I agree with much that is said in the foregoing opinion but do not concur in the conclusion reached.
I think the correct rule as to whether we will entertain an appeal from a judgment entered by the district court after an appeal to this court was stated in Kimpton v. Jubilee Placer Min. Co., 22 Mont. 107, 55 P. 918, 919. In that case the judgment or decree appealed from had been entered after a former appeal, as here. The court pointed out that it had been entered "in obedience to, and in exact conformity with, the judgment and order of this court." The court held that the rights of the parties had become res judicata and that an appeal would not be entertained when the decree entered in the inferior court was "in exact accordance with our mandate upon a previous appeal." But the court made this pertinent statement: "If such an appeal is taken, however, we will, upon the application of the appellee, examine the decree entered, and, if it conforms to the mandate, dismiss the case, with costs. If it does not, the case will beremanded, with appropriate directions for the correction of theerror." (Italics mine.)
The same question was again before this court in Lloyd v. City of Great Falls, 107 Mont. 588, 87 P.2d 187, and this court first considered the contentions made that the judgment entered by the lower court was not in conformity with this court's remittitur and, after finding that the judgment was in conformity with this court's remittitur, the court then stated that the judgment thus entered was not appealable. But, as *Page 31 noted, the court did entertain jurisdiction for the purpose of determining whether the judgment was in conformity with the remittitur from this court.
The next cases where this point was considered were those of Gaer v. Bank of Baker, 113 Mont. 116, 122 P.2d 828, and In re Anderson's Estate, 113 Mont. 125, 122 P.2d 832. In these cases the court held that there was no appeal from such a judgment and that to test the question whether the judgment was in conformity with this court's remittitur a special proceeding was necessary. The court in the Gaer case, however, notwithstanding this holding, proceeded to determine whether the judgment was in conformity with the remittitur. I think we should follow the rule in the Kimpton case and determine whether the Judgment is in conformity with the decision of this court. Reference to the opinion on the prior appeal will disclose that the precise issue before the court was whether water diverted by defendants from the upper reaches of Dempsey Creek and transported to the "pot holes" referred to in the opinion during high water and which if not diverted would otherwise flow to waste was the same water which defendants intercepted in drain ditches running parallel to Dempsey Creek at the base of the plateau on which the "pot holes" existed. It was defendants' contention that the "pot holes" were reservoirs for the flood waters thus diverted and that they constituted a storage system for water which they were entitled to recapture as and when it sank to lower ground. Plaintiffs contended that the water which defendants intercepted in the drain ditches was water coming from springs and seepage from adjoining lands which constituted a source of supply to the stream and hence belonged to the stream. The lower court found in favor of defendants' contention. This court in its opinion held that the burden of proof was on defendants to establish their claim and that they did not sustain this burden. The court said: "To establish property rights on proof such as was here relied on would be the accepting of speculation as sufficient basis. * * * The evidence is wholly inadequate to *Page 32 support the finding that an additional flow in the stream had been created and without which there is no support of the decree granting the additional water right." [116 Mont. 46, 147 P.2d 1016, 1019] I think the only proper judgment for this court to have ordered under such circumstances would have been an order for a new trial (sec. 9397, subdiv. 6) or a direction that the trial court enter a dismissal or nonsuit (sec. 9317, Rev. Codes) as to the cross-complaint. True, under section 8805, the court for proper cause might have ended the litigation but to do so a proper basis must have been found. Here the only finding was that of insufficiency of the evidence, without more, and there was no basis for concluding the defendant by a judgment depriving him of the opportunity to supply the lacking evidence upon another trial. The trial court after the remittitur was returned from this court entered a decree permanently restraining Perkins from maintaining his storage system and from diverting water into the "pot holes." A defendant who files a cross-complaint becomes the plaintiff with reference to the relief demanded in the cross-complaint (17 Am. Jur., Dismissal and Discontinuance, sec. 12, p. 63), and when he fails to submit sufficient proof the cross-complaint may be dismissed or a nonsuit entered as to the cross-complaint but this would not bar another action. 17 Am.Jur., Dismissal and Discontinuance, sec. 79, p. 98; sections 9317 and 9320, Revised Codes. In legal effect the concluding paragraph of this court's opinion on the former appeal goes beyond and is not in conformity with the reasons given in the decision for a reversal and I think the reasons measure the limit of the relief that should have been granted.
The opinion on the former appeal does not indicate that a showing could not be made justifying the relief sought by defendants and granted by the trial court. A natural depression may be utilized as a reservoir if no one is injured thereby. Larimer County Reservoir Co. v. People, 8 Colo. 614, 9 P. 794. We were advised by counsel for defendants at the oral argument and in the brief that since the decision on the former *Page 33 appeal water has not been diverted by defendant Perkins into the "pot holes" and that, as a consequence, there has been a cessation of the flow into the drain ditches, which demonstrates rather convincingly that the water intercepted in the drain ditches came from the "pot holes" and he contends that defendants should be permitted to so show. This demonstrative proof was not in existence at the time of the trial. Such evidence would be particularly convincing if upon filling the "pot holes" again there would be a revival of the flow into the drain ditches, no other cause therefor intervening. "It is to the interest of the public that every acre of land in this state susceptible to irrigation shall be irrigated." Allen v. Petrick, 69 Mont. 373,222 P. 451, 453.
