1. The motion of the interveners, who attack the Northwest Townsite Company and the Portland Irrigation Company for the first time in this court, in an effort to remove their appeals as an obstacle to their settlement with the latter concern, is not entitled to consideration here. This court is one of appellate jurisdiction only. It cannot *Page 664 admit interveners, as that would be an exercise of original jurisdiction. If the parties concerned in this motion had desired to participate in the litigation it was their duty to apply at least to the Circuit Court, if not to the water board. Acting under Section 38, L. O. L., and to preserve the matter involved in the appeal over which it has jurisdiction, this court has in some instances substituted parties when the suit or action would otherwise abate by the death or other disability of a party or by transfer of some interest therein if the cause of action survived, but that is not like the case before us, where strangers intrude upon the litigation, not seeking to be substituted for any party thereto, but making a new attack upon one of the litigants.
The statement of the principle that this court is one of appellate jurisdiction only and that to admit strangers to participate in litigation here would be the exercise of original jurisdiction is sufficient to dismiss the motion of such parties from further consideration.
2, 3. The chief question to be decided is whether the failure to serve notice of appeal upon all the parties who appeared in the Circuit Court prevents the jurisdiction of this court attaching to the subject matter. It appears to be conceded by all parties that anyone whose rights may be injuriously affected by a modification of the decree is a party adverse to the one appealing and should be served with notice.
It is said in Section 6650, L. O. L., as amended by the act of February 21, 1913, Laws of 1913, Chapter 97, treating of this sort of procedure that:
"Appeals may be taken to the Supreme Court upon such decrees in the same manner and with the same effect as in other cases in equity, except that notice of *Page 665 appeal must be served and filed within sixty days from the entry of the decree."
It is also said in Section 556, L. O. L., that:
"Upon an appeal from a decree given in any court the suit shall be tried anew upon the transcript and evidence accompanying it."
We note, also, that the appeal in each instance here is from the decree and the whole thereof, so that the entire determination of the Circuit Court is called in question. In other words, the adjustment of the relative rights of all the parties concerned before the trial court respecting the waters of the Chewaucan River is put at stake by the appeals. This necessarily involves the examination of the entire question and all the issues of the proceeding. The whole affair is subjected to readjustment, if we have jurisdiction of the same. The two parties appealing are dissatisfied with the settlement in the Circuit Court. They want more water or more favorable terms for the use of what they have. If successful, this means that the award to other parties will be disturbed in some measure. The enterprise of the Portland Irrigation Company, for instance, must be within irrigation limits of the stream. We will suppose that this appellant is successful in securing a modification of the decree, so that it will acquire more water. If such is the result it willpro tanto lessen the amount which will flow down the stream and be open to future appropriation, not only to those parties who are served with notice, but also by those who are not served and who already have or may hereafter obtain access to the stream. The fact that appropriations for certain tracts of land, as related to all others involved, have been established by the decree does not deprive their owners of the right *Page 666 to make additional appropriations in the future, if water is there to be appropriated and can be applied to beneficial uses. This is true of both those below and those above any existing appropriator. Those below him are entitled to the water in excess of his appropriation; those above him are entitled, of course, to their original rights and also to appropriate water otherwise unappropriated, and not necessary to fill his quota.
If the presence of these parties was necessary for the exercise of the jurisdiction of the Circuit Court, it is none the less essential to the exercise of the limited appellate authority of this court. The reason is that the very essence of any decree in such litigation is the determination of the relative rights of the parties. This element of each right being relative to all others persists from the beginning to the end of such litigation, so that the plaint of one party must affect all others in a greater or less degree.
The uses to which water may be put are manifold and variable and fluctuate as much as the rise and fall of the stream itself, so that it is important at every stage of the proceeding for the court to have before it all whose rights attach to the thing submitted to the court for adjustment. This quality of variability was so apparent to the legislative power that it has provided in Section 6654, L. O. L., as follows:
"Within six months from the date of the decree of the Circuit Court determining the rights upon any stream, or if appealed within six months from the decision of the Supreme Court, the board of control, or any party interested, may apply to the Circuit Court for a rehearing upon grounds to be stated in the application. Thereupon, if in the discretion of the court it shall appear that there are good grounds for the rehearing, the Circuit Court, or judge thereof, shall *Page 667 make an order fixing a time and place when such application shall be heard."
