an action for damages for an injury to the mill property of the plaintiff situated in Massachusetts, that the action could be maintained in Connecticut, where the water was diverted to the injury of the mill. And again, in the case of Rundle v. Delaware & R. Canal, 1 Wall. Jr. 275, Fed. Cas. No. 12,139, an action was sustained in New Jersey "for damage done to plaintiff's realty in Pennsylvania." These authorities pertain to actions at law.

The general doctrine of the common law is that an action for injury to real property, as trespass, or case for nuisance, is local, and must be commenced within the county or district in which the land lies. Watts' Administrators v. Kinney, 23 Wend. (N. Y.) 484. This seems to be controlled, however, by the rule above referred to, that, where an act has been committed in one jurisdiction which causes injury to realty in another, a suit may be brought in either. In further support of the latter proposition, Mr. Gould is authority. He says:

"If, however, a tortious act committed in one county occasions damage to land or any other local subject situate in another, an action for the injury thus occasioned may be laid in either of the two counties, at the choice of the party injured. Thus, if, by the diversion or obstruction of a water course in the county of A., damage is done to lands, mills, or other real property in the county of B., the party injured may lay his action in either of those two counties." Gould, Pl. p. 105, § 108.

In case of nuisance, however, where it is sought to abate the nuisance by injunctive process, it is requisite that the suit be instituted in the jurisdiction where the nuisance is maintained, because it is said the remedy is quasi in rem, and must act upon the thing itself which is causing the damage. This was held in the case of Stillman v. White Rock Manufacturing Co., Fed. Cas. No. 13,446 (23 Fed. Cas. 83).

There is but little question that the same rule as to venue in the commencement of suits in equity will apply as in actions at law. It is of primary importance, however, that a cause in equity exist, for, unless it does, the suit cannot be maintained anywhere. A suit may be local or transitory, as well as an action at law; and, if a suit pertains to or is concerning realty as the direct subject-matter of the inquiry, like an action at law in ejectment, it must be commenced in the jurisdiction where the realty is located. But if jurisdiction rests upon an equitable cause, such as multiplicity of suits, irreparable injury, specific performance, rescission, or the like, the suit need not necessarily be local. It may be transitory as actions are transitory, and if the appropriate conditions are present, the suit may be brought, as actions may be brought, in either jurisdiction, and is therefore governed by the same principle. But, as we have heretofore determined, the present suit is one affecting realty, and was therefore local, and for this reason the venue was properly laid in the state of Nevada.

It is well determined that:

"In a case of fraud, of trust, or of contract, the jurisdiction of a court of chancery is sustainable wherever the person be found, although lands not within the jurisdiction of that court may be affected by the decree." Massie v. Watts, 6 Cranch, 148, 3 L. Ed. 181.

Or, as expressed in general terms in the case of Phelps v. McDonald, 99 U. S. 298, 308, 25 L. Ed. 473, that:

"Where the necessary parties are before a court of equity, it is immaterial that the res of the controversy, whether it be real or personal property, is beyond the territorial jurisdiction of the tribunal. It has the power to compel the defendant to do all things necessary, according to the lex loci rei sitæ, which he could do voluntarily, to give full effect to the decree against him. Without regard to the situation of the subject-matter, such courts consider the equities between the parties, and decree in personam according to those equities, and enforce obedience to their decrees by process in personam."

This rule "has been often applied," says the court, in Cole v. Cunningham, 133 U. S. 107, 119, 10 Sup. Ct. 269, 273, 33 L. Ed. 538, "by the Courts of the domicile against the attempts of some of its citizens to defeat the operation of its laws to the wrong and injury of others."

If such be the law where the res is without the jurisdiction of the court, by how much stronger will be its application where the jurisdiction extends over the res as well as to the person. So that the court having jurisdiction of the res-that is, of the thing in controversy, which is the realty in the present instance-has undoubted authority and jurisdiction, having also jurisdiction of the person, to protect the thing against the encroachments of the person, whether those encroachments come from within the state or without.

The appellant's counsel maintain that, because the appellant has set up in its answer and cross-bill to the original suit that it has an appropriation in California for the purpose of irrigating lands in that state, therefore the court in Nevada has no jurisdiction to determine its rights in the state of California. The contention seems to us to be beside the question. The defendant will not be permitted, by thus setting up a cause of suit in the state of California, to defeat the jurisdiction of the court in the state of Nevada. The complainant must be permitted to proceed upon the case made by its pleadings, and the defendant cannot defeat the jurisdiction by alleging that it has rights elsewhere which may conflict with the rights of the complainant. It may be said that the court in Nevada has not the power to quiet the title of the defendant in the state of California. But the defendant has the right to set up its conflicting interests, which arose in California, as a defense against the attempt of the complainant to have its title in Nevada quieted, because the complainant's title must depend upon whether it has the better right as against the defendant-the rights of the parties arising in the states in which their respective interests are found. So that the answer and cross-complaint of the defendant can only operate defensively in the original suit, and not to give the defendant a right to have its title also quieted in the state of California. Though the Nevada court is not authorized or empowered to settle the rights of the parties in the state of California, it may look, nevertheless, under the defensive answer to the appropriation in the state of California, to ascertain and determine whether such appropriation is prior and paramount to the complainant's appropriation, and, if not, then to settle and quiet complainant's title and rights thereto.

