Suit by A.F. Masterson against the Pacific Live Stock Company and another. Decree for plaintiff, and defendants appeal.
AFFIRMED. This is a suit to enjoin defendants from taking water from Otis creek in Harney county and depriving plaintiff of the use thereof upon his lands for irrigation purposes. From a decree in favor of plaintiff defendants appeal.
It is alleged in the complaint that a proceeding was regularly commenced and prosecuted, entitled In the Matter of the Determination of the Relative Rights of the Various Claimants to the Use of the Waters of the Malheur River, and Its Tributaries, a Tributary of Snake River (except Willow creek and Cottonwood creek). The predecessor in interest of plaintiff and plaintiff filed proper proofs of appropriation in said proceeding and a decree and findings were entered therein by the circuit court of the state of Oregon for Malheur county on May 13, 1925, and from which no appeal was ever taken. Plaintiff was awarded the following water right and priority as to the following lands, namely, Jos. Robertson Estate (A.F. Masterson, successor) priority of 1886 for 40 acres for irrigation from Kingsbury Ditch No. 1 out of Otis creek. *Page 398 (Then follows description of land.) Also a priority of 1887 for 45 acres for irrigation from Kingsbury Ditch No. 2 out of Cottonwood creek. (Then follows description of land.) It is alleged that Cottonwood creek, out of which plaintiff gets a portion of his water, is a different Cottonwood creek from the one excepted from the foregoing proceeding; that plaintiff and his predecessor since the decree, during the irrigation season, applied to beneficial use of said land the full amount of water decreed. It is further alleged that in said adjudication proceedings the Pacific Live Stock Company was decreed the following right from Cottonwood and Otis creeks:
"Date of relative priority: 1884. Number of acres: 165. Use: Irrigation. Ditch: Otis Ranch West Side. Stream: Cottonwood and Otis. Description of land or place of use: 20 acres in N.E. 1/4 N.E. 1/4; 40 acres in N.W. 1/4 N.E. 1/4; 25 acres in S.W. 1/4 N.E. 1/4; 40 acres in N.E. 1/4 N.W. 1/4; 40 acres in S.E. 1/ 4 N.W. 1/4, Sec. 5, T. 20 S., R. 36 E., W.M."
Plaintiff alleges that for a long period prior to the entry of the decree in the Malheur adjudication proceeding, and in excess of ten years from the first day of January, 1931, none of the land as described of defendants has ever been irrigated "by, through, or means of water taken from Otis creek through any dams, ditches, or otherwise whatsoever"; and that neither the Pacific Live Stock Company nor its predecessor in interest had any irrigation works in Otis creek by means of which it diverted or could divert water for the irrigation of any of its lands; that the successor in interest of the Pacific Live Stock Company, the defendant George N. Hatt, who purchased the land from the Pacific Live Stock Company under a contract of sale, never had any irrigating works in *Page 399 said Otis creek for the diversion of the water until the fall of 1930 or spring of 1931 and which works in this suit plaintiff seeks to prevent and restrain.
Plaintiff further alleges that defendants have abandoned and lost by nonuser any rights they, or either of them, may have had at any time in the past permitting them to divert water from Otis creek for the irrigation of the lands "or from using any of said water on any of said lands except as in high water years and in flood it flows on to said land without artificial works".
Plaintiff alleges that in the fall of 1930 or spring of 1931 defendants commenced the construction of irrigating works in Otis creek, a short distance above the Kingsbury Ditch No. 1 of the plaintiff, placing a dam in said Otis creek and taking a ditch out above said dam on the east side of said creek by means of which they intend to take and divert water from said Otis creek for irrigation of the lands described, said dam being at a point 200 yards above the head of the ditch of the plaintiff; that neither of the defendants nor any of their predecessors in interest ever used any of the waters from Otis creek for the irrigation of the lands described, or put to beneficial use any of the same "excepting for such waters as naturally and without artificial works flowed on to said land from said Otis creek in and during high and flood water periods"; that defendants are not entitled to any of the waters of or from Otis creek except as flow naturally on to the same, without the assistance of artificial works, during high water and flood.
