1063

NEW YORK v. PINE.

185 U. S. 93-108

after defendant has incurred great expense in construction; Bliss v. Anaconda Copper Min. Co., 167 Fed. 366, 370, and Bliss v. Washoe Copper Co., 186 Fed. 827, 109 C. C. A. 133, both refusing to enjoin operation of smelter as nuisance to farmers on ground that greater loss would be caused by injunction; West Pub. Co. v. Edward Thompson Co., 176 Fed. 839, 100 C. C. A. 303, refusing to enjoin violation of copyright where great expense had been incurred, and awarding damages; Andrus v. Berkshire Power Co., 169 Fed. 734, injunction to remove dam denied and plaintiff held entitled to damages only; In re Arkansas Railroad Rates, 168 Fed. 722, comparative injury considered in granting preliminary injunction against freight rates; McCarthy v. Bunker Hill etc. Concentrating Co., 164 Fed. 941, 92 C. C. A. 259, refusing to enjoin operation of mines and mills on ground damage claimed done by deposit of tailings in streams would be lesser loss; West & Co. v. Octoraro Water Co., 159 Fed. 533, 534, riparian proprietors held barred by laches to enjoin continued taking of water by defendant for public use; Benjamin v. Brooklyn Union El. R. R. Co., 120 Fed. 429, holding property owner though barred by laches from enjoining continuance of road built under power of eminent domain has right to damages therefor; St. Paul, M. & M. Ry. Co. v. Western Union Tel. Co., 118 Fed. 519, 55 C. C. A. 263, holding court of equity has jurisdiction on expiration of term of telegraph company's lease of railroad right of way to determine amount of compensation to be paid for continuation; Donohoe v. El Paso etc. R. Co., 11 Ariz. 295, 94 Pac. 1092, owner held estopped by laches to maintain ejectment or trespass against railroad constructed on his land; Loranger v. City of Flint, 185 Mich. 469, 152 N. W. 256, riparian owner entitled to compensation when water diverted for municipal use; Enterprise Irr. Dist. v. Tri-State Land Co., 92 Neb. 160, 138 N. W. 185, plaintiffs barred by laches to enjoin diversion of waters after defendants incurred great expense in construction; Mayor etc. of Newark v. Chestnut Hill Land Co., 77 N. J. Eq. 25, 75 Atl. 645, holding under facts lower riparian owner was entitled only to damages against upper owner withdrawing excessive amount of water from stream; Mayor etc. of Paterson v. East Jersey Water Co., 74 N. J. Eq. 102, 70 Atl. 494, awarding damages in lieu of injunction for unreasonable diversion of waters of river for public use; Howard v. Buffalo, 211 N. Y. 263, 105 N. E. 432, refusing to require opening of solid embankments for watercourse where land below used for factories; State ex rel. Harbor Boom Co. v. Superior Court, 65 Wash. 134, 117 Pac. 756, one public service corporation cannot condemn property of another for same kind of ore; Hart v. City of Seattle, 45 Wash. 303, 13 Ann. Cas. 438, 88 Pac. 206, holding court had power, in suit to require city to restore grade of street, to require such restoration in alternative of paying damages occasioned by change; Slaght v. Northern Pac. Ry. Co., 39 Wash. 586, 81 Pac. 1065, owner can maintain ejectment after allowing railroad construction on land if execution on judgment stayed to permit condemna

tion proceeding; Schuster v. Milwaukee Electric Ry. etc. Co., 142 Wis. 586, 126 N. W. 29, holding equity could not, in consideration of money paid owners in satisfaction of private wrongs, refuse to enjoin unlawful acts of interurban railway in operating cars on streets; Von Cotzhausen v. Dick, 138 Wis. 129, 119 N. W. 823, refusing to enjoin drainage assessment at suit of owner who permitted work to be done without objection; Institution for Savings v. Puffer, 201 Mass. 47, 87 N. E. 564, and Meyer v. Somerville Water Co., 82 N. J. Eq. 577, 89 Atl. 547, both arguendo. Distinguished in Utah Power etc. Co. v. United States, 230 Fed. 340, unauthorized appropriation of public lands not validated on ground of estoppel by occupation and improvements made with knowledge of United States; Hulbert v. California Portland Cement Co., 161 Cal. 252, 38 L. R. A. (N. S.) 436, 118 Pac. 933, refusing to suspend, pending appeal, injunction against operation of cement works so as to produce dust injurious to trees; Ryan v. Weiser Valley Land etc. Co., 20 Idaho, 296, 118 Pac. 771, one taking possession of land, without consent, where seeking to condemn it for public work, cannot defend injunction suit on ground land is of little value to owner; Archer v. Chicago etc. Ry. Co. of Montana, 41 Mont. 67, 137 Am. St. Rep. 692, 108 Pac. 574, parol license to construct dam and ditch though acted on, held revocable at will; McCarter v. Hudson County Water Co., 70 N. J. Eq. 718, 118 Am. St. Rep. 754, 10 Ann. Cas. 116, 14 L. R. A. (N. S.) 197, 65 Atl. 498, enjoining upper riparian proprietors from diverting waters of Passaic River for transportation beyond State; dissenting opinion in United States v. Archer, 241 U. S. 144, 60 L. Ed. 927, 36 Sup. Ct. 521, majority considering but not deciding extent of right of owner of land taken for dike.

