in such cases is not before us, and accordingly will not be determined. But the cost bills filed illustrate the difficulties to be presented if costs are to be taxed in the manner heretofore directed; in fact, it is manifest that the obstacles to be encountered in determining, under our former holding if adhered to, the proportion of costs in the lower court to be taxed against Small, makes an equitable adjustment thereof very difficult, if not impracticable, and would probably result in requiring Small to bear too large a burden in this respect; thus partaking of the nature of a punitive, rather than an equitable, assessment thereof, which was not intended.

Since all the parties to the controversy are materially benefitted, to the extent at least of having their rights finally determined, even though the result in each particular case may not be what he or she have expected or desired,' we think, after a careful reconsideration thereof, the court below was fully justified in decreeing that none of the parties recover costs in that court.

Porters’ judgment against Small for costs and disbursements will therefore be limited to those incurred in this court.

The petition is denied.

Modified as to Costs : Rehearing Denied.