That our position may be fully understood, we will extend the discussion a little. The water in the stream, which has a propensity to seek its level, and will continue in its current to the sea, is in strict reality the veritable thing in controversy. It knows not imaginary state or

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county lines, and is a thing in which no man has a property until captured to be applied to a beneficial use. The right of appropriation is recognized in law, which means the right of diversion and use. It is the right, not to any specific water, but to some definite quantity of that which may at the time be running in the stream. So the right acquired by an appropriation includes the right to have the water flow in the stream to the point of diversion. The fact of a state line intersecting the stream does not, within itself, impinge upon the right. In other words, the appropriation may still be acquired although the stream is interstate and not local to one state; nor will the mere fact that the stream has its source in one state authorize a diversion of all the water thereof as against an earlier and prior appropriator across the line in another state. On the contrary, one who has acquired a right to the water of a stream by prior appropriation, in accordance with the laws of the state where made, is protected in such right as against subsequent appropriators, though the latter withdraw the water within the limits of a different state. Howell v. Johnson (C. C.) 89 Fed. 556; Hoge v. Eaton (C. C.) 135 Fed. 411; Anderson v. Bassman (C. C.) 140 Fed. 14. So that, in determining the right of appropriation in one state, it may become necessary to ascertain what are the rights in another, and a mere assertion of rights in the courts of the latter state cannot operate to preclude the courts of the former from exercising cognizance over the entire subject-matter before them. The very question that appellant makes was determined in the case of Anderson v. Bassman, supra:

"It is objected by the defendants," says Morrow, Circuit Judge, "that the relief sought by the bill, in determining the rights of the complainants to a specific quantity of the waters of the West Fork of the Carson River, is beyond the jurisdiction of this court, in that it is asking the court to pass upon titles to real property in another state."

And the decision was against the contention. So the decision here must be against appellant's contention upon the point urged.

That the present bill is ancillary to the original suit instituted in the Circuit Court for the District of Nevada is not questioned. It is not infrequent that the state courts come in conflict with the federal courts, and vice versa of the federal with the state, and this where they exercise concurrent jurisdiction. In all such cases it has been firmly established that the court first acquiring jurisdiction of the subject-matter of the action or suit, and of the parties, is entitled to maintain it until the controversy is at an end and the rights of the parties are fully administered, without interference from, and to the exclusion of the other. Pitt v. Rodgers, 104 Fed. 387, 43 C. C. A. 600; Starr v. Chicago, R. I. & P. Ry. Co. (C. C.) 110 Fed. 3. In the maintenance of such jurisdiction, it is a common remedy to invoke the injunctive process, not against the court offending, but against the parties, to restrain them from proceeding therein in antagonism to the jurisdiction first acquired; and the remedy is available either before or after judgment or decree, either to enable the court to render an effective adjudication, or to command full obedience to its mandates. In support of the doctrine generally, we quote from three of the authorities out of many

that may be cited. In Peck v. Jenness, 7 How. 612, 624, 12 L. Ed. 841, the court says:

"It is a doctrine of law too long established to require a citation of authorities, that, where a court has jurisdiction, it has a right to decide every question which occurs in the cause, and, whether its decision be correct or otherwise, its judgment, till reversed, is regarded as binding in every other court; and that, where the jurisdiction of a court, and the right of a plaintiff to prosecute his suit in it, have once attached, that right cannot be arrested or taken away by proceedings in another court. These rules have their foundation, not merely in comity, but on necessity. For if one may enjoin, the other may retort by injunction, and thus the parties be without remedy; being liable to a process for contempt in one, if they dare to proceed in the other. Neither can one take property from the custody of the other by replevin or any other process, for this would produce a conflict extremely embarrassing to the administration of justice."

So in Root v. Woolworth, 150 U. S. 401, 410, 14 Sup. Ct. 136, 138, 37 L. Ed. 1123:

"It is well settled that a court of equity has jurisdiction to carry into effect its own orders, decrees, and judgments, which remain unreversed, when the subject-matter and the parties are the same in both proceedings. The general rule upon the subject is thus stated in Story's Equity Pleading (9th Ed.) § 338: A supplemental bill may also be filed, as well after as before a decree; and the bill, if after a decree, may be either in aid of the decree, that it may be carried fully into execution; or that proper directions may be given upon some matter omitted in the original bill, or not put in issue by it, or by the defense made to it; or to bring forward parties before the court; or it may be used to impeach the decree, which is the peculiar case of a supplemental bill in the nature of a bill of review, of which we shall treat hereafter. But where a supplemental bill is brought in aid of a decree, it is merely to carry out and to give fuller effect to that decree, and not to obtain relief of a different kind on a different principle; the latter being the province of a supplementary bill in the nature of a bill of review, which cannot be filed without the leave of the court.'"

