Brooks v. United States

• Decision Date: 10 March 1941
• Docket Number: No. 9544.,9544.
• Parties: BROOKS et al. v. UNITED STATES et al.
• Court: U.S. Court of Appeals — Ninth Circuit

119 F.2d 636 (1941)

BROOKS et al. v. UNITED STATES et al.

No. 9544.

Circuit Court of Appeals, Ninth Circuit.

March 10, 1941.

COPYRIGHT MATERIAL OMITTED

M. C. Mechem and A. T. Hannett, both of Albuquerque, N. M. (H. Vearle Payne and L. P. McHalffey, both of Lordsburg, N. M., of counsel), for appellants.

Norman M. Littell, Asst. Atty. Gen., Frank E. Flynn, U. S. Atty., and H. S. McCluskey, both of Phoenix, Ariz., and Vernon L. Wilkinson and Robert Koerner, Attys. Dept. of Justice, both of Washington, D. C. (Geraint Humpherys, Dist. Counsel, U. S. Indian Field Service, of Los Angeles, Cal., and John C. Gung'l, of Tucson, Ariz., of counsel), for appellees.

Before WILBUR, HANEY, and HEALY, Circuit Judges.

WILBUR, Circuit Judge.

This is an appeal from an order adjudicating the appellants guilty of contempt of court. The appellants, New Mexico water users of the waters of the Gila River, were charged with having violated the injunctive feature of a decree of the United States District Court for the District of Arizona affecting and defining the water rights of the United States and of the several defendants in the waters of Gila River in Arizona and New Mexico. The facts are not in dispute. The main defense presented by the appellants was the assertion that the court had no jurisdiction to make its decree with relation to the rights of the appellants to the waters of the Gila River in New Mexico.

The Gila River rises in New Mexico and flows west through Arizona to its junction with the Colorado River at Yuma, Arizona.

The decree involved was the same one considered by this court in the case of Gila Valley v. United States, 9 Cir., 118 F.2d 507, filed March 10, 1941.

The appellants are all parties defendant in the litigation brought by the United States to settle the water rights in the waters of Gila River. They submitted themselves to the jurisdiction of the United States District Court for the district of Arizona and joined in a stipulation with all the other parties for the entry of the specific decree, which they now attack.

The appellants were all owners of land in New Mexico irrigated by the waters of the Gila River, claiming water rights in the Gila River within the state of New Mexico, in excess of the waters decreed to them by the consent decree. They claim that the United States District Court for the District of Arizona had no right to consider or determine the rights of the appellants in the waters of the Gila River in New Mexico, although the amount of the water the appellants use from the Gila River necessarily affects the amount available for the water users within the state of Arizona because of the scarcity of water in the stream.

Without going into detail as to the terms of the decree it is sufficient for the purposes of this case to say that it determines the rights of all the water users in and to the waters of the Gila River within the state of New Mexico and within the state of Arizona with great detail and enjoins each of the parties from interfering with the water rights of the other parties to the decree, as therein determined.

The question with relation to the power of a United States District Court and of a state court within one state to consider or determine the rights of water users in another state in the same interstate stream, is one fraught with great difficulty inherent in the nature of the rights in flowing water. Enough authoritative decisions have been rendered upon that subject to make it unnecessary to again reason from the elementary principles with relation to the rights of a court to proceed in rem and in personam in relation to such rights in interstate streams.

It is uniformly held that an action to determine such rights is not a transitory action. Consequently a court would be limited ordinarily to the determination of such water rights and only such rights as are located within its territorial jurisdiction. The difficulty in applying the ordinary rule as to jurisdiction is that the determination of water rights in the case of an interstate stream would often be entirely inconclusive and might be wholly futile unless the amount of water which should enter the state is also fixed and determined. If all the water is diverted from the stream in the upper state the right to the waters of the stream in the lower state might be entirely destroyed. This situation is peculiarly difficult in the case of streams whose waters are almost completely exhausted for purposes of irrigation. In order for the Arizona court to exercise its unquestioned power to settle effectively Arizona water rights in the Gila River, it must also reach out and consider the amount of water which should rightly be in the stream when it enters the state of Arizona. It must, therefore, consider the question of the rights of upper owners to remove, divert or impound the waters in the upper state.

