Bamforth v. Ihmsen

204 P. 345, 28 Wyo. 282, 1922 Wyo. LEXIS 27

• Court: Wyoming Supreme Court
• Decided: February 10, 1922
• Docket: No. 1023
• Status: Published

Opinions

Blume, Justice.

This is an action to quiet title to two-thirds interest in tbe Park ditch and tbe alleged right of water of plaintiff’s intestate. Tbe case was brought by Frederick J. Ihmsen, as administrator of Thomas Gardner, deceased, against Fred F. Bamforth and Mary Bamforth. The latter did not appear, and is not connected with these' proceedings in error. The administrator will be hereinafter referred to as plaintiff and Fred F. Bamforth as the defendant, he being plaintiff in error herein. The petition originally contained three causes of action, the first two claiming damages for-interference with water rights and the ditch in question. The heirs of said Gardner and C. P. Arnold intervened and filed pleadings in the cause. The trial of the case was commenced before a jury, but during the trial the claims for damages were dismissed, the jury were discharged, and the trial proceeded before the court without a jury, as an action in equity for quieting title. The question, therefore, raised in the court below of misjoinder of causes of action and of misjoinder of parties, connected herewith, are eliminated from the case. The defendant has brought this case here by petition in error from the judgment entered below, after the filing and overruling of a motion for a new trial. Numerous errors are assigned; those not discussed herein we have fully examined, but find not well- taken, or unnecessary to be decided. The chief assignments of error, however, are herein fully taken up and discussed.

1. The defendant objects that the administratorherein had no right to act as such because he was clerk of the district court of Albany County. Ve cannot agree with counsel for defendant that the attack' thus made on the order of appointment is direct, but on the contrary believe that this is clearly a collateral attack. (23 Cyc. 1062, 1064.) It is true that ordinarily a judgment is binding only on parties and their privies, and not on strangers to the record. (23. Cyc. 1280.) But not every one who is a stranger to the litigation is at liberty to attack a judgment rendered therein. There would be no justification in permitting anyone to intermeddle therein who has no direct concern therewith. The stability and sancity of judgments would be destroyed if anyone whatever could at any time attack them at pleasure. It is.and should clearly be the law, consonant with public policy, that only those are and should be able to do so who can show a substantial interest in avoiding them —an interest which the law is bound to protect. (Black on Judgments (2nd Ed.) §260; 23 Cyc. 1068; Brandt v. Meade, 17 Ariz. 34, 148 Pac. 297; In Re Pepin, 53 Mont. 240, 163 Pac. 104; Heard v. Vinegard (Tex. Civ. App.) 212 S. W. 489; Delling v. Bill (N. J. Eq.) 108 Atl. 761; Bonella v. Maduel, 26 La. Ann. 112; Houston Oil Co. v. Hayden, 104 Tex. 175, 135 S. W. 1149; Harpold v. Doyle, 16 Idaho 671, 102 Pac. 158; Amy v. Amy, 12 Utah 278, 42 Pac. 1121; Glass v. Gilbert, 58 Pa. St. 266; Riland v. Eckert, 11 Harr. 220; Grasmeyer v. Beeson, 18 Tex. 753, 70 A. D. 309; Grant v. Hill (Tex. Civ. App.) 30 S. W. 952.) What difference could it make to the defendant in this ease as to who was appointed administrator of the estate of Gardner? What direct interest could he have therein? We can think of none. In this action defendant is dealing with the administrator, an entity as such, and it does not directly concern him so far as we are able to perceive, as to whether that entity is called A, B, or C, .and hence it has been almost universally held that the appointment made and the qualifications of the appointee are not subject to collateral attack by anyone. (23 C. J. 1088-1089; Jordan v. Railway Co., 125 Wis. 581, 4. Ann. Cas. 1113, and note collating the cases.) If, of course, the court had no jurisdiction at all to make the appointment, a different question would arise, but such is not the case here. In Larsen v. Union Pac. R. R. Co., 70 Nebr. 261, 97 N. W. 313, the court said:

. “The jurisdictional facts are the intestacy of the deceased and her residence in the county where the application is made. The competency of the person making the application, or of the person nominated for administrator, ■goes, not to the authority of the court to make the appointment, but to the manner in which the authority shall be exercised. * * * * When a petition is presented to the county court, showing the intestacy of the deceased and her residence in the county where the petition is presented, it shows all the jurisdictional facts, and the competency of the party making the application or proposed for administrator, for jurisdictional purposes is immaterial.”

In Sadler v. Sadler, 16 Ark. 628, the court said:

“Whether the probate court had granted the letters to the right or wrong person were not questions for the jury to determine. Such questions could only properly arise on a direct proceeding to review the action of the Probate Court in the matter.”

To the same effect is Taylor v. Hosick, 13 Kans. 518, 527.

§ 6777 of Wyoming C. S. 1920 enumerates the persons who' are incompetent to act as administrator and does not therein embrace the clerk of the district court. Under :§ 6745, when an estate is of the value of $500 or less, he is competent to act substantially as a q-acm-publie administrator, even though he performs most of the duties enumerated in the statute and referred'to in the brief of counsel for defendant. The plaintiff was not appointed under the latter section, but construing these two sections together, it would seem clear that at least no jurisdictional question is involved in' appointing such clerk. The case is unlike those cases wherein the person acting as judge appoints himself, since the appointment under our statute must be made by the court or judge and cannot be made by the clerk. Nor do the constitutional provisions that the salary of a public officer shall not be increased during his term, and that they shall receive stated salaries, affect the case. These provisions probably refer to the money payable out of the public treasury. (Board v. Hackel, 21 Wis. 620.) No provision is made that these officers shall not do any other work for pay, and it would seem that had that been the intention, the constitution could- easily so have expressed it. (See Bruce v. Dickey, 116 Ill. 527, 585, 6 N. E. 435.) In any event that point can be determined when the question of his compensation comes before the lower court. These constitutional provisions do not, in terms, prohibit the occupant of the office of clerk of the district court to act as administrator, and we think that the defendant cannot here question his appointment.

