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Show SOME GENERAL PROCEDURAL MATTERS IN WATER RIGHTS LITIGATION 505 "To hold otherwise, or to permit in a summary proceeding the determination of such a substantive property right would constitute the taking of property or property rights without due process of law."3S4 In a Nevada case, counsel for a party in a proceeding to determine relative rights to waters of a stream system insisted that the judgment of dismissal in a contempt proceeding was res judicata of the issues in the adjudication proceeding. This the supreme court rejected, for it was never contemplated that a valuable property right could be adjudicated incidentally to a proceeding in which the adjudication was not the main question involved.355 (2) Mandamus. The extent and priority of a water right, which is real property appurtenant to land irrigated thereby, and the ascertainment and determination of which partake of the nature of an action to quiet title to real estate, cannot be litigated in a mandamus proceeding.356 Reservation of Continuing Jurisdiction "The retention of jurisdiction to meet future problems and changing conditions is recognized as an appropriate method carrying out the policy of the state to utilize all water available."357 It is regarded "as an appropriate exercise of equitable jurisdiction in litigation over water rights, particularly when the adjustment of substantial public interests is involved. * * * In giving declaratory relief a court has the powers of a court of equity."3S8 In several cases,359 the Arizona Supreme Court has approved the continu- ance of jurisdiction in the trial court of suits between private parties for the 3^State ex rel. Reeder v. District Ct, 100 Mont. 376, 382-383, 47 Pac. (2d) 653 (1935). 355/« re Barber Creek & Its Tributaries (Scossa v. Church), 46 Nev. 254, 259-262, 205 Pac. 518, 210 Pac. 563 (1922). A contempt proceeding is a special proceeding, criminal in character. It is not an appropriate action in which to determine that the rights of parties as fixed and established by a decree of adjudication are no longer so fixed and established, or that the adjudication decree is no longer binding upon such parties. 356Nampa & Meridian In. Dist. v. Welsh, 52 Idaho 279, 284, 15 Pac. (2d) 617 (1932). '"Pasadena v.Alhambra, 33 Cal. (2d) 908, 937-938, 207 Pac. (2d) 17 (1949). ™*Los Angeles v. Glendale, 23 Cal. (2d) 68, 81, 142 Pac. (2d) 289 (1943); accord, A lien v. California Water & Tel. Co., 29 Cal. (2d) 466, 488, 176 Pac. (2d) 8 (1946); Smith v. Wheeler, 107 Cal. App. (2d) 451, 456457, 237 Pac. (2d) 325 (1951). See also Williams v. Rankin, 245 Cal. App. (2d) 803, 54 Cal. Rptr. 184, 194 (1966). 3S9Maricopa County M. W. C. Dist. v. Southwest Cotton Co., 39 Ariz. 367, 370, 7 Pac. (2d) 254 (1932); Pima Farms Co. v. Proctor, 30 Ariz. 96, 101, 245 Pac. 369 (1926); Taylor v. TempeIrrigating Canal Co., 21 Ariz. 574, 578-580, 193 Pac. 12 (1920). Later, under "Judgments and Decrees-Physical Solution-California," attention is called to a declaration by the California Supreme Court that a trial court, on ordering a physical solution, should reserve unto itself the right to change and modify its orders and decree as occasion may demand. Peabody v. Vallejo, 2 Cal. (2d) 351, 383-384, 40 Pac. (2d) 486 (1935). Chapter 16 mentions various aspects of the administration of water rights and the distribution of water, such as by watermasters, in carrying out judgments and decrees adjudicating water rights. |