"I concur in the result arrived at by the majority, because I feel that there must be an eventual end to litigation, and that whether the decision of this court, reported in147 P.2d 1016, was correct or otherwise, so far as this court is now concerned the matter is res judicata. Should changed conditions justify a modification of the decree herein, any such modification, I feel, must be after appropriate and proper proceedings in the court of original jurisdiction. Whether decrees in water right cases as between the parties must be regarded as forever conclusive, regardless of change in conditions subsequent to entry of the decree, presents an interesting and important legal question, properly determinable by a court of original jurisdiction. This court's investigation of the original case was confined to the record on appeal, and we now have no authority to reconsider the matter on facts subsequently discovered.
"I feel also, under the circumstances of this case, that should the appellant here consider that the judgment of the trial court, after remittitur, is not in accord with the decision of this court, his recourse is by appropriate original proceeding in this court." 171 P.2d 997, 1005.
Perkins then started an original proceeding in this court for a writ of supervisory control. The alternative writ was denied without opinion by a three to two order, being case No. 8701. He thereupon brought this proceeding. He has not yet had a judicial determination by a majority of this court whether the judgment of the trial court in cause No. 2839 after remittitur, *Page 599 is in accord with the decision of this court. Thus far plaintiff has been deprived of relief not on the merits of his application but because he had chosen the wrong remedy.
The criticism applied to the Illinois procedure by the special concurring opinion of Mr. Justice Rutledge joined in by Mr. Justice Douglas and Mr. Justice Murphy in Marino v. Ragen,332 U.S. 562, 68 S. Ct. 240, 243, 92 L. Ed. 170, might well be applied to the procedure in this state as applied in this case.
In that case Mr. Justice Rutledge in speaking of the offered remedies in that state said, "* * * it offers too many, and makes them so intricate and ineffective that in practical effect they amount to none. The possibility of securing effective determination on the merits is substantially foreclosed by the probability, indeed the all but mathematical certainty, that the case will go off on the procedural ruling that the wrong one of several possible remedies has been followed." And again he said that the confession of error leads to the conclusion that "the Illinois procedural labyrinth is made up entirely of blind alleys."
The majority of the court take the view that the only proper judgment for this court to have ordered entered in cause No. 2839 was one ordering a new trial (sec. 9397, subd. 6) or for a nonsuit as to the cross-complaint therein.
A defendant who files a cross-complaint becomes the plaintiff[1] with reference to the relief demanded in the cross-complaint (17 Am. Jur., p. 63), and failing to submit sufficient proof, a nonsuit as to the cross-complaint is proper but this would not bar another action for the same relief. 17 Am.Jur., p. 98, and see secs. 9317 and 9320. Rev. Codes.
It is of course elementary that a natural depression may be[2] utilized as a reservoir if no one is injured thereby. Larimer County Reservoir Co. v. People, 8 Colo. 614, 9 P. 794.
It is in the public interest that all land in the state[3] susceptible to irrigation should be irrigated. Allen v. Petrick, 69 Mont. 373, 222 P. 451. If plaintiff can prove his allegations he can show that by his system of storing water he can irrigate some *Page 600 of his land with waters which otherwise run to waste and without injury to anyone.
The doctrine of res judicata, if applicable, does not prevent[4] the court from correcting manifest error in its former judgment. Thus in Cluff v. Day, 141 N.Y. 580, 36 N.E. 182, 183, the court said: "There is no iron rule which precludes a court from correcting a manifest error in its former judgment, or which requires it to adhere to an unsound declaration of the law. It may, for cogent reasons, reverse or qualify a prior decision, even in the same case. But the cases in which this will be done are exceptional, and the power should be sparingly exercised."
When the prior decision is by a divided court, as here, (116 Mont. 46, 147 P.2d 1016 and 171 P.2d 997, being both by divided courts) the court will the more readily depart from it, if erroneous. Johnson v. Cadillac Motor Car Co., 2 cir., 261 F. 878, 8 A.L.R. 1023 and note on page 1031.
The court erred in sustaining the demurrer to the complaint. If the allegations of the complaint can be sustained by proof then the restraining order as it now stands works a gross injustice on plaintiff and helps no one.
The judgment is reversed and the cause is remanded with directions to set aside the order sustaining the demurrer and to enter an order overruling it and allowing defendants a reasonable time to further plead to the complaint.
Associate Justices Choate, Gibson, and Metcalf concur.