2. Defendant contends that an administrator has no capacity to sue in an action to quiet title, and cites in support thereof Travelers Ins. Co. v. Childs, 25 Colo. 360, 54 Pac. 1020, upon which also is based the text in Kinney on Irrigation and Wiel on Water Rights. Other eases are cited from states in which the administrator has, primar- * ily, nothing to do with real estate, and in such ease would have no right to bring such action. § 6835 of Wyoming Comp. Stat. 1920, as amended in 1919, now specifically authorizes such actions by the administrator, but that amendment was passed after the commencement of this action and has no bearing on this case. § 6834 provides that the executor or administrator must take into his possession all the estate of the decedent, Teal and personal. Under § 6835, prior to the amendment of 1919, he had the right to bring actions for the recovery of real property, or for the waste, destruction, or injury thereof. Under § 6829, which counsel for appellant have evidently overlooked, the executor or administrator is entitled to the possession of all real property and the rents and profits thereform, and he must preserve the improvements thereon. The section further provides:

“The heirs or devises may themselves or jointly with the executor or administrator, maintain an notion for the possession of the real estate, or for the purpose of quieting title to the same, against anyone except the executor or administrator; but this section shall not be construed as requiring them to do so.”

These provisions clearly contemplate that during the administration of the estate, the administrator or executor shall have not only the possession of the real estate, but that upon him further devolves the duty fully to protect and preserve it. § 6234 of our statute provides:

“An action may be brought by a person in possession by himself or tenant of real property against any person who claims an estate or interest therein, adverse to him, for the purpose of determining such adverse estate or interest. ’ ’

This section is quite comprehensive and to hold that an executor or administrator in possession is excluded from the benefits thereof would seem to demand a construction thereof that is unwarranted. The right of possession, and the duty to preserve the estate would seem to require rights of action commensurate with such duty, and we' think that the right to bring an action to quiet title is one of these. The holding of other courts under similar statutes is quite persuasive. The Supreme Court of Colorado, under probate sections similar to ours, passed in 1903, no longer holds to the rule laid down in Travelers’ Ins. Co. v. Childs, supra, but now holds the contrary. (Galligan v. Hayden Realty Co., 62 Colo. 477, 163 Pac. 295.) In a note in Ann. Cas. 1913 A, 996, it is said:

“It may be stated as the general rule, that where either by will or by statute, the personal representative is given the right to the possession of the real estate, he can maintain an action to quiet title, or remove a cloud from the title to real property of the decedent. ”

As early as 1860, in the case of Curtis v. Sutter, 15 Cal. 259, the California Supreme Court, under statutes, so far as we can judge, exactly like ours, held that an executor or administrator could bring such action, and that court has adhered to that ruling ever since, although in Jones v. Throckmorton, 57 Cal. 368, followed by this court in Cook v. Elmore, 25 Wyo. 393, 171 Pac. 261, it was held that an administrator has no right to bring an action to have a legal title conveyed to him. . (Pennie v. Hildreth, 81 Cal. 127, 22 Pac. 398; Collins v. O’Laverty, 136 Cal. 31, 68 Pac. 327; Rice v. Carey, 170 Cal. 748, 804, 151 Pac. 135, 138.) To the same effect are Newport v. Taylor, 16 B. Mon. 699, 781; Laverty v. Sexton & Law, 41 Iowa 435; Berry v. Howard, 26 So. Dak. 29, 129 N. W. 526, 26 Ann. Cas. 994; Ladd v. Mills, 44 Or. 224, 75 Pac. 141; Butts v. Purdy, 63 Or. 150, 125 Pac. 313, 127 Pac. 25; Jameson v. Goodwin, 43 Okl. 154, 141 Pac. 767; Smith v. Stiles, 68 Wash. 345, 123 Pac. 448; Blakemore v. Roberts, 12 N. D. 394, 96 N. W. 1029; Quinton v. Neville, 152 Fed. 879; 1 Ross Probate L. & P. 433.) Hence we are constrained to hold that the action herein was rightly brought. As to the extent of the relief to which an administrator is entitled, if he prosecutes the action alone, it is not necessary to decide.

3. Were the heirs of Gardner properly made parties in the case? 'Counsel for the defendant contend that they were not, because no proper application or order was made permitting them to come in, and that hence they are interlopers. Defendant in his motion filed May 18,1917, moved to strike the third cause of action, ámong other reasons, because the heirs of Gardner were not, but should, be, joined as parties plaintiff or should alone be' plaintiffs herein. The same point was urged in the demurrer filed March 25, 1918, and also in the answer filed June 18th, 1918. In the reply filed on December 14th, 1918, plaintiff consented that the said heirs should be made parties to the action. Thereupon in the demurrer filed to the reply on December 23, 1918, defendant objected to.the heirs coming in, claiming it was then too late. This demurrer was overruled. On April" 11th, 1919, the heirs filed their petition of intervention, alleging that they appear as parties in pursuance to the order of the court. A so-called “demurrer and answer” was filed to this petition of intervention by the defendant on April 21, 1919, objecting that the petition of intervention aforesaid was filed in the wrong court; alleging that it contains no showing that the parties are actually the heirs of Gardner; denies each and every allegation contained therein; asks that the parties be compelled to set forth their interests, and ends by asking affirmative relief against them. There is a ruling by the court on this ‘ ‘ demurrer, ’ ’ overruling it on Sept. 12th, 1919. Then an “answer” was filed by defendant to this petition of intervention on September 17th, 1919, and for the first time, as against them, directly alleges that the said heirs have now no right to come in as parties, but again asks affirmative relief against them. '

