Santiam Reclamation Co. v. Porter

268 P. 980, 267 P. 820, 126 Or. 91, 1928 Ore. LEXIS 201

• Court: Oregon Supreme Court
• Decided: March 12, 1928
• Status: Published

Opinions

BOSSMAN, J.

This is an appeal from a judgment of the Circuit Court dismissing an appeal from an order of the state engineer. On the sixteenth day of April, 1925, the state engineer entered an amended order in a matter before him in which the parties were the Santiam Beclamation Company, the Western Oregon Development Company, E. L. Thompson and associates, and Henry C. Porter, trustee. This order determined the water rights of the various parties, and particularly set forth: “Ordered that application No. 9789, of Henry C. Porter, trustee, be duly approved when the same has been completed so as to conform to the regulations of this office. ” Thereafter the Western Oregon Development Company and the Santiam Beclamation Company sought to appeal to the Circuit Court from that portion of the Engineer’s order which we have quoted. The Circuit Court dismissed their appeal and from its order in so doing- the same companies have appealed to this court. It may well be doubted whether the foregoing constitutes a final order from which an appeal lies; apparently further conditions are to be met before the engineer’s approval shall attach to the application. But- we shall pass on to one of the other objections which we believe is fatal.

The state engineer’s authority extends to all land within the state. Nothing in the transcript brought before the Circuit Court designated in what counties the real property involved in this case was situated. 1923 Session Laws, Chapter 283, Section 3, amends Section 5701, Or. L., so that the latter now provides: “Any person, association or corporation who may deem himself, or itself, aggrieved by any order or regulation of the state engineer, shall have the right to appeal from the same to the circuit court of the county in which the property affected thereby or any part thereof, is situated. * * ” In Kesler v. Nice, 54 Or. 585 (104 Pac. 2, 25 L. R. A. (N. S.) 606), this court said:

“No objection to the jurisdiction of the court has been suggested by any of the parties, but the want of jurisdiction is patent upon the face of the record; and, the subject-matter of the suit involving the title to realty, it is the duty of the court, at any stage of the proceedings, when the want of jurisdiction appears, to refuse to proceed further, and to dismiss the appeal. Evans v. Christian, 4 Or. 375; McKay v. Freeman, 6 Or. 449, 453; State v. McKinnon, 8 Or. 487, 492. The record should show affirmatively the proper taking of all steps, and the existence of all the facts necessary to confer jurisdiction upon the appellate court.” See, also, Wilkes v. Cornelius, 21 Or. 341, 23 Pac. 473.

An examination of the amended order discloses that it related to permits numbers 882 and 1401 and Application No. 9789. We have examined the statutes of this state and fail to find any statutory requirement for assigning numbers or other designating characters to permits and applications. Hence, we assume that the court could not be required to assume judicial knowledge of routine practices in the office of the state engineer that designated applications and permits by numbers, and then proceeding further to ascertain in what counties the real property affected by the permits and applications were located.

In view of the fact that it nowhere appeared in the record that the real property was situated in Marion County, the Circuit Court of that county did not err when it dismissed the appeal.

Respondent has raised many other objections to the sufficiency of the attempted appeal, but in view of the fact that the above is fatal to the attempted appeal, we shall not review the others.

It follows from the foregoing that the judgment of the lower court dismissing the attempted appeal is affirmed. . ■ Affirmed.

Rand, C. J., concurs in result. Coshow and McBride, JJ., concur. For the petition, Mr. Percy Cupper and Mr. W. 7. Masters. Contra, Mr. John H. Carson and Mr. Allan G. Carson.

Rehearing denied July 11, 1928.