dissenting.
There is no reason at this moment for not being brief. The case before us is of considerable moment, and no matter how this Court’s opinion goes, there will be a petition or petitions for rehearing.
The claim of the irrigation districts and the water districts, and the user members thereof, as I understand the claim to be, is not that they assert any new water rights, but simply challenge the right of the state of Idaho in the person of its legislature to cause to be relitigated that which has been litigated, or to readjudicate that which has been adjudicated and gone to a final judgment.
It has been held that a water right is a property right. An adjudicated water right is a highly perfected water right. It is the decree or judgment of a state district court, and once wholly final is subject to no attack other than that it was fraudulently obtained. The McCarran Report partially reprinted in the majority opinion, at 7-8, 764 P.2d at 84-85, acknowledges that “the State courts are vested with the jurisdiction necessary and proper ... for the administration of and adjudication of water rights under state laws.” This has always been my understanding. I agree with the Report in the statement that in practically every case all water users on a stream are interested parties to any court proceeding. I am not persuaded that all such water users are necessary parties in all cases, in the sense that the action cannot proceed without a state court (here, Idaho) gaining jurisdiction over them. A water user having a valid state judicial decree in his pocket, meaning one that flows from a valid court decree, will be interested,1 of course, but not necessarily a necessary party. Else, why, one might ask, what has he gained by having once successfully litigated, if into litigation once again he will be forced?
The pertinent portion of the McCarran Report, at 7, 764 P.2d at 84, as I comprehend its language, is that it has in mind only those water users claiming a water right by reason of the ownership of the United States or any of its departments who seek to don the cloak of immunity which does shield the United States of America. The McCarran Act itself shreds that assumed cloak.
I take no umbrage with the final paragraph of the Report which is reprinted in the majority opinion, at 7, 764 P.2d at 84, i.e., “that it is essential that each and every owner along a given water course, including the United States, must be amenable to the law of the State, ...” My understanding that prior litigation on the tributaries of the Snake River afforded all owners on those rivers or streams the opportunity to be involved. If the opportuni*11ty to litigate was present but eschewed, the litigation is nevertheless as final as to those who did not chose to participate as to those who did so. Such an action was basically in rem.
The McCarran Act undoubtedly is, as Justice Johnson has written, a Congressional waiver of otherwise unassailable federal immunity as to actions for stream adjudications brought in Idaho courts. The so-called “special appearance” of the United States on the part of the United States District Attorney for Idaho is in my view of no consequence. The law heretofore has been that the United States can only be sued by its consent, and if district attorneys are freely empowered to give or withhold that consent, I am woefully ignorant of that change. As for my part, until I become better informed, the United States of America, and each and all of its departments, agencies, bureaus, and whatever, are in court because of the McCarran Act, or, conversely, are not in court because of that Act’s inapplicability, which I much doubt, and on which issue I agree with Justice Johnson’s opinion.
But, accepting that the United States may be subject to jurisdiction of an Idaho state district court, I am left wondering how that conclusion necessitates a holding that water right users possessing valid judgments or decrees and, probably valid water rights of any degree, can be brought into this action against their will.
As mentioned above, it can be said confidently without citation that an adjudicated water right is a property right. Like any other property, it can be forfeited or abandoned, but there is no such claim here. Like any other property, it can be taken by such authorities as have the power of eminent domain, but a just compensation must be paid therefor.
Although feeling not obliged to search for authority in that vein, a study of Justice Johnson’s opinion reassures me when I read on page 14 of the slip opinion his ten line excerpt from California v. Rank, 293 F.2d 340, in which litigation the state of California was positioned as is Idaho in this litigation, i.e., the defendant. The plaintiffs in that action were owners of the beneficial use of the river of the San Joaquin River below the dam. The United States over its protest was joined as a necessary party defendant.
What I make out of reading that case as it definitely has application to the case at hand, is that “ ... the United States has the power to acquire the rights of these plaintiffs through exercise of eminent domain.” Rank, 293 F.2d at 354. And, “[wjhile a state can bestow property rights on its citizens which the United States must respect, it cannot take from the United States the power to acquire those rights.” Id. at 354. Presently, the United States of America is not attempting to seize or otherwise appropriate any property rights. In fact, all that we see is the claim of the United States District Attorney, Idaho, that the United States is not in court.
I remain unable to see the grounds upon which the state of Idaho can force the owners of valid water rights to litigate that which is res judicata. Nor do I understand how the legislature can purport to authorize such. The legislature is prohibited by two constitutions from impairing the obligation of contract, and in my humble view, an adjudicated water right, especially one with whiskers, is on a higher plane than a contract.
Until better informed, I must respectfully dissent, and am deeply concerned with the plight which the state of Idaho has brought down on the innocent owners of water rights in Idaho. Those water rights are not free-hanging merchandise like tires and beer, but are appurtenant to lands which lands for the most part would be greatly devalued without water rights. To make such owners parties to this litigation is tantamount to an impermissible restraint on the right of free alienability of land.
. In the common sense of the word, i.e., attentive, curious, but not in the sense of being affected by.