• Passing over the argument of counsel for the interven-ors that these proceedings were the result of defendant’s insistence that the heirs should come in as parties, it is apparent, that when the court overruled the demurrer to the reply of plaintiff, it clearly, in effect, granted the right for the heirs to come in as parties. And when the court overruled the so-called demurrer of defendant to the petition of intervention of the heirs, while the question was not. raised as expressly as would have been on a motion to strike, still, it would seem that the court at that time impliedly granted its permission to the heirs to be parties, or it at least recognized their petition and them as parties in the cause. So, too, it would seem, that the defendant, by asking affirmative relief against the interveners,- recognized them as parties. Issues were by him joined with them, the case was tried on its merits with them as parties in the cause, the judgment of the court recognized them as parties, and we fail to see how the court could have more effectually, by granting leave upon formal application, permitted them to .have come into the case as parties. While generally, where the right of intervention is in the discretion of the court, application to intervene should he made, and leave granted by the court, still the absence of such application and leave, where issues have been fully joined with them, does not go to the jurisdiction, but must be treated as an irregularity only. It has been held that nonjoinder of parties is cured when the party who should have been joined comes in voluntarily, files a pleading and agrees to the steps already taken. (Speyer v. McNamara’s Adm’r., 144 Ky. 774, 139 S. W. 1092; 145 Ky. 300, 139 S. W. 1183; Robbins v. Fitzgerald, 75 Wash. 617, 135 Pac. 656; Hurt v. Miller, 95 Va. 32, 27 S. W. 831.) The Supreme Court of Iowa held that the overruling of a motion to strike the petition of intervention is tantamount to granting leave to file it. (Ringen Stove Co. v. Howers, 109 Ia. 175, 80 N. W. 318, citing Williams v. Ins. Co., 50 Iowa 563; Rumsey v. Robinson, 58 Ia. 230.) In Weber v. Naltner, 8 Nisi Prius (Ohio) 324, the court said:

“Where, without formal leave, the party did come in, and his application was entertained by .the court, and passed upon, all of which the record shows, the very action of the court is equivalent and more than equivalent to a leave to come in. ”

In the case of Edgar v. Emerson, 235 Mo. 552, 139 S. W. 122, the court said: x

“Although there is no order of court shown in the abstract admitting Huff to be a party, yet the pleading filed by him recites that it was filed by leave, and in the final decree the court recognizes him as a party; and his rights as such were adjudicated. Besides the plaintiff’s petition recognizes that the estate of Harriet Emerson is interested in the question of the suit and her unknown heirs are made parties defendants. We hold that under these circumstances Huff, as administrator, was .a party. ’ ’

(See also Stone v. Person, Circuit Judge, 105 Mich. 234, 63 W. 79; Crow v. Straus, 14 Ky. Law 206; Hacken v. Isenberg, 210 Ill. App. 120; State v. Bank, (Nebr.) 170 N. W. 901.)

Counsel for' defendant apparently further take the broad position that when the intervenors were not brought into the case as plaintiffs in the first instance, they could not be brought in subsequently. Our statute, however, is liberal in regard to bringing in new parties into the cause. § 5600 provides that when determination of the cause cannot be had without bringing in other parties, the court must order them to be brought in, or dismiss the action without prejudice. § 5707 provides that parties may be added before or after judgment. § 5593 provides:

“Any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff or who is a necessary party to a complete determination or settlement of a question involved therein. ’ ’

The above and other sections of the Code indicate that it was the idea of the makers of the Code to adjudicate in one action the rights of the parties in the subject of the action, so far as it could properly be done. (Fental v. Sampliner, 4 O. C. D. 171.) And we think that an action to determine and quiet the title to waters is peculiarly one of those actions wherein this idea may well be carried out. Under similar statutes, and in a similar case, the Supreme Court of Oregon, in Hough v. Porter, 51 Or. 318, 95 Pac. 732, said:

“We are of the opinion therefore that much discretion must be allowed the trial court in such cases, and that it comes within the reason and spirit of the statute to hold that all who may have an interest, directly or indirectly, in the subject-matter of the suit, may, by order of the court', be made parties thereto. ’ ’

Now if the court had the power to order parties to be brought in who are interested in the suit, it would seem logically to follow, that it has the right to recognize parties as such who come in voluntarily. In such ease the court is ■ simply saved from making and entering the formal order bringing tbem in. Besides, section 5601 provides that any person claiming an interest in property, in any action for the recovery of real or personal property may intervene therein. It has been held that an action to quiet title is in effect an action to recover real property. (Townsend v. Driver, 5 Cal. App. 581, 90 Pac. 1071. See also Phillips on Code Pleading, § 459.) § 6829 provides, as before mentioned, that the heirs may separately or jointly with the administrator or executor bring an action to quiet title, and we do not think that a court of equity should be powerless to enforce the right herein given, at least where the consent of the plaintiff in the action is given, as in the case at bar. 2 Chitty on Practice, 492, says:

‘ ‘ The principle of the law of intervention is, that if any third person consider that his interest will be affected by a cause which is depending, he is not bound to leave the care of his interest to either of the litigants, but has a right to intervene or be made a party to. the cause, and take on himself the defense of his own rights, provided he does not disturb the order of the proceedings. The intervenor may come in at any stage of the cause. ’ ’

In the case of Gibson v. Ferrell, 77 Kans. 454, 94 Pac. 783, the court said:

‘ ‘ The application to intervene falls within no provisions of the code of civil procedure, but notwithstanding this fact, the district court, acting upon principles of manifest justice may, in cases not covered by the code, permit one, not a party to a suit, to intervene, either before or after judgment, for the protection or advancement of some right with reference to the subject matter of litigation which he holds.”

In Texas, in the absence of a statute on intervention, it was held that intervention should be permitted where equity demanded it. (Pool v. Sanford, 52 Tex. 621, 633; Whitman v. Ellis, 51 Tex. 425.) In New Mexico it is held that the statutes of intervention apply only to actions at law, and do not prevent a court of equity to give permission to intervene. (Flournoy v. Bullock et al., 11 N. M. 87, 102, 66 Pac. 547; Union Trust Co. v. R. Co., 8 N. M. 327, 43 Pac. 704.) The same seems to be.the holding of the Supreme Court of Nebraska. (State v. Bank, 103 Neb. 194, 170 N. W. 901.) And it appears now to be generally recognized that á court of equity has the right to grant permission to intervene in a proper case. (11 Ency. Pl. & Pr. 499, 21 C. J. 341.)

