Pitt v. Rodgers

• Decision Date: 09 October 1900
• Docket Number: 572.
• Citation: 104 F. 387
• Parties: PITT et al. v. RODGERS.
• Court: U.S. Court of Appeals — Ninth Circuit

104 F. 387

PITT et al. v. RODGERS.

No. 572.

United States Court of Appeals, Ninth Circuit.

October 9, 1900

J. W Dorsey and R. R. Bigelow, for appellants.

Charles W. Slack and A. E. Cheney, for appellee.

Before GILBERT and ROSS, Circuit Judges, and DE HAVEN, District Judge.

DE HAVEN, District Judge.

This is an appeal from an order of the circuit court of the United States for the district of Nevada (96 F. 668) restraining W C. Pitt, J. T. Hauskins, and L. L. Downs from further proceeding against Arthur Rodgers, the complainant in this action, upon an amended and supplemental answer filed by them 'in a certain action pending in the district court, Fifth judicial district of the state of Nevada, in and for the county of Humboldt, wherein J. R. Thies, P. N. Marker, and H C. Marker are plaintiffs, and the said W. C. Pitt, J. T Hauskins, and L. L. Downs are defendants. ' The appellants insist that the facts stated in the petition for injunction are not sufficient to justify the action of the circuit court in making the order appealed from, and this is the only question presented by the appeal. The allegations of the petition for injunction were very carefully stated by Judge Hawley, then presiding in the circuit court, in his opinion overruling the demurrer and exceptions to the petition, and from that opinion we quote as follows:

'The material facts presented in the petition may be briefly stated in their chronological order as follows: On November 30, 1892, there was filed in the state court a complaint in a suit wherein J. H. Thies, P. N. Marker, and H. C. Marker were plaintiffs, and W. C. Pitt, J. T. Hauskins, and L. L. Downs were defendants, praying for a decree adjudging to the plaintiffs therein the first and unrestricted right to the use of the flow of the waters of the Humboldt river, four hundred and four cubic feet per second, for the purpose of irrigating the lands of the plaintiffs, the watering of their stock, and for their domestic purposes. On March 7, 1893, the defendants Pitt and Hauskins filed their answer, denying many of the averments in said complaint, and, among other things, alleged that the plaintiffs were jointly entitled, as prior appropriators, to the use of only four hundred and thirty-five inches of water, as against the defendants. No injunction was ever issued in said suit. No trial of the case was ever had. No proceedings were ever taken after the filing of the answer until July, 1898, as hereinafter mentioned. On November 13, 1895, complaint Arthur Rodgers acquired the interests and became the owner of all the lands, water, and water rights theretofore belonging to and owned by the said P. N. Marker and H. C. Marker, mentioned and described in the suit commenced in the state court. On May 2, 1898, Arthur Rodgers filed in this court his bill of complaint against W. C. Pitt and the other defendants herein mentioned, wherein he prays that the claim of said defendants to have, divert, or use the water of the Humboldt river be adjudged and decreed to be invalid as against him, and that their rights thereto be adjudged and decreed subordinate and inferior to his rights to have and use the quantity of water mentioned in the bill, whenever the same is necessary for the irrigation of his land, and for watering his stock, and for domestic use. Upon proceedings regularly had therein, this court issued a temporary injunction restraining the defendants, and each of them from diverting, or in any manner using, the waters of Humboldt river so as to prevent three thousand five hundred inches thereof, measured under a four-inch pressure from flowing in the bed of the river to the head of the complainant's ditch during the irrigation season. 89 F. 420, 424. This cause is still pending, and the injunction is still in full force and effect. The defendants W. C. Pitt and J. T. Hauskins are the same persons as were the defendants in the suit in the state court. The lands, water, and water rights mentioned and described in the complaint in the state court are the same as described and mentioned in the bill of complaint filed in this court. The parties to the respective suits are not identical. On July 16, 1898, the defendants moved the state court for leave to file an amended answer in the suit therein pending, and were by the court allowed so to do. This is designated as an 'amended answer' and 'amended and supplemental answer.' In this answer defendants in the suit petitioned the court for affirmative relief therein against the complaint Rodgers and against J. H. Thies and L. M. Carpenter, who were co-tenants with complainant in a ditch which supplied him and them with water to irrigate their respective lands from Humboldt river, and this part of the pleadings is variously designated as a 'counterclaim' and 'cross complaint' and a 'cross bill.' Complainant was thereafter duly served with process from the state court, and divers preliminary motions and proceedings have been taken therein.'

It is further alleged in the petition that a writ of subpoena was issued in the action in the United States circuit court, and duly served upon appellants, defendants therein, prior to June 27, 1898, and that the complainant did not have, at the date of his purchase of the water and water-rights described in the bill of complaint, nor at the date of the filing of the bill of complaint in the action in the United States circuit court on May 2, 1898, any knowledge or actual notice of the pendency of the prior action in the state court in which his grantors and J. H. Thies were plaintiffs and the appellants herein were defendants.

1. It will be noticed from the foregoing statement of facts that when the complainant Rodgers purchased the property which is now the subject of controversy between him and the appellants in the action in the United States circuit court the question of title to that property was in litigation between his grantors and these appellants in the action of Thies and others against Pitt and others, then and still pending in the district court,...