4,5. This, however, does not alter the rule long established in respect to proceedings in this court, that in order to give it jurisdiction to act, the notice of appeal must be served upon every adverse party. It is contended that this involves such a great expense, owing to the large number of parties, that it practically destroys the right to appeal. This privilege, however, is not inherent nor constitutional. It exists only by virtue of the statute and if the application of the enactment is burdensome it is not the province of the courts to amend the same or to dispense with its requirements. The remedy must be found in the legislative branch of the government. Moreover, the Code, in Section 550, L. O. L., as amended by Chapter 319, Laws of 1913, grants the privilege of giving oral notice of appeal in open court at the rendition of final decree which certainly cannot be extraordinarily expensive.
6. Respecting the contents of the notice of appeal, it would seem that such a document should contain enough in its terms to show that the party presenting the same is really a party to the record sought to be reversed or modified. Otherwise, any stranger could intrude upon a proceeding without having any interest whatever in the same. It would more widely open the door to those who come before the court under the designation ofamici curiac, when in reality they are bitter partisans or "Greeks bearing gifts." So far as the terms of the notices before us are concerned, they might have been given by the veriest strangers. It is sufficient for the purposes of this decision, however, to rest it upon the principle that the court has not acquired *Page 668 jurisdiction because many of the adverse parties have not been served with notice of appeal.
The appeals must be dismissed.
APPEALS DISMISSED.
MR. JUSTICE BEAN concurs in the result.
MR. JUSTICE McCAMANT and Mr. JUSTICE BENSON took no part in the consideration of this case.
ON REHEARING. This proceeding is founded upon what is known as the water law of 1909, entitled, "An act providing a system for the regulation, control, distribution, use, and right to the use of water, and for the determination of existing rights thereto within the State of Oregon, providing penalties for its violation and appropriating money for the maintenance thereof." That law creates two water divisions, provides for one superintendent for each division and defines his duties. The act also provides for the appointment of a state engincer who, with the superintendents, shall constitute a board of control (now called the state water board), hereinafter referred to as the board, which shall have supervision of the waters of the state, and of the appropriation, distribution and diversion thereof.
"The decisions of said board shall be subject to appeal to the Circuit and Supreme Courts, which appeal *Page 669 shall be governed by the practice in suits of equity, unless otherwise specified herein."
Section 11 provides that upon a petition to the board filed by one or more water users of any stream, requesting the determination of the rights of the claimants to the waters thereof, it shall be the duty of the board, if it finds the facts justify, to make a determination of said rights, fixing the time for the taking of testimony and the making of such an examination as will enable it to determine the rights of the various claimants.
"Section 12. Notice of Proceedings: The board shall prepare a notice, setting forth the date when the engineer will begin an investigation of the flow of the stream and of the ditches diverting water therefrom, and a place and a time certain when the superintendent of the water division in which that stream is situated shall begin the taking of testimony as to the rights of the parties claiming water therefrom. Said notice shall be published in two issues of one or more newspapers having general circulation in the counties in which such stream is situated, the last publication of said notice to be at least thirty days prior to the beginning of taking testimony by said division superintendent, or for the measurement of the stream by the state engineer, or his assistant. The superintendent taking such testimony shall have the power to adjourn the taking of testimony from time to time and from place to place, to suit the convenience of those interested."
"Section 13. Notice to Claimants: It shall be the duty of said division superintendent to send by registered mail to each person, firm or corporation, hereinafter to be designated as claimant, claiming the right to the use of any of the waters of said stream, and to each person, firm or corporation owning or being in possession of lands bordering on and having access to said stream or its tributaries, in so far as such claimants and owners and persons in possession can reasonably be ascertained, a similar notice setting forth the *Page 670 date when the state engineer or his assistant will begin the examination of the stream and the ditches diverting the waters therefrom, and also the date when the superintendent will take testimony as to the rights to the water of said stream. Said notice must be mailed at least thirty (30) days prior to the date set therein for making the examination of the stream or the taking of such testimony."