At the time that the -heirs came in as intervenors the court, had jurisdiction of the parties and of the subject of the action. Even if the third cause of action of plaintiff was subject to demurrer, though the court had no authority under the allegations as therein then contained to render judgment thereon, it did not by reason thereof ipso facto lose jurisdiction; it still had power to permit any necessary amendments to be made and pleadings filed that would state a cause of action the case was still within its full control, and it had full and complete power to do all legal and proper things, including the bringing in of new parties, in order to finally dispose of the case properly. We must accordingly hold that the intervening heirs duly and legally became parties herein. The claim of the heirs was set out more fully than the claim made in the third cause of action of plaintiff, but it was essentially the same, and there was not, as counsel for defendant claim, a substitution of entirely new parties. (Lowell v. Gridley, 70 Cal. 507, 11 Pac. 777.)

4. What rights, then, did the intervening heirs have, after legally coming into the case? Were they bound by what had already been done, or what might thereafter be done by the original parties in the cause? If such were the case, then, clearly, their rights might be of no benefit. They became actors in the ease. To make their rights effectual, they must, subject to the authority of the court reasonably to control the proceedings in the case, necessarily have the same power as the original parties to the cause. (Kerr, Pl. & Pr. § 671; Moran v. Bonynge, 157 Cal. , 107 Pac. 312.) They might not at all be satisfied with the allegations as they stood at the time of intervention; to bind them thereby might in certain cases be positively detrimental to their interests, and the right to intervene, therefore, would be in fact an injury. Hence, they have the power to file pleadings of their own. Doke v. Williams, 45 Fla. 248, 34 So. 569; Eastmore v. Buckley, 113 Ga. 637, 39 S. E. 105; or they may adopt part or all of the pleadings already filed. (Hamilton v. Lamphear, 54 Conn. 237, 7 Atl. 19.) A petition of intervention, at least where it asks affirmative relief, may be demurred to; Shepard v. Murray County, 33 Minn. 519, 24 N. W. 291; and an affirmative judgment may be rendered against an intervenor. Braithwaite v. Aiken, 3 N. D. 365, 56 N. W. 134; the intervening heirs in this ease stood before the court as to the nature of their title and the object of their demand, in the character of plaintiffs, and were governed in their pleadings by the rules of practice which apply to plaintiffs in principal demands. (Clapp & Co. v. Phelps & Co., 19 La. Ann. 461; 92 Am. Dec. 545; Allen v. Clark Co., (Nev.) 176 Pac. 259.) They were entitled to have their claims, properly set up by them, determined and adjudicated. (17 Am. & Eng. Ency. of Law, 185; Elliott v. Ivers, 6 Nev. 287; Poehlman v. Kennedy, 48 Cal. 201; Field v. Gautier, 8 Tex. 74.) Speaking of the rights of an intervenor, Pomeroy on Remedies & Remedial Rights, page 466, says:

“The same rule governs his rights which govern those who originally sue or defend. The proceeding by intervention is not an anomalous one, differing from other judicial controversies, after it has been once commenced. It is, in fact, the grafting of one action upon another, and the trying of the combined issues at one trial, and the determining them by one judgment. ’ ’

In Fleming v. Seeligson, et al., 57 Tex. 524, 532, the court said:

“As has been often said, it is the policy of our jurisprudence to encourage the settlement in one and the same suit of all matters of litigation concerning the subject matter in controversy. To this end, a third party by leave of- court can intervene when he has such interest in the subject matter, that had he first brought the suit' as sole plaintiff, he might have recovered in whole or in part. # * # Having due regard to the rules of practice, that the suit as between the original parties shall not be unreasonably delayed, it is believed that otherwise the intervention may be considered in the nature of a new suit, by which the rights of either the original plaintiff or defendants may be contested. ’ ’

In Muhlenberg v. Tacoma, 25 Wash. 36, 52, 64 Pac. 925, the court said:

“After he has intervened, it is the duty of the court to dispose of the whole controversy between the original plaintiff and defendant and the intervenor so that the interests of the intervenor shall be completely protected. If this was not to follow, the right to intervene would be á barren one.”

5. This brings us to the question raised by counsel for defendant that the third cause of action of the plaintiff herein does not state facts sufficient to constitute a cause of action of - quieting title. From what we have heretofore said, it follows that the case does not at all depend upon that. The decree was in favor' of the intervenors. If the petition of intervention on behalf of the intervening heirs is sufficient to constitute a cause of action to quiet title, that is sufficient herein. We think that it does. It alleges, among other things, that such heirs together with the intervenor Arnold own and are in possession of certain lands in Albany County together with two-thirds interest in the Park ditch, and together with certain water right appropriations and water rights which had previously been adjudicated and determined by the board of control of Wyoming; that defendant has no right or title to said two-thirds interest in said Park Ditch, and in two-thirds of the water therein; yet defendant denies said right of intervenors and wrongfully asserts some claim thereto, interferes therewith and threatens to deprive intervenors of the use and enjoyment thereof; that they are unable without said rights to care for or make use of the said lands, and that defendant’s claim creates a cloud on their title. The prayer is for full relief. We deem these allegations amply sufficient to constitute an action for quieting the title under the statute. The necessity for the water on the lands of these intervenors is, we think, sufficiently indicated. The reference to the decree of the board of control is also, we think, in the absence of a motion to make more definite and certain, sufficient. The case of Davis v. Chamberlain, 51 Or. 304, 98 Pac. 154, is not in point on this question, for the decree relied on in that ease was sought to be shown in order to prove an estoppel, which is not true here. Nor is the contention well taken that the petition should show that there was no adequate remedy at law. (32 Cyc. 1353.) The statute gives the party in possession of property the right to bring an action to quiet title against a party making an adverse claim thereto. Actual interference is not at all necessary. (Peregay v. Sellick, 79 Cal. 568, 21 Pac. 966.) We might as well say in this connection that the record shows such adverse claim by the defendant, it being in fact set out in the answer, and hence the claim that there was an adequate remedy at law is not well taken.

