Counsel have very thoroughly and exhaustively briefed this case for us. The members of this court, however, have a decided difference of opinion upon the law. Our differences of opinion have apparently tended toward a confusion rather than a clarification of the law upon the issues. For that reason the following resume of those former opinions is submitted.
The majority, if not all of us, agree that a statutory general adjudication of the water rights of any water system must proceed according to statute. The writ heretofore issued prohibits the lower court from substituting any other 1 method of procedure, if the case is conducted as such a statutory general adjudication.
Mr. Judge TRUEMAN believes that all water suits must proceed as statutory general adjudications. The majority of us do not agree with our learned associate. He relies considerably upon the following language taken from Section 100-4-3, Revised Statutes of Utah, 1933:
"Upon the filing of any action for the determination of water rights the clerk of the district court shall notify the state engineer that such has been filed."
This is followed by the designation of duties to be performed by the Clerk and the State Engineer in furtherance of a general adjudication. But we feel that some consideration should be given the following quotation from Section 100-4-18, R.S.U. 1933:
"Whenever any civil action is commenced in the district court involving the use of water from any river system or water source, the court, in its discretion, may, if a general determination of the rights to the use of water from said river system or water source has not already been made, proceed, as in this chapter provided, to make such *Page 561 a general determination. In any such action for the determination of water rights the state of Utah shall be joined as a necessary party." (Italics ours.)
If every water suit must proceed as a statutory general adjudication, then what is there left for the court, under this quoted section, upon which it can exercise its discretion? This section recognizes that suits such as have been designated "private suits" do exist and may proceed without being forced through the statutory general adjudication procedure. Attention is also invited to the last sentence of Sec. 100-4-1, R.S.U. 1933, which is of similar import. It might be asked: Of what efficacy is the discretion in the State Engineer under Sec. 100-4-1, R.S.U. 1933, if any one of the five petitioners may himself institute the statutory general adjudication? Why five petitioners, if one may institute a statutory general adjudication action? Mr. Justice WOLFE does not believe this matter need be decided in this case.
Mr. Judge TRUEMAN expresses the thought that where the code provides a particular remedy for the redress of a given wrong, the injured person may resort to that remedy alone, and he cannot appeal to the equitable powers of the court. The statutory general adjudication is not intended as a 2 remedy for the wrong to an individual, or to protect the individual against adverse interests. The public by its authorized officers is the party to institute the action. Authority for this lies in Section 100-4-1, R.S.U. 1933 — in the discretion of the State Engineer — or in Section 100-4-18, R.S.U. 1933 — in the discretion of the court. You or I as an individual water user have not been given a new remedy against our neighbors for injuries he may threaten or inflict upon us. The statutory general adjudication is remedial for multifarious suits and conflicting interests among water users of a particular system. I may not hail my neighbor into court except that I allege facts placing him in an adverse position to me — that is, state a cause of action against him; but we may *Page 562 both be brought before the court in a statutory general adjudication, even though as between us there is no controversy. Title 100 of our laws does not give me power to hail him into court under the guise of a statutory general adjudication. The decision to apply Title 100 is vested — and wisely so — in the disinterested public official. To leave such an all-inclusive remedy in the hand of a complainant would subject the rights of many to the opinion of one whose impartiality may be materially weakened by his interest in the outcome — or possibly his litigious nature — and subject many users to a participation in a two-penny suit between two neighbors.
Mr. Justice WOLFE and Mr. Judge TRUEMAN are of the opinion that the suit filed by the defendants May 28, 1936, is a suit for a statutory general adjudication. Mr. Justice WOLFE, however, believes that such a suit is irregular and should have been initiated by petition to the State Engineer under 3 Section 100-4-1, R.S.U. 1933. The majority of the court are of the opinion that it is a "private" suit, which the lower court may, if it finds a general adjudication advisable, conduct as a statutory general adjudication under and pursuant to Section 100-4-18, R.S.U. 1933.
As stated above, I have no right to hail my neighbor into court except that I charge him with interests or activities adverse to mine. But if I may legitimately make such a charge, it makes no difference how many neighbors I bring in provided I connect each with myself by a statement of such a cause of action. Thus if I as one of the 2,000 water users upon a water system can successfully plead and prove that the other 1,999 users are injuring or threatening injury to me or claim rights adverse to mine, I am entitled to relief against each and every one of them. This, however, would not be the statutory general adjudication of those water rights, though all users of the system were brought into court by me. As to whether or not each remained in the case would depend upon whether *Page 563 or not each were properly connected to me by a charge of interests or activities adverse to me or mine; but not so in the statutory general adjudication. Though a particular litigant concede my claims, in such an adjudication he would still be forced to remain in the case to enable the court to adjudicate once and for all the rights of the various users upon the system regardless of their adversity to my rights. Thus we see that the "private" suit and the statutory general adjudication may cover the same number of water users, and may decide some issues that are identical in each, but the later adjudication is the broader.
Now getting down to the suit filed May 28, 1936, there are allegations therein which support a "private" suit. There are also allegations which form a background for a statutory general adjudication. However, as our statutes do not authorize the individual to initiate the statutory general 4 adjudication — as indicated above — and the individual has no "inherent" power to initiate such a suit (see also our discussion above upon the stating of a cause of action) the reasonable thing to attribute to counsel for the defendants is the statement of or an attempted statement of a "private" cause of action, a cause recognized in this state. If, however, counsel insist that the cause is statutory, then there is but one thing to be done — dismiss the case for the reason that there is no such cause of action in favor of the individual in this state. Even in a "private" suit I may ask the court to exercise his discretion under Section 100-4-18, above, but such a request is not part of the cause of action, and can not be properly stated as such.
Mr. Justice LARSON invites our attention to the fact that we have no question of pleadings before us here. This arises out of the fact that Mr. Judge TRUEMAN has stated that certain allegations of the complaint of May 28, 1936, should be stricken. The majority of us agree that we have no 5, 6 question of the sufficiency of the pleadings before us. The question of whether or not *Page 564 a good cause of action has been stated, and the question of whether or not there has been a misjoinder of parties plaintiff or parties defendant, will have to be decided by the lower court. Those questions are not decided here. From the fact that we have said that the suit is a "private" one, it must not be inferred that we have expressed an opinion upon the merits of the statement of a cause of action. We may have a belief of the cause intended without expressing an opinion as to counsel's success, or lack of it, in stating the cause intended. The costs of the conduct of a private suit are, of course, not chargeable to any State Engineer fund. The funds heretofore so expended must be borne by the parties.
From what has been said in this opinion it is apparent that the personnel of the majority is not the same as to each issue. Further details of individual differences may be had, if desired, by reference to the other opinions filed.
Whether the case is treated as a "private" cause of action or a statutory general adjudication of the water rights of the users of the water system, no doubt equitable principles will come into play to solve the merits.
Petition for rehearing denied.
MOFFAT, C.J., and WOLFE and LARSON, JJ., concur.