Bowering v. Adams

TEMPLE, J.

—This action was commenced by thirty-eight plaintiffs against one hundred defendants to quiet the right and title of plaintiffs to certain water, to the extent of seventy inches, miners’ measure. Many of the defendants defaulted, and among them the two appellants. In the decree the court determined that seventy-three of the parties to the action were the owners of all the water arising upon the land described, or which could be thereafter developed from the same, in the order and to the several amounts named in the decree. Of these parties thirty-five were plaintiffs and thirty-eight were defendants, and the amount of water adjudged to belong to them is in the aggregate more than one hundred and twenty inches. The judgment-roll is not contained in the transcript, and we cannot tell whether, as to the defendants, the pleadings authorized a judgment in their favor. Plaintiffs in their complaint only asked that the defendants be enjoined from interfering with their claim to seventy inches flowing from the described tract, but admitted the right of the defendants to the surplus. Appellants contend that the decree is not sustained by the complaint in allowing a prior right to more than 'seventy inches of water, and in extending that priority to water which may hereafter be developed upon the described tract of land.

Motion is made by some of the respondents to dismiss the ap peal, on the ground that the notice of appeal was not served on all the adverse parties, to wit, upon fourteen defendants named in the notice who had heen duly served with summons and whose defaults had been entered, and against whom judgment had been rendered. The appellants admit the facts stated, except that they deny that the omitted parties are adverse parties and that their interests will, or can, be injuriously affected by the appeal.

In the complaint it is alleged that in 1887 the San Jose Banch Company acquired title to certain lands, and each of plaintiffs purchased from said company a specific portion thereof, and also certain water rights which are specifically described in the complaint, and which have become, and are, appurtenant to the respective tracts of land owned by plaintiffs in severalty. It was also averred that, in addition to the water rights conveyed to plaintiffs, the company undertook to convey to other parties a right to water from sources undefined, such other parties being the defendants, who assert some right to the water adverse to plaintiffs. “That the claims of said defendants are without any right whatever, except as to any surplus water there may be derived from said source over and above the .amount belonging to the plaintiffs, as above set forth.” Among other things, they demand that “all adverse claims of said defendants, or either of them, may be determined by a decree of ■this court, and that by said decree it be declared and adjudged that said plaintiffs are the owners of the right to use all the water flowing from the source above described, except the surplus, if any, over and above an amount equal to a constant flow of seventy inches under four-inch pressure, miners’ measurement,” et cetera. The effect of the decree has been partly stated.

The record, which does not contain the judgment-roll, does not show that cross-complaints were interposed by any of the defendants, but, for aught we can know, such may have been the case. The judgment awards to thirty-five defendants advantages over the other defendants, and adds to the seventy inches of water which may be taken before any surplus can exist about as much more. The appellants, so far as the judgment discloses, are in the same position under the decree as the defend ants not served with the notice, hut the decree adjudges, in effect, that none of the defendants, except those named in the decree as possessing prior rights, can appropriate to their spe- • cial use water from the described tract, save as sharers in the surplus. By the terms of the decree no defendants can acquire independent rights to the water, and diminish the surplus. Should they appropriate to their individual use any of the water disposed of by the decree, it would necessarily lessen the surplus to be divided among the defendants, and, of course, the share which would go to each defendant who was not served with the notice of appeal.

It must be borne in mind, also, that if the appellants succeed in causing the decree to be modified, it can -be modified only as to appellants.

The appeal is taken from portions of the decree only—formally from five different portions. The first four are, however, aimed at the same adjudication, to wit, giving to the favored parties the right to the undeveloped water, to the exclusion of the appellants. In the fifth they appeal from those portions of the decree which affect the right of the appellants to the developed waters in said tract of land.

It is obvious that, if appellants are entirely successful in their appeal, they will be at liberty to claim, and in fact to appropriate to their special use, to the exclusion of all other parties, the entire amount of water which is disposed of by the decree, and thus prevent the possibility of there being any surplus water to be divided among the defendants, who, by the decree, are not given prior rights, and who were not served with- the notice of appeal.

It is also obvious that to whatever extent they so succeed in modifying the decree, the effect will be to place them in a position to claim some portion of the water, already developed, or to be hereafter developed, to the prejudice of the defendants not served. Indeed, it is difficult to see how they can be bene- - fited by any modification of the judgment, except to the injury of such defendants.

It is true the decree does not settle the right of the defendants not named in the schedule attached to the decree, as between themselves. Possibly, the appellants may be entitled to all the surplus water as against the defendants not served, but the complaint puts all upon the same level, and, although it is not an adjudication of their rights with reference to each other, it must be so regarded on this motion.

The appeal is dismissed.

McFarland, J., Harrison, J., and Van Dyke, J., concurred.

Rehearing denied.