I concur in that part of the order reversing the judgment, and dissent from that affirming it. •
*619Let it be conceded that the court, when its action was properly invoked, had power as claimed to make such supplemental and additional orders in the premises as were necessary and proper to give effect to and execute the original decree, the judgment of 1901; yet I am of the opinion such action was not properly invoked, especially not to hear or adjudge what was attempted to be adjudged as shown by the findings and the supplemental decree. Though it should be further conceded that the party invoking the action, and the parties proceeding without objection, and with consent, as though pleadings of some kind had been filed, and issues presented, may not complain, still, how stands the matter as to those who timely and properly did object?
A judgment in a case of numerous parties was entered in 1901, whereby the ownership in severalty of the parties in and to the use of the waters of Jordan Niver and Utah Lake, and the quantity thereof to which each was entitled, were defined and decreed, and, among other things, their rights and obligations fixed with respect to the construction and maintenance of measuring and diverting appliances, dams, headgates, flumes, canals, etc., and the payment of costs and expenses connected therewith. Nine years thereafter one of the parties, one of the appellants here, the Utah & Salt Lake Canal Company, filed in that cause a written notice, the first notice set forth in the opinion of the Chief Justice, and upon that, and nothing else, invoked the action of the court, and obtained an order requiring all the parties to appear. Now, I care little what the thing filed is called, whether a complaint, petition, statement, affidavit, notice, or some other name, or the remedy pursued, whether by supplemental and additional proceedings in the original case, or by a new bill, or by some original proceeding. Still the thing filed, whatever name may be given it, or whatever remedy may have been pursued, must have substance to properly invoke action and power of the court to hear, try, and adjudicate. Though formal pleadings were not necessary, yet something of substance was essential to properly invoke such action, and to invest the court with jurisdiction to proceed. *620How was that action and jurisdiction invoked ? By the filing of the written notice. Wbat matter of substance does it contain? The only similitude of anything of substance— the only allegation or statement — is that the party filing it was “advised” by the commissioner “that certain improvements are necessary in the Jordan River, in order that the waters thereof to which the respective parties to this action are entitled may be properly and economically distributed.” Upon that an order was asked and obtained that all the parties be ruled in, “the character of the improvements determined,” and the “proportionate part of the expense fixed.” What, therefore, by that notice, and upon which such order was asked and made, was presented for judicial consideration and determination ? That the party filing the notice was advised that certain improvements in the river were necessary. It is not stated or alleged that they were necessary or ought to be made, nor are they in any particular identified, described, or characterized. Nothing could be more indefinite, more general, or nameless. True, the' party filing the notice repeatedly, during the trial, asserted and proclaimed, as did some of the other parties, a waiver of pleadings, issues, everything, and urged the court on .to hear anything and everything offered, and, like the mariner without rudder or compass, went splashing on without let or hindrance. Though the court, for want of jdeadings or issues, or something defining and restricting judicial inquiry, at different times during the proceedings questioned its power to proceed, nevertheless it was urged on by all of the parties except two of the appellants. The inquiry took a wide range, involving about everything relating to the irrigating system, and to the use, diversion, and distribution of the waters of the river, except the appropriations and the rights of the respective parties in and to a beneficial use of the waters and the quantity thereof to which each was entitled. Those matters were left undisturbed as fixed by the decree of 1901. Nowhere were the investigations limited or prescribed until they were stated by the court in the findings. The findings and conclusions are lengthy, covering twenty: *621one printed pages; the decree ten. By them the court decreed and adjudged the ownership of a large and expensive pumping plant at or near the source of the river, and the respective rights of the parties therein and thereto, when and under what circumstances it could be operated, the manner of its control and operation, the ownership' of lands, easements, appurtenances, and rights of way, the diversion, distribution, and control of the waters of the respective parties, the kind and number of impounding, and diversion dams, measuring weirs, diverting and controlling devices along the river, the payment and apportionment of costs and expenses for the construction, operation, and maintenance of them, and the payment of damages occasioned by overflows and inundations.
Two of the appellants, however, the East Jordan Irrigation Company and the Telluride Power Company, at the very threshold, made timely objections, on the ground that there were no pleadings or issues with respect to which evidence could be received, and that the court, for that reason among others, was without jurisdiction to proceed to trial. These objections were overruled. And during the trial counsel for these parties, upon these grounds, at different times, objected to testimony offered, and, when the report of the commissioners was about to be received in evidence, the eourt inquired of counsel.