The gist of the answer of defendants, after admitting paragraphs I to VI of the complaint and denying the other allegations, is an allegation of the *Page 400 corporate character of the Pacific Live Stock Company, the ownership of the lands described, and that on the 4th day of June, 1928, the company contracted to sell the lands involved to N.E. Hatt and George N. Hatt, N.E. Hatt afterwards conveying his interest to George N. Hatt; that in the year 1884 the predecessor in interest of the defendants herein began the use of the waters of "Otis creek and Cottonwood creek" for the purpose of irrigation upon certain described land and have since every year irrigated their lands from waters of "Otis creek and Cottonwood creek" and for the purpose of irrigating the same placed dams in said creeks and constructed ditches to and upon the lands above mentioned, and have used each and every year the waters thereof for stock and domestic purposes upon all the lands set forth herein. As a further, separate and affirmative answer, defendants allege that application was made to the state water board of the state of Oregon to adjudicate the waters of Malheur river and its tributaries in Malheur and Harney counties in Oregon; that Otis and Cottonwood creeks mentioned herein are tributaries of Malheur river; that thereafter a full and complete adjudication was had of all of the rights of the parties in and to said Malheur river and its tributaries and particularly Otis creek and Cottonwood creek and the rights of all parties thereto, including the plaintiff and defendant, Pacific Live Stock Company; that the plaintiff and defendant, Pacific Live Stock Company, were represented by counsel, took testimony therein, appeared in the proceedings and all of the rights of the parties thereto were fully and completely determined as to the waters of Otis creek and Cottonwood creek; that defendant was therein awarded a decree upon Cottonwood and Otis creeks with a date of priority of 1884 *Page 401 for 165 acres, describing the land; that said rights and date of priority were prior in time and in all respects prior and superior to any of the rights of the plaintiff herein to the waters of Otis creek or Cottonwood creek; that all the rights of plaintiff and defendant herein as to all the matters set up in plaintiff's complaint were fully, completely and finally determined and adjudicated in said Malheur river adjudication; that by reason thereof the plaintiff is and by right should be barred by reason of a prior adjudication from asserting any of the rights or claims set up in his complaint, and is and of right should be estopped of any further proceedings herein.
Plaintiff filed a reply asserting that neither the defendants nor their predecessors have ever irrigated any of their lands described in the pleadings in this suit from Otis creek through any artificial works or other than from flood, high and overflow waters; that the defendants acquired through said Malheur decree no such rights as they seek to use in and from Otis creek, but are attempting to create new rights out of Otis creek to the injury of the plaintiff and contrary to said decree.
A temporary injunction was issued restraining the defendants from using the waters of Otis creek, which was made permanent by the decree. The testimony shows that the principal part of the lands of the defendants involved herein were irrigated from Cottonwood creek; that since the adjudication the successor in interest of the Pacific Live Stock Company has constructed a ditch in the N.E. 1/4 of the N.W. 1/4 of Sec. 5, T. 20 S., R. 36 E., W.M., a short distance above the ditch of the plaintiff. The only irrigation upon the lands of the defendants *Page 402 by means of water from Otis creek prior to the adjudication was by overflow at times of high water. It will be seen by reference to the decree in the adjudication proceedings pleaded that the Pacific Live Stock Company was awarded a date of relative priority of 1884 for 165 acres to be used for irrigation, from Otis Ranch West Side Ditch. It is asserted by plaintiff, and the testimony tends to show, that no such ditch ever existed. The stream from which the water was to be taken is described as "Cottonwood and Otis". The decree does not specify or provide how much water should be taken from Cottonwood creek nor how much should be taken from Otis creek. In so far as the decree of adjudication determines and settles the rights of the respective parties, it is binding and conclusive. Section 47-619, Oregon Code 1930, provides that "The determinations of the state engineer, 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".
The proceedings adjudicating the rights of the waters of Malheur river were in rem. It is universally held by the courts that a judgment or decree of a court of record is conclusive of every fact necessary to uphold it, and of all matters actually determined. Abel v. Mack, 131 Or. 586, 594 (283 P. 8). The conclusiveness and effect of a judgment is alike applicable to proceedings in rem, of which a proceeding under the laws of Oregon to procure a right from the state of Oregon for the use of its waters is one. It is conclusive and binding upon all persons who may have or claim any right or interest in the subject matter of the litigation. 34 C.J. 1172, § 1663. *Page 403
The question raised by plaintiff to the effect that the defendants have abandoned whatever right they have had is foreclosed by the adjudication decree.
