7-9. No appeal exists as a matter of right. It must be founded upon a statute. After the notice of appeal has been served and this court has acquired jurisdiction, both the statute and the rules of this court, where good faith is shown, provide for any amendment or correction which may be necessary to perfect the appeal. On such a showing and under such provisions it has always been the policy of this court to sustain rather than to dismiss an appeal, but it is by and through service of the notice of appeal, and service only, that this court acquires jurisdiction, and the statute specifically points out and defines how a notice of appeal should be served, when served and upon whom it should be served, and all the authorities hold that the appellate court does not have any legal discretion over the service of the notice of appeal, and that to give this court jurisdiction to hear and determine a case on the merits there must be a strict compliance with any and all of the terms and provisions of the statute.
Among other things, Section 550, L. O. L., as amended, provides:
"The party desiring to appeal may cause a notice, signed by himself or attorney, to be served on such adverse party or parties as have appeared in the action or suit, or upon his or their attorney, at any place in the state, and file the original, with proof of service indorsed thereon, with the clerk of the court in which the judgment, decree or order is entered,"
and Section 6650, L. O. L., as amended by the Laws of 1913, provides that:
"Appeals may be taken to the Supreme Court from such decrees in the same manner and with the same *Page 680 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."
10. Hence the question is presented: First, who did appear in the Circuit Court? And, second, who are adverse parties?
"A general appearance must be express or arise by implication from the defendant's seeking, taking or agreeing to some step or proceeding in the cause beneficial to himself or detrimental to the plaintiff other than one contesting the jurisdiction only. The purpose of this appearance, however, must bear some substantial relation to the cause. In other words, it must be a purpose within the cause, not merely collateral thereto. As to what constitutes a general appearance conferring jurisdiction over the person, the test according to a late decision of the Federal Supreme Court is whether the defendant became an actor in the cause": 2 Rawle C. L., p. 327, § 7.
In the case of Merchants' Heat Light Co. v. J. B. Clow Sons, 204 U.S. 283, 290 (51 L. Ed. 488, 27 Sup.Ct. Rep. 285), it is said:
"There is some difference in the decisions as to when a defendant becomes so far an actor as to submit to the jurisdiction, but we are aware of none as to the proposition that when he does become an actor in a proper sense he submits."
11. When an individual having a water right receives the notice specified in Section 12 of the water law of 1909 and does not make and file his "statement" as provided in Section 14, he knows as a matter of law that he is in default and that he will lose his water right, as provided in Section 34. But when one having a water right receives the notice specified in Section 12, makes and files his statement of claim as provided in Section 14 and pays the fees required, he knows as a matter of law that the board will investigate his water *Page 681 right and that under Section 24, as soon as practicable after such investigation, it will make an order determining his water right and file a certified copy of its findings in the office of the county clerk of the county in which his water right is located, and that in and by subsequent proceedings, as provided for in Section 26, the Circuit Court of that county will make an order approving or modifying such findings, and based thereon will render a decree finally adjudicating his water right; that under Section 25 he will then receive his water right certificate under the seal of the board, which shall set forth his name and postoffice address, the priority of the date, the extent and purpose of his water right, and a description of the land to which it is appurtenant, and that such certificate is entitled to public record. And he knows that Section 33 provides that:
"The determinations 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."
His water right is then adjudicated by a solemn decree of the Circuit Court and the evidence of that right which formerly existed in parol then becomes and is perpetuated by a public record. It was for the purpose of having his water right adjudicated and perpetuated in a public record and to obtain such a certificate and public record that he filed his "statement" or proof of claim under Section 14 and paid the fees which the statute requires.
In Pacific Livestock Co. v. Cochran, 73 Or. 417, 428 (144 P. 668), this court, speaking through Mr. Chief Justice McBRIDE, said: *Page 682
"It is evident that a failure by the claimant of a water right to appear and submit his claims when properly required to do so bars his right to assert it thereafter to the same extent that a party is barred who makes default after service of summons in a proceeding at law. * * A determination of the water rights to a stream finally ends as a report to the Circuit Court, and a decree of final determination by that court."
