West Point Irrigation Co. v. Moroni & Mt. Pleasant Irrigating Ditch Co.

46 P. 762, 14 Utah 127, 1896 Utah LEXIS 67

Opinion

Minee, J.:

Plaintiff filed its complaint against the defendants for the purpose of determining its rights'to a certain stream of water known as the “Sanpitch River,” in Sanpete county. Defendants answered, claiming interests in the water of the stream, etc. The intervener Rasmus Claw-son and others filed their petition for leave to intervene, and, by leave of the court, filed an amended complaint in intervention. The defendants filed a demurrer to the complaint in intervention, alleging that the same does not state facts sufficient to constitute a cause of action, nor any ground for a rightful intervention; that it is ambiguous, uncertain; and that it is not shown whether said lands claimed to be owned by interven-ers are owned or possessed in common or sever-alty by intervener or those he represents, nor who the parties are that claim the water, nor their individual interest therein, and because of defect of parties. The demurrers were sustained. Interveners elected to stand upon the complaint, and thereupon said complaint in intervention was dismissed, with costs. Interveners appeal from this order and judgment.

Section 3190, Comp. Laws Utah 1888, provide that “* * * any person may, before trial, intervene in an action or proceeding whO'has an interest in the matter in litigation, in the success of either of the parties, or an interest against both. * * * ” Under this section, it was competent for the interveners to file their complaint in intervention. Usually, the interest which entitled a person to intervene in a suit between other parties must be in a matter in litigation, and of such a direct and immediate character that the intervener will either gain or lose by the direct legal operation and effect of the judgment.' Pom. Rem. & Rem. Rights, §§. 429, 430. Section 3184, Comp. Laws Utah 1888, provides that “when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of all.” Under this provision of the statute, there must be a question of common or general interest to many persons involved in the action, and the question to be determined should be one of common or general interest to all of them, or such persons should be so numerous that it would be impracticable to bring them all before the court; and, in order that the intervener may be entitled to maintain his action, the facts showing that these requirements of the statute have been complied with must be alleged by the intervener as the ground and reason for adopting this peculiar form of action permitted by the statute. “The complaint or petition must show either that many persons have a common or general interest in the questions involved in the action, or else that the number of persons who would be joined as plaintiffs or defendants, if the ordinary rule was applied, is so very great that it is impracticable to make them all actual parties. Unless the pleading contains these averments, the action must be regarded as though brought by the single plaintiff or against the single defendant named. It should be carefully observed that this provision does not create any new rights of action, nor enlarge any of those now existing. The suit cannot be sustained by one of the representatives of the many others who really sue in his name, unless it could have been maintained if all these many others had been regularly joined as co-plaintiffs, or unless it could have been maintained by each of them suing separately and for himself. The statutory provision is simply a matter of convenience, a rule of form, a means of enabling many persons to have their rights determined without their actual appearance in court as litigant parties.” Pom. Rem. & Rem Rights, §§ 389-392; McKenzie v. Lamoureux, 11 Barb. 516; Ballou v. Inhabitants, 4 Gray 324; Cadigan v. Brown, 120 Mass. 493; Murray v. Hay, 1 Barb. Ch. 59.

It appears from the complaint “that interveners and company, with about one hundred other persons, own in common a certain ditch, known as the ‘Ephraim Meadows Ditch/ which said ditch is taken from the Sanpitch river, in Sanpete county, on the east side of said river, and at a point about 6} miles below the town of Moroni; that all the matters and things set forth in this petition are of a common and general interest to each, and all of said parties, said parties owning undivided interests in said ditch; also, that it is impracticable to bring all of said parties before the court, by reason of their great number; that intervener, at the request of all parties, owners of an interest in said ditch, here intervenes in his own behalf a,nd in behalf of all others of common and general interest; that said ditch is used for the purpose of irrigating 1,200 acres of land, known as the ‘Ephraim North Meadows’; that said lands are and have been used for raising hay, and require and have required water to be applied to them in order that they may become productive; that the only source from which water can be obtained is from the stream known as the ‘Sanpitch River,’ said lands lying adjacent to said stream; that in the year 1855, and long before the plaintiff herein or its grantors, or either of the defendants or their grantors, had made an appropriation of water for any purpose whatever from said Sanpitch river, or had begun to cultivate any lands, this intervener and those whom he represents, either in person or by their grantors and predecessors, came into the rightful possession of the lands in the aggregate, known as the ‘Ephraim North Meadows,’ and thereupon, and during the year 1855, and each year thereafter, appropriated from said Sanpitch river; by means of dams and ditches, water .sufficient to irrigate said lands each year thereafter, except when prevented by the wrongful acts of the prior parties to this suit, as hereinafter stated; * * * that commencing with the year 1855, and continuing for each year thereafter, except the years hereinafter mentioned, intervener and those whom he represents, either personally or by their grantors, have diverted or appropriated from said river, in manner as aforesaid,' sufficient water to irrigate said lands, known as the ‘Ephraim North Meadow’; and such water bas been appropriated, and taken from said river in manner as aforesaid, commencing on or about tbe 1st day of May each year, and. continuing until tbe lOtb day of July of eacb year,” etc. It sufficiently appears from tbe complaint that all the matters and .things set forth in tbe complaint are of a general or common interest to tbe said intervener and the 100 persons be represents, and to each and all of said parties; and that said parties own an undivided interest in the said ditch in common; and that they came into tbe rightful possession of tbe said lands in tbe aggregate known as tbe ‘Ephraim North Meadows,’ consisting of about 1,200 acres of land, and appropriated tbe water from said stream to irrigate said land, etc. Tbe petition shows with reasonable clearness, although not with that unerring certainty that is desirable, that said intervener and those he represents have a common or general interest in tbe question involved in the action, and that tbe number of persons who would be joined as interveners is so large that it would be impracticable to bring them all before the court. Tbe petition seems to cover both provisions of the statute. We are of tbe opinion that the court erred in sustaining tbe several demurrers, and in dismissing tbe complaint in intervention. The judgment, order, and decree of tbe court below is set aside, with costs, and tbe cause is remanded for further proceedings.

ZaNxo, C. J., and Bartch, J., concur.