Van Buskirk v. Red Buttes Land & Livestock Co.

*203ON PETITION EOR REHEARING.

Potter, Chief Justice.

This case is before the court at this time on a petition for rehearing. A candid and careful consideration of the able brief filed in support of the petition has not caused us to doubt the correctness of the decision, or convinced us that a rehearing ought to be granted. The only point made by the petition is .that we erred in holding that the remedy provided by statute for securing a just and lawful distribution of the water of a stream through application to the water commissioner did not supersede and exclude the remedy of an action for damages for deprivation of the use of such water. Counsel courteously say in the brief that an examination of the opinion in the case has led them to conclude that they did not in the former brief and argument make clear in all respects their contention that the remedy of applying to the water commissioner to regulate the distribution of the water was exclusive of an action for damages; but that they are content if the court should feel, on reexamination of the subject, that it was clearly presented and fully understood upon the former hearing, insisting, however, that the question is one calling for the clearest possible exposition of the subject, and the most careful and comprehensive consideration of the origin, scope and purpose of the statutes, and the practical effect of the decision upon the future administration of the water laws, and the jurisdiction and functions of the courts.

We think that we appreciate to the fullest extent the importance of the question and the effect of the decision, though we do not entertain the view that the decision is in any way inconsistent with the scope or purpose of the statutes, or in disregard of their origin; nor that the effect of the decision will be to prevent, retard or embarrass the proper and effectual administration of the water laws.

We have again examined with care the cases decided under the Interstate Commerce Act, cited and strongly relied on by counsel, but remain of the opinion that they are not *204in point, except as previously stated. To show the point decided in those cases a reference to the case of Texas Pacific Ry. Co. v. Abilene Cotton Oil Co., mentioned in the former opinion in this case (156 Pac. 1122, 1127) will, we think, be sufficient. It was held in that case that a shipper seeking reparation predicated upon the unreasonableness of the established rate must, under the act to regulate commerce, primarily invoke redress through the Interstate Commerce Commission, which body alone is vested with power to originally entertain proceedings for the alteration of an established schedule alleged to be unreasonable. The suit was brought to recover an alleged excessive amount exacted by the railway company on shipments of carloads of cotton seed, and it was alleged as ground for recovery that the rate charged was unjust and unreasonable. The court stated the fundamental question to be, “the scope and effect of the act to regulate commerce upon the right of a shipper to maintain an action at law against a common carrier to recover damages because of the exaction of an alleged unreasonable rate, although the rate collected and complained of was the rate stated in the schedule filed with the Interstate Commerce Commission and published according to the requirements of the act to regulate commerce, and which it was the duty of the carrier under the law to enforce as against shippers.”

In the course of the opinion in that case the court conceded the principle to be settled that at common law, where, on the receipt of goods by a carrier, an exorbitant charge is stated, and the same is coercively exacted either in advance or at the completion of the service, an action may be maintained to recover the overcharge, and then stated that as the act to regulate commerce did not in so many words abrogate such right, the contention that the right was taken away by such act rests upon the proposition that the result was accomplished by implication; and that in testing the correctness of the proposition the court must be guided by the principle that repeals by implication are not favored, and *205that a statute will not be construed as taking away a common law right, unless that result is imperatively required ;• “that is to say, unless it be found that the preexisting right is so repugnant to the statute that the survival of such right would in effect deprive the subsequent statute of its efficacy; in other words, render its provisions nugatory.”The court then referred to the pertinent provisions of the act to regulate commerce and among others the provisions requiring only just and reasonable rates to be charged, that schedules of rates be established, published and filed with the Commission, and conferring upon the Commission power “to hear complaints• concerning violations of the act, to investigate the same, and, if the complaints were well founded, to direct not only the making of reparation to the injured persons, but to order the carrier to desist from such violation in the future, and to compel compliance with the award of reparation by invoking the authority of the courts of the United States in the manner pointed out in the statute.” Following that the court proceeded to demonstrate that if power was left in the courts to grant relief on complaint of any shipper, upon the theory that the established rate could be disregarded and be treated as unreasonable, without reference to previous action by the Commission in the premises the enforcement of the act would be impossible, because a conflict might arise between the decision of a court and the action of the Commission, since the established schedule might be found reasonable by the Commission in the first instance and unreasonable by the court acting originally.