If a party who fails to make and file his "statement" as provided for in Section 14 is barred and loses his right, it must follow that anyone who does make and file his proof of claim as required by that section is not barred and does not lose his right, and that in the making and filing of such "statement" and the payment of the required fees and in the subsequent proceedings of the board and the Circuit Court, he then and thereby submits himself and the adjudication of his water right to the jurisdiction of the Circuit Court. How can any claimant who failed to appear and file his proof of claim be barred of his water right unless it is a judicial proceeding? How can the determination of the board as confirmed or modified by the Circuit Court be conclusive as to all prior rights and the rights of all existing claimants upon the stream, unless the board and the Circuit Court have jurisdiction of the claimants and their respective rights?
Under Section 14 the claimant makes and files a written statement of all of the particulars necessary for the determination of his water right: First, of his name and postoffice address; second, the nature of the right and use on which his claim is based; third, the initiation of his right; fourth, the date when he commenced construction; fifth, the date when completed; sixth, the commencement or completion of any enlargement; seventh, the dimensions of the ditch as originally constructed and enlarged; eighth, the date when he first *Page 683 used water for irrigation or other beneficial purposes, and the amount of land irrigated for the first and subsequent years and the location of his land; ninth, the character of the soil, the kind of crops, and any other facts showing how he acquired his water right. This constitutes his formal complaint, upon which the board makes its investigation and findings, which are modified or approved by the Circuit Court and upon which its decree is rendered. Up to and including the findings of the board, our water law is almost a literal copy of that of the State of Wyoming. But thereafter there is this difference between the two: the Wyoming statute provides for an appeal from the findings of the water board to the District Court and our statute provides for the filing of the findings of the board in the office of the clerk of the Circuit Court, and based on subsequent proceedings, after notice thereof, the Circuit Court shall then approve or modify the findings and render a decree thereon. In an exhaustive opinion in the case of Farm InvestmentCo. v. Carpenter, 9 Wyo. 110, 147 (61 P. 258, 87 Am. St. Rep. 918, 50 L.R.A. 747), the Supreme Court of that state held:
"It may be assumed that, in the absence of fraud or collusion, any matter actually and legally determined by the final decree of the board becomes res judicata, at least as to the public, and the parties participating in the proceedings."
If the findings of the board, from which the right of appeal exists, are res judicata under the Wyoming statute, a fortiori they should be resjudicata under our statute, which requires them to be filed in, and approved by, the Circuit Court.
Our water law has been construed, its validity and constitutionality assailed, and was upheld in Wattles v. Baker County, 59 Or. 255 (117 P. 417); Pringle Falls Power Co. v. Patterson, 65 Or. 474, 484 *Page 684 (128 P. 820, 132 P. 527); Claypool v. O'Neill, 65 Or. 511 (133 P. 349);Pacific Livestock Co. v. Cochran, 73 Or. 417 (144 P. 668); In re WillowCreek, 74 Or. 592 (144 P. 505, 146 P. 475); In re North Powder River,75 Or. 83 (144 P. 485, 146 P. 475), and in the case of Pacific LivestockCo. v. Oregon Water Board, 241 U.S. 440 (60 L. Ed. 1084,36 Sup.Ct. Rep. 637), in which the opinion was written by Mr. Justice VAN DEVANTER. That jurist, prior to his appointment to the Supreme Court of the United States was a resident and Chief Justice of Wyoming, after that state enacted its water law. On pages 448, 451 and 453 of 241 U.S., the opinion says:
"It is intended to be universal and to result in a complete ascertainment of all existing rights, to the end: First, that the waters may be distributed, under public supervision, among the lawful claimants according to their respective rights without needless waste or controversy; Second, that the rights of all may be evidenced by appropriate certificates and public records, always readily necessible, and may not be dependent upon the testimony of witnesses with its recognized infirmities and uncertainties. * * All the evidence laid before it goes before the court, where it is to be accorded its proper weight and value. That the state, consistently with due process of law, may thus commit the preliminary proceedings to the board and the final hearing and adjudication to the court is not debatable. * * The statute discloses a fixed purpose to secure timely notice to all claimants of each material step in the proceeding and full opportunity to be heard in respect of all that bears upon the validity, extent and priority of their claims."
