[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 134 Action by W.D. Adams and others against Fred Perry and another to quiet title to water rights. From an adverse decree, the named plaintiff and others appeal. On motion to substitute deceased defendant's son as a party defendant, and defendant's motion to dismiss the appeal.
MOTION TO SUBSTITUTE DENIED, AND RULING RESERVED UPON MOTION TO DISMISS. REVERSED, ON THE MERITS. REHEARING DENIED. The statute provides that a cause of action arising out of an injury to the person dies with the person of either party, except when the death of a person is caused by the wrongful act or omission of another. Sections 8-901 and 8-903, O.C.L.A.
The statute also provides that —
"All other causes of action, by one person against another, whether arising on contract or otherwise, survive to the personal representatives of the former and against the personal representatives of the latter." Sec. 8-902, O.C.L.A. *Page 135
The further provision of this statute is that —
"Where the cause of action survives as herein provided, the executors or administrators may maintain an action at law thereon against the party against whom the cause of action accrued, or after his death against his personal representatives." Ibid.
A cause of action caused by diversion of a water course generally survives under the statutes, though not at common law. 1 C.J., Abatement and Revival, 193, sec. 359(d).
The instant case is a suit to quiet the title in plaintiffs in and to one-fortieth of a cubic foot per second for each acre irrigated by plaintiffs, as stated in their complaint, of the continuous flow of the water of Salmon creek, a tributary of Powder river.
In their second amended complaint herein, paragraph 8 thereof is as follows:
"That during the months of June and July of the year 1939, and at a time when plaintiffs required said water for irrigation, livestock and domestic purposes, and at a time when there was insufficient water flowing in said Salmon Creek to supply the said rights, appropriations and diversions of the plaintiffs, the defendants, Fred Perry and R.B. Bunch, unlawfully and without right thereto, and against the will and wish of plaintiffs, took and diverted all of the water of said Salmon Creek then flowing in said creek, amounting to about 86 miners' inches, and carried the same away from said creek and away from the ditches and diversions of plaintiffs and carried the same, by means of dams and ditches, to and upon lands in the possession of the defendant Fred Perry, and did thereby deprive the said lands of the plaintiffs and each of them of said stock, domestic and irrigation water, to the great damage and injury of plaintiffs and their lands, and the improvements thereon, and their growing crops, and said defendants continued unlawfully to so divert and carry away said waters during the months of June up *Page 136 to the 5th day of July, 1939, all to the great damage of plaintiffs and each of them, and their irreparable loss."
Paragraph 9 of said second amended complaint is as follows:
"That by reason of said unlawful acts of said defendants as aforesaid, large and valuable crops of pasture, vegetables and growing grain, fruit and grasses on the lands of plaintiffs and each of them, in the months of June and July, 1939, which needed irrigation for their proper ripening and maturing, became dried up, shriveled, lost and unfit for harvest or use. That the reasonable value of the use of said water during the time said defendants diverted and carried the same away was the sum of $1,000.00, and these plaintiffs have been irreparably damaged and have suffered loss in the sum of $1,000.00."
In said amended complaint, "plaintiffs pray for judgment against said defendants, Fred Perry and R.B. Bunch, in the sum of $1,000, and for costs and disbursements."
The above quoted allegations and excerpt from plaintiffs' prayer clearly indicate that defendant R.B. Bunch, in his individual capacity, was a party adverse to plaintiffs. In case of the death of such an adverse party after the final order by the trial court, before this court can acquire jurisdiction on appeal from a judgment or decree of the circuit court, there must be an appointment of an administrator or executor of the estate of the deceased and service upon or admission of service by such administrator or executor of plaintiffs' notice of appeal.
The trial of this case in the circuit court took place prior to June 10, 1940, on which date the trial judge rendered a written opinion on the merits. The defendant, R.B. Bunch, died on the 29th day of July, 1940. *Page 137 The findings of fact and conclusions of law, as well as the final decree, were rendered on September 7, 1940, and entered on September 10, 1940. In that state of the record, the decree was not void. We cannot treat it as a nullity.
Section 1-311, O.C.L.A., provides that —
"In case of the death, marriage, or other disability of a party, the court may, at any time within one year thereafter, on motion, allow the action to be continued by or against his personal representatives or successors in interest."
The personal representative of the deceased defendant should be substituted in order that either service of the notice of appeal be made upon, or admission of such service be procured from, such personal representative.
The trespass charged in plaintiffs' second amended complaint, as above quoted, is in no sense such a course of conduct as to be chargeable against the deceased defendant's successor in office as water master, nor is it chargeable upon his son. Neither the deceased's successor in office nor his son could be deemed a successor in interest with respect to plaintiffs' alleged chose in action. An administrator de bonis non may be so considered. Moss v. Ramsey, 49 Okla. 499,153 P. 843. We know of no authority to the effect that the relationship of parent and child renders the child a successor in interest within the meaning of the statute under consideration.
For these reasons, the motion to substitute deceased defendant's son is denied and the ruling upon defendant's motion to dismiss this appeal is reserved in order that appealing plaintiffs may have further opportunity to procure an order of substitution conformable to the views here expressed. *Page 138