In the adjudication of water rights of a river and its tributaries, like the Malheur river, where there are hundreds of parties interested, which consumes a long time in the survey and the taking of testimony and listing and describing the various rights of the water users, it is in no way strange that some features of a decree that should be included are omitted. We take the decree in the adjudication pleaded as a verity as far as it goes. That leaves the question of how much water should be taken from Cottonwood creek and how much from Otis creek under the award to the Pacific Live Stock Company, with the priority of 1884, 165 acres, still to be determined.
A decree is res judicata between the parties as to the issues only and not as to rights of the actual parties of which no issue was made. While res judicata upon all questions of abandonment or quantity prior to the decree, it does not affect abandonment subsequent thereto, since the decreed right may be lost in whole or in part by subsequent nonuse. Matters not adjudicated by the decree, or arising subsequent thereto, or demanding protection of decreed rights, may be sought in an independent proceeding. Rights not complete at the time the decree is rendered, the work being still in progress, are left open by the decree. The decree is not res judicata as to them. 2 Wiel on Water Rights (3d Ed.) 1137, § 1233. In Waterman v.Hughes, 33 Colo. 277 (80 P. 891), it is said:
"We have decided that in these special proceedings the court is without authority to award to a ditch or canal in advance of its completion any definite quantity of water. Water etc. Co. v. Tenney, 24 Colo. 344, 352, *Page 404 51 P. 505. But we have not decided that it is wrong for the court to fix the date of the priority of a canal begun, but not completed, at the time the decree is rendered."
A decree is not and cannot be considered as operating as an estoppel as to facts which did not occur or rights which did not accrue until after the particular judgment was rendered and which were not involved in the suit in which it was rendered. A decree is not conclusive upon any point or question which from the nature of the case, the form of the action, or the character of the pleadings could not have been adjudicated in the suit in which it was rendered; nor as to any matter which must necessarily have been excluded from consideration in the case as being beyond the jurisdiction of the particular court. 34 C.J. 932, et seq. §§ 1338, 1339; Hunter v. Roseburg, 80 Or. 588 (156 P. 267, 157 P. 1065).
Plaintiff claims fraud in obtaining the former decree for the reason that false representations were made to the court. False or perjured evidence clearly does not satisfy a showing of fraud. There may be a real cause, a real issue, a real trial, and therefore a real judgment, notwithstanding such evidence. No decision would be safe if a judgment could be attacked on such grounds in a collateral proceeding where the judgment is still in force. Bigelow on Estoppel (6th Ed.) p. 241.
In order that a judgment may be an estoppel as to a particular matter, it must appear either upon the face of the record or by extrinsic evidence that the same matter was in issue and determined in the previous action. It is not enough that the matter was in issue but it must clearly appear to have been adjudicated. *Page 405 2 Freeman on Judgments (5th Ed.) § 689, 1455; Adams v. Church,42 Or. 270 (70 P. 1937, 95 Am. St. Rep. 740, 59 L.R.A. 782);Gentry v. Pac. Live Stock Co., 45 Or. 233 (77 P. 115).
In order to constitute such a decree res judicata and to bar a subsequent action there must be a concurrence of three conditions: First, the identity of the right sued for; second, the identity of the cause of action; third, the identity of the persons and parties to the action. Where these conditions are present, former decrees which are final and unreversed are res judicata of the subject matter of the suits as then decided between the parties thereto and their successors in interest, whether the court based its decree on a correct or erroneous view, either of the law or of the facts. They are not conclusive as to matters which might have been decided therein, but only as to such matters which were in fact decided. 3 Kinney on Irrigation (2d Ed.) § 1563, 2829.
All of the records in the adjudication proceedings are not before us. The defendants had read into the record testimony given in the adjudication proceedings upon which they claim the right involved in this suit was based.