In other later cases the Supreme Court of the United States has held that the Interstate Commerce Act did not supersede the jurisdiction of the courts, where the decision does not involve the determination of matters calling for the exercise of the administrative.power and discretion of the Commission. For example, that if the carrier’s rule, fair on its face, has been unequally applied and the suit is for damages, occasioned by its violation or discrimnatory enforcement, there is no administrative question involved, *206the courts being called on to decide a mere question of fact as to whether the carrier has violated the rule to plaintiff’s damage; and that such suits may be prosecuted either in the State or Federal courts. (Penna. R. Co. v. Puritan Coal Min. Co., 237 U. S. 121.) That, while reasonableness of rates and permissive discriminations based upon differences in conditions are administrative matters for the Commission,- the courts may determine whether differentials in rates can be allowed for the same -commodity under similar conditions of traffic, on account of differences in the disposition of the commodity. (Penna. R. Co. v. International Coal Min. Co., 230 U. S. 184.) That the state courts have jurisdiction in a case for damages against a carrier for failure to deliver cars in accordance with its own rules for distribution, where the rule itself is not attacked but discrimination against plaintiff notwithstanding the rule is the basis of the suit. (Ill. Cent. R. Co. v. Mulberry Hill Coal Co., 238 U. S. 275.) And in other courts jurisdiction is upheld where no question of the reasonableness of rates is involved. Thus, that the courts have jurisdiction, in a suit to recover back the difference between fixed charges collected at destination on an interstate freight shipment and the prepaid charge, to determine whether there was an overcharge under the rates as established and published. (Wolverine Brass Works v. Southern Pac. Co. (Mich.) 153 N. W. 778.)

Thus, in such cases, the right of action is denied where the claim is based upon the alleged unreasonableness of duly established and published rates filed with the Commission as required by law, for the reason that under the act to regulate commerce the power to determine whether the rate complained- of is reasonable or unreasonable is conferred upon the Interstate Commerce Commission, with provisions for hearing and disposing of ’complaints as to that matter, and for awarding reparation to the injured person and enforcing the same, and that such power if disturbed by the exercise of conflicting jurisdiction by the courts would overthrow the design of the act to regulate commerce and render its *207enforcement impossible. In other words, because of those considerations, the act is construed as abrogating the comr mon law right of action in such cases. But, generally, where such reasons do not apply it is held that the jurisdiction of the courts is not superseded nor the right of action taken away. This we understand to be the effect of the decisions under the Interstate Commerce Act. We have not attempted to make the discussion of the question as arising under said act complete, for this is not a case depending upon a construction of that act. Our purpose has been only to show the underlying reason for the decisions in the cases relied on holding a right of action to have been abrogated, for such cases are important here only by way of analogy, and we think they do not sustain the contention made in the case at bar.

The duty of the water commissioner is not to award reparation to an appropriator injured through'an excessive use of water by another from the common source of supply; nor is such a power conferred upon the commissioner, the division superintendent or the board of control, though the commissioner, when called upon to distribute the water of a stream and finding that an appropriator is then diverting more water than his adjudicated priority permits is authorized to reduce the amount of water diverted to that prescribed by the decree adjudicating the priorities on. the stream by regulating the headgate. His action in doing that is not, however, conclusive upon the courts, nor is the only remedy for erroneous action on his part the appeal allowed by statute, but it is uniformly held, and we understand it to be conceded in this case, that an injunction will lie to restrain such erroneous action. No conflict of jurisdiction can arise with reference to the power and duty of the water commissioner by sustaining the jurisdiction of the court in an action for damages for a wrongful diversion of water by one appropriator to the injury of another; the existence of such a right of action cannot render impossible or hinder the performance of the duties imposed upon the commis*208sioner, or the exercise of the power conferred upon him, or the proper administration of the laws governing the use and distribution of the public waters subject to appropriation for beneficial uses. A wrongful diversion of water by one party to'the injury of another who has a right to the water diverted might occur before an official distribution could be secured, and unless a right of action can be maintained for the damages caused by such wrongful diversion the injury would be irremediable. Whether, or how far, if at all, the failure by the injured party to request an official distribution of the water upon discovery of the wrongful diversion might be considered in mitigation of the damages subsequently accruing, or as evidence against the claim therefor, is a question not here for decision, as suggested in the former opinion.

