Miller & Lux v. Rickey

• Decision Date: 04 January 1904
• Docket Number: 731.
• Citation: 127 F. 573
• Parties: MILLER & LUX v. RICKEY et al.
• Court: U.S. District Court — District of Nevada

127 F. 573

MILLER & LUX v. RICKEY et al.

No. 731.

United States Circuit Court, D. Nevada.

January 4, 1904

This case in its incipient stages bristles with objections upon every step that has been taken by either party. Several matters have been disposed of, and some of them have been deemed of sufficient importance to require a review of the authorities upon the points discussed. Miller & Lux v Rickey et al. (C.C.) 123 F. 604. It has now reached a stage, by pleas and demurrers, where the character and sufficiency of the pleadings must be determined.

Following the former decision herein, the defendant Rickey elected to stand upon his plea to the jurisdiction of the court, in substance to the effect that the east and west forks of Waler river, the waters of which are claimed by complainant, rise in the state of California, and flow across the boundary line between the states of California and Nevada into the state and district of Nevada; that he is the owner of certain lands in California upon which he uses the waters of Walker river to irrigate and raise crops, etc., and that he does not divert any of said waters flowing in the state of Nevada. The defendants Simpson et al. elected to stand upon their plea 'That there is no controversy involved in this suit between complainant and defendants Angus McLeod, Patrick Gallagher, James C. Mills, Frank Feiganspan, Henry Wood, Amos K. Pollard, and Charles Snyder, and the parties joined as defendants as J. O. Birmingham and H. F. Swazey. That all of said defendants last above named are co-owners and co-claimants of water with plaintiff in one or other of the appropriations of water claimed by plaintiff for itself, and set forth in said bill of complaint, and that said last-named parties are necessary and indispensable parties to this suit. That none of said defendants last above named either own or claim to own, or have any water rights or right to divert or use any water for irrigation or otherwise, in any other manner or way than as co-owners and co-claimants and tenants in common with complainant, and that their interests law wholly and entirely on the side of complainant in the controversy set out in said bill of complaint. ' And they plead 'the want of proper and necessary parties to said bill, and the want of jurisdiction over the said suit and the subject-matter thereof and the parties thereto. ' Divers demurrers have been interposed by other of the defendants upon various grounds. The controversy in this suit is between citizens of different states; complainant being a citizen of California, and the defendants being citizens and residents of the state of Nevada.

W. C Van Fleet and W. B. Treadwell, for complainant.

Trenmore Coffin, Chas. C. Boynton, and James F. Peck, for defendant Rickey.

Mack &amp Farrington and George S. Green, for defendants Simpson and others.

Cheney, Massey & Smith, for defendants Greenwood Ditch Company and others.

Mack & Farrington and George S. Green, for defendants George A. Green and others.

H. Pilkington, for defendants H. Wm. Schacht and others.

HAWLEY District Judge.

