Appeal from Third District.

if it be a fact, is alone sufficient to require a hearing and the production of evidence before the decree is modified.

There is another question raised by appellant, but as we understand the record, that, in view of the foregoing conclusions, is of no consequence now. Indeed, counsel for the applicant frankly conceded at the hearing that the court had erred in that matter.

From what has been said it necessarily follows that the judgment should be reversed. It is therefore ordered that the judgment be, and the same hereby is, reversed, and the cause is remanded to the district court of Salt Lake County, with directions to dismiss the proceeding. Appellant to recover costs.

MCCARTY, CORFMAN, and GIDEON, JJ., and STEPHENS, District Judge, concur.

On Application for Rehearing.

FRICK, C. J.

Counsel for the plaintiff, Utah & Salt Lake Canal Company, have filed a petition for a rehearing. They, however, also ask that, in case a rehearing is not granted, for the reasons hereinafter stated, the opinion as filed should, nevertheless, be modified in a certain particular. We shall first take up the matter of granting a rehearing.

The principal reason why a rehearing should be granted, stated in counsel's own words, is:

4

"A proposition of law was stated in respondent's brief which decides the case, and which apparently was not passed upon, or referred to, in the opinion.

In connection with the foregoing statement counsel also

say:

"It is a rule of law that the meaning and effect of decrees, as well as statutes, are to be ascertained from the manifest intention of those making them."

In support of the legal proposition counsel cite Doscher et

Salt Lake City et al. v. Salt Lake City W. & E. P. Co. et al., 54 Utaħ 10.

al. v. Blackiston et al., 7 Or. 404; New Orleans M. & C. R. Co. v. City of New Orleans (C. C.) 14 Fed. 373.

From the Oregon case counsel quote the following excerpt:

"To have this decree operate as contended for by counsel would be to make it effectuate an end contrary to the manifes intention of the court. The meaning and effect of decrees as well as statutes are to be ascertained from the manifest intention of those making them."

That case was one where the court in a divorce proceeding made a transfer of certain property. Just before making the statement quoted by counsel the court said:

"It was an attempt to convey by decree of a court. In such conveyances there must be one who holds the title to be conveyed and one who is to receive it; and, if the decree fails to make the conveyance, the title will remain where it was, for a decree should never be made to operate against the manifest and declared intention of the court." (Italics ours.)

Now, it is quite true that in the opinion it is not in terms said that the construction we placed on the original decree reflected the intention of the court, yet from what we did say that was necessarily implied. We say necessarily implied, for the reason that the intention of the author of a judgment, contract, or any other writing must necessarily be gathered from the language contained in the judgment, etc. When once the meaning of the language used by the author is ascertained, then, ordinarily at least, from a legal point of view, his intention is likewise ascertained. How is the meaning and effect of the author's language to be ascertained? There is but one way, and that is by considering the language in the light of the subject-matter and giving the words their usual and ordinary meaning and effect. If, after doing that, the meaning of the language is clear, then the intention must also be clear, and there is no further room for construction. There is nothing to construe when the meaning of the language is ascertained. To say that the unexpressed intention of the author controls as against the usual and ordinary meaning of the language is to fly in the face of all rules and canons of construction. To say that a judgment can be made to mean something contrary to the ordinary and usual meaning of the

Appeal from Third District.

