State Ex Rel. Swanson v. District Court

82 P.2d 779, 107 Mont. 203, 1938 Mont. LEXIS 77

Opinions

MR. JUSTICE ANGSTMAN

delivered the opinion of the court.

In June, 1911, the district court of Cascade county, in an action entitled McIver v. Campbell et al., adjudicated the water rights in the waters of Sun River and its tributaries. That decree adjudicated rights in Lewis and Clark, Teton and Cascade counties, including the rights in the waters of Willow Creek and Little Willow Creek and their tributaries. Willow Creek and Little Willow Creek and their tributaries are all situated wholly in Lewis and Clark county. A copy of that decree was filed in the office of the clerk of the district court at Helena, Lewis and Clark county, and thereafter the district court of 'that county appointed a water commissioner to ad-measure and distribute the waters of Willow Creek and Little Willow Creek and their tributaries for 1938. Thereafter interested parties filed a petition to revoke the appointment of the commissioner for want of jurisdiction in the court to make the appointment. After hearing, the court sustained the contention of those petitioners and revoked the order appointing the commissioner. The relators thereupon invoked the supervisory powers of this court to review the action of the district court of Lewis and Clark county in revoking the order making the appointment. It is conceded that the revocation was effected solely because the court was of the view that the district court of Lewis and Clark county was without jurisdiction to appoint the water commissioner.

The sole question presented is whether the district court of Lewis and Clark county had the jurisdiction to make the order appointing a water commissioner to admeasure and distribute the waters of Willow Creek, Little Willow Creek and their tributaries, it being the contention of respondents here that the district court of Cascade county alone has jurisdiction to make such an appointment.

The statutes bearing upon the subject are sections 7136 et seq., Revised Codes of 1935. Section 7136 in part provides: “Whenever the rights of persons to use the waters of any stream, ditch or extension of ditch, water course, spring, lake, reservoir, or other source of supply have been determined by a decree or decrees of a court of competent jurisdiction, it shall be the duty of the judge of the district court having jurisdiction of the subject matter, upon the application of the owners of at least ten per cent, of the water rights affected by the decree or decrees, in the exercise of his discretion, to appoint one or more commissioners, who shall have authority to admeasure and distribute to the parties bound by the decree or decrees the waters to which they are entitled, according to their rights as fixed by such decree or decrees.”

Sun River and its tributaries flowing, as they do, in three counties, viz., Lewis and Clark, Teton and Cascade, the district court of any one of those counties had jurisdiction to adjudicate the water rights of the whole watershed system. (Whitcomb v. Murphy, 94 Mont. 562, 23 Pac. (2d) 980.) But of the three, the court which first acquired jurisdiction — here the district court of Cascade county — retains jurisdiction for the purpose of disposing of the whole controversy, and no court of co-ordinate power is at liberty to interfere with its action. (15 C. J. 1134.)

When'section 7136 empowers the court “having jurisdiction of the subject matter” to appoint one or more water commissioners, it refers to the court that has acquired jurisdiction to adjudicate the water rights. The appointment of a water commissioner to distribute the waters is a method devised to carry the decree into effect. (Montezuma Canal Co. v. Smithville Canal Co., 218 U. S. 371, 31 Sup. Ct. 67, 54 L. Ed. 1074; State ex rel. Flynn v. District Court, 33 Mont. 115, 82 Pac. 450.)

Counsel for relators contend that even though the district court of Cascade county be conceded to have exclusive jurisdiction to adjudicate the rights of all parties to the waters of Sun River and its tributaries, including Willow Creek and Little Willow Creek, it does not follow that that court has exclusive jurisdiction to enforce the decree. With this contention we do not agree. This question was presented to the supreme court of Colorado, in Weiland v. Reorganized Catlin Con. Canal Co., 61 Colo. 125, 156 Pac. 596. There the water rights were adjudicated by the district court of Bent county. An action was brought in Otero county to enjoin the water commissioner and the state engineer from interfering with certain rights claimed by plaintiff in that action. The court, after reviewing its statutes, stated:

“From these several provisions and authorities cited, it appears that the courts having jurisdiction to adjudicate priorities is definitely fixed; that there is to be but one decree by one court in a given district; and that it is the duty of the water officials to distribute decree priorities in accordance with such decrees.

