As Mr. Justice PRATT has pointed out, the law questions involved in this case are understood in different senses by the different members of this Court. I am tolerant of the views of my associates, but I feel an obligation to point out, without hasty generalization, what I believe to be the law.
It is my opinion that the statutory adjudication of water rights provided by Section 100-4-3, R.S.U. 1933, as amended, is intended as a remedy for all adjudications of all water rights in all courts in Utah.
That does not mean that every action filed shall become a general adjudication suit, but rather the following modus *Page 565 operandi should be observed, followed and upheld in this Court.
When an action is filed for the determination of water rights, Section 100-4-3, R.S.U. 1933, as amended, immediately becomes operative and the published notice required by that statute to be given by the clerk is jurisdictional and mandatory; and, without the performance of such requirements, and the giving of such notice, the court is without warrant of law to proceed.
Hon. James A. Howell, appearing as amicus curiae in this case, has in my opinion very aptly stated the correct rule when he says; and I quote from pages 59, 60 of his brief as follows:
"There were then three ways in which a general adjudication of water rights would ensue,
"(1) in an action instituted by the State engineer;
"(2) in any [italics added] action, howsoever and by whomsoever brought for the determination of water rights, and
"(3) when in a civil action commenced in the District Court involving the use [italics added] of water from any river system or source, the Court, in its discretion, if a general determination of the rights to the use of water from said river or water source has not already been made, proceed as in the chapter provided, to make such a general determination."
The use to which the amicus curiae refers is the gist of the private action referred to by Mr. Justice PRATT. See the example given by Mr. Justice PRATT in his opinion.
An individual desiring to maintain an action for a general adjudication of water rights, and who brings himself within the purview of the statute, may proceed under the provisions of Section 100-4-3, R.S.U. 1933, without having the prosecution of such action taken over as a court function, or by the State Engineer.
Nor is such authorization by either the Court, or the State Engineer, necessary before such individual may proceed in the district court to a general adjudication of all *Page 566 water rights involved in such an action, and in accordance with the demand of his complaint, provided the complaint, conforms to the statutory requirements, and the remedy provided by law.
One feeling himself aggrieved may not be compelled to hold his property, or any material right, whether a use right or otherwise, essential to its enjoyment, at the mere will or discretion of the district court. Such procedure is undoubtedly contrary to the provisions of both the State and Federal Constitutions.
While, in this case, the defendants below must be required to proceed according to the statute, it is not in the province of this Court to say that the defendants (plaintiffs below) can only proceed at the discretion of the district court.
The Court can not convert the defendants' (plaintiffs below) action into a general adjudication as a court function even if the district court exercises its discretion to order a general adjudication, but may suspend the defendants' action pending such general adjudication.
In my opinion the majority in this Court are construing Section 100-4-3, R.S.U. 1933, against the plain and positive intent of Chapter 112, Laws of Utah 1939, specifically providing for the duties of the clerk of the court, and the State Engineer, and requiring statutory notice to be given when any action is filed. The majority in this Court are judicially construing the statute so that these things should be done "if so ordered bythe court," and that means, by the court in its discretion, and that is what the legislature through the 1939 amendatory statute sought to eliminate.
This is an administrative act. It should be so recognized and treated by the courts. Furthermore, it is an important act, and an act in which every citizen in the state is interested. The court should be informed in a private action of the administrative determination of the state engineer the same as in a general adjudication. The statute should be complied with. *Page 567
At any rate, the legislature had in mind an orderly program which was within its prerogative to determine. Such procedure is the dictate of reason. It is a law which commands what appears to be a useful and necessary program in a well considered administration of a natural resource of the state. The law was enacted in Utah after similar laws varying in degree, but not in purpose and substance, had been in force in other western states, where similar conditions are found; and upheld by the courts of those states.
When any action is filed for "use" of water or otherwise, the district court should have before it the administrative determination in that particular action as to the water right necessary for such consideration as the administration of justice requires, and as may be involved in such actions, which I will not pause to particularly notice here, but will presently comment upon it.
This does not mean that the State Engineer shall file any statement about any water right not involved in such action. In a general adjudication suit the State Engineer's report should cover all data and other information necessary to enable the court to proceed to an orderly determination of the matters in controversy.