6. We have, then, a case where the court had jurisdiction of the subject matter, and of the parties, with a cause of action stated on behalf of at least some of the parties claiming rights against the defendant. And we now come to the intervening petition of intervenor Arnold. The proceedings relating to his coming in as a party were substantially the same as those in connection with the Gardner heirs. He was recognized by the court as a party by refusing to sustain a demurrer to his pleading, as well as by giving him rights in the decree. His intervening petition is distinctive in what it fails to allege, and outside of the caption is as follows:

“O. P. Arnold, being made a party to the aboye entitled action by order of the court herein, admits that he is an owner of an undivided interest in the lands, ditch and water rights described in the petition filed by F. J. Ihmsen, plaintiff, and awaits the disposition and orders of the court in the premises.”

It may be that the court may well be held to have the power to sustain a demurrer to such pleading, or ignore whatever claim such pleader may have, and adjudicate it against him. But we do not believe that we should hold that under the circumstances a court of equity is compelled to do so. Even if he came in as a voluntary party, we think his standing in court, after being recognized as a party, should be held to be the same as though he had been formally ordered to be brought in as such by an order of court. Now, as we have heretofore shown, 'the court had the power to bring him in, but it had no power to make him plead, or direct him what pleading he should file. If such new party fails to plead, or plead sufficiently, he does so no doubt at his peril. But it does not follow that a court of justice must be untrue to its name, and we think that it should; in such ease, have the right pursuant to the power to settle the whole controversy, to settle it in accordance with equity. This question is.fully discussed in Hough v. Porter, 51 Or. 318, 439, 98 Pac. 1093, where the court said on pages 1109-1110:

“ * * * but Small came into this suit under the order of the court, issued for the purpose of enabling it to adjust the rights of all, with a view, not only to the entry of a decree that will be effective, but that a multiplicity of suits might be obviated. The trial court having this authority (B. & C. Comp. § 41), it follows that this jurisdiction carries with it all the power essential to the making of such order effective. If, then, some of the parties neglect or refuse to file pleadings asserting their rights, or, having done so, have presented them in such manner that an enforceable decree, or one in harmony with the spirit of the order, cannot be entered, and it appears that the cause has been tried and evidence taken and submitted, the court may, in the exercise of its sound discretion, either direct the pleadings to be amended to conform to the proof, or treat them as amended, and enter a decree accordingly. Such discretion is essential to the effective exercise of the equity jurisdiction in this class of cases. * * # It thus appears that courts of equity are not necessarily bound in all eases by the rules of practice usually invoked. Now, as heretofore held, the court may direct all parties interested, or claiming any interest in, the subject-matter of litigation, to be brought in and require them to interplead with reference to each other (95 Pac. 732, 749); but it cannot make them plead any certain facts. It must leave it to them to determine the course to be pursued in that respect. But if, in the exercise of such rights under the order, such parties default, or fail properly to plead or to offer proof, they assume the risk thus incurred, and are necessarily impelled to abide the result to follow; and the court, in the exercise of its discretion, may either enter a decree affecting their interests, or not, as it may deem just and equitable. ’ ’

7. Defendant claims that the heirs of Gardner are aliens, not entitled to inherit any real estate in this state; that the property escheated to the state and that the latter should have been made a party. The questions thus raised present many difficulties, and we have not found the proper solution thereof easy. The record shows that the decedent died some time in the month of November, 1916, the exact date not appearing. On Sept. 7, 1918, an order determining heirship was entered in the district court of Albany County, apparently pursuant to the provisions of §§ 6979 and 5980 of our statute. That decree upon its face shows that the heirs are not descendants, but collateral heirs; that the heirs inheriting eight-ninths of the estate are residents of Ireland. The residence of the others is not therein shown, but the proof shows that they are all residents of Ireland. "We might dispose of this question by saying that evidence of alienage must be clear and satisfactory (2 C. J. 1045); that it is immaterial where the heirs resided at the time of the entering of the foregoing decree of September 7th, 1918, or at the time of the trial, and that this does not show that they lived in Ireland at the time of the death of the decedent, which is the time when the real property of the estate vested in the heirs, subject to indebtedness, and is the time material on that point. But lest it appear too technical to dispose of these points in that manner, we shall go into the subject more fully, and shall assume, without deciding, that from the residence above mentioned, not explained, arose the presumption that the heirs were citizens of Great Britain. (11 C. J. 786; note to 8 L. R. A. N. S. 1245.) Const. Art. I," § 29, of "Wyoming, provides that resident aliens are entitled to inherit property the same as citizens. § 700"5 of our statute provides that “the alienage of the descendants shall not invalidate any title to real estate which shall descend from him or her. ’ ’ But we have no statute permitting collateral heirs, that is to say, heirs who are not descendants, who are non-resident aliens, to inherit, and hence the common law rule would obtain. Under that rule, a non-resident alien has no inheritable blood and cannot take real estate by descent. (2 C. J. 1057.) Under treaty with Great Britain, however (31 U. S. at Large, 1939), it is provided:

“Where on the death of any person holding real property — within the territories of one of the contracting parties, such real property would by the laws of the land, pass to a citizen or subject of the other, were he not disqualified by the laws of the country where such real property is situated, such citizen or subject shall be allowed a term of three years in which to sell the same, this term to be reasonably prolonged, if circumstances render it necessary, etc. ’ ’

It is contended that the term “territories” above mentioned must be construed as applying only to one of the territories of the United States, as distinguished from a state. The rule laid down by the Supreme Court of the United Stales is, that:

“Where a treaty admits of two constructions, one restrictive as to the rights that may be claimed under it, and the other liberal, the latter is to be preferred.” (Havenstein v. Lynham, 100 U. S. 483, 25 L. Ed. 628.)

