Rickey Land & Cattle Co. v. Miller & Lux

• Decision Date: 04 March 1907
• Docket Number: 1,366.
• Citation: 152 F. 11
• Parties: RICKEY LAND & CATTLE CO. v. MILLER & LUX. [1]
• Court: U.S. Court of Appeals — Ninth Circuit

152 F. 11

RICKEY LAND & CATTLE CO. v. MILLER & LUX. ^[1]

No. 1,366.

United States Court of Appeals, Ninth Circuit.

March 4, 1907

Walker river is a stream flowing from within the state of California easterly into the state of Nevada. Toward its source it divides into two branches, known as the East and West Forks. The junction is in the state of Nevada. The appellant and the appellee are each incorporated, the former having its residence in the state of California, and the latter in the state of Nevada. On the 10th of June, 1902, the appellee filed its bill of complaint in the Circuit Court of the United States for the District of Nevada against Thomas B Rickey and many other persons. Service of process was had upon Rickey, who thereafter appeared and answered. By said bill of complaint it was alleged, among other things, that complainant therein (the appellee here) was then, and for a long time prior thereto had been, the owner and seised in fee, and in actual possession, of certain lands situated in the county of Lyon, state and district of Nevada particularly describing them; that Walker river is a natural stream and water course which flows, and from time immemorial has flowed, to, over, upon, and through the said lands, which said lands include the banks, bed, and stream of said river that at divers times, in said bill set forth, the complainant, its grantors and predecessors in interest, had first appropriated and diverted from said river portions of the waters thereof, amounting in all to a flow of 943.29 cubic feet of water per second, and had carried the same to and upon certain lands, and used the same for the irrigation thereof, and that said complainant was then the owner by such appropriation of certain interests in the waters of said river; such interests being particularly set forth and enumerated. It was then further alleged that Rickey and other defendants in the suit had diverted the waters of said Walker river at divers places above the lands of the complainant and above the points at which complainant so diverted said water, and that a large portion of the water so diverted by the defendants in said suit was never returned to the stream, and that such defendants were continuing the diversions aforesaid, and had thereby deprived, and were depriving, such complainant of a large portion of said water to which it was so entitled; that each of said diversions so made by such defendants was without right, but that they had diverted said water, and were so diverting the same, under claim of right so to do, adversely to the complainant; that by such diversions complainant had been and was being deprived of sufficient water to irrigate its said lands, and was thereby rendered unable, and so long as said diversions were continued would be unable, to irrigate such lands, which it had theretofore been accustomed to irrigate, and was thereby rendered unable, and would be unable, properly or successfully to cultivate the same, or to raise crops thereon. And it was further alleged that if said defendants, or either of them, had any right to divert any water from the said river, such rights, and each of them, were subsequent and subordinate to the aforesaid appropriations so made by complainant and its grantors and predecessors. The prayer was that the defendants in said suit, including Rickey, be enjoined and restrained from diverting any water from Walker river in subversion of the rights of complainant.

Subsequently, on the 15th day of October, 1904, the Rickey Land & Cattle Company commenced an action in the superior court of the county of Mono, state of California, against the appellee and a large number of other persons, by filing a complaint in said court, whereby it was alleged, among other things, that the said company was, and had been since the 6th day of August, 1902, the owner, in possession, and entitled to the possession of certain lands conveyed to it by Thomas B. Rickey, all situated in the state of California, and that the same constituted an entire contiguous body of land, over, through, and upon which flowed, and from time immemorial had flowed, a branch or tributary of Walker river called the 'West Fork,' and that said lands and all thereof were, and from time immemorial had been, riparian to said stream, and situated along and bordering thereupon; that the said company was the owner, in possession, and entitled to the possession of such lands, and had the right to divert and appropriate all the waters of said West Fork of Walker River, and its tributaries in the state of California, to the extent of a constant flow of 1,575 cubic feet of water per second. It was further alleged that the defendants in said action, and each of them, including the appellee herein, claimed some right, title, and interest adverse to the said Rickey Land & Cattle Company in and to said constant flow of 1,575 cubic feet of water per second, or some part or portion thereof; that said right, title, and interest so claimed by such defendants, and each of them, including the appellee, in and to said water, was without right, and that all claims of the, and each of them, to the waters of said West Fork of said Walker River were subordinate and subject to the ownership of said company, and its alleged right to divert and appropriate from said West Fork of Walker River a constant flow of the amount of water specified. The prayer was that the Rickey Land & Cattle Company be decreed to be the owner of the amount of water specified, and entitled to the use and enjoyment of the same, and that appellee and the other defendants therein be subordinated to the interests of the said company in the flow of the waters of said West Fork of Walker River.

