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and for the domestic and other uses of said pueblo and said city and the inhabitants thereof.

It was further alleged that within one year after the foundation of the pueblo the municipal authorities thereof constructed a system of irrigation works and conveyed the waters of the river to and upon lands in the pueblo, and that thereafter from time to time other lands of the pueblo were brought under irrigation, so that all of said waters were diverted from said river and used for such irrigation during a period of many years prior to the conquest of California by the United States, and that, from and after such conquest, the same use was made of the waters of the river for the irrigation of lands within the pueblo and for domestic use of its inhabitants up to the time of the passage of the act of April 4, 1850, incorporating the city of Los Angeles; that from and after that time the municipal authorities of said city continued to construct additional works for the more economical diversion and distribution of such waters for use in irrigating lands within said city and for domestic use of the inhabitants thereof; that within the past eighteen years nearly all of said irrigable lands have been divided into building lots and covered with houses, so that all of the waters previously used for the irrigation of said lands, excepting the portion thereof which has been diverted by complainants within the last five years, have been used by the city and its inhabitants for purposes other than for irrigation, and all of the waters of said river during the dry season of each year, extending from the first day of May to the first day of November, and a great portion of said waters during the rest of the year, have been needed for said uses. That the population of said city is not less than 180,000 people, and is increasing at the rate of more than 10,000 per year, and that the city has no other source of water supply except said river.

It was alleged that, with certain exceptions referred to therein, the pueblo of Los Angeles, from the time of its foundation in the year 1781, up to the incorporation of the pueblo as a

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city by the act of 1850, and the said city from that time until now has continuously, exclusively and adversely to the whole world used all of the waters of the Los Angeles river under a claim of ownership of said waters, the exceptions referred to being claims made by certain persons at various times of rights to the use of the waters of the river and of affluents thereof, which have been litigated and decided by the state courts in favor of the city, and it was further alleged that within the past twelve years certain owners of lands in which flowed underground waters of the river have set up a claim that said waters were not a part of the river and that they were entitled to take and appropriate said underground waters for their own use, and that, in pursuance of such claims, great numbers of said parties, including some of complainants, had constructed wells and engaged in pumping large quantities of said water, thereby diminishing the surface flow of the river, and that it was for the purpose of preventing such diminution that the city was bringing and contemplated bringing the actions against complainants referred to in the bill; that within the past five years such abstraction of these underground waters did not interfere with the supply of water required by the city, but within the past three years the amount of diversion by means of said wells has increased so much and the needs of the city and its inhabitants have also so greatly increased that the waters of the river which reached the surface stream thereof and the underground diversion works of the city have not been sufficient to supply it and its inhabitants with the water needed by them.

It was also alleged that the city in its corporate name or in the name of the board of water commissioners is the owner of numerous tracts of land which are riparian to the river, and which are particularly described in the answer. And further, that in the year 1879 two actions were commenced by predecessors of some of complainants against the city of Los Angeles, claiming the right to divert and use waters of the river, and both of said actions were finally determined by the Supreme

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Court of the State of California against the plaintiffs and in favor of the city, and it was alleged that complainants, who are successors in interests of the plaintiffs in the suits last mentioned, are by said judgments estopped to deny that the city is the owner of a paramount right to use so much of the waters of the Los Angeles river as it and its inhabitants may need.

Thereafter the city of Los Angeles, by its counsel, moved the court to dismiss this cause on the ground that it appeared that the court had no jurisdiction thereof, which motion was sustained and the bill dismissed, whereupon the cause was brought here on certificate.

Mr. Cyrus F. McNutt, with whom Mr. Warren E. Lloyd and Mr. J. E. Harmon were on the brief, for appellants:

The bill presents several Federal questions. It is not an action under $738 of the Code of Civil Procedure of California to quiet title generally, but a bill in equity to remove clouds from complainants' titles. However that section is construed by the California courts, as providing an exclusive remedy for quieting titles to land, the legislature and the courts of the State cannot affect the equity practice and jurisdiction in the Federal courts.