In the case of In re Willow Creek, 74 Or. 592 (144 P. 505), on page 611 of the report (page 512 of 144 Pac.), this court says:
"The findings of the board are advisory rather than authoritative. It is only when the courts of the state *Page 685 have obtained jurisdiction of the subject matter and of the persons interested, and rendered a decree in the matter determining such rights that, strictly speaking, an adjudication or final determination is made," and in Pacific Livestock Co. v. Cochran, 73 Or. 417 (144 P. 668), on page 429 of the report (page 672 of 144 Pac.) it is said:
"A determination of the water rights to a stream finally ends as a report to the Circuit Court and a decree of final determination by that court."
We hold that when all other sections of the law have been complied with and under Section 14 the claimant has made and filed his "statement" or proof of claim, he then becomes an actor and submits himself and his water right to the jurisdiction of the court, and thereby appears in court for the purpose of having his water right adjudicated and to obtain his water right certificate, and that any such a claimant has appeared in and is a party to the proceeding within the meaning of Section 550 of the Code.
12. Second, who are adverse parties? In Thompson v. Ellsworth, 1 Barb. Ch. (N.Y.) 627, the court said:
"The adverse party * * means the party whose interest in relation to the subject of the appeal is in conflict with the reversal of the order or decree appealed from, or the modification sought for by the appeal."
That decision is approved and followed by Mr. Justice SANDERSON in the case of Senter v. De Bernal, 38 Cal. 641, where it is said:
"Our Code allows any and every party who is aggrieved to appeal without joining anyone else, no matter what may be the character of the judgment against him, whether joint or several; and, in this respect, works a change from the former practice, but he is required to notify all other parties who are interested in opposing the relief which he seeks by his appeal, *Page 686 if they have formally appeared in the action in the court below, or his appeal, as to those not served, will prove ineffectual, and also as to those served, if the relief sought is of such a character that it cannot be granted as to the latter without being granted as to the former also."
And that case is approved by this court in The Victorian, 24 Or. 121,128 (32 P. 1040, 41 Am. St. Rep. 838). In Moody v. Miller, 24 Or. 179 (33 P. 402), this court said:
"The statute has not abrogated the common-law rule requiring all persons whose interests would be affected by the reversal or modification of the decree to be made parties to the appeal, and to be brought into court."
This was approved in Osborn v. Logus, 28 Or. 302 (37 P. 456, 38 P. 190,42 P. 997):
"An `adverse party' entitled to notice of appeal is every party whose interest in relation to the judgment and decree appealed from is in conflict with the modification or reversal sought by the appeal; every party interested in sustaining the judgment or decree": 1 Words Phrases, 224, and authorities there cited.
On legal principle the case of Hamilton v. Blair, 23 Or. 64-66 (31 P. 197), is very similar to the instant case. This court there said:
"As in suits in equity, the case must be tried anew in the appellate tribunal, any change or any modification or any reversal of the decree by this court would necessarily have the effect to disturb or to destroy the ratable proportion established by it to be distributed among the depositors and render a new division necessary. It would follow that all the depositors who were parties to the suit in the trial court would have a substantial interest to be affected by such decree of the appellate tribunal as to render their presence necessary." *Page 687
In the case of In re Silvies River, 199 F. 495, 503, Mr. Justice BEAN says:
"The water is the res or subject matter of the controversy. It is to be divided among the several claimants according to their respective rights. Each claimant is therefore directly and vitally interested, not only in establishing the validity and extent of his own claim, but in having determined all of the other claims. The proceeding is essentially a suit for the partition of the waters of the stream among the respective owners. * * It is a case where divers and sundry parties are entitled to use so much of the waters of a stream as they have put to beneficial use and the purpose is to ascertain their respective rights by a simple, economical, effective, and comprehensive proceeding, and is not a separable controversy between different claimants."
In this proceeding the waters of the Chewaucan River are the subject matter, and the persons who filed their "statements" as provided by Section 14 are the claimants of such waters and the parties in interest. The record shows a compliance with any and all of the provisions of the water law of 1909, and that law says that the decree of the Circuit Court is conclusive as to any and all such rights adjudicated between the claimants upon the stream.
