RICKEY LAND & CATTLE CO. v. MILLER & LUX.*

(Circuit Court of Appeals, Ninth Circuit. March 4, 1907.)

No. 1,366.

1. WATERS AND WATER COURSES-IRRIGATION-RIGHTS OF APPROPRIATORS— INCORPOREAL HEREDITAMENTS.

The right of an appropriator of the water of a stream, for the purpose of irrigation, to have the water flow in the river to the head of its ditch, is an incorporeal hereditament appurtenant to the ditch and coextensive with the owner's right to the ditch itself.

[Ed. Note. For cases in point, see Cent. Dig. vol. 48, Waters and Water Courses, 15.]

2. SAME QUIETING TITLE.

A suit to quiet title to a water right for irrigation purposes, and to determine the landowner's right to divert the waters from a stream for such purposes, is in the nature of an action to quiet title to real estate. 8. SAME RIGHT TO SUE-VENUE-ACTS PARTLY IN DIFFERENT STATES. Where complainant claimed title by prior appropriation to a certain part of the flow of a river to irrigate its lands in Nevada, and alleged that such rights were being interfered with by defendant, an appropriator of the waters of the same stream in California, of which state defendant was a resident, complainant was entitled to sue to quiet its title to such water right in the federal courts sitting in Nevada. 4. SAME.

The jurisdiction of the Nevada court was not defeated by the fact that defendant set up in its answer and cross-bill that it had an appropriation of water from the same stream in California for the purpose of irrigating lands in that state.

5. Courts-STATE AND UNITED STATES COURTS-PRIORITY OF JURISDICTION. Where a federal court sitting in Nevada acquired jurisdiction of a suit to quiet title to an appropriation of water from a stream in that state as against defendant, a resident of California, such jurisdiction would be maintained as against subsequent similar actions brought by defendant for the same purpose in the California state courts.

[Ed. Note. For cases in point, see Cent. Dig. vol. 13, Courts, § 1345. Pendency of action in state or federal court as ground for abatement in the other, see notes to 47 C. C. A. 205, 73 C. C. A. 521.]

6. SAME INJUNCTION-ACTIONS IN STATE COURTS.

Rev. St. 720 [U. S. Comp. St. 1901, p. 581], prohibiting the granting of an injunction by a federal court to stay a proceeding in a state court, does not prevent a federal court having first acquired jurisdiction of the parties and subject-matter of an action from restraining the parties from resorting to proceedings in a state court having concurrent jurisdiction which would defeat or impair the federal court's jurisdiction.

[Ed. Note. For cases in point, see Cent. Dig. vol. 13, Courts, §§ 14181430.]

7. LIS PENDENS PURCHASE PENDENTE LITE-EFFECT.

Where defendant corporation acquired its property and water rights in controversy from R. after suit to quiet title to complainant's water rights in Nevada, as against R., had been begun in the federal court of Nevada, and after R. had answered therein and the court had acquired full jurisdiction over both the subject-matter and R., the corporation was a pendente lite purchaser, and bound to abide the judgment in such suit. Appeal from the Circuit Court of the United States for the District of Nevada.

For opinion below, see 146 Fed. 574.

*Rehearing denied May 20, 1907.