And again, in French, Trustee, v. Hay, 22 Wall. 250, 22 L. Ed. 857, Mr. Justice Swayne, speaking for the court:

"It (the bill then pending) is auxiliary and dependent in its character, as much so as if it were a bill of review. The court having jurisdiction in personam had power to require the defendant to do or to refrain from doing anything beyond the limits of its territorial jurisdiction which it might have required to be done or omitted within the limits of such territory. Having the possession and jurisdiction of the case, that jurisdiction embraced everything in the case, and every question arising which could be determined in it until it reached its termination and the jurisdiction was exhausted. While the jurisdiction lasted it was exclusive, and could not be trenched upon by any other tribunal."

The case relied upon by counsel for appellant-Oliver v. Parlin & Orendorff Co., 105 Fed. 272, 45 C. C. A. 200-is in harmony with these authorities; but there the federal court had not acquired previous jurisdiction over the person of the Groesbeck National Bank, which it was sought to enjoin.

The doctrine being thus established, and the jurisdiction of the federal court in the present case having first attached, section 720, Rev. St. [U. S. Comp. St. 1901, p. 581], is without application. As is well known, this section inhibits the granting of a writ of injunction by a federal court to stay the proceedings of a state court.

"It is well settled," says Mr. Bates, in his work on Federal Equity Procedure, § 541, "upon both reason and authority, that the prohibition contained in this statute 'does not apply where the federal court has first obtained jurisdiction, or where, the state court having first obtained jurisdiction, the case has been removed to the federal court. In such cases the federal court may restrain all proceedings in a state court which would have the effect of defeating or impairing its jurisdiction. It extends only to cases in which the jurisdiction has first attached.' If the rule were otherwise, ‘after suit brought in a federal court, a party defendant could, by resorting to a suit in a state court, defeat, in many ways, the effective jurisdiction and action of the federal court, after it had obtained full jurisdiction of person and subject-matter.'"

The appellant, the Rickey Land & Cattle Company, has succeeded to all the interest of Rickey, in so far as such interest affects and pertains to the subject-matter of the controversy in the case of Miller & Lux v. Rickey et al (C. C.) 146 Fed. 574. The position is so apparent from Rickey's own affidavit as to put at rest all contention about it. He says:

"That the said Rickey Land & Cattle Company acquired by conveyance from said Thomas B. Rickey all his right, title, and interest to certain water rights, and rights to the use of water; and said water rights, and rights to the use of water, are in part the water rights, and rights to the use of water, described and mentioned in the said complaints in said actions commenced in Mono county; but the said water rights so acquired by the said Rickey Land & Cattle Company from the said Thomas B. Rickey are not the same rights to water, and rights to the use of water, alleged in said complaints in said Mono county in this: that since the conveyance of said lands by Thomas B. Rickey, and said water rights, and the right to the use of water to said Rickey Land & Cattle Company, which conveyance was made, executed, and delivered on the 6th day of August, 1902, the Rickey Land & Cattle Company has at all times appropriated and diverted the water described in the said complaints in said actions commenced in said Mono county for a beneficial purpose, and has used the same for a beneficial purpose, and has diverted, appropriated, and used such water adversely to all the world, and under a claim of right so to do, and has so diverted, appropriated, and used such water continuously, uninterruptedly, notoriously, adversely, exclusively, and peaceably."

The affiant attempts to show wherein the rights that the Rickey Land & Cattle Company now claim are different from those which were conveyed and transferred to it by Rickey himself, and in that attempt it is significant that he shows that whatever difference exists at the present time between the two rights is the result of what the company has done since its acquirement from Rickey, that is, in the way of continuing and increasing Rickey's alleged original appropriations of water, but not to the extent of acquiring any new or different rights. by adverse holding and possession, or otherwise. In other words, the company has merely builded upon the rights obtained from Rickey, without acquiring any new or additional rights. These are the rights that the Rickey Land & Cattle Company is seeking to establish in the superior court of Mono county, Cal., against which it is maintained that the rights of the appellee are adverse and subordinate, and the same rights which the appellee asserts are subordinate to those that it has acquired and is possessed of and owns; so that the issues must needs be the same, and the controversy the same, whether Miller & Lux, the appellee, goes into the Mono county superior court, or the Rickey Land & Cattle Company makes defense in the United States.