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Argument for Respondent.

Am. Dec. 135; Mayor of Liberty v. Burns, 114 Mo. 426, 19 S. W. 1107, 21 S. W. 728; Granby Mining Co. v. Davis, 156 Mo. 422, 57 S. W. 126; Arneson v. Spawn, 2 S. D. 269, 39 Am. St. 783, 49 N. W. 1066; Goodman v. Myrick, 5 Or. 65; Jones v. Kimble, 19 Wis. 429; Trinwith v. Smith, 42 Or. 239, 70 Pac. 816.)

The true corner of a government subdivision of land is where the United States survey in fact established it, whether such location is right or wrong, as may be shown by a subsequent survey. (Nesselrode v. Parish, 59 Iowa, 570, 13 N. W. 746; Beardsley v. Crane, 52 Minn. 537, 54 N. W. 740.)

The question is not where the government corner should have been located, but where in fact it was located. And when it is once found, or the place of its location identified, it must control. (Doolittle v. Bailey, 85 Iowa, 398, 52 N. W. 337.)

If the stakes or monuments placed by the government in making a survey to indicate section corners and quarter posts can be found, or the place where they originally were can be identified, they are to control in all cases. If they cannot be found, or if lost or obliterated, they must be restored upon the best evidence obtainable which tends to prove where they were originally. It is for this purpose that resurveys are made, and the lines retraced as nearly as possible. (Hess v. Meyer, 73 Mich. 259, 41 N. W. 422; Washington Rock Co. v. Young, 29 Utah, 108, 110 Am. St. 666, 80 Pac. 382.),

Soule & Soule, for Respondent.

Appellants cite numerous authorities on the question of the binding force of the original government survey under which titles have been acquired, and we heartily indorse those cases, but they are not applicable to the case at bar. In all those cases disputes have arisen upon patented claims, one of which was based upon what was found and determined to be the original lines established by the government. Where this is done, it binds whether right or wrong, but our dispute is between two unpatented claims, neither of them a year old when this suit was filed. (Washington Rock Co. v. Young, 29 Utah,

Opinion of the Court-Sullivan, J.

108, 110 Am. St. 666, 80 Pac. 382; Yolo County v. Nolan, 144 Cal. 445, 77 Pac. 1066.)

SULLIVAN, J.-The unsatisfactory condition of the record in this case as well as the uncertainty of the evidence it discloses convinces us that the ends of justice can be more satisfactorily and effectively met by ordering a new trial than by affirming the judgment in the condition in which the case comes before us. We have consequently concluded that a reversal of the judgment should be ordered and a new trial granted.

In doing so it is only necessary to make the following observations: In the first place, we do not think there was any error in overruling the demurrer.

In the second place, the effort of the parties on a new trial should be directed toward the ascertainment of the true line of the government survey as it was originally made on the ground, and not as to the contention among surveyors as to the correctness of the survey, or anything of that kind. "The purpose of a resurvey subsequent to the taking of title by purchasers and settlers," as stated by this court in Bayhouse v. Urquides, 17 Ida. 290, 105 Pac. 1066, "is to ascertain the lines of the original survey and the original boundaries and monuments as established and laid out by the survey under which the parties originally procured their titles. (Martz v. Williams, 67 Ill. 306.) On such resurvey or re-established boundaries and monuments the question of the correctness of the original surveys cannot enter into the matter at all, and is a matter that does not concern the surveyor, and is not a question to be ascertained by him." The rule there announced is one that should govern the court in ascertaining the correct boundary line between the parties in this case.

In the third place, if it should be ascertained that any of the parties to this action entered upon land which was government land and which did not in fact belong to them, and grow crops or place valuable improvements thereon, the question of the ownership and right of removal of such crops or improvements should be determined by the rule announced by this court in Bingham County Agricultural Assn. v. Rogers,

Points Decided.

7 Ida. 63, 59 Pac. 931, wherein the court said: "We think it is the undoubted rule of law that where a person has in good faith entered upon the public lands of the United States, and made or caused to be made valuable improvements thereon, although his right to make entry of such lands under the land laws of the United States may be defeated, he is not by reason thereof deprived of his property in such improvements, and is entitled to remove them upon reasonable notice, after the question of title has been finally settled." The rule will apply to growing crops, at least up to the extent of their value at the time the interest of a rightful entryman or purchaser attaches.

For the foregoing reasons, the judgment will be reversed, and the cause is hereby remanded for a new trial. Costs awarded in favor of appellant.

Stewart, C. J., and Ailshie, J., concur.

Petition for rehearing denied.

(February 23, 1911.)