language used, except in case of a practical construction and application by the parties to the judgment, would not only be contrary to all rules of construction but would be most dangerous in practice. If such were the law, a party might be held guilty of contempt for violating a judgment or decree when he had strictly followed the ordinary and usual meaning of the language used therein. Moreover, the doctrine of res adjudicata could then be restricted or expanded at the will of the court. While, as before stated, we did not articulate the doctrine now urged by counsel, we, nevertheless, clearly observed and applied it by stating what, in our judgment, constituted the ordinary, natural, and obvious meaning of the language contained in the decree. We are still of the opinion that the construction we placed upon it is the correct one. We still think that the ordinary, natural, and obvious meaning of the language used in the decree, when considered as a whole, is that in case three of the parties refuse consent to the starting of the pumps, and do not use water in excess of what comes to them by the gravity flow, neither of them can be compelled to contribute to the expense of pumping water that is pumped for the benefit of either or both of the other two parties. It is true, as counsel quote, the decree provides that "such of said parties as use water in excess of their portion of what the natural gravity flow * would be pumps were not in operation shall pay the *** cost of pumping * in proportion, etc. The decree, however, also provides that, in case three of the parties shall fail to agree that the pumps shall be started, then the one, or, in case there are two, who desire the pumps started, must pay the expense of operating them, and the cost of pumping must be paid by them "until such times as three of said parties shall each be using water in excess of its portion of what the gravity flow would be at that time if such pumps were not in operation." (Italics ours.) The decree thus expressly provides that it is only when each of three of the five parties use water in excess of the gravity flow that they must contribute to the expense of operating the pumps. Counsel's contention, however, is that in case one of the three parties is

said

if

Salt Lake City et al. v. Salt Lake City W. & E. P. Co. et al., 54 Utah 10.

permitted to use a part of the gravity flow belonging to another of the three parties the one using the water must contribute to the payment of the cost of operating the pumps which are started by either one or both of the other two parties, and that such is the case notwithstanding the nonconsenting party is not using water in excess of the gravity flow and his use of water would have no effect whatever on the pumps. The mere fact that one of the three nonconsenting parties uses the gravity flow of one of the other two nonconsenting parties in no way affects the pumps. If all of the five parties are satisfied with the gravity flow, it makes no difference whatever whether one of the three nonconsenting parties uses only his portion of the gravity flow or whether he uses the portion of one or both of the other two. The decree does not say that if one of the three parties shall use more than the gravity now he must contribute. But what it says is that if each one of three shall use water in excess of the gravity flow they must contribute to the expense of operating the pumps. So long, therefore, as the combined gravity flow belonging to all the three nonconsenting parties is not exceeded it can have no effect on the gravity flow of the other two, and hence if either one or both of the other two are not satisfied with the quantity of water that comes to them by gravity flow, and thus start the pumps, they, as a matter of course, should pay the cost of pumping. That is just what the decree provides for. Any other construction would result in compelling the nonconsenting parties to contribute to the cost of pumping when neither of them is using a gallon of water in excess of the gravity flow and thus in no way affect the use of the pumps.

As is well said in 23 Cyc. 1101:

"A judgment should be so construed as to give effect to every word and part of it, including such effects and consequences as follow by necessary legal implication from its terms, although not expressed."

A careful reading of the decree clearly shows that we have merely enforced the foregoing rule of construction.

Appeal from Third District.

In the other case cited by counsel, namely, New Orleans M. & C. R. Co. v. City of New Orleans, it is said:

"In determining what has been adjudged courts will regard the decree, and in case of ambiguity, but not otherwise, be governed by an accompanying opinion."

We have no quarrel with that statement of the law and we certainly have not transgressed it.

It is not necessary to refer to the other reasons urged by counsel why a rehearing should be granted.

Counsel, however, insist that the opinion should be modified. The reason stated in their brief why that should be done is as follows:

"The opinion rendered appears unfair and unjust to respondent's counsel for the reason that it places him before the legal profession in the light of contending for the modification of a decree on appeal, in an action to recover money based on such decree, when, in fact, his sole contention was, and is, that the decree as rendered by the trial court should be sustained."

The complaint refers to what is said in the opinion concerning counsel's statement contained in the original brief in reference to the history of the litigation leading up to the original decree, and to what is said with reference to modifying or amending a decree by construction. Counsel insist they did not urge the inherent equities as a reason why the decree should be construed in accordance with their contentions. If there is anything in the opinion which places counsel in such an attitude, it was not intended. In this court the member writing the opinion enjoys the liberty of stating in his own way the reasons that inmpel the conclusions arrived at by the court; that is, he uses his own language in stating the reasons. The writer, therefore, alone is responsible for what is said in the opinion upon the subject complained of. He has many times been reminded of the fact that his reasons are not always expressed in the best possible terms. What is said. sometimes is not entirely invulnerable to criticism. In this instance, however, he is not conscious of having transgressed