It must be remembered that the water commissioner is not authorized to determine the question of priorities. In the discharge of his duties he is bound by existing decrees establishing the various priorities and the quantity of water to which each appropriator is entitled. The statute does not provide for continuous service of the commissioner in controlling every diversion and use of the water of the streams within his district. It is provided (Sec. 803, Comp. Stat. 1910), as an exception to the provision that water commissioners shall receive a stated per diem compensation for each day when actively employed in the duties of the office, that where the service may be improved by continuous employment and upon recommendation of the division superintendent, the commissioner shall receive, pay at a stated monthly rate, to be paid by the county in which the work is performed as in the case of the per diem compensation. But unless the commissioner has assumed control of a headgate or controlling works of a diverting ditch or canal, as provided in Section 801, the water may be diverted by an appropriator for his own use, without first obtaining the permission of the commissioner or other water officer, subject, of course, in case of excessive diversion to the injury of *209another, to the remedies provided by law for the redress or prevention of such injury. Thus it may happen that more water than an appropriator is entitled, to will he diverted by him to the injury^of another haying a better or superior right. And after a water commissioner has assumed control of the diversion of water into a particular ditch it may be physically possible, though in violation of the statute, for the owner to cause the diversion into such ditch of a greater quantity of water than that permitted by the commissioner, or authorized by the decree, to another’s injury and damage. As suggested, that would be a violation of law for which the violator might be punished, but without the right to maintain an action for damages the injured party might be left without redress.

It is true that in a district where the commissioner is not employed throughout the irrigation season he is required to begin his work upon written demand therefor by one or more appropriators. Where he is employed by the month, it is Required that he shall 'begin work and terminate his services as the superintendent of his water division may direct. And the superintendent may, under any condition, call upon the water commissioner for work within his district whenever the necessity therefor may in his judgment arise. (Comp. Stat., Sec. 805.) The right to call for an official distribution of the water of a stream in accordance with existing decrees is, of course, a remedy open to an appropriator claiming that water to the use of which he is entitled is being wrongfully diverted by another, for, no doubt, even in a district where the commissioner is employed throughout the irrigation season, the superintendent may be requested to direct a distribution by the commissioner, or the latter, we suppose, might have general instructions under which he could respond to a proper demand made upon him by an appropriator at any time. But we see nothing in the statutes, or in the scope or purpose thereof, making such remedy an exclusive one, taking away the right of action for damages caused by a wrongful diversion. It is a preventive remedy *210merely; and yet the statute, as shown in the former opinion, seems to recognize the jurisdiction of the courts to prevent a wrongful diversion by injunction. It does not seem to us to have been intended as a substitute for an action for damages; and certainly it does not afford financial redress to one who has been injured by a wrongful diversion. And, as such right of action is not expressly taken away by the statute, we have perceived no good reason for holding that it has been impliedly abrogated.

In a case recently -coming to our notice decided by the Supreme Court of Colorado, the effec-t of the statutory proceedings for establishing priorities to the use of water and the distribution thereof upon other remedies for injury occurring through a wrongful diversion is considered with reference to the particular facts in that case. It was not an action for damages but to enjoin certain ditch owners and water users from diverting the water from certain streams otherwise than in accordance with the decrees therefor. The water officials not having consented to 'become plaintiffs were made defendants. It appears to have been contended that no cause of action was stated for the reason that the plaintiffs had a plain, speedy and adequate remedy at law. Referring to that contention the court said;

