On November 26, 1928, plaintiff instituted this suit by filing a complaint. Injunctive relief was sought restraining defendant from using the waters of a spring known as "The Devil's Teakettle".
On December 27, 1928, an order of default was entered, stating that the defendant had been duly and regularly served with summons and had not answered within the legal time for answering.
On January 4, 1929, an order was entered dismissing plaintiff's complaint, in which order it is recited that the court finds that there is no equity in the complaint and that the complaint sets up no facts warranting injunctive relief.
The order of December 27, 1928, and that of January 4, 1929, were made by Honorable A.L. Leavitt, who was the judge of the court at that time.
On January 22, 1929, the plaintiff filed a motion to set aside the order made and entered on the 4th day of January, 1929.
On the 1st day of February, 1929, an order was entered setting aside the order of January 4, 1929. This order was made by Honorable W.M. Duncan, who had succeeded Judge Leavitt as the judge of said court. *Page 447
The basis for the order of February 1, 1929, was the fact that the summons filed in the cause, upon which return of service was made, had not been signed by the attorney for the plaintiff.
On February 13, 1929, plaintiff filed its first amended complaint.
On February 21, 1929, defendant filed a motion to strike parts of said amended complaint which motion on March 5, 1929, was overruled.
On March 9, 1929, defendant filed a motion to set aside said order of February 1, 1929. This motion was supported by an affidavit of defendant to the effect that the purported copy of summons which was delivered to the defendant bore the name of plaintiff's attorney. On March 29, 1929, this motion was overruled.
On April 5, 1929, defendant filed a demurrer to plaintiff's first amended complaint based upon the grounds: that the court had no jurisdiction of the defendant, and no jurisdiction of the subject of the action or suit because the order of dismissal of January 4, 1929, had become and was final and binding; that said first amended complaint did not state facts sufficient to constitute a cause of action or suit; and that the suit had not been commenced within the time limited by the code of civil procedure of Oregon.
On the 7th of October, 1929, the said demurrer to the first amended complaint was overruled.
On the 15th day of October, 1929, upon motion and application of defendant, an order was made extending the time within which defendant should answer plaintiff's first amended complaint. *Page 448
On October 26, 1929, defendant filed an answer to plaintiff's first amended complaint, in which answer defendant pleaded the rendition of the order of January 4, 1929, as estoppal; also alleged that, upon appropriate application therefor, defendant's predecessor in interest had been granted the right to appropriate the waters of the spring in suit, known as the "Devil's Teakettle", by the state engineer and that said right had been transferred to defendant.
On October 29, 1929, plaintiff filed a reply, and on the same day defendant filed a demurrer thereto.
On February 6, 1930, an amended reply was filed by plaintiff.
On or about October 29, 1929, (as stated in the order of the court thereupon) defendant filed a demurrer to plaintiff's reply, which on February 4, 1930, was overruled.
On March 17, 1930, the cause was tried. Defendant participated in the trial, cross-examined witnesses and among other things offered in evidence a certificate of water right issued by the state engineer to C.C. Lewis, and also a deed from C.C. Lewis and wife to defendant and wife.
After the trial of the cause the circuit court made and filed its findings of fact and conclusions of law and entered a decree declaring plaintiff to be the owner and entitled to the full, uninterrupted and exclusive enjoyment and use of the waters of the spring in suit commonly known and designated as the "Devil's Teakettle" and perpetually enjoining defendant his successors in interest, agents and personal representatives from diverting, appropriating or using in any manner whatsoever any of the waters of said spring.
Defendant appeals. *Page 449 To the writer it is idle to discuss the question of the jurisdiction of the court over the person of the defendant when the order of January 4, 1929, was made dismissing the case. The court had jurisdiction of the subject matter and without any jurisdiction of defendant had authority to enter an order of dismissal. The order of February 1, 1929, setting aside the order of dismissal was made at the same term of court as the order of dismissal itself. It is urged that by virtue of subdivision 2 of section 28-1503, Oregon Code 1930 (§ 956, Or. L.), an order of dismissal made by one judge cannot be set aside by any other judge.
As far as pertinent to this question the section mentioned reads as follows: "Such officer [judicial officer] shall not act as such in a court of which he is a member. * * * 2. When he was not present and sitting as a member of the court at the hearing of a matter submitted for its decision."
There is nothing in the record to indicate that Judge Duncan was not present and sitting as a member of the court in the hearing of plaintiff's motion to set aside the order of dismissal, and hence the statute is inapplicable.
The general rule is that one judge may not review the action of another judge of co-ordinate jurisdiction. Where, however, another element enters into the consideration of the case by the second judge this general rule is not necessarily applicable: 33 C.J., p. 970, § 99, notes 34 and 39.
The irregularity of the summons was an element in the record not considered when the order of dismissal was made. *Page 450
Defendant has waived his right to object to the order vacating the order of dismissal by answering the first amended complaint and going to trial upon the merits: 18 C.J., p. 1213, § 155, note 36 and cases there cited.
Practically all of the testimony is to the effect that prior to on or about February 20, 1925, when the waters thereof were first diverted by artificial means under an express agreement with plaintiff the spring in question at all times was upon plaintiff's property and by reason of seepage and evaporation would not flow in any channel or to or upon adjacent property. Such a spring is not subject to appropriation by a person other than the owner of the land: § 47-1401, Oregon Code 1930; Morrison v. Officer, 48 Or. 569 (87 P. 896); 2 Kinney on Irrigation and Water Rights, § 648, p. 1135, note 9. We hold, therefore, that the board of control had no jurisdiction over the waters of the spring in suit and in so far as the premit issued by the state engineer refers to said spring or the waters thereof it is void: David et al. v. Brokaw et al., 121 Or. 591, 600 (256 P. 186).
In his brief, defendant contends that because the description of the property comprising the site of the spring in question as set forth in the findings of fact is at variance with its description as stated in the conclusions of law and in the decree of the court; and because in one of the calls in said descriptions the degree is not indicated, but the same reads, "Running thence S. 89 21' W." c. the decree cannot be carried into force, effect or operation because it is impossible to determine just what land or property is embraced therein." *Page 451
Defendant's answer expressly admits that there is a spring known as the "Devil's Teakettle" situated on N.E. 1/4, N.E. 1/4, sec. 33, township 38 south, range 9 E., Willamette meridian, Klamath county, Oregon, and the affirmative allegations of defendant's answer identify that spring as the one in suit. The description in the first amended complaint, the findings of fact, the conclusions of law, and the decree of the court, after describing the property by metes and bounds, contain the following clause: "containing 10 acres more or less in the N.E. 1/4 of sec. 33, twp. 38, S.R. 9 E.W.M. in Klamath County, Oregon." Then it is stated: "This parcel of land also contains the hot spring commonly known as the `Devil's Teakettle'". Under this state of the record the defendant should not be heard to say that he can not tell what is meant by the 10-acre tract upon which is situated the spring known as the "Devil's Teakettle".
The decree of the circuit court is affirmed.
BEAN, C.J., ROSSMAN and BELT, JJ., concur.
RAND, J., did not participate. *Page 452