The phrase "if so ordered by the court" used in Section 100-4-3, R.S.U. 1933, and the phrase "the court, in itsdiscretion," used in Section 100-4-18, R.S.U. 1933, are synonymous.
The intent of the Code Commission was to make the duties of the clerk of the district court and the duties of the State Engineer discretionary with the court.
The intent of the 1939 legislature was to reintroduce into the law the statutory notice, and require the mandatory duties of both the clerk of the district court and the State Engineer by eliminating the court's discretion; and the legislature did, or thought it did, by deleting the phrase "if so ordered by thecourt," and again requiring the performance of the ministerial mandatory duties of both the *Page 568 clerk of the district court and the State Engineer, restore the statute to its original status, as provided originally in Section 22 of Chapter 67, Laws of Utah 1919.
Section 22 of Chapter 67, Laws of Utah 1919, provided that upon the filing of any suit for the determination of water rights the clerk of the district court shall notify the State Engineer that such a suit has been filed, whereupon the State Engineer shall as expediously as possible prepare and file with the court a statement giving the names and addresses of all of the claimants to the use of water from the river system or water source involved in such action.
Section 100-4-3, R.S.U. 1933, as amended by Chapter 112, Laws of Utah 1939, applies to all actions for determination of water rights, and the language used means exactly what it says — that upon filing any action for the determination of water rights the clerk of the district court shall notify the State Engineer that such has been filed, whereupon the State Engineer shall as expediously as possible prepare and file with the court a statement giving the names and addresses of the claimants to the use of water from the river system or water source involved insuch action. "Involved in such action," of course, means the extent of the demand or claim of the plaintiff whether it be a demand for an adjudication of the whole river system, or water source, involving the "use" of all the "users" of the water from all that river system or water source, or only the "use" of a part of the water involving only a part of the "users" of the water from a part of the river system or water source; the latter type of action being a limited private action or a so-called private suit comparable to the example given by Mr. Justice PRATT.
However, as pointed out to this Court by Hon. James A. Howell, as amicus curiae, if there is a conflict between the provisions of Chapter 112, Laws of Utah 1939, and the provisions of other sections of Title 100, R.S.U. 1933, *Page 569 which in my opinion there is not, then the 1939 amendment being the last pronouncement of the legislature upon the subject must necessarily take precedent over all other laws on the subject in conflict therewith. And, if there are laws in conflict therewith, or if the statutes are capable of admitting the construction of those members of this Court who have construed Section 100-4-3, R.S.U. 1933, as amended, cover only a general determination of water rights, as counterdistinguished from a partial or "use" determination of water rights, of a river system or water source, by reason of any thing contained in Section 100-4-18, R.S.U. 1933, then requiring a bond where a second adjudication is sought by an individual, that statute and all other statutes under the provisions of Title 100, R.S.U. 1933, are in conflict with the provisions of Chapter 112, Laws of Utah 1939, and such statutes are by implication repealed, and Chapter 112, Laws of Utah 1939, is to be given full force and effect.
Possibly my learned associates fail to appreciate that by the Act of 1919, all existing laws on the subject were repealed. Possibly this is the crux of the whole situation. Possibly the code commissioners failed to appreciate that situation. But these "possibilities" are not urged as mere conjectures, since it is presumed decisive action would not be taken upon an important administrative act without ample study of the legislative history of the act.
Certain features of the Act of 1919 were taken from laws then existing. Possibly a study of the legislative history of the act reveals that before A.D. 1919 there was no statutory provision providing for a remedy for an individual, but instead the State Engineer alone, or when properly requested, could bring an action for a general adjudication, and the fact that the 1919 Act changed the existing order should be considered as indicative of the legislative intent, but I shall not pause to particularly notice it, because to do so would not only require a careful analysis of the legislative history of the act, but to go into that *Page 570 detail would extend the opinion further in length than I care to do at this time. See Title 55, Compiled Laws of Utah 1917. This is an administrative act.
The sections of the 1919 Act and the section of the 1933 Statutes, must be construed with reference to each other as laws in pari materia.
These statutes can be construed without destroying the force and effect of either or any of these statutes, including Section 100-4-19, R.S.U. 1933, requiring bond for the second and subsequent adjudication.
But, if the statutes can not be construed so as to give all of them force and effect, then Chapter 112, Laws of Utah 1939, must by implication take precedence.