‘ ‘ The action was against the water officials alone. Confessedly its purpose is to require them to distribute the 22 feet of water represented by the transfer decree in accordance with its terms. That decree was rendered by the district court of Bent county. Its jurisdiction for this purpose was exclusive. According to the averments of the complaint, the issue tendered is whether the defendants have or have not distributed the water involved as by the terms of the decree changing the point of diversion the plaintiff is entitled to receive it. Which court is vested with authority to determine this question?

‘ ‘ If the district court of Otero county has jurisdiction for this purpose, it must, as it did, construe the decree of the Bent county district court, and do, as it did, render judgment directing the water officials to distribute the priority fixed by that decree in harmony with such construction. Whether such construction and judgment are right or wrong is immaterial. The question is: When a court vested with jurisdiction to adjudicate water rights has exercised that authority and entered a decree, can another court of co-ordinate jurisdiction entertain a case the object of which is to determine whether the water officials have complied with its terms in the distribution of water ? The statutes designate the district court vested with exclusive jurisdiction to adjudicate priorities to the use of water for irrigation in a water district. When jurisdiction for that purpose has attached and a decree is entered, the statutes on that subject necessarily inhibit any other court of co-ordinate jurisdiction from modifying, reviewing, or construing such decree, otherwise there could be, in effect, more than one decree by different courts affecting the same priority to the use of water in the same water district, which it is the object of the statutes to avoid. Copies of all adjudication and transfer decrees are placed in the hands of water officials to guide them in the distribution of water. In a sense these copies are their warrants to execute the decrees which they embrace. The enforcement of a decree establishing a priority to the use of water is of the very essence of adjudication proceedings. From its nature and object the process of enforcing it is continuous, and must therefore remain the continuing function of the court entering it. Consequently, if a question arises between the owner of a priority fixed by a decree and water officials charged with the duty of distributing water under it, with respect to its meaning or effect, it must be determined by the court entering the decree, and not by any other court of co-ordinate jurisdiction.

‘ ‘ To conclude that any other court than the original one could entertain jurisdiction in such circumstances would lead to hope less confusion and conflict in jurisdiction, place the water officials in the position of not knowing which of two decrees or orders they should obey, and be contrary to the spirit as well as the letter of the statutes relating to the adjudication of water rights. Aside from this, the general rule applicable is that when a court assumes jurisdiction of a proceeding, which it is authorized to entertain, its jurisdiction is exclusive and extends to the enforcement of its decree in so far as the authority of other courts of the same jurisdiction may be involved. (Louden Canal Co. v. Handy Ditch Co., supra, [22 Colo. 102, 43 Pac. 535]; Bailey on Jurisdiction, sec. 77; Works on Courts and their Jurisdiction, 69.) We therefore conclude that the district court of Otero county was without jurisdiction to entertain the cause, and the demurrer to the complaint challenging its jurisdiction should have been sustained.”

The same conclusion was reached in Love v. Redden, 61 Colo. 133, 156 Pac. 599; in Farmers’ Ditch & Reservoir Co. v. Boyd Lake etc. Co., 66 Colo. 29, 178 Pac. 561, and in Hazard v. Joseph W. Bowles Reservoir Co., 87 Colo. 364, 287 Pac. 854. Of course, the rule does not apply to independent rights not adjudicated by the decree in the water right action. (Faden v. Hubbell, 93 Colo. 358, 28 Pac. (2d) 247; Bijou Irr. District v. Weldon Valley Ditch Co., 67 Colo. 336, 184 Pac. 382.) While our statutes are not the same as the Colorado statutes, we think the conclusion announced by the Colorado court in the Weiland Case has application under our statutes.