Validity of decree awarding damages or indemnity bond as alternative to injunction prayed for. Note, 13 Ann. Cas. 439. Equitable estoppel as defense to suits to restrain diversion and use of waters. Note, 2 Ann. Cas. 786.

Doctrine of appropriation is not followed in New York.

Approved in Minnesota Canal etc. Co. v. Koochiching Co., 97 Minn. 444, 107 N. W. 410, property for purpose of constructing water-power plant to furnish water and heat, not being public use, cannot be condemned.

Jurisdiction to determine private rights in interstate streams.
Note, 19 L. R. A. (N. S.) 536.

Right of government to divert water without compensation to
riparian owner. Note, 37 L. R. A. (N. S.) 312.

Miscellaneous. Cited in Rickey Land etc. Co. v. Miller & Lux, 218 U. S. 261, 54 L. Ed. 1038, 31 Sup. Ct. 11, to point that where riparian rights on same river in different States are involved courts of both States have concurrent jurisdiction, and court first seised retains juris

diction to exclusion of other; Gaskill v. Washington Water Power Co., 17 Idaho, 137, 105 Pac. 54, to point that party cannot on appeal complain of error made by trial court at his invitation.

185 U. S. 108-111, 46 L. Ed. 827, 22 Sup. Ct. 560, FILHIOL v. MAURICE. Plaintiff's petition must show Federal jurisdiction.

Approved in Cueli v. Rodriguez, 198 U. S. 582, 49 L. Ed. 1172, 25 Sup. Ct. 804, following rule; Joy v. St. Louis, 201 U. S. 341, 50 L. Ed. 781, 26 Sup. Ct. 478, petition setting up dispute over patent does not State case for Federal jurisdiction where real issue appears to be over right to accretion formed after patent; Filhiol v. Torney, 194 U. S. 361, 48 L. Ed. 1017, 24 Sup. Ct. 698, in absence of affirmative averment as to plaintiff's title, averment that defendant's possession rests on infraction by United States of treaty does not give Federal Circuit Court jurisdiction.

Distinguished in Harris v. Rosenberger, 145 Fed. 451, 13 L. R. A. (N. S.) 762, 76 C. C. A. 225, Circuit Court of Appeals has jurisdiction of action involving validity and construction of Rev. Stats., §§ 3929, 4041, empowering Postmaster-general to issue fraud order; Love v. Busch, 142 Fed. 432, 73 C. C. A. 545, where bill alleges diverse citizenship, Circuit Court of Appeals has appellate jurisdiction in action testing validity of State statute prohibiting sale of intoxicants.

Circuit Court is not given jurisdiction in ejectment against private parties by averments that plaintiffs were ousted in violation of treaty and fifth amendment.

Approved in People's United States Bank v. Goodwin, 160 Fed. 729, action for libel against individuals is not removable to Federal court on averments in removal petition that action complained of was taken by defendants as officers of United States; Shellenbarger v. Fewel, 34 Okl. 84, 86, 87, 124 Pac. 619, 620, action is not removable because it may become necessary therein to construe Federal statute.

Ejectment against individual for land claimed to be within Spanish grant involves no Federal question.

Approved in Joy v. City of St. Louis, 122 Fed. 528, holding suit to recover lands claimed under Spanish grant protected by treaty depending entirely on question whether land was within such grant involves no Federal question; Filhiol v. Torney, 119 Fed. 974, holding allegation that defendant is in possession by direction of United States cannot confer Federal jurisdiction by showing contest involving Federal law.

185 U. S. 112-114, 46 L. Ed. 829, 22 Sup. Ct. 581, MICHIGAN SUGAR CO. V. MICHIGAN.

Time and manner of raising and deciding questions in State court to obtain review in Federal Supreme Court. Note, 63 L. R. A.

34.

185 U. S. 114-122, 46 L. Ed. 830, 22 Sup. Ct. 566, EASTERN BLDG. & LOAN ASSN. v. EBAUGH.

Laws of another State are matters of fact, which when relied on must be pleaded and proved; but in Supreme Court, whatever was matter of fact in court whose judgment is under review is matter of fact here.

Approved in Texas etc. R. R. Co. v. Miller, 221 U. S. 416, 55 L. Ed. 796, 31 Sup. Ct. 534, decision of State court construing statute of another State held not subject to review where no Federal right involved; Louisville etc. R. R. Co. v. Melton, 218 U. S. 52, 54 L. Ed. 928, 30 Sup. Ct. 676, holding Federal question not raised where construction of statute of another State by its courts, which was relied on, was not pleaded and proved; Eastern Bldg. & L. Assn. v. Williamson, 189 U. S. 125, 47 L. Ed. 739, 23 Sup. Ct. 529, holding courts of one State do not take judicial notice of laws of another State; Field v. Eastern Bldg. etc. Assn., 117 Iowa, 203, 90 N. W. 723, holding general statements that court erred in failing to determine rights of corporation under laws of another State present nothing reviewable on appeal; Free v. Southern Ry. Co., 83 S. C. 186, 65 S. E. 214, affirming judgment for damages based on law of negligence of another State.