I construe Section 100-4-18, R.S.U. 1933, quoted by Mr. Justice PRATT as a grant of additional power to the Court, and intended to enlarge the Administrative Act, not restrict it. My opinion is that the majority on this point are applying the reverse or restricted rule.
I believe, under Section 100-4-18, R.S.U. 1933, that a "two-penny" suit of the type mentioned by Mr. Justice PRATT is the type of action in which the court could exercise its discretion under that statute, and order a general adjudication, but when the court exercises such discretion it does so as a court function, and the "two-penny" suit abates until the statutory general adjudication action has been determined, whereupon the "two-penny" suit recurs for such additional consideration as the plaintiffs may be entitled to receive, and as the demands of justice may require.
If the general adjudication procedure affords the plaintiff adequate relief, then the "two-penny" suit Mr. Justice PRATT mentions would be satisfied, but if not would again become a live issue to settle all issues the statutory action did not satisfy. In other words, a plaintiff's right of action can not be destroyed.
A plaintiff can be required to resort to a statutory remedy where one is provided by law. The majority hold there *Page 571 is no statutory remedy available to an individual, and, at the same time, hold that an individual can not proceed in a non-statutory manner to secure a general adjudication. And, if such holdings are true and consistent, then the defendants are correct in their claims that they are without remedy save in a court of equity.
In addition to the inconsistencies noted here, the majority are making another mistake, in my opinion, in deciding this case on grounds and theories that are not issues in this case, and not claimed on either side, and not in controversy. Such action is based on doubtful analogy and rests upon unsound assumptions of likeness between actual cause and effect relation and simple sequence of events. This post ergo propter fallacy extends the faulty reasoning into the theory that the "two-penny" suit referred to by Mr. Justice PRATT calls into existence the facts upon which the court acts when in its discretion it orders a general adjudication. The facts which actuate the Court into exercising its discretion to require the general adjudication were in existence before the "two-penny" action was filed and it is not the "two-penny action but the facts which appeal to the reason of the Court in ordering the general adjudication, just as the facts in this case that appeal to the majority of this Court, and compel the majority to suggest to the lower court the desirability of exercising its discretion in the case to order a general adjudication as a court function, and not anything the defendants (plaintiffs below) have alleged in their complaint.
It is the duty of this Court to decide issues that are drawn, argued and presented. Such issues are in the nature of assignments of error. Such issues should not be thrown aside and decision rendered based upon foreign and extraneous consideration. By that statement I do not mean that the court must accept as its alternative one or the other theories presented, but I do mean without any degree of equivocation that this Court is in duty bound, if not *Page 572 legally required, to decide the questions presented. In this case the attorneys have filed exhaustive briefs presenting questions on pleadings, practice and procedure and the majority says: "No question of pleadings involved." The Court should determine the issues presented, but, in my opinion, the majority have not determined the issues presented in this case one way or the other. The facts govern, not the simple sequence of events.
It has not come to my attention any court in Utah, under any circumstances, has ever ordered a general adjudication. Should the district court avail itself of the majority suggestion in this case and adopt that procedure, this will be the first time such procedure has been employed in Utah.
The original opinion in this case directed the court to strike from that complaint the irrelevant matter and allow the plaintiffs to proceed in the lower court under Section 100-4-3, R.S.U. 1933, as the statute provides the defendants (plaintiffs below) have a right to do.
There is no necessity for the court to concern itself with whether the State Engineer or the district court under some circumstances could require a general adjudication of any water right. The fact is that this is an administrative act and should be construed so as to make it operative if it can be so done without violating State or Federal Constitutions. The fact is that whether the State Engineer intervenes and demands a general adjudication or the district court ordered a general adjudication, neither of them have so done, and, under what circumstances they may or may not so do is a moot question, which I shall pass without further comment.
Title 100, R.S.U. 1933, is a statutory method for determining water rights in the State of Utah.
The popular meaning of the word "determine" according to almost any dictionary means:
1. To set bounds or limits,
2. To bring to a close, to terminate. *Page 573
3. To fix conclusively or authoritatively,
4. To come to a decision concerning.
The phrase "to quiet title" as applied to titles means when a litigant has some claim hanging over his title for determination, which, if enforced, may subject him to loss, applies to a court to have his rights presently determined for once and forever, and to have the claim against his rights immediately enforced, or to be presently made secure against any future liability. The statute provides a remedy for the determination of water rights in the State of Utah, which is synonymous with quieting title to water rights in the State of Utah.
