Ames Realty Co. v. Big Indian Min. Co.

• Decision Date: 11 June 1906
• Docket Number: 668.
• Citation: 146 F. 166
• Parties: AMES REALTY CO. v. BIG INDIAN MINING CO. et al.
• Court: U.S. Court of Appeals — Ninth Circuit

146 F. 166

AMES REALTY CO. v. BIG INDIAN MINING CO. et al.

No. 668.

United States Circuit Court, D. Montana.

June 11, 1906

McConnell & McConnell, for complainant.

M. S Gunn, for defendants.

HUNT District Judge.

Complainant a corporation, resident and citizen of Missouri, brings this action to obtain an adjudication of the rights of itself and the defendants to the use of the waters of Prickly Pear creek and its branches and tributaries within the state of Montana and for injunction against defendants, restraining them from diverting any of the waters of said creek and its tributaries until the prior rights of complainant are first satisfied. There are about 90 defendants, some of whom are residents and citizens of Montana, while many are residents and citizens of other states. Complainant owns 1,926 acres of agricultural lands, which require irrigation. It alleges that in 1865 1866 its predecessors in interest tapped the waters of Prickly Pear creed by means of certain ditches, and carried the waters of said creek upon the said lands, and irrigated the same, and made appropriations of such waters to the extent of 404 inches, and said quantity of said waters has been used upon said lands ever since such appropriations, and is necessary now to the enjoyment of the lands of this complainant. Complainant alleges that the defendants, and each and every of them, claim some right to the use of the waters of said Prickly Pear creek or its tributaries, all of which said tributaries empty into the Prickly Pear creek above the points where complainant diverts its water, and that the waters of the tributaries are necessary in order to swell the waters of the main Prickly Pear creek, so that complainant and other prior appropriators to defendants may satisfy their prior rights. It is alleged that defendants are appropriating large quantities of the waters of Prickly Pear creek and its tributaries, and threaten to continue to do so, and thereby to exhaust the waters, so that complainant will be deprived of the use of water for its lands, and greatly damaged thereby. Complainant sets forth that all the rights claimed by the defendants, or any of them, are subsequent to the rights of complainant, and that, unless defendants are restrained from diverting and turning away the waters of Prickly Pear creek and its tributaries by means of ditches, complainant will be unable to cultivate its lands. It is set forth that, by reason of the diverse interests of each of the defendants, it is necessary that all and every of the claimants of the waters of Prickly Pear Creek and its tributaries by made and joined as defendants, in order to avoid a multiplicity of suits.

A number of the defendants have filed cross-bills, wherein each cross-complainant sets forth the substance of complainant's bill, pleads title to certain lands in the Prickly Pear valley, and that the lands described in the cross-complaint are agricultural lands, and have been irrigated with the waters of Prickly Pear creek by means of ditches carrying certain quantities of the waters of said creek, appropriated prior to the alleged dates of appropriation of the complainant. Cross-complainants allege that the lands they own are patented, and that they and their predecessors in interest have had open, notorious, continuous, uninterrupted, and adverse use, possession and enjoyment of specified numbers of inches of waters of Prickly Pear creek, as against the complainant and other cross-complainants who are codefendants mentioned in the complainant's bill, and all other persons. They allege that the complainant, and their codefendants mentioned in complainant's bill, claim some right, title, or interest, by virtue of appropriations, to the use of the waters of the said Prickly Pear creek and its tributaries, and are using the same; but they aver that the rights of the complainant and their codefendants are subordinate and subservient to the rights of cross-complainants, and that it is necessary that an adjudication be had of the amounts of water to which the cross-complainants and the complainant and the defendants named are entitled, and that the cross-complainant's rights to the use of the waters of the creek, or of the tributaries of the creek, from which they allege they are using waters, be quieted by decree of the court. They ask for an injunction, restraining the complainant and all other parties to the suit, and each and every of them, from in any manner interfering with the rights of the cross-complainant filling the bill, to the end that such cross-complainant may have the use of the waters of the tributary creek or main creek, according to his rights, as may be set forth in the particular cross-complaint.

