River v. Jordan Valley Land & Cattle Co. , 143 Or. 249 ( 1933 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] IN BANC. John A. Oliver filed his application for a rehearing in the matter of the determination of the relative rights to the use of the waters of the Owyhee river and its tributaries, a tributary of the Snake river, to which Jordan Valley Cattle Company, Nelle B. Parks, and Vincente Mendiola filed objections. From decree modifying original decree, the objectors appeal. On respondent's motion to dismiss appeal.

MOTION DENIED. The respondent John A. Oliver moves to dismiss the appeal herein upon the ground that this court has no jurisdiction and that the necessary parties have not been served with notice of appeal.

After the original proceedings for the determination of the relative rights of various claimants to the use of the waters of the Owyhee river and its tributaries had been appealed to this court and determined and a mandate sent to the circuit court, John A. Oliver applied for a rehearing under the provisions of section 47-618, Oregon Code 1930. Upon a hearing of that application, Oliver was awarded a decree to the right "to divert the waters naturally stored each year in Upper Cow Creek lake below the elevation at which said Upper Cow Creek lake naturally flows into Lower Cow Creek lake, being an elevation of 2.64 feet above the bottom of the ditch of said applicant, John A. Oliver, as now constructed, * * *".

It is the contention of respondent that all of the water users who were parties to the original proceeding must be served with notice of appeal according to the ruling in In Re ChewaucanRiver, 89 Or. 659, 687, (171 P. 402, 175 P. 421).

The original decree entered in the circuit court for Malheur county on September 21, 1926, awarded John A. Oliver a right to the use of the waters of Cow creek, a tributary, sufficient to irrigate 277.1 acres of land, with a relative date of priority as of March 16, 1907. No appeal was taken from the award to him. Other claimants appealed to the Supreme Court for a review of the determination respecting their water rights. The mandate from this court was entered February 3, 1928.

On February 4, 1928, in his application for a rehearing, Oliver asked that in addition to the waters of Cow creek he be awarded, first, the right to use all of the waters of Upper Cow Creek lake between its normal level and the bottom of the Oliver ditch, to a depth of 2.6 feet; second, a duty of water not to exceed one acre-foot in any thirty days prior to June 1, and not to exceed three-quarter acre-foot per acre, after June 1 of each year, with a total duty each season from April 1 to October 15, not exceeding three acre-feet.

On May 16, 1932, the circuit court passed a decree awarding to the applicant John A. Oliver the right to the use of the stored waters of Upper Cow lake from its natural surface level to the depth of 2.64 feet, and amending the decree of September 21, 1926, and February 3, 1928, to that effect, and denying the application for change in the duty of water. The matter in regard to the duty of water, in view of the fact that Oliver has not appealed, is entirely eliminated from this appeal.

Section 7-503, Oregon Code 1930, regulating appeals, which governs in this matter, provides:

"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, * * *".

The question for determination in this case is whether or not the parties other than the applicant, John A. Oliver, are adverse parties.

An adverse party within the meaning of the statute is any party to the judgment or decree whose interests may be injuriously affected by a modification or reversal upon appeal of the judgment or decree from which the appeal is taken.

Oliver, in the decree appealed from, was awarded additional water rights to those granted him in the original decree. He has not appealed from the last decree and hence his right cannot be increased. He cannot obtain a more favorable decree upon this appeal than was awarded him in the trial court. The only action to be taken by this court upon the appeal, if any change should be made in the decree of the lower court, would be to decrease the right of Oliver to the use of the water mentioned. In so far as we can see from the record that would be beneficial to all the other objectors or water users situated in the river above or below Cow lake. Instead of any change or modification that might be made being likely to affect the rights of the other water users injuriously, it must of necessity be beneficial to them.

It is stated in Osborn v. Logus, 28 Or. 302, 304 (37 P. 456, 38 P. 190, 42 P. 997), as follows: "An adverse party is one whose interest in relation to the judgment or decree appealed from is in conflict with the modification or reversal sought by the appeal". Citing The Victorian, 24 Or. 121 (32 P. 1040, 41 Am. St. Rep. 838). This ruling was approved in In Re Waters of ChewaucanRiver, supra, at page 686.

Where the only modification possible will be favorable to the one not served or if the situation cannot be made worse for him on appeal, it is not necessary to serve him with notice:Moody v. Miller, 24 Or. 179 (33 P. 402); U.S. National Bank v.Shefler, 77 Or. 579 (143 P. 51, 152 P. 234).

In Adams v. Kennard, 122 Or. 84, 97 (222 P. 1092, 227 P. 738,253 P. 1048), Justice BURNETT uses this language:

"The canon established by all our precedents and by which it is determined whether a party is adverse to the appellant is in substance this: that if on the appeal, the interests of a party could be adversely affected, he is entitled to notice of the appeal of another party, in default of which this court will not acquire jurisdiction. On the other hand, if the only possible modification of the decree would better his condition, he is not an adverse party and it is not necessary to notify him".

This appeal is quite different from the original decree of adjudication and also from the matter of the application of John A. Oliver for a rehearing. If the decree appealed from had changed the duty of water a different question would have arisen.

As it is, the only question, as to whether other parties should have been served with notice of appeal, is, if on this appeal the interests of any of the other parties could be adversely affected by a reversal or modification of the decree appealed from. From the nature of the case their rights cannot be injuriously affected. No decree would be rendered by this court upon final hearing injuriously affecting the right of any party who has not been served with notice when he is entitled to such notice.

The motion to dismiss is denied.