“Is there any of the parties that object to the court entering upon the consideration of having these improvements made ?”
Counsel for the East Jordan Irrigation Company answered that they did object upon the grounds theretofore stated, and upon the further ground that to order the improvements, and to apportion the costs therefor, would be in violation of the decree of 1901. But the court overruled the objections, and proceeded. On the record I do not see anything to justify the conclusion that these parties waived anything. Clearly, as to them, the judgment is bad.
But how about the claimed waiver of the other appellant, the party invoking the action of the court ? If a proceeding, *622for want of some sort of a pleading, issue, statement, something of substance — I do not care what it is called — to invoke action of the court, and to authorize it to hear and try some nameless and indescribable thing presenting no matter of controversy and no point of fact or law whatever for determination, is waivable, then has this appellant waived it, and ought it to be held to the waiver, if the law permits it. But I do not see on what principle such a holding can be made, for the waiver goes directly to substance and to jurisdiction. It is fundamental that what is not juridically presented cannot be judicially decided; that pleadings of some, sort, a complaint, petition, affidavit, statement, notice, something of substance, presenting some sort of issue either of fact or law for adjudication, are the juridical means of investing a court with jurisdiction of the subject-matter to adjudicate it. How often have we heard it said that pleadings, allegations, or statements of some sort are essential to jurisdiction; that what ought to be of record must be proved by record, and by the right record; that, if there is no issue, there is no authority to try; that a court cannot act without its record, and, if it does, its acts are coram non judice; that a judgment without allegations is void, and subject both to direct and collateral attack, for, when the foundation fails, all goes to the ground; and that a judgment rendered where no cause has been stated is as much a judgment coram non judice as one rendered on a case perfectly stated before a court not clothed with jurisdiction to hear and determine it. In harmony with this is the Code that objections to the jurisdiction of the court, and that no cause of action is stated, are not waived by failure to make them on demurrer or by answer, and are the repeated holdings of courts under it, that these objections are always available both on direct and collateral attack. There are many things pertaining to the formal or adjective law which parties may waive. They may as to matters personal to themselves override the law, and ■stipulate one for themselves. They may acquiesce in error, and by acquiescence avoid its effect. But matters of substance cannot be waived. These need neither objection, ex*623ception, nor assignments of error. With respect to them,, courts sua sponte open the record and take notice of defects of substance without regard to the wishes of either party named on the record. Again, how often do we read that the judgment record must stand the test of a general demurrer which, at all its stages, and by whatever name called, whether motion, demurrer, motion in arrest of judgment, or non obstante veredicto, or of repleader, review in appellate procedure, or requirements to resist objections on collateral attack, or requirements for res adjudicata, attaches to substance or the state’s substantive law, which cannot be waived. The' public, the sovereignty, the state, requires and demands ® coram judice proceeding. No other suffices; no other will be recognized. The state gives much freedom to suitors to stipulate a law for themselves as to matters personal to themselves; but it has not given them the right to waive or contract away what concerns the state itself, coram judice proceedings. As to that the state cannot be foreclosed by the compact or conduct of the parties named upon the record'» Hence the Code that, by failure to demur, and by answering a party, waives many things of formal or adjective law, but not jurisdiction of the court, nor sufficiency of the pleading or thing filed to invoke the action of the court, and to invest it with jurisdiction to hear, try, and adjudge. Courts under the Code cannot, any more than they could at common law,, or in equity, sit as a godfather over suitors, granting to or withholding from them whatever may seem to the court just and proper. They cannot choose their cases. They can only' decide those and the matters therein involved which the parties have presented by their statements of the cause of action and ground of defense. I use the term “cause of action’'-’ in the broadest sense; any right which a party has to institute and carry through a proceeding, whether original or supplemental, resulting in a judgment, that foundation which every judgment must have to support it. If a judgment even was void for want of a statement or allegation, a foundation, to support it, void because no jurisdiction was conferred upon the court to hear, try, and render a judgment, then is this> *624judgment a nullity. That is self-evident' when the notice, the thing filed to invoke the action of the court, and to invest it with power to hear and try something, is compared with the findings and the judgment, the matters presented with the matters adjudicated. The notice presenting not even the slightest similitude of an issue either of fact or law, the comparison is one of nothing with that of something requiring thirty printed pages to state it. And on that foundation — nothing—rests the judgment complained of.