"Section 14. Statement of Claimant: The division superintendent shall, in addition, inclose with said notice a blank form on which said claimant or owner shall present in writing all the particulars necessary for the determination of his right to the waters of the stream to which he lays claim, the said statement to include the following:
"The name and postoffice address of the claimant.
"The nature of the right or use on which the claim is based.
"The time of initiation of such right or the commencement of such use, and if distributing works are required.
"The date of beginning of construction.
"The date when completed.
"The date of beginning and completion of enlargements.
"The dimensions of the ditch as originally constructed and as enlarged.
"The date when water was first used for irrigation or other beneficial purposes, and if used for irrigation, the amount of land reclaimed the first year, the amount in subsequent years, with the dates of reclamation, and the amount and general location of the land such ditch is intended to irrigate.
"The character of the soil and the kind of crops cultivated, and such other facts as will show a compliance with the law in acquiring the right."
Under Section 15 the claimant is required to verify his "statement," for which blanks shall be furnished, and the superintendent is authorized to administer the oath. Under Section 16, upon the date specified in the *Page 671 notice, the division superintendent shall begin the taking of such testimony and shall continue until completed. Section 17 provides that the claimants shall pay certain fees, and for an additional fee of so much per acre for each acre of irrigated land.
"Section 18. Notice upon Completion of Testimony: Upon the completion of the taking of testimony by the division superintendent, it shall be his duty at once to give notice by registered mail to the various claimants that at a time and place named in the notice not less than ten days thereafter, all of said evidence shall be open to inspection of the various claimants or owners, and said superintendent shall keep said evidence open to inspection at said places not less than ten days, and such other time as fixed in the notice. Said superintendent shall also state in said notice the county in which the determination of the board of control will be heard by the Circuit Court; provided, that said cause shall be heard in the county in which said stream or some part thereof is situate."
"Section 19. Contests: Should any person, corporation or persons owning any irrigation works, or claiming any interest in the stream or streams involved in the determination, desire to contest any of the rights of the persons, corporations or associations who have submitted their evidence to the superintendent as aforesaid, such persons, corporations or associations, shall within five days after the expiration of the period as fixed in the notice for public inspection, notify the superintendent in writing, stating with reasonable certainty the grounds of their proposed contest, which statement shall be verified by the affidavit of the contestant, his agent or attorney, and the said division superintendent shall notify the said contestant and the person, corporation or association, whose rights are contested, to appear before him at such convenient place as the superintendent shall designate in said notice."
Sections 20 and 21 provide for the filing of contests before the board, notices thereof and hearings thereon. *Page 672
"Section 22. Evidence Transmitted: Upon the expiration of the period for which the evidence is kept open for inspection, the evidence in the original hearing before the superintendent, and the evidence taken in all contests, shall be transmitted by the superintendent to the office of the board of control in person, or by registered mail. Such evidence shall thereupon be filed with the board."
Section 23 makes it the duty of the state engineer or his assistants, at the time specified in the notice therefor, to make an examination of the stream and the works diverting water therefrom, which shall include the measurement of the discharge of said stream, of the carrying capacity of the various ditches and canals, an examination of the irrigated lands, and "to take such other steps and gather such other information and data as may be essential to a proper understanding of the relative rights of the parties interested," all of which shall be reduced to writing; and to make a map or plat showing the location of each ditch or canal and the legal subdivisions of the lands irrigated or which are susceptible of irrigation.
"Section 24. Order Determining Water Rights: As soon as practicable after the compilation of said data, and the filing of said evidence, it shall be the duty of the board of control to make, and cause to be entered of record in its office, an order determining and establishing the several rights to the waters of said stream. As soon as practicable thereafter a certified copy of said determination shall be filed in the office of the county clerk of each county in which said stream, or any part thereof or any tributary, is situated, and the original evidence filed with the board of control shall be certified by the clerk of the board and, together with a certified copy of said determination, shall be filed with the clerk of the Circuit Court by which court such determination is to be heard. The determination of the board shall be in full force and effect from the *Page 673 date of its entry in the records of the board, unless and until its operation shall be stayed by a stay bond as provided for by this act. Upon the filing of the evidence with the Circuit Court of the county in which the determination is to be had, the board shall procure an order from said Circuit Court, or any judge thereof, fixing the time at which the determination shall be heard in said court. Copies of this order, certified by the clerk of said court, shall be filed by the board as soon as practicable in the office of the county clerk of each county in which said determination is filed."