“It is true an elaborate statutory method of establishing priorities to the use, and for the distribution of water thereunder, exists in this state, and that any water commissioner who fails to perform any of the duties imposed upon him by the statutes, and likewise any persons violating the water commissioner’s orders, relative to the opening or shutting down of headgates, or the using of water for irrigation purposes, are severally guilty of criminal offenses. (Chapter 72, Rev. Stat. 1908.) However, these statutes do not afford a-complete and adequate remedy for the injury and loss occasioned by taking water from the streams by a junior appropriator, when it is needed and demanded by a senior appropriated of the same stream within the same irrigation division. While the acts of a water officer in permitting the *211water to be so taken by a junior appropriator, and the taking thereof by the latter against the order of the former, are crimes, for the commission of which the people may prosecute the respective violators of the law, the result, nevertheless, constitutes a special injury to the senior appropriator. Acts of such character may be enjoined by a court of equity. (People ex rel. v. Tool, 35 Colo. 225, 86 Pac. 224, 229, 231, 6 L. R. A. (N. S.) 822, 117 Am. St. Rep. 198.) An injury to private property is in its nature special and peculiar, and constitutes a private wrong, though the act causing the injury may also be a disturbance or obstruction to the public right. The.right of all the people to have,the law's of society observed in no sense limits or curtails the right of the individual to maintain a suit in equity to restrain the threatened injury, the commission of which would certainly result in a private wrong to him by injuring or depriving him of his property rights.” (Rogers v. Nevada Canal Co. et al., 151 Pac. 923.)

A statute of Michigan provided that if any person or persons shall put any logs, timber or lumber into a lake, river or stream for the purpose of floating the same to the place of manufacture or market, without making adequate provisions for breaking jams of such logs, timber or lumber in the lake, river or stream, or for clearing the same from the banks thereof, or for running or driving the same, and shall thereby hinder the removal of logs, timber or lumber from the banks thereof, or obstruct the floating or navigation of the lake, river or stream, it shall be lawful for any other person engaged in floating or running logs, timber or lumber in such lake, river or stream so obstructed, to cause such jams to be broken, and such logs, timber or lumber to be run, driven or cleared from the banks of the lake, river or stream, at the cost and expense of the person or persons owning the logs, timber or lumber causing the obstruction; and that such owner shall be liable to such other person for such cost and expense, and that such other person shall have a lien on the logs, timber or lumber for - the reasonable *212charges and expense in breaking the jams or clearing the obstruction, and entitled to take and retain possession of the same or so much thereof as may be necessary to satisfy the amount of such charges and expense therein. The person claiming such lien was authorized by the statute to bring an action of assumpsit against the owner of the property to determine and satisfy the amount of the lien; and a proceeding was provided to ascertain and determine the amount of the lien if the owner of the property could not be ascertained or was without the jurisdiction of the court. That statute was held not to have the effect of abrogating the right of action at common law to recover the damages’occasioned by obstructing a river or stream to the injury of another who was prevented by such obstruction from floating his logs, timber or lumber, where the defendant had not used any means to remove the obstruction. (Bellant v. Brown, 78 Mich. 294.) We doubt if a different rule would have been made or would have been proper if the statute had provided for removing the obstruction by a public officer at the expense of the person causing the obstruction or at public expense, for even in that event the person prevented from floating his logs, timber or lumber might be damaged without means, of redress except an action at common law. In the case cited the court said that the fact that a statute had been passed giving a right of action different in form from that at the common law did not abrogate the right to proceed at common law, without some special provision of statute to that effect.

It is suggested in the brief in support of the petition for rehearing that the intention that an administrative remedy shall supersede a judicial remedy will be much more readily inferred than the intention to replace one judicial remedy with another where it is possible to reconcile the old with the new. We think the correctness of that proposition, at least for universal application, may be doubted. But if it should be accepted as a correct statement of the law we think there is no reasonable ground for the inference under *213the statute considered in this case. We believe that we fully understood the contention of counsel at the former hearing. The question was ably presented and carefully considered. A rehearing will be denied. Rehearing denied.

Beard, J., concurs. Scott, J., did not participate in this decision.