|
<br />to put his, finger- on some affirmative enactment so providing. We have been cited
<br />to no such authority in our statute, ana find none. By neces~ary construction,
<br />thl!< statute which provides' for these decrees forbids the allowance of more than one
<br />filling on one priority in anyone year. ".
<br />
<br />"A double filling in effect would g~ve two priori ties of the same date and of
<br />the same capani ty to the same reservoir', on the same single appropriation, which is"
<br />impossible in fact and in law, and, if allowed, would violate the fundamental doctrine
<br />of the la~ of appropriation _ he' who is first in time is first in right - by making
<br />a junior superio~ to a senior reservoir appropriator. Necessarily the capacity of a
<br />reservoir, which the statute expressly says is the extent of its appropriation, is
<br />what the reservoir will hold at one time, not what can be stored in it by successive
<br />fillings; otherwise the capacity would vary, depending not on what the reservoir will
<br />hold, but on how many times it can be filled in one year."
<br />
<br />"We are of the opinion that all provisions in the decree for more than one
<br />filling of reservoirs in anyone year are wrong and should be omitted in the revision
<br />thereof which must follow the rem~nding of the cause,"
<br />
<br />"4. Counsel have discussed, on the one side with full commendation, on the
<br />other' with disapproval, the system of exchanges between its several reservoirs. which
<br />appellee proposes to adopt. It is not necessary now to explain the ingenious and
<br />somewhat complicated method of change and interchange contemplated. We are left in .
<br />doubt as to whether the decree really purports to sanction such system. The parties
<br />seem to agree that it does. If it is to be so interpreted, it is wrong, if for no
<br />other reason, because such issues- have no place in this proceedfng."'
<br />
<br />"All references' in the decree, if any, purporting to approve or disapprove such
<br />exchanges, are to be eliminated."
<br />
<br />"In the pending litigation that decision is res adjudicata between the parties
<br />to that action who are present here and as to the reservoirs whose conflicting rights'
<br />were then determined; but it is not res adjudicata, even between those parties, with
<br />respect to other reservoirs owned by them, and not in any wise conclusive upon any
<br />other parties to this proceeding. Of course, under a similar state of facts, between
<br />the same or different parties and as to a different subject-matter, that decision
<br />would be followe~ here and its rule applied not because of the principle res adjudicata,
<br />but stare dec:isis..tfl
<br />
<br />"A; the reservoirs' included in the former action, that decision, being res
<br />adjudicata, is controlling here between the parties to that suit, As between other
<br />parties, and the same parties respecting. their other reservoirs, if any, it is not
<br />binding. "
<br />
<br />"8. The court found' that a valid appropriation had been made for l1i tchell
<br />Lakes-, a series. of five small reservoi.lrs-, and gave 8: decree accordingly. As we read
<br />the record, these lakes are used for propagating fish, not for' any purpose wi thin the
<br />purview' of the statute on which this proceeding is founded, except, perhaps, as to
<br />reservoir No.1, water from which the court apparently thought had been usea to irri-
<br />gate about 15 acres of land. The decree shoulcr be modifie~ by omitting any award
<br />for storage purposes to these lakes, except for No, 1, and, as to that, the decree
<br />will not be altered."
<br />
<br />2542
<br />
|