"Section 25. Water Right Certificate: Upon the final determination of the rights to the waters of any stream, it shall be the duty of the secretary of the board of control to issue to each person, association or corporation represented in such determination, a certificate to be signed by the president of the board of control, and attested under seal by the secretary of said board, setting forth the name and postoffice address of the owner of the right; the priority of the date, extent and purpose of such right; and if such water be for irrigation purposes, a description of the legal subdivisions of land to which said water is appurtenant. Such certificate shall be transmitted by the president, or other member of the board of control, in person or by registered mail, to the county clerk of the county in which such right is located, and it shall be the duty of the county clerk upon receipt of the recording fee of one dollar collected as hereinbefore provided, to record the same in a book especially prepared and kept for that purpose, and thereupon immediately transmit the certificates to the respective owners."
"Section 26. Court Procedure: From and after the filing of the evidence and order of determination in the Circuit Court, the proceedings shall be as nearly as may be like those in a suit in equity, except that any proceedings, including the entry of a decree, may be had in vacation with the same force and effect as in term time. Within thirty days from the filing of such evidence and order in the Circuit Court, or within such further time as the court may for good cause allow, *Page 674 any party may file exceptions to the determination. If no exceptions shall be filed, the court shall on the day set for hearing enter a decree affirming the determination of the board.
"All parties may be heard by counsel upon the consideration of the exceptions. The court may, if necessary, remand the case for such further evidence to be taken by the superintendent of the water division as it may direct, and may require a further determination by the board. After the hearing, the court shall enter a decree affirming or modifying the order of the board of control. Upon the hearing, the court may assess and adjudge against any party such costs as it may deem just. Appeals may be taken to the Supreme Court from such decrees in the same manner and with the same effect as in other cases in equity, except that notice of appeal must be served and filed within sixty days from the entry of the decree."
"Section 27. Clerk Shall Transmit Transcript to Clerk of Board: The clerk of the Circuit Court, immediately upon the entry of any decree by the Circuit Court or by the judge thereof, shall transmit a certified copy of said decree to the secretary of the board of control. The secretary shall immediately enter the same upon the records of such office and the state engineer shall forthwith issue to the superintendent or superintendents of water divisions instructions in compliance with the said decree, and in execution thereof."
"Section 28. Distribution: During the time the hearing of the order of the board of control is pending in the Circuit Court, and until a certified copy of the judgment, order or decree of the Circuit Court is transmitted to the board of control, the division of water from the stream involved in such appeal shall be made in accordance with the order of the board."
Section 29 provides that after the determination of the board the operation thereof may be stayed by the order of any judge of the Circuit Court upon the filing of an approved bond. *Page 675
Section 30 provides that within six months from the date of the decree of the Circuit Court, or if appealed, within six months from the decision of the Supreme Court, any interested party may apply to the Circuit Court for a rehearing upon grounds to be specified in the application.
"Section 33. Conclusive, When: The determination of the board of control as confirmed or modified as provided by this act in proceedings shall be conclusive as to all prior rights, and the rights of all existing claimants upon the stream or other body of water lawfully embraced in the determination."
"Section 34. Duty of Water Right Claimants: Whenever proceedings shall be instituted for the determination of the rights to the use of any water, it shall be the duty of all claimants interested therein to appear and submit proof of their respective claims, at the time and in the manner required by law; and any such claimant who shall fail to appear in such proceedings and submit proof of his claims shall be barred and estopped from subsequently asserting any rights theretofore acquired upon the stream or other body of water embraced in such proceedings, and shall be held to have forfeited all rights to the use of said water theretofore claimed by him. * *"
Based upon a petition as provided for in Section 11, the board undertook to adjudicate the water rights of Chewaucan River in Lake County. The record shows a literal compliance with both the spirit and intent of the water law and that pursuant to notice, under Section 14, eighty-nine claimants made and filed one hundred and sixty proofs of claim of their respective water rights in and to the waters of the stream. After the filing of the "statements," the taking of a large amount of testimony and the hearing of a number of contests, the board made its order "determining and establishing the several rights to the waters of the said stream," as provided by Section 24, and thereafter filed certified *Page 676 copies of the evidence taken and of its findings with the clerk of the Circuit Court for Lake County, and procured an order from that court fixing May 15, 1916, as the date for the hearing on the determination in said court. Notices of the time and place of such hearing were duly given and under Section 26, twenty-five different claimants made and filed in the Circuit Court nineteen different exceptions to the findings of the board. On application the court made an order extending the time for the hearing on such exceptions until August 28, 1916, when the parties who made such exceptions appeared in court by their respective attorneys. The court also made an order for the taking of additional testimony and by consent of all parties who filed such exceptions the court, with their attorneys, made an inspection of the waters of said stream and its various tributaries, ditches and canals. After the taking of such additional testimony as was then offered the court, on December 2, 1916, made and filed findings of fact in and by which it materially modified many of the findings of the board, and made and rendered a decree upon the findings as modified, adjudicating the water rights of the stream among the different claimants and defining their respective interests.