Walker river is a stream flowing from within the state of California easterly into the state of Nevada. Toward its source it divides into two branches, known as the East and West Forks. The junction is in the state of Nevada. The appellant and the appellee are each incorporated, the former having its residence in the state of California, and the latter in the state of Nevada. On the 10th of June, 1902, the appellee filed its bill of complaint in the Circuit Court of the United States for the District of Nevada against Thomas B. Rickey and many other persons. Service of process was had upon Rickey, who thereafter appeared and answered. By said bill of complaint it was alleged, among other things, that complainant therein (the appellee here) was then, and for a long time prior thereto had been, the owner and seised in fee, and in actual possession, of certain lands situated in the county of Lyon, state and district of Nevada, particularly describing them; that Walker river is a natural stream and water course which flows, and from time immemorial has flowed, to, over, upon, and through the said lands, which said lands include the banks, bed, and stream of said river; that at divers times. in said bill set forth, the complainant, its grantors and predecessors in interest, had first appropriated and diverted from said river portions of the waters thereof, amounting in all to a flow of 943.29 cubic feet of water per second. and had carried the same to and upon certain lands, and used the same for the irrigation thereof, and that said complainant was then the owner by such appropriation of certain interests in the waters of said river; such interests being particularly set forth and enumerated. It was then further alleged that Rickey and other defendants in the suit had diverted the waters of said Walker river at divers places above the lands of the complainant, and above the points at which complainant so diverted said water, and that a large portion of the water so diverted by the defendants in said suit was never returned to the stream, and that such defendants were continuing the diversions aforesaid, and had thereby deprived, and were depriving, such complainant of a large portion of said water to which it was so entitled; that each of said diversions so made by such defendants was without right, but that they had diverted said water, and were so diverting the same, under claim of right so to do, adversely to the complainant; that by such diversions complainant had been and was being deprived of sufficient water to irrigate its said lands, and was thereby rendered unable, and so long as said diversions were continued would be unable, to irrigate such lands, which it had theretofore been accustomed to irrigate, and was thereby rendered unable, and would be unable, properly or successfully to cultivate the same, or to raise crops thereAnd it was further alleged that if said defendants, or either of them, had any right to divert any water from the said river, such rights, and each of them, were subsequent and subordinate to the aforesaid appropriations so made by complainant and its grantors and predecessors. The prayer was that the defendants in said suit, including Rickey, be enjoined and restrained from diverting any water from Walker river in subversion of the rights of complainant.

on.

Subsequently, on the 15th day of October, 1904, the Rickey Land & Cattle Company commenced an action in the superior court of the county of Mono, state of California, against the appellee and a large number of other persons, by filing a complaint in said court, whereby it was alleged, among other things, that the said company was, and had been since the 6th day of August, 1902, the owner, in possession, and entitled to the possession of certain lands conveyed to it by Thomas B. Rickey, all situated in the state of California, and that the same constitued an entire contiguous body of land, over, through, and upon which flowed, and from time immemorial had flowed, a branch or tributary of Walker river called the "West Fork," and that said lands and all thereof were, and from time immemorial had been, riparian to said stream, and situated along and bordering thereupon; that the said company was the owner, in possession, and entitled to the possession of such lands, and had the right to divert and appropriate all the waters of said West Fork of Walker River, and its tributaries in the state of California, to the extent of a constant flow of 1,575 cubic feet of water per second. It was further alleged that the defendants in said action, and each of them, including the appellee herein,

claimed some right, title, and interest adverse to the said Rickey Land & Cattle Company in and to said constant flow of 1,575 cubic feet of water per second, or some part or portion thereof; that said right, title, and interest so claimed by such defendants, and each of them, including the appellee, in and to said water, was without right, and that all claims of them, and each of them, to the waters of said West Fork of said Walker River were subordinate and subject to the ownership of said company, and its alleged right to divert and appropriate from said West Fork of Walker River a constant flow of the amount of water specified. The prayer was that the Rickey Land & Cattle Company be decreed to be the owner of the amount of water specified, and entitled to the use and enjoyment of the same, and that appellee and the other defendants therein be subordinated to the interests of the said company in the flow of the waters of said West Fork of Walker River.

On the same day, October 15, 1904, the Rickey Land & Cattle Company commenced another action of like character in the same court, involving 504 cubic feet of water in the East Fork of Walker River, claimed under similar rights, and it was alleged that all of such rights were superior to the rights of defendants therein, including appellee, whatever' they might be.

