Anderson v. Bassman

• Citation: 140 F. 10
• Decision Date: 05 August 1905
• Docket Number: 12,857.
• Parties: ANDERSON et al. v. BASSMAN et al.
• Court: U.S. District Court — Northern District of California

140 F. 10

ANDERSON et al. v. BASSMAN et al.

No. 12,857.

United States Circuit Court, N.D. California.

August 5, 1905

Alfred Chartz, D. W. Virgin, and N. Soderberg, for complainants.

Richard S. Miner and James M. Allen, for defendants.

MORROW Circuit Judge.

This cause has been submitted upon the merits, but in the record there are facts that raise the question of jurisdiction, and this question has been submitted to the court by the defendants in the course of the argument. The jurisdiction of this court is invoked on the ground of the diverse citizenship of the parties to the action. The complainants number 48, and are alleged to be citizens of Nevada. The defendants number 33, and they are alleged to be citizens of California. The cause of action against the defendants is alleged in the bill of complaint to be the wrongful acts of the defendants in depriving complainants of the waters of the West Fork of the Carson river, and this wrong, it is alleged is accomplished by the defendants by their maintenance of dams and ditches above the complainants on the river, for the purpose of diverting and wasting the waters of said river. These dams and ditches take the water from the river in California, depriving the defendants, who are located lower down the river in Nevada, of the natural flow of the stream.

The jurisdiction of a circuit court of the United States is limited, in the sense that it has no jurisdiction except that conferred by the Constitution and laws of the United States; and a cause is presumed to be without its jurisdiction, unless the contrary affirmatively appears. When jurisdiction depends upon diverse citizenship, the absence of sufficient averments or of facts in the record showing such required diversity of citizenship is fatal, and cannot be overlooked by the court even if the parties fail to call attention to the defect, or consent that it may be waived. Consent can never confer jurisdiction upon a federal court. Thomas v. Board of Trustees, 195 U.S. 207, 210, 25 Sup.Ct. 24, 49 L.Ed 160. In controversies between citizens of different states, where the jurisdiction of the courts of the United States depends upon the citizenship of the parties, if there are several coplaintiffs, each plaintiff must be competent to sue, and, if there are several codefendants, each defendant must be liable to be sued in this court or the jurisdiction cannot be maintained. Strawbridge v. Curtiss, 3 Cranch, 267, 2 L.Ed. 435; Coal Co. v. Blatchford, 11 Wall. 172, 20 L.Ed. 179; Peninsular, etc., Co. v. Stone, 121 U.S. 633, 7 Sup.Ct. 1010, 30 L.Ed. 1020.

John E. Johns is named as one of the defendants in this action, and it is alleged in the bill that the defendants (including John E. Johns) are citizens, and each of them is a citizen, of the state of California, and they, and each of them, are actual and bona fide residents of Alpine county, state of California, excepting A. F. Dresser, who is a resident of Alameda county, Cal. On January 6, 1900, there was filed in the clerk's office an acceptance of service of subpoena by the defendant John E. Johns, as follows:

'Carson City, Ormsby County, State of Nevada.

'I hereby accept service of subpoena in the case of John Anderson et al. against Henry Bassman et al., which case has been brought in the Circuit Court of the United States, Ninth Circuit, Northern District of California, and hereby authorize my appearance therein, as one of said defendants, and I fully waive all objections which I could legally make thereto.'

On April 22, 1903, the defendant John E. Johns entered his appearance in this case as of date January 15, 1900. But no answer has been filed by this defendant to the bill of complaint. It appears from the evidence that Johns was at one time the owner of a tract of land in Alpine county, Cal., irrigated by water taken from the West Fork of the Carson river, and that Johns was a part owner of the ditch that conveyed the water from the river to his land; that about the time of the commencement of this action Johns conveyed his land in Alpine county and his interest in the ditch to one Mary Jones, a citizen of Nevada. The defendants contend that either the defendant John E. Johns is an indispensable party to this action, or his grantee, Mary Jones, is; that if Johns owned lane in Alpine county, Cal., irrigated by a ditch taking water from the West Fork of the Carson river, in which ditch Johns was a part owner, and he was a citizen of Nevada when this suit was instituted, he was a citizen of the same state as the complainants, and the jurisdiction of this court cannot be maintained, because of Johns' citizenship in the state of Nevada; that Mary Jones has not been made a party to the action; that she is an indispensable party, if Johns is not, by reason of his conveyance of his property to her; that she is a citizen of Nevada, and making her a party to the cause will oust this court of jurisdiction.

Johns was called as a witness by the complainants in rebuttal on November 7, 1901. He then testified that he resided in Carson City, Nev. He also testified that he purchased a small place in Diamond Valley, Cal., in 1875, but did not move there until 1876; that in 1899 he sold out-- 'a year ago last spring.' He was asked if it was after this suit was brought. His answer was: 'Yes; I believe so.' The testimony in this case was closed by stipulation on March 27 1902. Thereafter, on April 23, 1903, Johns filed an affidavit in this court, in which he states that he is the person who was formerly the owner of the John E. Johns ranch in Diamond Valley, Alpine county, Cal., now owned by Mrs. Mary Jones; that he is named as one of the defendants in this action; that on the 15th day of August, 1898, he became a resident of Ormsby county, Nev., and ever since has been a resident of said county and state; that in December, 1899, at the time this action was brought, he was a resident of said county and state; that Mrs. Mary Jones, the present owner of the Johns ranch, at the time of her purchase of the same from him was, and now is, a resident of Douglas county, state of Nevada. There was also filed, on April 24, 1903, the affidavit of Judge N. D. Arnot, judge of the superior court of Alpine county, Cal., stating that he is well acquainted with said Johns; that for several years prior to 1897 Johns resided on the Johns ranch in Diamond Valley, Cal., but subsequent...