Former order modified June 16, 1926. ON PETITION FOR EXTENSION OF TIME TO FILE PETITION FOR REHEARING. (236 P. 763.) Upon an ex parte application an order was granted to extend for thirty days the time for presenting a petition for rehearing. The appellant, Willow River Water Users' Association, has strenuously objected to the extension of time because the irrigation season is well advanced and the rights of the parties to the litigation should be determined as early as possible. The rules of the court require all such petitions to be served and an opportunity given to be heard before any order shall be made extending the time. Time for filing of petitions for rehearing expired on June 15, 1925. Inasmuch as the order was made extending the time for thirty days, and the respondents and cross-appellants have probably relied thereon, it would be harsh now to rescind the order absolutely. We believe it unfair to the appellants, however, to extend the time thirty days. The order heretofore made extending the time thirty days for filing a petition for rehearing is, therefore, modified, and the respondents and cross-appellants are given until June 25, 1925, in which to present their petitions for rehearing.
FORMER ORDER MODIFIED. *Page 203 Rehearing denied July 14, 1925. ON PETITION FOR REHEARING. (237 P. 682.) COSHOW, J.
The respondents have addressed a very respectful and urgent petition for rehearing. This has had our serious consideration and we are constrained to adhere to our former opinion. The principal contention in the petition is based upon the claim that this court and the Circuit Court were without jurisdiction to determine the controversy between the appellants and the respondents. This matter was thoroughly considered in our former opinion. It matters not whether the proceeding was instituted before the Water Board, as was done in the instant case, or whether it was initiated by a suit in equity directly in the Circuit Court, as was done in the Hood River case, 114 Or. 112 (227 P. 1065). All the matters involved within the issues tendered by the pleadings should be determined. Equity, having *Page 204 acquired jurisdiction, should dispose of the entire matter in the one proceeding where that is possible: Section 5754, Oregon Laws. The precise question presented in this appeal was a description of the land to which water should be made appurtenant. We could not rightfully escape determining that question if we were so inclined. The respondents, in their original brief, make this statement:
"The determination under the original adjudication was complete as to the appropriation involved in the present proceedings, except as to the application of the waters to a beneficial use upon the lands described in the decree of the Circuit Court."
In the decree referred to in that statement about 15,000 acres of land were involved. In the present stage of the case only about 4,500 acres are involved. According to the showing made by the respondents we could not determine the issues presented by the application of the respondents and the contests and protests of the appellants without describing the land entitled to the water right issued to the Willow Land Irrigation Company.
The argument on behalf of the respondents to the effect that an appeal did not enlarge the jurisdiction of the appellant court over the court from which the appeal was taken is not applicable. Respondents contend that no appeal has been taken. Our former opinion holds that this is a continuation of the original proceeding, instituted to determine the relative water rights of the Willow River and its tributaries. In their petition for a rehearing the respondents take exception to this holding. But in their original brief we find this sentence: *Page 205
"The proceedings instituted under the present petition are supplemental to those in the original adjudication."
Respondents also claim in their petition for rehearing that the necessary parties to a final determination of the rights to the waters secured under the appropriation are not before the court. It is intimated that rights have been acquired from the Moline Farms Company, the proprietary successor to the Willow River Land Irrigation Company, which are violated in this proceeding. The record does not disclose that any parties other than those represented in this proceeding have an interest in the result. It is axiomatic that any parties not before the court are not bound by the determination unless they are privy to parties who are represented. Provision is made in the Code for rehearing upon a proper showing: Sections 5749, 5750 and 5751, Oregon Laws.
If the parties who claim not to have been represented are privy to the parties to the proceeding, they are bound by the determination. Respondents contend that the appellants were bound by the original determination of the relative water rights reported in 74 Or. 592 (144 P. 505, 146 P. 475), because they are privy to the parties in that proceeding. We quote again from the petition for rehearing:
"These proceedings were initiated before the organization of the Orchards Water Company or the sale of the land under contracts. Hence, all parties claiming an interest in this appropriation were privy to the proceedings and bound by them."
By the same token the parties referred to in respondents' petition for rehearing as having an interest, and not having been represented, would be bound. *Page 206
Neither the Willow River Land Irrigation Company or any of its proprietary successors could lawfully make appurtenant to its own land water that had been theretofore by it sold to the appellants. No one can sell property to another and at the same time retain that property. For that reason the Moline Farms Company could not lawfully make appurtenant to its own land the water adjudicated to it or its predecessor in interest and by them or either of them sold to another.
There was no intention to disturb vested rights as adjudicated in the original hearing in this court and reported in 74 Or. 592 (144 P. 505, 146 P. 475). In considering this appeal only the inchoate rights adjudicated to the Willow River Land Irrigation Company were considered. We have considered the case of Sayre v. Johnson, 33 Mont. 15 (81 P. 389), and do not consider that it is applicable to the present case. It is true that more than the average amount, as determined in our former opinion, apparently was stored in Reservoir No. 3. It is also true that in giving the measurements upon which the amount so stored was based the witness did not take into consideration, so far as we could determine from the record, the amount of the water so stored which belonged to the vested rights on Willow River or its tributaries. From the evidence, which we carefully read and considered, we made a liberal allowance in the amount of water available under the system. We believe that the amount stated by our former opinion is all and probably more water than can be had from the source of supply lawfully.
