OCR Text |
Show SOME GENERAL PROCEDURAL MATTERS IN WATER RIGHTS LITIGATION 511 some other kind, largely depends upon the laws of the State in which the situation arises.379 With respect to conclusiveness of a statutory adjudication decree on appeal, the Washington Supreme Court held that while its prerogative is to disturb the decree if necessary on questions of law, it would be slow to do so on questions of fact found by the highly skilled administrative officer acting as referee.380 On the other hand, where a trial court familiar with such controversies sees and weighs the evidence and determines from law and evidence that there should be modifications of the referee's report, "we are loath to disturb the findings of the trial court upon such very complicated matters."381 With respect to the binding effect and conclusiveness of a former appellate decision by the South Dakota Supreme Court, that court said in a later case in 1941 involving a private action for the adjudication of water rights:382 The salutary doctrine of estoppel by judgment has so estab- lished the adjudications of the courts in the confidence of mankind as to result in their universal recognition and acceptance as the highest order of indisputable evidence of rights. Such a judgment as is here under consideration which has stood as an unquestioned record of the priority and extent of a valuable property right in the use of water, and upon which successive grantees have depended as a record of title, should not be nullified except for the most cogent and impelling reasons. Quantity of Water Specific statement of the quantity of water to which an appropriative right attaches is generally recognized as a necessary element of an enforceable decree of adjudication. Despite some deviations, the principle is well established. As said by the Idaho Supreme Court, a decree that fails to state, definitely and certainly, the quantity of water appropriated and necessarily used by the appropriator, is uncertain and ineffectual.383 A claimant for a decree of a water right should present to the trial court sufficient evidence to enable it to make definite and certain findings as to the amount of water actually diverted and applied, as well as the amount necessary for the beneficial use for which the water is claimed.384 379 For the various procedures in the different Western States, see "Special Statutory Adjudication Procedures-Statutory Adjudication Procedures in Selected States," supra. (Compare, for example, the procedures in Wyoming at notes 270-274, and Colorado at notes 205-208 and at note 231.) Also see the State summaries for each of the 19 Western States in the appendix. 380In re Crab Creek & Moses Lake, 134 Wash. 7,17-18, 235 Pac. 37 (1925). 381 In reAhtanum Creek, 139 Wash. 84, 91, 245 Pac. 758 (1926). 382Cundy v. Weber, 68 S. Dak. 214, 221, 300 N.W. 17 (1941). 3S3Lee v.Hanford, 21 Idaho 327, 332,121 Pac. 558 (1912). ^Graham v. Leek, 65 Idaho 279, 299, 144 Pac. (2d) 475 (1943); Head v. Merrick, 69 Idaho 106,109, 203 Pac. (2d) 608 (1949). (Footnote continued.) |