The original jurisdiction in equity, conferred by the Constitution, imposes the duty to adjudicate according to the rules of the English Chancery Court, as administered from the time of the emigration of our ancestors, down to the period when the Constitution was formed. Pennsylvania v. Wheeling &c. Bridge Co., 18 How. 492. The equity jurisdiction of the Federal courts is the same as the English High Court of Chancery, and is not subject to limitation or restraint of state legislation. Payne v. Hook, 7 Wall. 430.

Equity practice and jurisdiction of Federal courts is uniform throughout the United States, and cannot be varied by state laws. Russell v. Southard, 12 How. 147.

The act of 1872, requiring pleading and procedure in civil causes in the Circuit and District Courts to conform, as near

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as may be, to the practice in state courts, has no application to equity or admiralty causes. Blease v. Garlington, 92 U. S. 8; Bucher v. Cheshire R. R., 125 U. S. 582.

Though state legislatures may abolish, in state courts, the distinction between actions at law and actions in equity, by enacting that there shall be but one form of action, which shall be called “civil action,” yet the distinction between the two sorts of proceedings cannot be thereby obliterated in the Federal courts. Thompson v. R. R. Companies, 6 Wall. 134.

The allegations of the bill raise Federal questions by setting out the claim of title by complainants and the clouds cast on such title by the defendants, claiming under a treaty and various laws of the United States and its predecessor in title and sovereignty as well as various acts of the legislature of California which are in violation of the Constitution.

The admissions and averments in the answer are in answer to the charge in the bill, that the city's claim to the river and its waters and the waters in complainants' lands, is rested in part upon a construction of the treaty of Guadalupe Hidalgo, which construction, and that alleged to be placed upon the act of Congress of March 3, 1851, are set forth with particularity.

Whether such admissions in defendant's answer to the averments of the bill in this respect, will be considered as strengthening such averments of the bill, must depend upon whether this court will look beyond the bill in determining whether a Federal question is presented there; and if so, whether there be any matter in the answer defeating such jurisdiction. In either event, the treaty of Guadalupe Hidalgo is fairly drawn into this cause, and whether the averments of the bill alone, or such averments and the admissions of the answer, be considered, the construction of that instrument must be had in order to a proper determination of the controversy here.

The amended bill is framed according to the rules of equity pleading established by this court under $ 917 of the Revised Statutes, and in all respects follows well settled practice in

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equity. Under Equity Rule 21, the complainant has a right to state defendant's claims and in certain suits they form the very gist of the action. Having been properly pleaded, it is for the court to determine whether or not they form a logical and necessary portion of complainants' case. If they do, there is no doubt that the court may regard them in determining its jurisdiction. When the claim of the defendant is no longer a supposed pretense or excuse, but a specific cloud on title, evidenced by written instruments and records and specific acts, the plaintiff is unable to state his cause of action at all without alleging it. Such allegations are no longer the charging part of the bill but its very substance. If not alleged, evidence will not be received regarding them. Foster's Federal Practice, $ 67; Crockett v. Lee, 7 Wheat. 522.

The acts of the legislature of the State of California complained of are prima facie valid and a cloud on title, and complainants have a right in equity to have the same removed and the claims of defendant thereunder quieted. 7 Cyc. 255, Article “Cloud on Title.” Courts of equity always show the highest solicitude regarding land titles and will afford a remedy appropriate to the circumstances of each case. Sharon v. Tucker, 144 U. S. 533.

Complainants claim protection under the Fourteenth Amendment of the Constitution of the United States, in that the legislative acts and municipal acts and ordinances pleaded, deprive, or attempt to deprive, them of their property without due process of law.

If the complainants have the title in their lands which they allege, an act of the legislature of California granting to defendant the exclusive right to all the waters in the river Los Angeles is an attempt to deprive complainants of property protected by the Constitution. As a matter of fact, it has unsettled all land titles in the valley through which the Los Angeles river runs. Defendant claims every benefit of these legislative acts. It denies that complainants ever owned any of the waters in their lands. Coupled with this, it attempts the

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