Mountain Lake Mining Co. v. Midway Irr. Co.

FRICK, J.

On October 23, 1915, and after the petition for a rehearing had been overruled and the pase had been published (Mountain Lake Min. Co. v. Irr. Co., 47 Utah 346, 149 Pac. 929), but before the remittitur had gone down, the plaintiff filed a motion to amend in certain particulars the judgment entered in favor of appellants by this court. The motion was based upon the theory that the writer in his concurring opinion had only concurred with Mr. Justice McCARTY to the extent of reversing the judgment of the court below and had not concurred in the affirmative judgment entered by this court in favor of the appellants by which the title to the waters in question was quieted in appellants. In view therefore that Mr. Chief Justice STRAUP had dissented, it is contended that the affirmative judgment is not the judgment .of the majority of this court. The writer desires to confess that his concurring opinion is not as clear as it might be and that, prima facie at least, counsel had some ground upon which to base the motion.

1 Before passing upon the merits of that motion, however, it becomes necessary to pass upon appellants’ motion to strike plaintiff’s motion upon the ground that this court has no jurisdiction to entertain said motion because the ease has passed beyond our jurisdiction. We are of the opinion that appellant’s motion cannot prevail, and that we have ample power or jurisdiction to amend the judgment so as to make it conform to the opinion of 'the majority of the court if, in fact, there is a difference between the opinion and the judgment. Nothing is asked for in the motion except to make the judgment conform to the actual decision, and to do that we have ample power. 23 Cyc. 866. Appellants’ motion must therefore be overruled.

2 Should plaintiff’s motion to amend the judgment prevail? Is it true that the concurring opinion merely concurs .in the reversal of the judgment and does not concur in the affirmative relief or judgment in favor of the appellants? I shall not devote much time nor space to a discussion of the proposition. It seems to me that any disinterested person who will read the concurring opinion with care must arrive at the conclusion that, while the writer concurred in the reversal of the judgment with some hesitation or reluctance, yet he fully concurred with his Associate, Mr. Justice McCARTY, in the affirmative judgment in favor of .the appellants. In view of the circumstances of this case, after having concurred in the reversal of the judgment there was in fact no logical way out except also to concur in the affirmative judgment in favor of appellants. That is so for the simple reason that both parties claimed the water in dispute. The plaintiff claimed it as having developed it, while the appellants claimed it as part of the natural stream. If the water in dispute was not developed water, then it was part of the natural stream. If it was part of the stream, it belonged to appellants by reason of prior appropriation. If it belonged to the appellants, the judgment in their favor followed as a logical and necessary conclnsion. It is not a case where title to-the thing in dispute may belong to neither party. Here it necessarily belonged to one or the other of the litigants. A finding therefore that the water did not belong to the plaintiff was tantamount to a finding that it belonged to the appellants. I entertained that view when I wrote the concurring opinion and have discovered nothing in either the briefs or oral arguments of counsel for plaintiff that has caused me to change or-modify that view. I assumed therefore that a mere concurrence with my Associate was sufficient, and that the mere fact that I stated my reasons for concurring in the reversal of the judgment was not, as counsel contend, tantamount to a refusal to concur in the .affirmative judgment in favor of the appellants. The judgment in their favor is therefore the conclusion of the majority of the court and must prevail.

3 It is, however, also insisted that the judgment is too sweeping, in that it denies the plaintiff the right to use any of the water flowing out of the tunnel at any time, not even for culinary or other domestic purposes, even though all the water is not used by the appellants. Such is not the purpose, nor is it the legal effect, of the judgment. It is a matter which inheres in every judgment granting the right to the use of water that any one may use some of it for drinking or culinary or domestic purposes at any time when the claimant of the water does not use or require all of it for a like or some other useful purpose. Nothing was intended by the judgment except the ordinary and usual results flowing from judgments quieting title to the use of water in this arid region, and the judgment in that regard must be given the ordinary and usual effect.

Since writing the foregoing, Mr. Justice McCARTT has handed me his concurring opinion, and I desire to add that I fully concur with him in both his statements and conclusions.