We have already held that evidence to impeach an adjudicated fact is admissible upon a change in the conditions subsequent to the decree. Howell v. Bent, 48 Mont. 268, 137 P. 49; Zosel v. Kohrs, 72 Mont, 564, 234 P. 1089. At the time of the trial evidence now available was not in existence. If counsel's statement is correct it can now be practically demonstrated that the water intercepted in the drain ditches comes from the "pot holes."
I think it is a denial of justice to ignore the claim and contention of defendant Perkins in this respect, and to deny him the right to maintain his storage system, if in fact it is such, and where there is no injury done to another as is the case if defendant Perkins can substantiate his claim by adequate proof. If this conclusion is out of harmony with the concluding paragraph of the opinion on the former appeal, it is sufficient to say that that paragraph is not justified by the court's decision and opinion holding that the evidence was insufficient to support the findings of the trial court. I think we have jurisdiction and power in this proceeding to order the modification of the judgment of the trial court so as to remove the permanency of the injunction and thus enable defendant Perkins to take appropriate steps to have his claim adjudicated in the light of the change of circumstances. So long as the permanent injunction *Page 34 stands I do not see how he can proceed as intimated in the special concurring opinion of Mr. Justice Cheadle without being in contempt of court.
I think too that not every judgment is res judicata. When the court has satisfied itself that it has fallen into error, it ought not to hesitate to correct itself at the earliest opportunity rather than run the risk of falling in line with those courts which "live by correcting the errors of others and adhering to their own." Ellison v. Georgia, etc., Co.,87 Ga. 691, 13 S.E. 809, 810.
In Cluff v. Day, 141 N.Y. 580, 36 N.E. 182, 183, the court said: "There is no iron rule which precludes a court from correcting a manifest error in its former judgment, or which requires it to adhere to an unsound declaration of the law. It may, for cogent reasons, reverse or qualify a prior decision, even in the same case. But the cases in which this will be done are exceptional, and the power should be sparingly exercised."
A circumstance entitled to consideration in determining whether the reason for departing from a former holding in the same case is cogent is the fact, as here, that the former opinion was by a divided court. Johnson v. Cadillac Motor Car Co., 2 Cir., 261 F. 878, 8 A.L.R. 1023, and Note on page 1031. Another circumstance which I think is persuasive is the fact that if defendant's contention can be sustained by adequate proof then no one will be injured and the public as a whole will be benefited by making use of water that otherwise runs to waste. If the contention of counsel for Perkins can be sustained by proof, then the majority opinion does not enrich plaintiff but has the effect only of making Perkins and the general public suffer and results in the waste of water by judicial impotence. The doctrine of res judicata is intended to protect rights adjudicated between parties. Here the right of Perkins, if established, does not adversely affect anyone. Not all decrees affecting the use of water are conclusive and perpetual. Thus a decree establishing the duty of water is not immutable. State v. Achepohl, 139 Wash. 84,245 P. 758. *Page 35
Courts, I think, have continuing jurisdiction to alter decrees affecting the use of water, to meet changing conditions, to prevent waste of waters and to obtain the greatest use of water when this can be done without disturbing vested rights.
In some states the statutes expressly permit a redetermination of the right to the use of waters in order to prevent waste. See Mammoth Canal Irr. Co. v. Burton, 70 Utah 239, 259 P. 408. I think we have that inherent right and that it is our duty to do so when no one is adversely affected.
To the extent that the findings and decree permanently enjoin defendants from using water flowing into the north fork of Dempsey Creek from and through the drains, I think it is not in conformity with the only proper conclusion that could follow the holding in the former opinion. I believe defendant Perkins should be permitted to divert water into the "pot holes" at times of high water, when and if no one would be injured thereby. Then, if he is able to identify the water intercepted in the drain ditches as water coming from the "pot holes," to that extent I think he is entitled to the additional water right because then no one would be injured by his storage system and the maximum use of the water would be attained which the law and public policy encourage. I think the judgment should be ordered modified accordingly.
Believing as I do that there was an appeal from the judgment entered in the district court in order to ascertain whether it was in conformity with this court's remittitur as held in the Kimpton case, I think the order denying the motion to dismiss for failure to have judgment entered in the six months period provided in subdivision 6, section 9317, Revised Codes, was reviewable on the appeal from the judgment. I think though that the motion was properly denied here because there was no neglect on the part of plaintiff in having judgment entered. Rule v. Butori, 49 Mont. 342, 141 P. 672; Samuell v. Montana-Holland Colonization Co., 69 Mont. 111, 220 P. 1093. The delay here was due to the fact that the court consumed time in *Page 36 considering the proposed findings which had been timely submitted by plaintiff.