We accordingly think that the term “territories” as used in the above treaty is to be construed in its broader sense as meaning and including any area or locality under-the dominion of the United States. While we have no authority direct on that point, yet it has always, so far as we have found, been given that meaning by the courts in discussing the above treaty or one similar to it. (Schultze v. Schultze, 144 Ill. 290, 33 N. E. 201, 19 L. R. A. 90; Ahrens v. Ahrens, 144 Ia. 486, 123 N. W. 164, Ann. Cas. 1912 A. 1098; Pierson v. Lawler, 100 Nebr. 783, 161 N. W. 419.) This treaty will control and suspend the rule of the common law in force in this state during such time that the rights conferred thereby are in force or extended by the courts pursuant thereto. (2 C. J. 1065.) On the nature of the title acquired by the non-resident aliens by virtue of the treaty, it has been succintly said in Ahrens v. Ahrens, supra, as follows:

‘ ‘ There is much discussion in the cases as to the nature of the title which non-resident aliens hold under the terms of the treaty. Some authorities denominate it a base or qualified fee, and others a determinable fee. The terminology is not of controlling importance. That the right to sell carries with it the ownership as a necessary incident to the power of sale is held by all .the authorities. That such ownership was something less than a fee simple abso-ule is also quite beyond discussion. That the remainder of such title vested in the resident heirs, and that such remainder drew the full fee simple title into such resident heirs upon failure of the condition upon which the nonresident aliens took their title, seems to us clear.”

(See also Wunderlee v. Wunderlee, 141 Ill. 40, 33 N. E. 195, 19 L. R. A. 84; Pierson v. Lawler, supra; Scharpf v. Schmidt, 172 Ill. 255, 50 N. E. 182.) Counsel for defendant were, therefore, wrong in the contention made in the court below that the non-resident heirs in this case were unable to inherit. The ownership of the latter acquired under the treaty carried with it all incidents connected therewith. Subject to the rights of the administrator, they had the right to the possession of the property inherited, together with the use and enjoyment thereof. Should that possession or enjoyment be disturbed, they had the right to defend it in court. It has been held that they may bring an action in partition. Kull v. Kull, 37 Hun. 476; Wunderlee v. Wunderlee, supra; Scharpf v. Schmidt, supra; and it would seem clear that in order to make the property saleable, so that it might be disposed of in accordance with the provisions of the treaty, they also had the right to bring and prosecute an action to quiet title or join the administrator therein'as they did in this case. It is, therefore, clear that when the intervening heirs filed their petition in intervention herein on April 11, 1919, less than three years after the1 death' of decedent, they had the-right to become party litigants herein. Even if the state-had a contingent interest in said property, it was not a necessary party at the time; and had judgment been entered herein within three years after the death of Gardner, it could not in this action be assailed in any way by reason of the question of alienage. The cause was tried on November 17th and 18th, 1919, whether within three years after the death of Gardner does not clearly appear. The case was taken under advisement and judgment was entered March 24th, 1920, and the question arises whether or not, because that date was more than three years after-the death of the decedent, judgment for the heirs was erroneous. Counsel for the heirs contend that only the state could raise the question of alienage. Without deciding the proposition, we may say that the cases cited by them, such as Oregon Mortgage Co. v. Carstens, 16 Wash. 165, 47 Pac. 421, are not in point. In these cases the property had been acquired by purchase deed, or other acts of parties. In such eases the state only can raise the question. (2 C. J. 1051.) But it may at least be questioned, since aliens have no inheritable blood, whether the same rule obtains where the property has been acquired by descent. (See 2 C. J. 1058; Wunderlee v. Wunderlee, supra.) Again, it is maintained that the defendant cannot assail, collaterally, the decree of heirship heretofore mentioned. Without deciding the question, it may be'that the contention is correct, as applicable to the period of three years after the death of decedent. (Fisher v. Sklenar, 101 Nebr. 553, 163 N. W. 867.) The defendant, of course, had no interest whatever in the property of the decedent. Still he had the right to raise the question as to whether or not the action was brought or carried on by the real parties in interest, just as he had the right to raise the question as to whether or not an administrator has power to bring such action. He could not be disturbed by, or rights adjudicated against him in favor of, parties who had no interest in the controversy. (§ 5580.) If, therefore, the decree of heirship ceased to have validity when' the time given under the treaty expired, and if. the heirs were before the court seeking property which they could not hold, then it may be suggested that perhaps, in order not to go counter to public policy, the courts would not lend them aid. (Ales v. Eppstein, (Mo.) 222 S. W. 1012, and eases cited.) But we do not believe that all rights of the heirs in the property ceased ipso facto upon the expiration of the three years given under the treaty above mentioned, since that time might be prolonged if circumstances rendered it necessary. And the question as to what circumstances ren-dér such prolongation necessary is for the courts. (Fischer v. Sklenar, supra; Pierson v. Lawler, supra; Scharpf v. Schmidt, supra.) It may be that the court below, having in mind the provisions of the treaty aforesaid, by the very entry of the decree herein, meant to extend such time. Tt seems, at any rate, that as against the defendant herein, it had that effect, and we cannot say that, at least in view of the then recent expiration of the three year period and in view of the pendency of this action, which might prevent the sale of the property inherited, the court was not justified in its action.

8. The court in deciding on the water right to which intervenors were entitled took into consideration the adjudication by the board of control in favor of Gardner as follows: 30 acres in NE14 'NW%; 10 acres in NW14 N¥14 and 80 acres in NE%, all in section 18, T 16 N, It 75. A pencil mark had been drawn through 75 indicating the range, and 74 had been substituted therefor. The evidence shows that Gardner owned no land in section 18, T 16 N, It 75, but that his land was located in Range 74. The error was, therefore, merely a clerical error. ¥e think the court was right in its holding in that respect. A similar situation exists with regard to defendant. The board of control awarded a water right to him in the SWJ4 of SW% sec. 32, T 17 N, R 75, this should have been evidently in see. 31, T17 N, R 74. No contention was made on the point by plaintiff or intervenors, and the court in awarding the defendant the water claimed, adjudicated for the land ás correctly described, in effect held that the error was clerical and in effect made the correction. Hence no prejudice resulted to defendant from the action of the court.