True, the respondents contend that it also rests on the original pleadings of the cause. No doubt many orders and some judgments, made or rendered as the result of proceedings supplemental or additional to an original decree or judgment in the same cause, may be supported by the original pleadings in that cause. Whether they have such support is dependent upon the contents of the original pleadings, and the matters adjudged both by the original judgment and by the supplemental or additional' order or judgment. But from mere inspection it here is manifest that the supplemental judgment has no support from such a source. The adjudication here made by the supplemental judgment constitutes a complete and independent judgment or decree based on full, complete, and independent findings. In such respect the findings, conclusions, and the judgment are as full and complete as required in any original or independent .action. A comparison of them with the original judgment record shows modifications and annulments of material poi> tions of the original judgment, and adjudications not within the issues of the original pleadings. Surely the filing and presentation of the notice did not invest the court with any such power, nor apprise the parties of any such contemplated action. The-case as presented by the original pleadings was not partly but wholly tried, and was fully and finally adjudicated on all the issues presented by the original pleadings nine years ago. They support that judgment, not this. The issues presented by them were then properly tried, not now. In this connection do the respondents also say that these proceedings were but in aid of the original decree, and to *625gire effect to it, and were bad in pursuance of a power or continuing jurisdiction retained by tbe court under tbe original decree. Let it be assumed that that was tbe intention of these proceedings, and that tbe parties, or some of tbem, bad some right or obligation which, to assert and present, did not require a fresh or independent action, but could be presented, and judicial action invoked upon it, under tbe claimed continuing jurisdiction of tbe court; yet bow did tbe court, nine years after tbe original decree, get jurisdiction to bear and adjudicate tbe particular matters and things here beard and adjudicated? Though tbe court retained and possessed a continuing jurisdiction, its powers, nevertheless, were not wound up and set like an alarm clock to automatically go off every irrigating season or every nine years. Notwithstanding such continuing jurisdiction, a presentation of allegations, or a statement of some kind as to tbe nature of some right, or obligation, or matter for judicial inquiry, was, nevertheless, essential to properly invoke tbe court’s action, and to invest it with power to further bear, try, and adjudicate. That is, to invoke such action, tbe parties, nevertheless, were required to present something to tbe court to bear, try, and adjudicate, and concerning which tbe proceedings and trial resulted in tbe judgment here rendered and ■complained of. That something was tbe notice which is nothing.
It is further contended that tbe report of tbe commissioners, which was received in evidence, and incorporated in tbe bill of exceptions, may be regarded as something presenting issues or matters for judicial inquiry and determination. I think not. Tbe notice on which these proceedings were instituted was filed in November, 1910. The hearing began in January, 1911. After it had been carried on, off and on for several months, much testimony given, the commissioners and other witnesses examined and cross-examined, and much other evidence adduced, respecting the subjects upon which findings later were made, and after the case had thus been partly tried, and upon divers contentions being *626made by counsel in argument concerning tbe improvements and the apportionment of the costs therefor,- the court observed :
“I will hear from all the parties with reference to that apportionment after we have determined what is to be constructed. Gentlemen, I will do this: I will ask Mr. Smith (the commissioner), and I will have some one associated with him, to make some estimates and computations to submit to the court at some future day, and I will fix the time, and notify all of the parties interested, so that they can be here and consider that report.”
Thereupon the court appointed the commissioner and two-others, all of them civil engineers, to make a report, and the further hearing subject to future notice continued indefinitely. Later, in June, 1911, a report was made which, on a further hearing, was, over the objections of two of the appellants, put in evidence, and further evidence adduced. The hearing was then again continued, and finally, in April, 1912, Salt Lake City served the notice referred to by the Chief Justice for a resumption of a further “hearing of all undisposed of matters in the above-entitled action,” and respecting improvements recommended by the commissioners. A further hearing was had, the commissioners further examined, and further evidence adduced.
I cannot regard that as anything presenting issues. The report was not anything alleged, asserted, or .presented by either party. I have already observed that courts cannot choose their cases, nor present the statement of the cause of action or ground of defense, the matter for judicial inquiry. Neither can they delegate that to a commissioner or other officer of the court. The parties, and they alone, must present the issue, the right, the obligation, the matter, whatever it may be, for judicial inquiry and determination. The report was made and received in evidence to aid the court in arriving at findings and conclusions. As such, I think, portions of it were properly received; much of it, however, was not even proper for that purpose. But I cannot regard it as performing any function other than evidentiary. It has no *627semblance of anything presenting allegations or issues of any kind, or of any jurisdictional element or juridical means investing tbe court with power to act, hear, try, and adjudicate. It is fundamental, and as true now as when first declared many years ago, that jurisdictional facts must arise from pleadings, a document of some sort containing allegations or statements of some substantive right or obligation invoking judicial action. It matters little how simple it is, or what it is called; but it must have sufficient substance to support not only a judgment but the judgment rendered. These jurisdictional facts must appear on the face of the judgment record. They cannot be gathered from the evidence, commissioners’ reports, or other evidentiary documents. Even judicial recitals of them in the judgment will not suffice. They must appear elsewhere and in the right document and right record.