The cross-appellant, Emory Cole, has also petitioned for a rehearing, contending that he is entitled to the 4.2 acre-feet of water because he has a *Page 207 contract for that amount. He overlooks the principle that no one can lawfully appropriate more water than he can beneficially use economically applied. That principle is incorporated in the law of the state: Sections 5716 and 5717, subdivision 2, Oregon Laws. The Willow River Land Irrigation Company could not appropriate more than the amount heretofore determined to be necessary for the irrigation of the land awarded a water right, which is three-acre feet. It follows conclusively, therefore, that the Willow River Land Irrigation Company could not lawfully contract to deliver to the cross-appellant, Emory Cole, to exceed three-acre feet of water. A contract in violation of positive legislation is not enforceable: 13 C.J. 255, § 26.
Our former opinion is adhered to.
REHEARING DENIED. TAXATION OF COSTS AND DISBURSEMENTS. PER CURIAM.
The appellants have filed a cost bill for their costs and disbursements in this court. The respondents have filed objections to the cost bill, but not to any particular item or items thereof. The cross-appellant, Emory Cole, has also filed a cost bill, to which both the appellants and respondents have filed objections. As a rule the costs follow the event of the case: Section 567, Oregon Laws.
In equity the court has discretion with regard to costs. We are of the opinion that costs and disbursements should be awarded the appellants, Water Users Association, against the respondents, G.J. Magenheimer and Moline Farms Company. Their conduct in the control and management of the Orchards Water Company, both before and after the *Page 208 system was transferred to the Orchards Water Company, is the primary cause of the litigation. We believe it both equitable and just that they should bear the expenses of the litigation within the statute.
We are of the opinion that the cross-appellant, Emory Cole, is not entitled to recover either costs or disbursements against any of the parties to the suit. The cost bill of the appellants will be allowed in favor of the appellants against the respondents G.J. Magenheimer and Moline Farms Company. The cost bill of the cross-appellant, Emory Cole, will be disallowed. COSTS TAXED. Motion to recall mandate denied and decree amended September 15, 1925. ON MOTION TO RECALL MANDATE. (239 P. 123.) This matter has come on again upon a petition of the appellants, the Water Users Association, for an order to recall the mandate and amend the decree by incorporating therein the specific description of the land entitled to the use of water from the irrigation system. The petition is resisted by the respondents for the reason that there are a number of tracts of land entitled to the use of *Page 209 water, the holders of which were not parties to the proceeding heard on appeal.
This court could probably incorporate a particular description of the several tracts of land to which water is made appurtenant by its decree under both the old and new form contracts. It cannot determine the specific tracts of land entitled to the excess, if any. For that reason we believed it to be to the interest of all concerned to remand the case to the Circuit Court with directions to enter the decree. We are still of that opinion. The decree of this court has determined the rights of the parties. Since this court cannot accurately describe all of the land entitled to water we believe it is better not to undertake to describe any. The attorneys for the respective parties should assist the Circuit Court to formulate a decree in accordance with our opinions and decree.
If the several parties and their attorneys would manifest the same spirit to assist the court in arriving at an accurate description as has the attorney for Emory Cole, it would be no trouble to the Circuit Court to formulate a decree accurately describing all of the land.
It was not the intention of this court to incorporate in its decree an accurate description of the land entitled to the 3 acre-feet of water per acre under the old form contracts, the description of the land entitled to the 2 acre-feet of water under the new form contracts, or the surplus, if any. The intention was to fix definitely the quantity of water which should be awarded to the Orchards Water Company. The division of the water to the several tracts of land entitled thereto was intended as approximate only. This appears by the use of the word "about" and the fact *Page 210 that the quantity of water available is a variable quantity, which was fixed in the decree by averaging up the quantity available for six years.
The principal questions of law decided were:
First, the quantity of water available for appropriation. That was fixed definitely.
Second, that the holders of the old form contracts, providing for approximately 4.2 acre-feet of water, are entitled to 3 acre-feet only.
Third, that the successors in interest, as proprietors of the Willow River Land and Irrigation Company are not entitled to prorate with the holders of the new form contracts, providing for two 2 acre-feet of water per acre, in case of a shortage of water.
Fourth, that appellants who are holders of new form contracts are entitled to an award of that quantity of water regardless of whether or not they had applied the water to a beneficial use on or before January 1, 1918, because their vendor had withheld the water from them thus preventing them from applying the water to a beneficial use.
The former decree of this court is amended for the purpose of clarifying the award of water to the different tracts of land entitled to the use thereof. As amended, we believe the Circuit Court will have no trouble, if given the proper assistance by the counsel representing the different parties interested, in definitely describing all tracts of land entitled to the use of the water available from Willow Creek and its tributaries.
The petition to recall and incorporate in the decree the specific description of the land entitled to the use of water is denied.
DECREE AMENDED. PETITION DENIED. *Page 211