The statute directing the mode of procedure in the determination of the water rights provides that it is the duty of the state engineer or his assistant to proceed at the time specified in the notice to the parties on said stream, to make an examination of said stream and works diverting water therefrom, said examination to include the measurement of the discharge of said stream and of the carrying capacity of the various ditches and canals, and examination of the irrigated lands; and an approximate measurement of the lands *Page 406 irrigated from the various ditches and canals and to gather such other data and information as may be essential to the proper understanding of the relative rights of the parties interested. The observation and measurement is required to be reduced to writing and made a matter of record in his office, and it is the duty of the state engineer to make or cause to be made a map or plat showing with substantial accuracy the course of said stream, the location of each ditch or canal diverting water therefrom and the legal subdivisions of lands which have been irrigated. § 47-611, Oregon Code 1930. The state engineer is required to enter of record in his office findings of fact and an order of determination determining and establishing the several rights to the waters of said stream. The original evidence gathered by the state engineer and certified copies and measurements and maps of record in the state engineer's office, in connection with such determination, as provided by statute, together with a copy of the order of determination and findings, are to be certified by the state engineer and filed with the clerk of the circuit court where the determination is to be heard. § 47-612, Oregon Code 1930.
The circuit court upon hearing may modify or change such order of the state engineer where exceptions are filed and if no exceptions are filed the court will enter a decree affirming the determination of the state engineer, or the circuit court may require the state engineer to make a further determination. § 47-614, Oregon Code 1930.
It is clear that in the proceedings adjudicating the waters of the Malheur river, as to Otis creek the necessary proceedings were not all taken and the decree did not determine the quantity of water that should be *Page 407 taken from Otis creek nor the quantity of water that should be taken from Cottonwood creek by the Pacific Live Stock Company under its award for 165 acres, with a relative priority of 1884.
The defendant George N. Hatt claims that at the time he purchased the land he was informed that the company obtained water from both Cottonwood creek and Otis creek and that there was some sign of a dam in Otis creek, near the northwest corner of the land. Henry Dean, a witness for plaintiff, testified that he was running the Pacific Live Stock Company Otis Creek Ranch at the time George N. Hatt and his brother purchased the ranch under contract from the Pacific Live Stock Company, and that at that time there were no indications within his observation of any old ditches or dams in Otis creek by means of which any water had been taken from the creek to be used on lands on the east side of it, belonging to the Pacific Live Stock Company, "no more than beaver dams. Q. Were there any poles or anything in the creek up near the northwest corner of Lot 3? A. Yes, right at the fence, near Mr. Robertson's fence, the fence crosses the creek, there was an old beaver dam, and I laid a couple of poles across for a foot bridge". Hatt, at the time he made the contract for the land, obtained a copy of the decree and it did not show that any specified amount of water was decreed in favor of the Pacific Live Stock Company to be taken from Otis creek for the land. He was not warranted in relying on oral information that might seem different.
In order to adjust this suit, it is essential to determine what amount of water should be taken from Otis creek to irrigate the land under the award of the decree of the Pacific Live Stock Company, so as to carry out and enforce the adjudication decree. *Page 408
There is some testimony showing that there was some natural irrigation or overflow at high water of part of the land in the N.E. 1/4 of the N.W. 1/4, Section 5, Township 20 S., R. 36 E., W.M., at different times prior to the adjudication, which was taken advantage of and accepted for a beneficial purpose of irrigating wild hay growing upon the land. Such irrigation could not have been equal to more than the irrigation of five acres in the regular way, under the provisions of the adjudication decree, as to the duty of water and general provisions of the decree. Except for such amount the plaintiff has sustained the allegations of his complaint for an injunction and with the exception of that quantity of water from Otis creek for five acres of land in the N.E. 1/4 of the N.W. 1/4, Section 5, Township 20 S., R. 36 E., W.M., to be taken out by means of the new ditch constructed by defendant Hatt since the adjudication decree was rendered, the balance for the 165 acres shall be taken from Cottonwood creek.
It is now well settled that where practically no artificial works for irrigation are necessary, the requirement of a valid appropriation that there be a diversion from the natural channel is satisfied, when the appropriator accepts the gift of nature, and indicates his intention to reap the benefits of natural irrigation. Re Rights to Waters of Silvies River, 115 Or. 27,64 et seq. (237 P. 322).
With the exception as to water for said five acres, the decree of the lower court for an injunction is affirmed. The plaintiff, having practically prevailed in this suit, will be awarded costs and disbursements herein.
ROSSMAN, CAMPBELL and BAILEY, JJ., concur. *Page 409