In addition to other jurisdictional difficulties it should be added that in the case of an interstate stream the states themselves have certain inherent and sovereign rights which should be regarded in determining the rights to its waters. The Supreme Court is the only authority set up to make such determination as between the states. Wyoming v. Colorado, 259 U.S. 419, 42 S.Ct. 552, 66 L.Ed. 999; Id., 260 U.S. 1, 43 S.Ct. 2, 66 L.Ed. 1026; Id., 298 U.S. 573, 56 S.Ct. 912, 80 L.Ed. 1339.

This court pioneered in such questions in the case of the Walker River, which rises in California and flows into Nevada; Rickey Land & Cattle Co. v. Miller & Lux, 9 Cir., 152 F. 11, and Miller & Lux v. Rickey, C.C., 146 F. 574; in the case of Sage Creek, which rises in Montana and flows into Wyoming, Bean v. Morris, 9 Cir., 159 F. 651; in the case of Salmon River, which rises in Nevada and flows into Idaho, Vineyard Land & Stock Co. v. Twin Falls, etc., 9 Cir., 245 F. 9; see also, Utah Construction Co. v. Salmon River Canal Co., 9 Cir., 85 F.2d 769; and in the case of the Colorado River, which flows from California into Mexico, The Salton Sea Cases, 9 Cir., 172 F. 792, 820.

Our decision in the Walker River case, supra, was affirmed by the Supreme Court, Rickey Land & Cattle Co. v. Miller & Lux, 218 U.S. 258, 31 S.Ct. 11, 54 L.Ed. 1032. The Supreme Court held that the United States District Court for Nevada had jurisdiction not only to declare the respective rights of the water users within the state of Nevada, but also as a necessary incident thereto to determine the rights of the upper water users in the state of California, in so far as such determination was a necessary supplement to the determination of the rights of water users in Nevada. If we are correct in this interpretation of the decision of the Supreme Court, which has not since been modified, it is determinative of the main issue involved in this appeal. For that reason the parties have devoted much of the briefs and argument to an analysis and interpretation of that decision. To appreciate the full significance of the decision of the Supreme Court in the Walker River case, supra, it is necessary to consider the situation with relation to the claims and counterclaims of the parties therein which are not fully disclosed on the face of the decision of the Supreme Court but are manifest by a consideration of our decision in 152 F. 11, supra, which was reviewed by the Supreme Court, wherein the facts are more fully stated. Miller and Lux, a corporation owning lands in the state of Nevada, and claiming the right to use the waters of the Walker River within said state, brought an action against Rickey, owning lands in the state of California and claiming water rights in the Walker River appurtenant to those lands, and certain other defendants, to enjoin interference with the flow of the Walker River in amount necessary to supply the wants of the lands of Miller and Lux in the state of Nevada. After the suit was brought by Miller and Lux in the United States District Court for the District of Nevada, Rickey transferred his land and water rights in California to the Rickey Land & Cattle Company which had been organized after the institution of the suit in Nevada. This company then brought a suit against Miller and Lux in the state courts of California to quiet its title to the same water rights in California derived from Rickey. After the California suit was instituted, a co-defendant of Rickey in the Nevada suit, an owner of land in Nevada claiming a right to use the water of Walker River on his Nevada land, filed a cross bill to enjoin both Rickey and the Rickey Land & Cattle Company from diverting water from Walker River in the state of California which was essential to supply the water which he was entitled to use in Nevada in accordance with his alleged rights.

Miller and Lux applied to the United States District Court for Nevada in the suit then pending for an injunction to prohibit the Rickey Land & Cattle Company from proceeding with the litigation in California thereafter begun. The decision depended upon the jurisdiction of the federal court in Nevada to determine the questions involved in the state court in California and, also, its right to exercise exclusive jurisdiction so to do in view of the prior action therein instituted. The court, reasoning from analogy from jurisdiction over proceedings in rem held that the Nevada court, having first secured jurisdiction of the res, had exclusive jurisdiction to determine the controversy between the parties in California as well as in Nevada.

With reference to the cross complaint of Rickey's co-defendant, it will be observed that while the case brought in the District Court of Nevada, for the determination of the rights of Miller and Lux and of Rickey in Nevada and California preceded the suit brought by Rickey Land & Cattle Company in the California state court to determine such rights in California, the cross-complaint in intervention of the co-defendant of Rickey against him in the Nevada action to...