Morris v. Bean

• Decision Date: 05 May 1903
• Docket Number: 666.
• Citation: 123 F. 618
• Parties: MORRIS v. BEAN et al.
• Court: U.S. District Court — District of Montana

123 F. 618

MORRIS v. BEAN et al.

No. 666.

United States Circuit Court, D. Montana.

May 5, 1903

Fred H Hathhorn, for plaintiff.

O. F Goddard and Geo. W. Pierson, for defendants.

KNOWLES District Judge.

This suit is brought to determine the respective rights of the parties to the use of the waters of Sage creek, a natural water course having its rise in the state of Montana, and flowing down its natural channel through a portion of Carbon county, Mont., to the dividing line between the states of Montana and Wyoming, and from thence on into the state of Wyoming. The complainant is a resident and citizen of the state of Wyoming, and the defendants are all of them residents and citizens of the state of Montana. The point of diversion of the waters of said stream by the several defendants is in the state of Montana. The complainant owns a ranch or farm in the state of Wyoming, and has constructed a ditch by means whereof he diverts water from said stream, and conducts it upon his farm for the purposes of irrigation. The effect of the diversion by the defendants is to prevent water of said Sage creek from flowing down its natural channel, and entering into and flowing through the complainant's ditch, who is thus deprived of water for irrigating his ranch. Complainant claims that his appropriation is prior in time to that of the defendants.

There is a claim made by the defendants that the water which they divert from said stream does not belong to the complainant because his ditch and land are located in the state of Wyoming, while their diversion and lands are in Montana. This point was decided by this court in the case of Howell v Johnson, 89 F. 556, in which it was held that one who has acquired a right to the waters of a stream flowing through the public lands, by prior appropriation, in accordance with the laws of the state where the appropriation is made, is protected in such right by the provisions of sections 2339 and 2340 of the Revised Statutes of the United States (U.S. Comp. St. 1901, p. 1437), as against subsequent appropriators, although the latter withdraw the water within the limits of a different state. Nothing has occurred in this case to change the views of the court expressed in Howell v. Johnson, supra.

It is claimed by the defendants that their diversions are separate and wholly independent diversions; that they are not joint, concerted diversions, and that therefore there is a misjoinder of parties defendant; and that the action cannot be maintained against them jointly. In the case of Hillman v. Newington, 57 Cal. 56, where the facts presented were similar to those presented here, it was held that a suit was properly brought and could be maintained against all of the defendants appropriating water which, if allowed to flow unobstructed, would have reached the head of the plaintiff's ditch. This same view was entertained in the case of Blaisdell v. Stephens, 14 Nev. 22, 33 Am.Rep. 523, where the court, upon a rehearing, granted an injunction against several defendants. In the case of Woodruff v. North Bloomfield Gravel Mining Co. (C.C.) 16 F. 25, commonly known as the 'Debris Cases,' Judge Sawyer held that the objection here made was not valid, and cites the above cases with approval, and says, 'There are many other authorities, not necessary to mention, tending more or less strongly and directly to the same conclusion. ' Under these authorities, I hold that the contention of the defendants cannot be sustained, and that this court has jurisdiction to determine the question presented, as against all of the defendants.

It is further contended by defendants that the court has no jurisdiction of the suit, because the amount in controversy does not exceed the sum of $2,000, exclusive of interest and costs. In paragraph 5 of the bill it is alleged that the value of the plaintiff's water right is $2,000. It is contended by the defendants that this is the real matter in controversy, viz., the water right, and hence shows that the amount in controversy does not exceed $2,000, exclusive of interest and costs. In paragraph 9 of the bill it is alleged that the amount of damage plaintiff has suffered on account of the diversion of the water to which he is entitled is $2,500. It was claimed that this could not be considered because it appeared from the showing of the defendants that there was no joint damage inflicted upon the plaintiff by them. The charge, however, is that the defendants jointly inflicted this damage. Under the authority of Schunk v. Moline, Milburn & Stoddard Co., 147 U.S. 500, 13 Sup.Ct. 416, 37 L.Ed. 255, it is evident that the court, upon the showing made by the defendants in their affidavits, cannot...