9. Defendant contends that Roland Blackburn and James 'Weightman should have been made parties to the action. The point was first raised on motion for a new trial. Under the holding of Gilland v. Union Pacific Ry. Co., 6 Wyo. 185, 43 Pac. 508, in the decision of which one of the eminent counsel for defendant participated, this objection of defect of parties came too late.

10. The claimants introduced in evidence a petition drawn by the intervenor Arnold, sworn to December 17, 1901, wherein the defendant stated the ownership of the ditch to be one-third in himself and two-thirds in Gardner and Arnold. This petition appears to have been made with the intention that it should be presented to the board of control, but it never was. Another petition, of similar import, but omitting the name of Arnold was, however, subsequently presented to said board. Counsel for defendant claim that the evidence of the witness Arnold, who identified this petition sworn to December 17, 1901, should not have been received, because Mr. Arnold acted as attorney for the defendant. "When the defendant was asked whether he employed Mr. Arnold to draw the petition and paid him $25.00 for the services he answered by a denial, and he also testified that he made the affidavit mainly for the accommodation of Arnold. Without saying* as to whether the testimony was of such character as should have under our statute been excluded, we do not believe that the relationship of attorney and client was established by the evidence in this case, and unless that relationship was shown to exist, it was clearly admissible as an admission against interest.

11. The defendant claims that Gardner, during his lifetime, abandoned his water and ditch right. The burden of showing abandonment is on the party who asserts it (1 C. J. 11), and the evidence on the subject should be clear. The witness Carroll, when testifying on behalf of defendant stated that decedent had irrigated 200 acres of land for 15 years prior to his death. That is the nearest of any testimony in the record fixing any basis upon which a decree of abandonment could have been based at all. But from aught shown by the record, the amount of water to irrigate this acreage was the only water that came down to the lands of decedent. There is abundant evidence in the record to show the continuous use by Gardner of water for irrigation, although the record is not clear on the amount used nor the amount available. There is also testimony that work was done on the ditch on behalf of decedent every year from 1910 on, but we cannot take the time to review the evidence on the subject. We cannot say that the lower court erred in refusing to find for defendant on this subject. Hence it is unnecessary to decide whether the statutory method for determination of abandonment is exclusive or not.

12. Defendant complains that the court ordered a concrete division box to be constructed, apportioning the costs therefor in proportion to the respective water rights owned. .We cannot say from the evidence that the court erred therein. There is in the record some evidence of ill feeling between the parties, and that a division box constructed of temporary material would wash out 'easily. The court, we think, had power to make the order it did herein, and we do not feel justified in interfering with its discretion as exercised in this case. It was said in Hough v. Porter, 51 Or. 444, 98 Pac. 1111:

“If at any time deemed necessary by it, the court should require the sheriff, or other officer or person as it may designate for the purpose, including an engineer or other assistant, as may be required, to fix at the points of diversion or other proper places suitable boxes or headgates, with a .view to being able, in accordance with this decree, properly to measure, regulate and distribute the water between those who under this decree, may be entitled to the use thereof, the costs for which should be taxed against ea'eh in such proportion as the court may deem just and equitable. ’ ’

13. Defendant complains of the action of the court in striking out the evidence of the defendant showing that he built the Park ditch and while admitting that the witness Avas incompetent to testify against the administrator and heirs of Gardner now deceased, claims that the evidence should have been admitted against Arnold. That claim was not made on the trial and the court’s attention was not di1 rected to that point as it should have been. Aside from that, the record does not show that Arnold’s interest in the ditch is separate and apart from that of the interest of the estate. If not, the evidence was not admissible even against him under § 5807 of onr ’statute, and we cannot, therefore, say that the action of the court in this matter was prejudicial.

14. Among the water appropriations claimed by plaintiff and intervenors was an appropriation made to Feast for 350 acres, shown in evidence of equal priority with that of defendant. Defendant denied this claim and contends that there is no evidence showing a transfer of this to the claimants. No conveyance from Feast was introduced in evidence. The ownership of the W% NE% and NW% section T7 and the W^4 SEJ4 section 8-16-74 however, for which there was under the appropriation allotted water sufficient to irrigate 300 acres is, we think, for the purposes of this action, sufficiently shown, mainly by identification of shaded portions on the map in evidence. We find, however, after diligent search, no evidence of ownership or possession in claimants for the S% of SWJ4 of said section 8, for’ which was allotted water sufficient to irrigate 50' acres. That land is nowhere indicated on the shaded portions of the maps in evidence. While this may be only ¿ technical oversight on the part of claimants, still the burden to show their interest was on them, and we are not, upon the record, at liberty to do otherwise than to find that it was erroneous to decree'to claimants the-appropriation for the lands last mentioned, or permit the water for that land to run through the ditch in question.

15. Defendant claims that the decree of the court should have been more definite. The objection made as to the water right is not well taken. Cases from other states, wherein it was sought to determine the relative priorities of parties to water rights are not at all in point. This action was not brought to determine priorities; both parties claim their rights by virtue of the decrees of the board of control and no more. The court did not attempt to infringe upon or modify tliose decrees, but accepted them as controlling. We think that was correct, and inasmuch as these decrees state definitely the various facts involved in priority of water rights, it was unnecessary for the court to restate them in the judgment rendered herein. The presumption is that the rights under these decrees continued. (Lower Latham Ditch Co. v. Irrigation Co., 41 Colo. 212, 93 Pac. 483; Ellis v. Annis & Boland (Ia.) 173 N. W. 282.) But in another respect the decree is defective and not supported by evidence. The court, of course, had no power whatever to authorize either of the parties to conduct a'greater amount of water through the ditch than the capacity of the ditch right owned by them respectively warranted. Renewed litigation would no doubt ensue in the near future if such ditch right is not sufficient to carry the water. In this case the decree authorizes the parties to conduct water through the ditch, the defendant sufficient to irrigate 310 acres of land, the intervenors sufficient to irrigate 850 acres. All this water would have to be carried through the ditch at the same time in the early irrigation season, when the second appropriation of defendant Arnold would be of avail to him. Yet we find no evidence whatever in the record that the capacity of the interests in the ditch of the respective parties is sufficient to carry the water authorized by the decree to be conducted therein.

