(concurring and dissenting).
I agree with the majority opinion that the defendants’ counterclaims set forth claims upon which relief can be granted. I am also in agreement with the majority opinion in holding that the trial court erred in striking from plaintiffs’ reply their third and fourth defenses to the counterclaims. I am further of the opinion that the claims alleged in defendants’ counterclaims are subject to determination and adjudication in this action, with limitations.
Unless the limitations hereafter mentioned will be applied in the trial of this case by the district court, I would feel disposed to hold that the counterclaims of defendants may not be determined and adjudicated in this action. The purpose of *28our new rules is td secure speedy disposition of litigation. If the counterclaims set up by defendants are to be loaded onto the proceeding for declaratory judgment and dragged through every stage of the hearing, then they cannot fail to delay and hinder the expeditious determination of the main matter presented in this law suit.
Rule 57, U.R.C.P. provides: “ * * * The court may order a speedy hearing of an action for a declaratory judgment and may advance it on the calendar.” In my opinion this rule contemplates plenary power to get an action seeking a declaratory judgment at issue and tried.
If, as defendants contend, the plaintiffs have elevated gauges, and have, with the connivance of the agents charged with the duty of maintaining the dams at proper elevation, impaired defendants’ rights, then defendants will accomplish the end desired by pleading as they have that the elevation marking compromise point is inches below the elevation contended for by plaintiff, to wit: 4,515.799 feet above sea level. If defendants are privileged to set out the allegations on which they rely, to wit: that if plaintiffs are permitted to maintain the planks to hold back the water to the elevation of 4,515.799 feet, then defendants will suffer irreparable damage, and if the defendants are further privileged to pray that the court fix the elevation of compromise point and award such damages as defendants may be able to show they have sustained; and if the court makes and enters such order or orders as will retain jurisdiction and authorize defendants to amend their pleadings herein after the determination of the main issue, to wit: elevation of compromise point, then defendants’ rights will be adequately protected and the case will be disposed of expeditiously. On the other hand, if the trial court is obliged to drag along at all stages of the hearing the question of damages claimed by defendants, and if as suggested in the majority opinion the landowners on Utah Lake, not within the class of the named defendants, are privileged to intervene and plead such claims as they may have, then this case will not likely be disposed of for years.
The purpose of our modern rules is to secure the expeditious disposition of cases pending before a court; not to permit ancillary matters to be presented and disposed of while the main action is delayed.
The defendant Provo City seeks to recover $200,000 damages by its counterclaim, and the other defendants, for themselves and others similarly situated, claim $750,000 damages. The defendants other than Provo City admit that until various elements of the rights and liabilities of the parties are determined, it is impracticable to plead or prove specific individual claims, and these defendants urge that the court should retain jurisdiction to adjudicate such claims in this action after such rights and liabilities are determined.
It is my opinion that the rights of every defendant, if any exist, as well as the extent *29of those rights, can be determined only after compromise elevation has been established and the position of the land of each defendant with respect to compromise elevation has been ascertained.
The ultimate fact and the primary fact from which the rights of defendants will flow, and the extent of their recovery, will depend upon the answer to the following question: have defendants’ lands been flooded by the plaintiffs in violation of rights granted to plaintiffs under the compromise agreement?
Whether defendants are entitled to in-junctive relief cannot be determined until the elevation of compromise point has been ascertained, and then they will be entitled to injunctive relief only if said point is below the elevation at which plaintiffs have flooded defendants’ land. All the questions as to damages, injunctive relief, the persons entitled to be compensated, are dependent upon the height of compromise point. Until that question is determined, it will be impossible to adjudicate the other questions. It is my opinion, as contended for by plaintiffs, that the rights of all the parties to that agreement are fixed, limited, dependent and contingent upon the determination of that question, and therefore the determination of the counterclaims is premature until after that determination is made.
The trial court has one main problem to settle, to wit: the elevation of compromise point. After that has been settled the court can, with proper evidence, determine the extent to which the lands of defendants have been submerged, if any, as the basis for damages claimed by defendants in this case. It would be folly to speculate upon damages which the respective defendants claim, to offer proof as to the value of the land and as to the loss of profits until it was fully determined what land, if any, had been inundated in violation of compromise agreement.
If on the other hand the court can proceed to determine the single question as to the elevation of compromise point, permitting plaintiffs to offer their proof, defendants to offer their proof, and determine the exact elevation of compromise level, then the damages, the trespass, the impairment of defendants’ rights by plaintiffs’ unlawful flooding, if any, can all follow in logical sequence. The trial court should be instructed to proceed and determine that question first, and, in order that defendants’ rights may not be lost, should retain jurisdiction of defendants’ alleged counterclaims.
I am unable to agree with the holding of the majority opinion that an adjudication of the height of compromise elevation is not a necessary element of defendants’ counterclaims. Without going into the niceties of words or the rarification of ideas, it must be conceded that the rights claimed by defendants in their counterclaims cannot be established without determining the height of compromise elevation. If, as contended by plaintiffs, none of defendants’ lands above compromise elevation have been submerged and flooded, defendants will be unable to show damage.
*30Said agreement recited that the parties of the first part (Utah Lake landowners) "have granted, bargained, sold, conveyed and confirmed unto the said parties of the second part and to their and each of their successors and assigns forever the right to maintain the dam in the Jordan River known as the ‘Jordan Dam’. * * * Also the right free from interference or liability for damage to flow the lands of the said parties of the first part or either of them to the extent which ,the dam as above described may cause the same to be flowed by the waters of the said Jordan River, Utah Lake or otherwise. Also the right in addition to the foregoing, free from liability for damage, to flow the lands of the said parties of the first part, or either of them, to the extent which may be caused by placing obstructions in the waterway in said dam hereinbefore mentioned according to the limitations hereinafter specified for the -purpose of holding back or retaining the waters in Utah Lake at an elevation or height not to exceed three feet and three and one half inches above the points heretofore established and recognized as low watermark in said Lake when the waters in said lake would otherwise naturally fall below such height or elevation that the water so held back might be saved for use by the said parties of the second part when needed.” (Emphasis ours.)
The rights of plaintiffs and the obligations of defendants are fixed by compromise agreement.
Until the elevation of compromise point is determined, it will not be known what, if any, land of which defendants has been flooded, in violation of the agreement. Until that fact is determined, no judgment can be awarded such defendants, and then only to the extent warranted after the area flooded, the period of time flooded, the value of the crops lost by the flooding, have been established.
I believe that the following statement made in the majority opinion, if not confused with other statements, furnishes the proper formula for the trial court in the further hearing of this case:
“Since the amount of damages, the extent of the other rights and of the injunctive relief are dependent on the height of compromise point, until that question is determined the other questions cannot be adjudicated.”
I am in agreement with the language of the court in Bach v. Quigan, D.C., 5 F.R.D. 34, quoted in the majority opinion as follows :
“ ‘This Court is in complete accord with the,statement of defendant that the new Rules of Civil Procedure have displaced any “archaic, obsolete and confining rules” which may previously have governed federal procedure and that they are designed for the szvift and just disposition of legal disputes. However, it was never contemplated that any set of facts which might eventually constitute a “claim upon which *31relief can be granted” should be interposed as a counterclaim to an action and it would not be an aid to the swift and just disposition of the matter to permit the issues to be confused by an uncertain claim, the substance of which is contingent upon the outcome of the principal action.’ ” (Emphasis ours.)
So here the determination of compromise elevation should be swiftly determined and the trial court directed to retain jurisdiction of defendants’ counterclaims for determination after the elevation of compromise point has been established.