State Ex Rel. McKnight v. District Court

I concur in a general way in the dissent of Mr. Justice Angstman but will express some views of my own. There is no question of due process involved in this controversy. When a water user applies to the district court to cite a water commissioner to appear for correction in the manner he is distributing the water, it is a matter between the court and the commissioner. Neither summons nor notice to any others except such persons as the court may desire or the complainant proposes to have appear and testify is necessary. In the action about which the relatrix complains, neither her water right nor that of any other user was changed or altered in any manner. The court simply restated what former decrees had determined and from that basis directed the commissioner as to his duties. Notice to the relatrix would have accomplished nothing. No revision of the respective rights of the various users was proposed nor attempted.

If the relatrix had had notice she could have done nothing. She admits that the decree of August, 1883, gave to the plaintiff in this action 4,254 inches of the waters of the stream as a first right. That is all the plaintiff claims, but alleged in the complaint that the water commissioner was administering the waters in a manner unfair to it, and sought the aid of the court to compel the commissioner to do his duty fairly and in accord with the three decrees. After the hearing, all that the commissioner was admonished to do was in effect to take the *Page 535 three decrees, determine by reference thereto the date a particular right was held to have been initiated, determine the amount awarded to the particular user, see that the weirs were properly installed and kept in repair, and admeasure and distribute the water according to priority of right.

The court's determination of the matter was in full accord with the provisions of section 7150, Revised Codes, and neither the relatrix nor any other user's right as fixed by the three decrees was changed or molested in any particular. The entire action about which the relatrix complains was not an act to change any former adjudication, but simply to enforce the decrees as made.