When it is said a good judgment must bear the search and stand the test of a general demurrer by whatever name called, what does that mean ? Sufficiency of evidence to support the judgment? Sufficiency of some report made during the trial and put in evidence, or of plans and specifications or other documents put in evidence, or of motions served and filed during the progress of the trial, things which are not even part of the judgment roll, and of which we only have judicial knowledge, because the proceedings concerning them are shown by a bill of exceptions ? It means search of the judgment record, not of the bill of exceptions; the search and test of the sufficiency of that which was filed constituting the cause of action or ground of defense, that which invoked action, and invested the court with power to hear, try, and determine — that something which is the foundation- of every judgment, and upon which it must rest, and is dependent. If the foundation here depends upon the commissioners’ report, or the notice served for further hearing after the report was made, things not even part of the judgment record, and which can only be made to appear and do appear by a bill of exceptions, then, were there no bill, would there be no foundation. And if that fails, all must fall. Hence the *628basic rule so often beard, and so universally applied, that allegations or jurisdictional facts to support tbe judgment must be in the right document and the right record, and that what ought to be of record must be proved by record, and by the right record, here the judgment record. Following this rule conserves immutable principles of jurisprudence; departing from it results in wrecks of them, and leads to absurdities. If the matters and things referred to and appearing in the bill of exceptions, and which can only be shown and made to appear by a bill, may be looked to as the jurisdictional elements or allegations to support the judgment,, then may the sufficiency of a complaint be tested and its insufficiency cured by proceedings had under or in pursuance of it as shown by a bill of exceptions, and which could not be made.to appear and be shown other than by a bill.
Still, let us look at this report. It is somewhat elaborate, consisting of fifteen printed pages. Much of it is historical, argumentative, and' narrative, made up of generalized statements, and, as stated in the report, relating “to the effective measurement, diversion, and apportionment of the waters of Jordan River among the users thereof,” but respecting which nothing is described, or specified, or characterized. “A principal dam in the river at the head of the system” is recommended. The only description of it is this: “The dimensions of this dam should be such as will meet the requirements of the contract hereinbefore referred to,” a contract which the commissioners advised the court was entered into-thirty years ago, “and since confirmed by decree of the Supreme Court of this state.” Seven other dams are recommended at designated places along the river. The only description of them is “this dam” or “this structure should be designed so that, except in cases of floods, it will automatically divert the quantity of water to which these canals are jointly entitled, and permit the remainder to pass down the river.” Referring to the measuring devices, the commissioners recommend that in each individual canal or ditch there be placed “a substantial structure in the canal or ditch as near the head thereof as is practicable for the purpose of *629supporting gates that can be easily operated to regulate or entirely shut out the flow of water as may be desired, and be-supplied with an effective device for securely locking the gates in any required position,” and that all the structures and devices to be employed “should be durable, of reasonable-cost, and most effective, and economical in operation.” Any one ought readily perceive just what is meant by these-graphic and perspicacious descriptions! The court is also-advised of the quantity of water to which each party is entitled, the waters available for use, the kind and condition of the measuring and diverting devices then in use by the parties, the purposes and objects of the pumping plant, certain-rights of the parties as fixed by “a perpetual contract” entered into thirty years ago, and of many other similar matters. Of course, the only way the court could ascertain and determine these was by having them chained and triangled' by civil engineers. Arguments are made, reasons given, and opinions expressed by the commissioners why, in their judgment, the irrigating system should be regarded as “a single- and complete system,” as “one unit,” and so, for fear the-court may not view the matter in that light, and may think the conclusion at variance with the original decree, it is reminded of the impelling reasons which induced the appointment of a commissioner under that decree, and is assured that “our confidence in this view is strengthened by the action of the court in appointing a special commissioner to control and apportion the common water supply for the common benefit of the entire group.”
Say they further in their report:
“Considered as a single system, its ultimate needs, as it appears to us, may be summarized as follows: (1) An ample and dependable common water supply. (2) Means for accurately measuring the common water supply. (3) Means for equalizing and regulating the common flow. (4)-Means for effective apportionment and diversion. (5)-Means for measuring each individual ditch supply. (6) Means for regulating each individual ditch flow. (7) Means-■for preventing damages from floods.”
