I dissent. The judgment of the lower court constitutes a collateral attack on a decree of a federal court by a state court *Page 251 wherein the subject matter was the same and was between the same parties litigant or their successors in interest.
The rule of res judicata applies. The judgment in the case of Morris (Howell, Intervenor) v. Bean et al., C.C. 146 F. 423, rendered May 8, 1906, has not been revised nor modified in any subsequent proceeding. All the parties involved in the case at bar are successors in interest of some party whose rights to the waters of Piney creek as a tributary of Sage creek were determined in that action and it is also expressly held there that Piney creek was a tributary of Sage creek. All the rights of plaintiffs were foreclosed by that adjudication unless it were shown that the plaintiffs were injured by a subsequent change of the place of diversion. The record does not show any such injury. It does appear that the plaintiffs suffered from a diminished supply of water to produce a satisfactory yield of grain a number of different years but it does not show that defendants took any more water than they were entitled to under the decree in Morris v. Bean, supra. Practically all of the plaintiffs testified in substance that they were injured by the defendants because the defendants took water that they claim they were entitled to. Of course they had to show that they suffered damage and naturally they could not testify to anything else than that the damage was due to the defendants' taking more water than they were entitled to but mere statements to the effect that they were damaged for such reasons is not evidence. The question as to whether the defendants took more water than they were entitled to under the decree mentioned was the very question in issue and the mere statement unsupported by other testimony made by the plaintiffs who claimed to be injured is of no value as evidence.
Rehearing denied February 27, 1946. *Page 252