The bill of complaint herein sets forth all these facts and proceedings, and further shows that, after appellee had filed its bill of complaint in the Circuit Court of the United States for the District of Nevada, and after Rickey had appeared and filed his answer therein, he (Rickey), on August 6, 1906, organized and incorporated the Rickey Land & Cattle Company, and conveyed to it all the lands and water rights thereafter claimed by it in the two actions commenced in the superior court of Mono county, in the state of California. Then follows the allegation: "That the issues tendered by said complaints in said two actions so brought by the defendant herein as plaintiff against your orator, and said other persons are, so far as concerns your orator, the same issues which were tendered by the said bill of complaint of your orator so filed in this court, so far as the same related to the defendant, Thomas B. Rickey, in said suit." The prayer is that the defendant be enjoined from prosecuting either of the 'actions commenced in Mono county, state of California, against the complainant, and for general relief.

The cause having been heard upon the bill and certain affidavits filed in defense, a temporary restraining order was directed to issue, and the appeal is from the action of the court in this regard.

The record contains a supplemental complaint by the Pacific Live Stock Company, showing that it has succeeded to the interests of the appellee, but such complaint serves no essential purpose in the present controversy.

James F. Peck and Charles C. Boynton, for appellant.

W. C. Van Fleet and W. B. Treadwell (Frohman & Jacobs and Frank H. Short, of counsel), for appellee.

Before GILBERT and ROSS, Circuit Judges, and WOLVERTON, District Judge.

WOLVERTON, District Judge (after stating the facts). Let us inquire, first, touching the nature of the suit instituted by the appellee as complainant, against Rickey and others, in the Circuit Court of the United States for the District of Nevada, June 10, 1902, for the inquiry will settle the jurisdiction of the court to proceed in that cause, and in one aspect will determine its authority to grant the relief demanded in this cause. In the course of the inquiry, it is important that we first ascertain the nature of the subject-matter of the cause.

Says the court in the case of Lower Kings River Water Ditch Co. v. Kings River & Fresno Canal Co., 60 Cal. 408:

"'A water course consists of bed, banks and water.' Angell on Water Courses, 4. The right of plaintiff, as stated in its complaint, to have the water

flow in the river to the head of its ditch, is an incorporeal hereditament appertaining to its water course. Granting that plaintiff does not own the corpus of the water until it shall enter its ditch, yet the right to have it flow into the ditch appertains to the ditch. Real property consists of land, that which is affixed to land, and that which is incidental or appurtenant to land. Civil Code, 658. If the water course, consisting of the bed and banks of the trench, and of the water therein, be real property, the right to have water flow to it is incidental and appurtenant thereto."

So in Construction Co. v. Ditch Co., 41 Or. 209, 215, 69 Pac. 455, 458, 93 Am. St. Rep. 701:

"If the riparian owner grants a right to divert the water and convey it away to and upon the lands of the grantee, the grant becomes an easement appurtenant to such lands, which becomes thereby the dominant estate, and the grant an incorporeal hereditament. If title be acquired by prescription, the estate and the right are the same."

So, also, in Wyatt v. Larimer & Weld Irr. Co., 33 Pac. 144, 18 Colo. 298, 36 Am. St. Rep. 280, Mr. Justice Goddard, speaking for the court, says:

"That a valid appropriation of water from a natural stream constitutes an easement in the stream, and that such easement is an incorporeal hereditament, the appropriation being in perpetuity, cannot well be disputed."

And, after citing Washburn on Easements and Servitudes, and Angell on Water Courses, proceeds:

"The right acquired to water by an appropriator under our system is of the same character as that defined by the foregoing authorities as an incorporeal hereditament and easement. The consumer under a ditch possesses a like property. He is an appropriator from the natural stream, through the intermediate agency of the ditch, and has the right to have the quantity of water so appropriated flow in the natural stream, and through the ditch, for his use."

And, generally, it is held that:

"The right of the prior appropriator to have the water flow in the stream to the head of his ditch is an incorporeal hereditament appurtenant to his ditch, and coextensive with his right to the ditch itself." Willey v. Decker, 73 Pac. 210, 225, 11 Wyo. 496, 100 Am. St. Rep. 939; Smith v. Denniff, 60 Pac. 398, 24 Mont. 20, 81 Am. St. Rep. 408.