No testimony has as yet been taken in the case. Counsel for several of the defendants, who have merely answered, present a question of jurisdiction by contending that there is no jurisdiction in this court to adjudicate the claims of cross-complainants where there is no diversity of citizenship, and no jurisdiction to enter a decree determining the relative rights of all the parties to the suit in and to the waters of the stream from which complainant claims to have made an appropriation. Counsel for answering defendants and for complainant have presented their views to the court, asking that a ruling should be had before testimony may be taken, to the end that the evidence may be confined to issues properly triable in this court.

The learned counsel for complainant argues that section 1891 of the Civil Code of Montana authorizes this court in one judgment to settle the relative priorities and rights of all the parties to the action, and that it lawfully has made parties to the action all persons who have diverted water from the Prickly Pear creek. His contention is that the subject for litigation tendered to the defendants by the bill of complaint is the stream of water known as Prickly Pear creek and its tributaries; that while the plaintiff only claims 404 inches of water, or rather the right to the use of 404 inches of the waters of the stream described, it is not a separate or separable part of the waters of such stream; that it is a usufruct right as against each and every one of the defendants; and that complainant's right to use the waters claimed by it depends upon the relative priorities of the parties. Placing stress upon the point that the amount claimed by the complainant may be controverted, he invokes broad principles of equity, which he says will not permit all the defendants to be sued simply to litigate the right of the complainant to waters as against each one of the defendants singly, but will uphold a jurisdiction to make a complete determination of the entire controversy among the users of the waters of the stream by allowing each defendant by cross-bill to set up his own right, and thus adjust all the claims in controversy in one suit. This argument needs find its foundation in the general application of the practice expressly recognized by the Codes of the state relating to actions to protect water rights to the equity practice of the federal courts. Section 1891 of the Civil Code of Montana is as follows:

'In any action hereafter commenced for the protection of rights acquired to water under the laws of this state, the plaintiff may make nay or all persons who have diverted water from the same stream or source parties to such action, and the court may in one judgment settle the relative priorities and rights of all the parties to such action. When damages are claimed for the wrongful diversion of water in any such action, the same may be assessed and apportioned by the jury in their verdicts, and judgment thereon may be entered for or against one or more of several plaintiffs, for or against one or more of several defendants, and may determine the ultimate rights of the parties between themselves. In any action concerning joint water rights or joint rights in water ditches, unless partition of the same is asked by parties to the action, the court shall hear and determine such controversy as if the same were several as well as joint.'

A cross-bill is often filed to obtain affirmative relief for the defendant in the original suit, to obtain a discovery in aid of the defense in that suit, to enable the defendant to interpose a more complete defense than that which he could interpose by answer, or to obtain full relief to all parties, and a complete determination of all controversies which arise out of the matters charged in the original bill. The Court of Appeals of the Eighth Circuit held in Springfield Milling Co. v. Barnard & Leas Mfg. Co., 81 F. 263, 26 C.C.A. 389, that if a cross-bill 'fairly tends to accomplish either of these purposes,' it is generally a sufficient ground for its interposition. Section 399, Story on Equity Pleading, says a cross-bill is to be treated as a mere auxiliary suit, or as a dependency upon the original suit. In Cross v. De Valle, 1 Wall. 1, 17 L.Ed. 515, the Supreme Court of the United States quote this language of Judge Story, and, proceeding, say:

'It may be brought by a defendant against the plaintiff in the same suit, or against other defendants, or against both, but it must be touching the matters in question in the bill,' etc.

In Remer v. McKay (C.C) 38 F. 164, Judge Blodgett analyzed a pleading by answering the question whether the cross-bill was 'germane to the subject-matter of the original bill. ' And in Morgan's Co. v. Texas Central Railway, 137 U.S. 171, 11 Sup.Ct. 61, 34 L.Ed. 625, the Supreme Court again quote Mr. Justice Story as follows:

"A cross bill,' says Mr. Justice Story (Eq. Plead. Sec. 389), 'ex vi terminorum, implies a bill brought by a defendant in a suit against the

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