The board found that each claimant was entitled to one cubic foot of water per second to each 40 acres of land; the Circuit Court modified that finding and allowed the claimants one cubic foot of water to each 25 acres. The amount of water per acre to be used by each claimant is very vital and important. In its "statement," the Portland Irrigation Company claimed the right to the use of 375 cubic feet of water per second to irrigate 12,037 acres of land, averring that such right was initiated September 30, 1905. The Northwest Townsite Company in its "statement" claimed, together with 30 cubic feet of water per second *Page 688 all of the time for power purposes, the right to sufficient water to irrigate 633 neres of land, giving the date of June 11, 1897, as the time when its last water right was initiated. It appears from the findings of the board and the decree of the Circuit Court that there were at least eight different claimants who did not file exceptions in the Circuit Court, but did file their "statements" with the board, claiming water rights initiated after September 30, 1905, which is the date of priority claimed by the Portland Irrigation Company, and their respective claims were sustained by the board, approved by the Circuit Court and made a part of the decree. It also appears from the findings of the board and the decree that there were at least twenty-three different claimants who did not file exceptions in the Circuit Court but who filed their "statements" claiming water rights initiated after June 11, 1897, the latest date on which the Northwest Townsite Company claimed a water right, and that the proofs of all such claimants were allowed, approved and became a part of the decree. Hence it must follow that as to such claimants there is a conflict as to priorities between them and the appellants.
The duty and volume of water per acre to be used are also in dispute. The board allowed one cubic foot of water per second for each 40 acres of land, and the decree awarded one cubic foot of water per second for each 25 acres. That finding is of vital importance to every claimant. There is a material difference between the findings of the board and the decree of the court as to the period of the irrigating season, which varies with the character and location of the claim. The point of diversion is also important.
If the notice of appeal were legally served and this court had jurisdiction, the case would then be tried *Page 689 de novo upon its merits, and it would be not only the province of this court, but its duty also, to settle and determine from the record the priorities as between any and all claimants, the use of water per cubic foot, the volume per acre, the point of diversion, and how and when it should be used, all of which matters are very vital and material to every claimant, and as to every one of which there is a conflict between the findings of the board and the decree of the Circuit Court, and over which there would be strife and a contest in this court. The whole purpose and intent of the water law was to provide a plain and effective method by which any and all persons having or claiming a right to the use of the waters of a particular stream were to be brought into and before the Circuit Court and after investigation of the respective rights of each and every claimant the court should then and there render a decree which would forever settle and define not only the rights of each claimant, but settle and define the water rights of all claimants as between each other, and that was the legal force and effect of the decree of the lower court from which the appeal is taken. The purpose of the appeal is to have this court make other and different findings as to the priorities of all rights as between the claimants, the duty of water, the volume per acre, the point of diversion and place of use, and the period of the irrigating season, and to render a decree which will be more favorable to the appellants as to their respective water rights.
It appears from the record that 89 claimants filed 160 "statements" under Section 14; that only two of such claimants have sought to appeal from the decree; that the Portland Irrigation Company, one of the appellants, claims the right to the use of 375 cubic feet of water, contending that such right was initiated September *Page 690 30, 1905, and yet it appears from both the findings of the board and those of the Circuit Court that at the time they were made, in 1912, the Portland Irrigation Company had never used any water at any time or for any purpose whatever. It also appears from the findings and the decree of the Circuit Court that the Northwest Townsite Company was allowed one cubic foot of water per second for each 25 acres of its land which had actually been irrigated, and that the allowance was made on the same basis for all other claimants.
13. We are of the opinion that every claimant who filed his "statement" with the board and whose water right was adjudicated by the decree of the Circuit Court is bound by that decree and is an adverse party within the meaning of Section 550, L. O. L. Under the provisions of that section, a notice of appeal may be given in open court, and it was enacted to provide a simple and effective method of serving such notice and to apply to this particular kind of a case. If, as appellants' counsel claim, they were not advised by the court as to when the decree was rendered, and therefore were denied the right to appeal by giving notice in open court, the remedy is with the legislature.
The appeals are dismissed.
DISMISSED.
The late Mr. Justice MOORE took no part in the hearing or consideration of this case.
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