*630Then, further:
“To accomplish these results the equipment should be carefully planned so that the various individual ditch devices will not only effectually perform their special functions, but at the same time constitute essential units of the whole, which •should be as nearly as possible automatic in its operations throughout.”
And that this thus far lucid exposition may be further ■clarified, the court is further advised, in language equally precise and definite, as to the structures and devices to be installed that:
“As to the particular materials or peculiar form of structures to be employed in the several proposed units, we do not understand that any report is required of us relative to these and other minor details, and therefore deem it sufficient to add in this connection that, in our opinion, all of the proposed structures should, in the interests of both equity and ultimate economy, be made of good and durable material, assembled in such manner and form as to afEord structures that will be both serviceable and symmetrical. We have, however, incidentally examined the detailed plans submitted by Commissioner Smith for the principal dam at the head of the system, and regard it as well suited to the place and purpose.”
That is, the structures and devices should be such as are “in the interests of both equity and ultimate economy,” and as “will be both serviceable and symmetrical.” Though it may be difficult for some to comprehend the exact character of such a vividly described structure, and though it may seem that what heretofore was left uncertain and ambiguous by the prior descriptions is rendered unintelligible by this, yet it must be remembered it is an engineer’s description based on both mechanical philosophy and equitable principles considered from the standpoint of “ultimate economy.”
The court is still further advised by the report, and put in possession of the technical knowledge acquired and possessed only by civil engineers through scientific research and investigations peculiar to their profession, that frequent *631storms occur on the lake, and of the effect of wind upon its waters; that Jordan Kiver is a natural stream forty miles long, originating in Utah Lake, and terminating in Great Salt Lake. As the report here ends on that subject, I assume the river was not further tracea.ble. And, finally, in order that the court may be relieved from any further responsibility in the premises with respect to the apportionment of costs for the improvements and structures to be placed in the river, they say:
“In conclusion we desire to say that the more we have considered the matter the more we have become convinced that all matters of expense pertaining to the supply, measurement, regulation, apportionment, etc., of the water for this entire group of canals and ditches should hereafter be apportioned according to the same schedule as that for the apportionment of the common water supply.”
That is, as elsewhere stated in the report, the total cost of all the improvements “should be apportioned among the several canals and ditches of the system in the same proportion that the total common water supply is how apportioned among them, and which, in parts of the whole, is as follows,” stating them — a conclusion in the very teeth of the original decree, but which, nevertheless, was followed by the' court and the apportionment of costs so decreed. Nothing with respect to “estimates or computations” is contained in the report, the very things which to aid the court were required to be reported. Instead of advising the court as to the kind and character of structures and improvements that would be suitable and practical, and the probable or estimated costs thereof, the engineers merely reported that the structures and devices “should be durable, of reasonable cost, most effective, economical in operation, serviceable, and symmetrical, made of good and durable material, and should be in the interests of both equity and ultimate economy,” language which, so far as aiding the court, is utterly useless and so general and indefinite as to mean nothing, and then advised the court that the system of irrigation and the waters thereof, which by the original decree had been adjudged in severalty, *632should, how be considered as “one unit,” a “single system,” the rights of the parties treated as a common and joint interest, and the costs apportioned in proportion to the interest of each. In other words, 'the court asked the engineers to report to him “estimates and computations” of proper and suitable structures, and they, instead of making such a report, by brief and argument, advised the court what decree should be made and how the costs of the improvements should be apportioned. This certainly is a most remarkable and presumptuous report. But such a report, such a document, or such proceedings, however liberally or broadly considered, has no semblance whatever of anything presenting issues or of constituting a jurisdictional record to support a judgment. True, after it was received in evidence, the commissioners, or some of them, were called and further examined, and gave considerable testimony with respect to what improvements, in their opinion, were needed, including the character and number of dams, weirs, measuring and diverting devices, and other structures, and the estimated cost of each. And so, as shown by the bill of exceptions, were there also put in evidence plans and specifications made by Commissioner Smith with respect to the dam at the head of the system, and testimony given by him with respect thereto. Of course we have much evidence before us, something like 1000 pages-— evidence to support most anything pertaining to the irrigating system. Yet all that is answered by the familiar maxim that pro bata will not supply allegata, and that it is vain to prove what is not alleged.
I think the judgment should be annulled and vacate!