On the same day, October 15, 1904, the Rickey Land & Cattle Company commenced another action of like character in the same court, involving 504 cubic feet of water in the East Fork of Walker River, claimed under similar rights, and it was alleged that all of such rights were superior to the rights of defendants therein, including appellee, whatever they might be.

The bill of complaint herein sets forth all these facts and proceedings, and further shows that, after appellee had filed its bill of complaint in the Circuit Court of the United States for the District of Nevada, and after Rickey had appeared and filed his answer therein, he (Rickey), on August 6, 1906, organized and incorporated the Rickey Land & Cattle Company, and conveyed to it all the lands and water rights thereafter claimed by it in the two actions commenced in the superior court of Mono county, in the state of California. Then follows the allegation: 'That the issues tendered by said complaints in said two actions so brought by the defendant herein as plaintiff against your orator, and said other persons are, so far as concerns your orator, the same issues which were tendered by the said bill of complaint of your orator so filed in this court, so far as the same related to the defendant, Thomas B. Rickey, in said suit. ' The prayer is that the defendant be enjoined from prosecuting either of the actions commenced in Mono county, state of California, against the complainant, and for general relief.

The cause having been heard upon the bill and certain affidavits filed in defense, a temporary restraining order was directed to issue, and the appeal is from the action of the court in this regard.

The record contains a supplemental complaint by the Pacific Live Stock Company, showing that it has succeeded to the interests of the appellee, but such complaint serves no essential purpose in the present controversy.

James F. Peck and Charles C. Boynton, for appellant.

W. C. Van Fleet and W. B. Treadwell (Frohman & Jacobs and Frank H. Short, of counsel), for appellee.

Before GILBERT and ROSS, Circuit Judges, and WOLVERTON, District Judge.

WOLVERTON District Judge (after stating the facts).

Let us inquire, first, touching the nature of the suit instituted by the appellee as complainant, against Rickey and others, in the Circuit Court of the United States for the District of Nevada, June 10, 1902, for the inquiry will settle the jurisdiction of the court to proceed in that cause, and in one aspect will determine its authority to grant the relief demanded in this cause. In the course of the inquiry, it is important that we first ascertain the nature of the subject-matter of the cause.

Says the court in the case of Lower Kings River Water Ditch Co. v. Kings River & Fresno Canal Co., 60 Cal. 408:

''A water course consists of bed, banks and water.' Angell on Water Courses, Sec. 4. The right of plaintiff, as stated in its complaint, to have the water flow in the river to the head of its ditch, is an incorporeal hereditament appertaining to its water course. Granting that plaintiff does not own the corpus of the water until it shall enter its ditch, yet the right to have it flow into the ditch appertains to the ditch. Real property consists of land, that which is affixed to land, and that which is incidental or appurtenant to land. Civil Code, 658. If the water course, consisting of the bed and banks of the trench, and of the water therein, be real property, the right to have water flow to it is incidental and appurtenant thereto.'

So in Construction Co. v. Ditch Co., 41 Or. 209, 215, 69 P. 455, 458, 93 Am.St.Rep. 701:

'If the riparian owner grants a right to divert the water and convey it away to and upon the lands of the grantee, the grant becomes an easement appurtenant to such lands, which becomes thereby the dominant estate, and the grant an incorporeal hereditament. If title be acquired by prescription, the estate and the right are the same.'

So also, in Wyatt v. Larimer & Weld Irr. Co., 33 P. 144, 18 Colo....