S. C. FROST et al., Respondents, v. IDAHO IRRIGATION COMPANY, LIMITED, et al., Appellants.

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1. Under the provisions of Rev. Codes, sec. 4354, the trial court has no power or right to dismiss an action over the objection of a defendant, who has filed an answer and cross-complaint seeking affirmative relief, but is required to enter judgment upon the merits of the issue presented by the cross-complaint.

2. The district court has power and jurisdiction to set aside and vacate an order inadvertently made, bringing in new parties as defendants, and to strike from the files the answer and cross-complaint

Argument for Appellant.

of such defendant, where no right has been acquired by such defendant except the right to file such answer.

3. In an action to adjudicate the priorities of appropriation of the waters of a stream, where there are a large number of plaintiffs and defendants, and much time has been consumed and large expense incurred in taking the testimony in said cause, and, after the close of such evidence and the decree is in preparation, the court makes an order requiring new parties to be brought in as defendants, and such defendants appear and file an answer and cross-complaint, and motion is made by other defendants to set aside and vacate the order of the court making such new defendant a party, and the court is of the opinion that the bringing in of such party would require a retrial of said cause, and put the plaintiffs and defendants to the expense of going over the ground which had already been gone over in the evidence, and that said order had been made inadvertently, it is not error to sustain the motion to set aside and vacate the same, and to strike the answer and cross-complaint of said defendant from the files.

4. In an action to determine the priority of rights of appropriation from a stream of water, all parties claiming right of appropriation should be made either parties plaintiff or defendant, but the failure to make all such parties who claim a right of appropriation parties to said suit will not affect the rights and interests as adjudicated between the parties to such action and determined by the court.

5. An appropriator of water from a stream is a proper party to a suit affecting the right of appropriation of the waters of such stream, but such person is not an indispensable party, and a judgment rendered in said cause would be just as effective as to the rights and interest of all those who were parties to said action, as between themselves, and whose rights have been adjudicated, as though such other person had also been made a party.

APPEAL from the District Court of the Fourth Judicial District, for Lincoln County. Hon. Alfred Budge, Judge.

An action to adjudicate the priorities of the waters of Big Wood river. From an order vacating an order to make additional defendants the said defendants appealed. Affirmed.

N. M. Ruick and Waldemar Van Cott, for Appellant Idaho. Irr. Co.

"Plaintiff in an action will be precluded from dismissing his action on his own motion where an answer has been filed.

Argument for Respondents.

showing defendant to be entitled to and praying for affirmative relief. The consent of the adverse party is necessary in such case. (Hypotheek Bank v. Rauch, 5 Ida. 752, 51 Pac. 764; 14 Cyc. 407.)

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Under a statute of California identical with our own in all respects under consideration here (Cal. Code Civ. Proc., sec. 581), the supreme court of that state has uniformly held that the court has no authority to dismiss an action over the objection of a defendant who has filed an answer or cross-complaint seeking affirmative relief. (Rodgers v. Parker, 136 Cal. 315, 68 Pac. 975; Mott v. Mott, 82 Cal. 413, 22 Pac. 1140, 1142; Water Co. v. Allen, 132 Cal. 432, 64 Pac. 713.)

If the Idaho Irrigation Co. did not claim any rights in this case and was not a necessary party, then there might be a reason to dismiss the case; but when it comes in and makes a claim to the subject matter, then the court, of its own motion, must retain such party in the case, in order to adjudicate its rights, and so as finally to put an end to the litigation. (Bank of Hailey v. Bews, 3 Ida. 486, 31 Pac. 816.)

In the above case, this court considered the identical sec. 4113, and held that all persons must be made parties to the suit when that is necessary to make a complete determination of a controversy. (See, also, Frost v. Alturas Water Co., 11 Ida. 294, 81 Pac. 996.)

The purpose of the court is not only to simplify proceedings but to avoid, as far as may be, a multiplicity of suits. (Willman v. Friedman, 4 Ida. 209-213, 95 Am. St. 59, 38 Pac. 937; 15 Cyc. Pl. & Pr. 584–588; U. S. v. N. P. R. Co., 134 Fed. 715, 67 C. C. A. 269; Sherman v. Parisk, 53 N. Y. 483, 490.)

Sullivan & Sullivan, Hawley, Puckett & Hawley and Paul S. Haddock, for Respondents.

If the Idaho Irrigation Co., Ltd., was claiming any of the identical water rights for the particular tracts of the plaintiffs or defendants, then it might be a necessary party, but they are simply claiming a separate and distinct water right of their own from a different date. True, it is from the same stream, but it is not necessary to determine its priority in

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