Or, putting it in another form, that:

"A right to divert and use the waters of a stream, acquired by appropriation, is a hereditament appurtenant to the land for the benefit of which the appropriation is made." Conant v. Deep Creek & Curlew Val. Irr. Co., 66 Pac. 188. 23 Utah, 627, 90 Am. St. Rep. 721.

See, also, Simmons v. Winters, 21 Or. 35, 27 Pac. 7, 28 Am. St. Rep. 727; Hindman v. Rizor, 21 Or. 112, 27 Pac. 13; Bear Lake & River Waterworks & Irrigation Co. v. Ogden City, 8 Utah, 494, 33 Pac. 135; Tucker v. Jones, 8 Mont. 225, 19 Pac. 571; Sweetland v. Olsen, 11 Mont. 27, 27 Pac. 339; Cave v. Crafts, 53 Cal. 135.

So it follows, as a deduction from these principles, as was said in the Conant Case, that:

"An action, therefore, to quiet the title and determine and to establish the right to divert and use water for such purposes, is in the nature of an action to quiet the title to real estate."

Under the bill there is the assertion of a valid appropriation of the waters of Walker river, for use upon lands in Nevada which are specifically described, and which the complainant owns, and the further averment that the defendants claim a right of diversion and appropriation adverse to that which complainant has acquired; and the prayer is, in effect, that defendants be restrained from the exercise of their alleged right to the injury of complainant. Could there be a plainer case of an attempt to quiet title to the appropriation itself? Although the right to have the water of Walker river flow from above down to and within the complainant's canals and ditches, for use upon its lands, is an incorporeal hereditament, it is, nevertheless, under the foregoing authorities, appurtenant to the realty in connection with which the use is applied. It savors of, and is a part of, the realty itself. The suit, therefore, in its purpose and effect, is one to quiet title to realty. Complainant's diversion being in Nevada, and the use being upon realty situated in Nevada, and the suit being one concerning or pertaining to that realty, it is necessarily local in character, and was properly instituted in the state of Nevada. See Conant v. Deep Creek, etc., Company, supra. The proposition seems so clear that it is scarcely necessary to cite other authorities in its support. And it is equally clear that the courts of one state are without jurisdiction to hear and determine suits instituted in another for the adjustment of adverse claims respecting the legal title to realty, and which pertain to the realty as the subject-matter of the controversy.

There has been much discussion of the legal principle that, as to certain causes arising partly in one jurisdiction and partly in another, the right of action will be entertained in either jurisdiction. The principle is that, where two material facts are necessary to give a good cause of action, and they take place in different jurisdictions, the cause may be said to have arisen in either jurisdiction. Numerous authori

ties are cited in support of this principle, among which are the following:

"When an action is founded upon two things in different counties, both material to the maintenance of the action, it may be brought in the one county or the other." Com. Dig. "Action," N, 11.

"Where an injury has been committed in one county to real property situate in another, or wherever the action is founded upon two or more material facts which took place in different counties, the venue may be laid in either." 1 Saund. Pl. & Ev. 413.

"Supposing the foundation of the action to have arisen in two counties, I think that, where there are two facts which are necessary to constitute the offense, the plaintiff may, ex necessitate, lay the venue in either." Ashurst, J., in Scott v. Brest, 2 Term R. 238.

And: "When matter in one county is depending upon the matter in the other county, there the plaintiff may choose in which county he will bring his action." And: "If a man doth not repair a wall in Essex which he ought to repair, whereby my land in Middlesex is drowned, I may bring my action in Essex, for there is the default; or I may bring it in Middlesex, for there I have the damage." Bulwer's Case, 7 Coke, 1.

So, in Barden v. Crocker, 10 Pick. (Mass.) 383, in an action brought in the county where the property was damaged for diversion of water in another, it was held that the action could be maintained in either county. So, also, in the case of Foot v. Edwards, Fed. Cas. No. 4,908,