Questions considered by Federal Supreme Court in reviewing judgments of State courts. Note, 63 L. R. A. 578.

185 U. S. 122-125, 46 L. Ed. 834, 22 Sup. Ct. 561, MCINTOSH v. AUBREY. When money has been paid to pensioner and has inured wholly to his benefit, prohibition of section 4747, Revised Statutes, against levy is removed.

Approved in In re Ferguson's Estate, 140 Wis. 588, 17 Ann. Cas. 1189, 123 N. W. 125, following rule; Dyer v. City of Melrose, 215 U. S. 594, 54 L. Ed. 341, 30 Sup. Ct. 410, applying rule to salary received from United States; Bailey v. Bailey, 76 Vt. 266, 104 Am. St. Rep. 935, 65 L. R. A. 332, 56 Atl. 1014, court can take pension into consideration in fixing amount of alimony pensioner should pay; Ritzville Hardware Co. v. Bennington, 50 Wash. 113, 126 Am. St. Rep. 894, 96 Pac. 827, Federal homestead exemption does not extend to proceeds of sale.

Distinguished in Manning v. Spry, 121 Iowa, 196, 96 N. W. 874, pension money paid to and loaned by guardian of insane pensioner is exempt from taxation as in course of transmission to pensioner.

Exemption from execution of pension or bounty. Note, 17 Ann.
Cas. 1192.

Exemption of money "due" or "to be paid" from attachment or
other process as applicable to money after payment. Note, 7
Ann. Cas. 756.

Exemption of money "due or to become due," or "to be paid," etc., as protecting money after payment. Note, 5 L. R. A. (N. S.) 473.

1067

KANSAS v. COLORADO.

185 U. S. 125-147

185 U. S. 125–147, 46 L. Ed. 838, 22 Sup. Ct. 552, KANSAS ▼. COLORADO. Where State on behalf of citizens files bill against another State to obtain relief in respect to being wholly deprived by latter of water of river accustomed to flow across her territory, original jurisdiction of Supreme Court may be exercised.

Approved in Louisiana v. Mississippi, 202 U. S. 36, 50 L. Ed. 925, 26 Sup. Ct. 408, Federal Supreme Court has jurisdiction over controversy between authorities of two States over enforcing oyster legislation arising out of boundary dispute; McCarter v. Hudson County Water Co., 70 N. J. Eq. 718, 118 Am. St. Rep. 754, 10 Ann. Cas. 116, 14 L. R. A. (N. S.) 197, 65 Atl. 498, and Hudson County Water Co. v. McCarter, 209 U. S. 355, 14 Ann. Cas. 560, 52 L. Ed. 831, 832, 28 Sup. Ct. 529, both holding contract for withdrawal of water from river of State for sale in another State was void as contrary to law of State, and not within protection of commerce clause; Virginia v. West Virginia, 206 U. S. 317, 321, 51 L. Ed. 1079, 1081, 27 Sup. Ct. 732, Supreme Court has original jurisdiction of suit by Virginia to determine amount dueit from West Virginia as equitable proportion of State debt at time of division of State; City of McMinnville v. Howenstine, 56 Or. 464, Ann. Cas. 1912C, 193, 109 Pac. 86, holding under terms of charter, city had power to condemn water from springs flowing across lands outside city limits; Hough v. Porter, 51 Or. 410, 98 Pac. 1099, construing Desert Land Act of 1877 in relation to riparian rights.

Distinguished in West v. Kansas Natural Gas Co., 221 U. S. 259, 35 L. R. A. (N. S.) 1193, 55 L. Ed. 728, 31 Sup. Ct. 564, statute prohibiting foreign corporations from building pipe-lines across highways to carry natural gas from State is void under commerce and due process clauses.

When State may invoke original jurisdiction of United States Supreme Court. Note, Ann. Cas. 1912C, 530.

Right of State to enjoin acts committed in another State. Note, 11 Ann. Cas. 490.

Where questions arising on record are intricate, court will not proceed until all facts presented.

Approved in Chesapeake & Potomac Tel. Co. v. Manning, 186 U. S. 251, 46 L. Ed. 1149, 22 Sup. Ct. 886, holding trial court may provide for further evidence as to reasonableness of rates charged by telephone company, if such be needed.

Distinguished in Raymond Syndicate v. Brown, 124 Fed. 83, holding facts intervening will not defeat equitable jurisdiction of bill alleging purchase of merchandise for lump sum paid and nondelivery and concealment of portion of goods.

A demurrer will lie to a bill in equity wherever it is clear that, taking the charges in the bill to be true, the bill would be dismissed at the hearing; but in case where minute variation between facts as stated in bill