I. Is the plea to the jurisdiction interposed by defendant Rickey well taken? This question has been elaborately discussed by counsel, and presented in various forms, and numerous authorities cited with reference thereto. These points and authorities have been carefully examined. In the disposition of the question it will be the aim of the court to confine itself to the real points directly involved by the particular facts of this case as drawn from the pleadings, and to the grounds upon which the decision will be based. It will, of course, be conceded at the outset that this court has no jurisdiction over lands and real estate situate without this district. It cannot abate nuisances outside of the district. It cannot reach property in rem wholly situate in other states. It cannot, by any decree which it may make in this suit, directly reach the dams, reservoirs, or ditches belonging to the defendant located entirely within the state of California. What is the nature and character of this suit, as shown by the bill of complaint and plea of the defendant? The suit is brought to enjoin defendants from the alleged wrongful diversion of the waters naturally flowing down the stream of both forks of the Waler river, having their source in California, and flowing down into and through the state of Nevada, where the lands of complainant are situated. The complainant is the lowest proprietor on said river. It claims to be entitled to a specified amount of water flowing in said river by virtue of prior appropriations thereof for the purpose of irrigating its lands for beneficial purposes. After alleging its rights and privileges in the premises, and the alleged wrongful acts of the defendants, it avers 'that all of the said acts, doings, and claims of the said defendants are contrary to equity and good conscience, and tend to the manifest wrong, injury, and oppression of your orator in the premises; in consideration whereof, and for as much as your orator is remediless in the premises at and by the strict rules of the common law, and can have relief only in a court of equity, where matters of this nature are properly cognizable and relievable, to the end, therefore, that the said complainant may have that relief which it can attain only in a court of equity, and that the said defendants may answer the premises, but not upon oath or affirmation, the benefit whereof is expressly waived by the complainant,' and prays 'that the said defendants be forever enjoined and restrained from diverting any water from the said river above the points where the said complainant so diverts the same in such manner or to such extent as to deprive complainant of any of the water aforesaid; and that the complainant may have such further or other relief as the nature of the case may require and to your honors may seem meet. ' It will be observed, by reference to the statement of facts, that the plea of defendant is that the only water of the Walker river which he was diverted was under a claim of right to divert by reason of his ownership of certain lands within the state of California. Without quoting the provisions of the statutes of the United States (1 Stat. 78, c. 20, Sec. 11; 18 Stat. 472, c. 137, Sec. 8 (U.S. Comp. St. 1901, p. 513); 25 Stat. 434, 436, c. 866, Secs. 1, 5 (U.S. Comp. St. 1901, pp. 508, 515); Rev. St. U.S. Sec. 738), and tracing their history, object, and purpose as to the jurisdiction of the United States courts, it may be said that the questions involved in defendant's plea cluster around the single proposition as to whether or not this suit is of a local or transitory nature.

Preliminary to the discussion of this question, it is proper to state that, subordinate to the fundamental principles of jurisprudence and the fixed rules of law arising out of the inherent character of local and transitory actions, and the absolute right of every sovereignty to prescribe laws for the acquisition, ownership, and disposition of property within its territory, and the binding force of the laws of the several states of the Union which constitute rules of property, the territorial jurisdiction of suits in the Circuit Courts of the United States is regulated and controlled by federal legislation enacted for that purpose, pursuant to the power vested in Congress by the federal Constitution. 1 Bates on Fed.Eq.Proc. § 78. The complainant's contention is that this suit is not, strictly speaking, of a local nature, and for that reason it could be brought in the district where the land of complainant is situated, and where the defendant resides. Among other positions taken by the defendant, it is contended that this court has no jurisdiction, (1) because the suit is of a local nature, and could not be brought outside of the state of California; (2) because the water right in controversy is in California; (3) because the wrongs and injury thereto alleged to have been committed by him were committed wholly within the state of California; (4) that complete relief could not be decreed by this court in favor of complainant without reaching the property rights of defendant, which are situate wholly in California. The wrong alleged against defendant Rickey appears by the plea to have been committed in California. The injury for which redress is sought in the bill of complaint is an injury to complainant's land, situate in the state of Nevada. The general principle is that, where a wrong has been committed by some person, and another person has been injured thereby, the injured person has a lawful right to recover from the wrongdoer; the wrong and the injury are both necessary elements, and the absence of either one of them would be fatal to a suit. The two elements must therefore exist and unite in order to form a good cause of action. The direct purpose of all judicial acts is relief to a litigant, which cannot be given by a judgment or decree alone, but must be given, if at all, through the enforcement of the one or the other by appropriate process; and it has often been said that the highest test of the jurisdiction of a court in a given case is found in the answer to an inquiry whether it has lawful power thus to enforce its judgment or decree. The general doctrine at common law is that actions for injury to real estate in the nature of a trespass or in case of nuisances-- and other cases might be cited-- is local, and must be brought in the county in which the land lies; but, where the act which caused the injury to the land was committed in another county or district, suit may be brought in either at the election of plaintiff.

No attempt will be made to review all the authorities cited as to what are...