16. The petition of intervention on behalf of the heirs claimed two-thirds interest on behalf of themselves and in-tervenor Arnold. In the judgment rendered in the court below the court awarded to all the intervenors 850/1160ths and to the defendant 310/1160ths interest in the ditch, which is in the same ratio as the adjudication of water rights in the ditch by the board of control.

The case was tried by counsel for plaintiff and inter-venors on the theory that under § 928 of the Wyoming Comp. Statutes 1920 the ownership in a ditch is fixed and determined by the proportionate interests of water conducted through it by the respective parties and that no proof of ownership in the ditch.was necessary other than the proof of the adjudication of water rights made by the Board of Control through the Park ditch. Counsel for the defendant claim that the section is unconstitutional. In the view we take of the case, it is unnecessary to determine that point here. The section of the statute referred to here is, in part as follows:

“Unless the owners of ditches, canals and reservoirs (1) make a record as herein provided, or (2) have a record thereof made in some other manner, showing the relative ownership of each interested party in such irrigation works, said interests shall be established by the ratio between the water rights of each watér user to the total water rights adjudicated under such irrigation works.”

Then it further provides that these interests shall be fixed by the issuance of a final certificate of appropriation as shown by the records of the county clerk on Feb. 20, 1907 and that ten years adverse possession, as there defined, shall bar an action for the recovery of an interest in the ditch as above mentioned, showing the section to be at least in part intended as a statute of limitations. §929 provides for the filing of a joint affidavit by all the owners of a ditch, showing their relative interests and covers therefor the “making of a record” as contemplated in § 928. § 933 provides for having such record of relative interests made by an action in equity, and covers the point of “having a record made ’ ’ as contemplated in said section 928. It is clear, therefore, that § 928 can have no application where a record of the interests of the parties is made or is caused to be made. The case here is an action in equity. The very purpose, in part, is to determine the relative interests of the owners in the ditch and have a record made thereof, and § 928 can, therefore, have no possible application, except only in case where adverse possession, as defined in that section, is relied on, which is not true here. The fact that a good cause of action is here stated under the general statute providing for quieting, title does not make any difference; the two sections of the statute are not in conflict; both providé for an action in equity. We have heretofore held that the board of control has no authority to determine relative ditch rights. (Collett v. Morgan, 21 Wyo. 117, 128 Pac. 626.) In that case this court aptly said:

, ‘,‘The Board of Control had no power or authority to determine as between the parties the ownership or right to the use of the ditch. Its duties are confined to the distribution of the waters of the state between the several appropriators, the granting of permits to use the waters of the state for beneficial uses, to grant certificates therefor and the general supervision of such waters. Of course, in granting a certificate of appropriation, it should appear that the party has the means of conducting the water from the source of supply to the place of application. * * * There being a dispute between the parties as to the ownership and right to the use of the ditch, that question could not be finally settled by the board, but must be settled by the agreement of the pai'ties or by a proper proceeding in a court of competent jurisdiction. ’ ’

In the case of Hamp v. State, 19 Wyo. 653, 118 Pac. 653, Hamp was tried for the statutory offense of wilfully interfering with the headgate of an irrigating ditch without authority. In such action no record is made or is caused to be made of the relative interests, and in such case proof of ownership of a water right may well be taken as prima facie proof of an ownership in the ditch sufficient to carry the water even in the absence of a statute. The same presumption, or prima facie proof, might obtain in other collateral inquiries. But the ease at bar is a direct proceeding to determine ownership in the ditch. The only presumption that can obtain in such case is that arising from use and possession, the extent of which is not shown herein. The action herein, therefore, was tried on the wrong theory. The maximum interest in the ditch that, under the evidence in this case, could have been allowed the intervenors was two-thirds; and the minimum to which the defendant was entitled was one-third, but the decree allows him less than that. This would seem to have been done on the theory that the relative, proportionate water rights controlled'the relative proportionate ditch rights under a presumption arising under § 928. At any rate, judging from the decree herein and some remarks between the court and counsel which appear in the record, it would seem that the court did not weigh and pass upon the evidence adduced to show the interests in the ditch, other than the evidence showing the adjudication of water rights. If it were possible for us to say that the court had passed on all the evidence in the ease upon the subject of ditch rights and had not rested its conclusion oh a presumption arising from § 928, then we might simply modify the decree; but we are not able to so say, and we see no alternative but to reverse the case and remand it for a new trial. We might add that if upon another trial the lower court should find the relative ditch rights of the parties to be other than heretofore found, and should adhere to the determination that a concrete division box should be constructed, then the cost thereof should justly be proportioned among the parties as heretofore; namely, in proportion to the water rights of the parties rather than in proportion to the interests in the ditch owned by the parties, since a division box is primarily constructed to divide the water. We might further add that it would at least be proper that the provisions of Section 933 of the statute be carried out, providing that the “court shall determine the right of the several claimants to such ditch or ditch right and determine all the facts necessary in the affidavit hereinbefore prescribed.” Part of the purpose of this and some of the preceding sections of the code were intended to provide a permanent record of ditches, and we see no reason why another action should be necessary to do this, when that can well be done in the pending action.

The ease is accordingly reversed and remanded for a new trial.

Reversed and Remanded.

PotteR, C. J., and Kimball, J., concur.