Conant v. Deep Creek & Curlew Val. Irr. Co.

• Decision Date: 17 September 1901
• Citation: 23 Utah 627,66 P. 188
• Parties: HENRY CONANT et al., Respondents, v. DEEP CREEK & CURLEW VALLEY IRRIGATION COMPANY et al., Appellants
• Court: Utah Supreme Court

66 P. 188

23 Utah 627

HENRY CONANT et al., Respondents, v. DEEP CREEK & CURLEW VALLEY IRRIGATION COMPANY et al., Appellants

Supreme Court of Utah

September 17, 1901

Appeal from District Court, First District.--Hon. C. H. Hart, Judge.

Suit by Henry Conant against the Deep Creek & Curlew Valley Irrigation Company and others. From a decree in favor of complainants, defendants appeal.

REVERSED.

Messrs Richards & Allison for appellants.

A. R Heywood, Esq., for respondents.

MORSE District Judge. Baskin and Bartch, JJ., concur.

OPINION

MORSE, District Judge.--

It appears from the record in this case that in April, 1896, the respondent Henry Conant and one Edward Conant commenced an action in the district court of Oneida county, in the State of Idaho, to quiet their title to certain waters flowing through the channel of a stream or creek commonly called "Deep Creek" or "Curlew Creek," which rises in Oneida county, Idaho, and flows through a portion of that county into Box Elder county, Utah, in which action all the appellants appeared, either as defendants or as complainants in intervention, and each claimed to be the owner and entitled to the possession and use of certain portions of the waters of said stream, and all participated in the trial of said cause. A number of persons, residents of the State of Idaho, who claimed and diverted water from said stream in said State, were also made parties defendant in said action. The water claimed by the appellants Deep Creek & Curlew Irrigation Company and Curlew Irrigation & Manufacturing Company was diverted from said stream at points in Oneida county, Idaho, and was used by them for irrigation purposes in Oneida county, Idaho, and in Box Elder county, Utah, and the waters claimed by the respondents Henry Conant and said Edward Conant, as well as the waters claimed by all the other appellants, were diverted from said stream at points in Box Elder county, Utah. On August 6, 1896, a decree was rendered and entered in said action awarding to the plaintiffs and to each of the defendants and interveners therein specific quantities of the waters of the flow of said stream, and quieting their titles thereto, and directing the method of measuring and diverting the same, from which decree no appeal was taken, and the same became final in the Idaho court. On the fifteenth of August, 1899, the respondents commenced this action in the district court of Box Elder county, basing their complaint upon the decree entered in the Idaho court, and praying for a decree in accordance therewith; and from such a decree entered by said district court this appeal is taken.

The principal question presented by this appeal is, did the Idaho court have jurisdiction to try and determine the title and right to the use of the water flowing in that portion of Curlew creek situated within Box Elder county, Utah, and diverted therefrom in said county, and used for irrigation upon lands located therein, and to quiet the title thereto? A right to divert and use the waters of a stream, acquired by appropriation, is a hereditament appurtenant to the land for the benefit of which the appropriation is made. Bear Lake & River Waterworks & Irrigation Co. v. Ogden City, 8 Utah 494, 33 P. 135; Tucker v. Jones, 8 Mont. 225 19 P. 571; Sweetland v. Olsen, 11 Mont. 27, 27 P. 339; Cave v. Crafts, 53 Cal. 135; Simmons v. Winters (Or.), 27 P. 7. "The terms, 'land,' 'real estate,' and 'real property,' include land, tenements, hereditaments, water rights, possessory rights and claims." Subdivision 10, sec. 2498, Rev. St. An action, therefore, to quiet the title and determine and to establish the right to divert and use water for such purposes is in the nature of an action to quiet the title to real estate, and must be commenced and prosecuted in the courts of the State in which the same is situated. The courts of one State are without jurisdiction to hear and determine suits affecting the title to lands in another State. Nelson v. Potter, 50 N.J.L. 324, 15 A. 375. In the case of Lindley v. O'Reilly, 50 N.J.L. 636, 15 A. 379, 1 L. R. A. 79, 7 Am. St. Rep. 802, it is said: "The decree in a suit of this aspect imposes a mere personal obligation, enforceable by injunction, attachment, or like process against the person, and can not operate ex proprio vigore upon lands in another jurisdiction to create, transfer, or vest a title." In Davis v. Headley, 22 N.J. Eq. 115, the complainant obtained a decree in the circuit court of Kentucky against Headley that a conveyance of lands in New Jersey, made by the complainant, should be rescinded and set aside, the possession restored, and the defendant enjoined from setting up the conveyance. He then filed a bill in the court of chancery in New Jersey to enforce the decree. The jurisdiction of the parties by the Kentucky court was undisputed. The bill to enforce the decree was nevertheless dismissed. Chancellor Zabriskie, in dismissing the bill, declared that: "It is a well-settled principle of law in the decisions in England and this country, and acquiesced in by the jurists of all civilized nations (and thus part of the jus gentium), that immovable property known to the common law as 'real estate' is...