Laur v. Walla Walla Irrigation Co.

247 P. 753, 118 Or. 520, 1926 Ore. LEXIS 102

• Court: Oregon Supreme Court
• Decided: May 5, 1926
• Status: Published

Opinions

BEAN, J.

The plaintiffs and respondents move to dismiss this appeal for the reason that the defendant Aubrey E. Perry, 'the duly appointed watermaster for tbe County of Umatilla, Oregon, who appeared and filed an answer herein, was not served with the notice of appeal.

Plaintiffs assert that defendant Aubrey E. Perry “is a material party defendant upon this appeal.”

This is a suit to restrain the defendants Walla Walla Irrigation Company, a corporation, and E. C. Burlingame, the president and manager of the corporation, from interfering with certain lateral ditches of plaintiffs, and from trespassing upon plaintiffs’ land by constructing or maintaining a new lateral ditch on practically the same line as the old ditches, but on a lower level or grade so as to interfere with and prevent the use by plaintiffs of certain adjudicated prior water rights of plaintiffs, and for resulting damages.

The watermaster was named as defendant in the suit and plaintiffs averred that that official “has adopted the unlawful and wrongful contention of the defendant corporation as to its right to construct said new lateral and drain off the water.” It is not alleged that the watermaster was interested in any way in the ditches. Apparently that official is made a party in order that he might have notice of the suit.

Plaintiffs pray for an order “directing the water-master, defendant herein, to open the gates whenever there is a sufficient head of water to entitle the plaintiffs, or either of them, to water through said canal and ditch in accordance with said1 adjudicated priority.” Such an order would not change the force of the adjudication of plaintiffs’ priorities of water rights, which they allege.

For appellants there was a brief over the names of Messrs. Raley, Raley & Steiwer and Mr. J. H. Warner, with an oral argument by Mr. James H. Raley.

A decree was rendered adjudging plaintiffs’ right to the ditches and restraining the defendant “ (except Perry)” from interfering therewith and for damages. No final decree was prayed for hy plaintiffs or rendered against the watermaster, nor any judgment for costs or disbursements entered against him.

Our statute, Sec. 550 Or. L., directs inter alia:

“If the appeal is not taken at the time the decision, order, judgment or decree is rendered or given, then the party desiring to appeal may cause a notice, signed by himself or attorney, to be served on such adverse party or parties as have appeared in the action or suit, or upon his or their attorney, at any place in the state, and file the original with proof of service indorsed thereon, with the clerk of the court in which the judgment, decree or order is entered. ’ ’

An adverse party to a judgment or decree upon whom a notice of appeal is required to be served, under Section 550, Or. L., is a party whose interest in regard to the judgment or decree is in conflict with a reversal or modification of the judgment or decree appealed from: First Nat. Bank v. Holliday, 98 Or. 649 (193 Pac. 1029).

The watermaster was merely a nominal party to the suit. He is not interested in the result of this appeal. His interest would in no way be affected by a reversal or change in such decree. It was unnecessary to serve the notice of appeal upon the defendant watermaster. The motion to dismiss the appeal is denied.

Affirmed.