The plaintiffs in the district court action seek an equitable remedy, because they claim they are without a remedy except in a court of equity, and the majority are, in effect, remanding this case to the district court without deciding the issues that have been presented here, and without a determination of the litigants' rights, although an action to quiet title may be said to be a proceeding in a court of competent jurisdiction to determine a litigant's rights against an invasion, which need not be imminent or certain, but which may be only future and contingent. It is an anticipatory action of equitable origin and essentially equitable in its nature. The case was presented to this Court and briefed and defended as an equitable action; no party litigant has laid any claim to the contrary, and do not now so claim.
The court is confronted with certain legal questions that should be interpreted by this Court from strictly legal principles. Either the plaintiffs below stated a cause of action in their complaint or they did not.
We are concerned with the question of pleadings because a statutory remedy is provided. If the statutory remedy is applied, the pleadings differ from the theory of the plaintiffs below in the district court. There can be no doubt that the plaintiffs in the district court proceeded upon the theory that the statutory method for the determination of water rights was inadequate, and being inadequate they *Page 574 claim they were justified in appealing to the equitable powers of the court to afford them relief. And upon that theory they have proceeded thus far. And to establish that theory they have alleged much immaterial, irrelevant and redundant matters.
The majority of this Court are now denying these defendants relief without deciding the case on the questions presented by the litigants upon the issues drawn between the parties. The Court is also holding that no question of pleadings is involved. I shall not stop to review that question further, because the mere statement of the contention, in the light of its environment, suffices to destroy it.
In addition to a number of questions not necessary to point out, there are other reasons why the defendants (plaintiffs in the district court) should be prohibited from proceeding in equity. It is impossible under the code of civil procedure in force in the State of Utah for plaintiff to be without a remedy. As I have pointed out in the main opinion, Article 8, Section 19, of the Constitution of the State of Utah is as follows: "There shall be but one form of civil action, and law and equity may be administered in the same action," and Section 104-7-2, R.S.U. 1933 provides that whatever relief the plaintiff may demand shall be stated in ordinary concise language. When that has been done, the relief which the law affords will be administered through the accepted doctrines of the common law, and the relief which equity affords will be applied by the court itself from the precepts and principles of the equitable system of jurisprudence.
Therefore, if there is any theory upon which a plaintiff is entitled to recover, if he states the facts upon which he seeks to recover in concise language the court will grant that relief, if statutory, otherwise according to accepted doctrines of common law, or the equitable system of jurisprudence which are guides to decisions of cases within the original jurisdiction of our district courts. *Page 575
If the majority are correct in holding that plaintiffs below can not proceed in a non-statutory manner to secure a general adjudication of the water rights, then the non-statutory allegations of the complaint of the defendants (plaintiffs below) are not material allegations in the pleading and should be stricken under the provisions of 104-13-12, R.S.U. 1933. And this includes all of paragraphs 11, 12 and 13 of the complaint, and without pausing to point out other immaterial allegations, other than to say all other allegations purporting to allege an equitable action should be stricken.
Plaintiffs cannot maintain a so-called equitable action filed in the district court, because where the law provides a particular remedy for the redress of a given wrong the injured person must resort to that remedy alone, and cannot appeal to the equitable powers of the court, which may be exercised only where there is no expressed law. Amrheim v. Champion, 9 Orleans App. 246; Louisiana and Southern Digest Actions.
The sole question, therefore, to be considered is whether the amendment of Section 100-4-3, R.S.U. 1933, by the enactment of Chapter 112, Laws of Utah 1939, withdrawing the court's discretion and making it mandatory to proceed according to the statutory method, violated any known right of the defendants. On that question the majority of us agree that no rights of the defendants here (plaintiffs below) were violated.
I, therefore, concur with Mr. Justice PRATT in denying the rehearing based on the opinion I wrote in this case (104 P.2d 353) but, otherwise, dissent except as my position has been set forth above.
MR. DONOUGH, J., being disqualified did not participate herein. *Page 576