The board allowed one cubic foot of water per second to each 40 acres of land; the Circuit Court allowed one cubic foot to each 25 acres. The board did not make any findings as to the volume of water which should be used upon an acre of land during the irrigating season, but the court found that the claimants were entitled to amounts ranging from 3.9 to 4.8 acre-feet to be used on each acre of land during each irrigation season. As to the irrigating period there is a material difference between the findings of the board and those of the Circuit Court. *Page 677
In its "statement" filed with the board the Portland Irrigation Company, one of the appellants, claims that it is the owner of 12,037 acres of land and the right to the use of 15,000 inches of water under six-inch pressure; that such right was initiated September 30, 1905, and that 375 cubic feet of water per second continuous flow and 42,800 acre-feet storage are necessary for the proper irrigation of its lands. The board found that it had never used any water whatever for irrigation purposes, but that it did have an inchoate right, conditional upon the application of such waters to a future beneficial use. The court found that it did not have any water right whatever.
The Northwest Townsite Company, the other appellant, under Proof 129, as of the year 1881, claimed 1/2 cubic foot of water per second; under Proof 130, as of 1885, 2 cubic feet per second; under Proof 131, as of 1886, 1/2 cubic foot per second for irrigation purposes and 30 cubic feet per second all of the time for power purposes; under Proof 132, as of June 11, 1897, 11.75 cubic feet per second for irrigation purposes. The board allowed .43 cubic foot under Proof 129, 2 cubic feet under Proof 130, 17 cubic foot under Proof 131 and 30 cubic feet all of the time for power purposes, and under Proof 132, 4 cubic feet. The court found that at no time prior to 1913 were more than 160 acres of land irrigated through the Conn ditch; that any additional land irrigated through that ditch since 1913 was by permit issued by the state engineer in 1912 for the enlargement thereof, and that the water used for power purposes should be returned to the stream "without substantial diminution in quantity," and also made other material changes in the findings of the board. *Page 678
After the decree was rendered in the Circuit Court and within the sixty days, the Northwest Townsite Company and the Portland Irrigation Company undertook to appeal, and maintained that they served the notice of appeal upon any and all of the claimants who filed exceptions in the Circuit Court. But it is conceded and the record shows that the notice of appeal was not served upon any claimants who did not file exceptions in the Circuit Court. Based upon affidavits, motions to dismiss the appeal were duly filed by a number of the claimants for the reason that any and all of the persons who made and filed with the board "statements" or proofs of claim of their water rights had appeared in and were bound by the decree of the Circuit Court and were adverse parties to the appellants and that each of such claimants should have been served with the notice of appeal. The motions were submitted to this court on typewritten briefs and were sustained in an opinion by Mr. Justice BURNETT, ante, p. 659 (171 P. 402), and the appeals were dismissed. Appellants' counsel then filed a very able and vigorous petition for a rehearing, which was granted. Printed briefs were then filed by opposing counsel and an oral argument was made before this court sitting in banc.
The question is squarely presented as to whether claimants who filed their "statement" or proof of claim with the board and who did not file exceptions in the Circuit Court are adverse parties to the appellants and whether the facts shown by the record constitute such an appearance by such claimants in the Circuit Court as to entitle them to be served with a notice of appeal.
APPEALS DISMISSED.