Davey v. Yolo Water & Power Co.

• Decision Date: 18 December 1913
• Citation: 211 F. 345
• Court: U.S. District Court — Northern District of California
• Parties: DAVEY v. YOLO WATER & POWER CO. et al.

211 F. 345

DAVEY v. YOLO WATER & POWER CO. et al.

United States District Court, N.D. California.

December 18, 1913

William Clark Crittenden, of San Francisco, Cal., for plaintiff.

Charles S. Wheeler and John F. Bowie, both of San Francisco, Cal for defendant Power & Irrigation Co., of Clear Lake.

VAN FLEET, District Judge.

This is a motion to remand the cause to the state court. The action is against several defendants, sued jointly to quiet plaintiff's title to the waters of a natural stream, it being alleged that plaintiff is rightfully in possession and entitled to the use for the purposes of irrigation of a certain quantity of water, 'constituting the natural flow and flood waters of Kelsey creek, in the county of Lake state of California, and of any waters flowing or lying beneath the surface of the gravel or in the ground in the bed of said creek,' etc., and that 'the said defendants claim, and each of them claims, an estate or interest in said waters and water right and in the use of said waters, adverse to the said plaintiff and his said use thereof,' without right, etc., with a prayer that the rights of the parties be settled by the decree. The plaintiff and all of the defendants but one are residents and citizens of this state. The nonresident defendant, the Power & Irrigation Company of Clear Lake, is an Arizona corporation, and has removed the cause here solely upon the ground that there exists, as between it and the plaintiff, a separable controversy.

I am disinclined to hold with plaintiff's first contention that the case is not one falling within the grant of original jurisdiction to this court, and hence not subject to removal but it is not necessary to determine that question, since I am of opinion that the case is improperly here under the further objection urged that no separable controversy is disclosed by the record. This latter question must be determined from the state of the pleadings and record at the time of the application for removal, and cannot be affected by facts disclosed otherwise. C., B. & Q. Ry. Co. v Willard, 220 U.S. 413, 426, 31 Sup.Ct. 460, 55 L.Ed 521. In this respect it is to be observed that the claim of the plaintiff extends to the waters of the stream as an entirety, and the averment is that each and all of the defendants claim an interest adverse to that right; and the prayer is that the rights of plaintiff and the adverse claims of all the...