Section 7136 contemplates but one court having jurisdiction of a water right suit. Where, as here, the rights have their source and are used in more than one county, the district court of the county which first acquires jurisdiction is the court that has the power to appoint water commissioners. Eelators contend that such a construction of our statutes would make it impossible to punish for contempt for the violation of the decree of the district court of Cascade county when the contempt was committed in Lewis and Clark county. We do not agree with that contention in this respect. Contempts, being criminal in their nature, must be tried in the county where committed. If there be contempt of the Cascade county decree in Lewis and Clark county, the courts of the latter county may punish therefor. (State ex rel. Pool v. District Court, 34 Mont. 258, 86 Pac. 798.) Such a proceeding is to vindicate the court’s authority and dignity, and does not adjudicate or affect rights of the parties in the water right suit. (State ex rel. Flynn v. District Court, 24 Mont. 33, 60 Pac. 493.)

The next contention of relators is that, since under section 7143 a water commissioner is vested with the same powers as a sheriff or constable to arrest any and all persons interfering with the distribution of waters, it is unreasonable to suppose that the legislature intended to authorize the district court of Cascade county to appoint a commissioner whose duties are confined to Lewis and Clark countj'-. We see nothing unreasonable or illegal in such a situation. Persons who comply with the decree will not be molested by such a peace officer. Those who fail to comply with it will not be heard to say that their arrest should be accomplished by some other officer.

The next contention is that, since under sections 7140, 7145, 7147, 7148 and 7149 and other sections of the statute the court appointing a water commissioner is empowered to assess costs and expenses against the land benefited, and that the assessment is given the force and effect of a judgment against the person to whom the water was distributed with the right to issue execution, it is not to be supposed that the legislature intended to empower the court of one county to make such an assessment operative as a lien upon lands situated in another county. There is no more valid objection to such provisions than to the provision that a judgment rendered in one county is a lien upon real estate of the debtor in another county.

The legislature has the right to empower the district court of Cascade county to appoint a water commissioner for Lewis and Clark county under the facts here, and to make the costs and expenses an assessment against the lands benefited. The landowner, in seeking to have water rights adjudicated to him, takes those rights burdened with the conditions imposed by the legislature, one of which is that he must share in the cost of enforcing the decree. In this respect the situation is analogous to that arising when an irrigation district is created which may-embrace lands in more than one county. (Sec. 7167, Rev. Codes.) The court of one county appoints commissioners which, in some cases, may embrace a division of the district situated in another county. (Secs. 7169, 7170.) While each commissioner does not act separately but as a member of the board (secs. 7171, 7172), it is entirely possible that a majority of the members might represent divisions of the district situated in counties other than that of the court making the appointment. The board also has authority to assess the cost of certain installations against the lands affected thereby. (Sec. 7207.5.)

Relators contend that our conclusion here necessarily conflicts with our holding in Whitcomb v. Murphy, supra, for there we held that the water commissioner appointed in Lewis and Clark county should follow the Cascade county decree to the extent that it adjudicated water rights not involved in the Lewis and Clark decree awarding the rights of the south fork of Sun River, thus recognizing the right of the district court of Lewis and Clark county to appoint a water commissioner. In that case the question here being considered was not raised or presented. Moreover, in that ease the district court of Lewis and Clark county had by decree adjudicated part of the rights of the south fork of Sun River, and the water commissioner was appointed by that court to enforce its own decree and not that of another court. Here there is no decree by the district court of Lewis and Clark county covering any of the rights of Willow Creek or Little Willow Creek or their tributaries. A commissioner admeasuring and distributing the waters of Willow Creek and Little Willow Creek, by whatever court appointed, has but one decree to follow and that is the decree of the district court of Cascade county, and it is our view that that court alone has jurisdiction to appoint a water commissioner.

The respondent court properly annulled the order appointing a water commissioner to distribute waters according to the decree of the district court of Cascade county,' and the writ applied for is denied and the proceeding dismissed.

Mr. Chief Justice Goddard and Associate Justices Stewart and Anderson concur.