Rickey Land & Cattle Co. v. Wood

• Decision Date: 04 March 1907
• Docket Number: 1,365.
• Citation: 152 F. 22
• Parties: RICKEY LAND & CATTLE CO. v. WOOD et al. [1]
• Court: U.S. Court of Appeals — Ninth Circuit

152 F. 22

RICKEY LAND & CATTLE CO. v. WOOD et al. ^[1]

No. 1,365.

United States Court of Appeals, Ninth Circuit.

March 4, 1907

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 appellees.

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

WOLVERTON District Judge (after stating the facts).

The single question urged here, in addition to those determined in the case of Rickey Land & Cattle Company v. Miller &amp Lux, 152 F. 11, is whether the appellees have a standing in court whereby to maintain their cross-bills as against the appellant. The appellant and the appellees are all codefendants in the cause of Miller & Lux v. Rickey et al., and all citizens of the state of Nevada; and in their cross-bills, it will be seen, the appellees do not dispute the right of diversion by Miller & Lux, nor claim that its diversions are in any way subordinate to theirs, but they do allege that the appropriations of Rickey, whatever they may be, are subject and subordinate to theirs, and pray that the Rickey Land & Cattle Company may be enjoined from diverting the waters of Walker river in any manner to their detriment or injury.

The nature and purpose of a cross-bill in equity have been clearly determined. Says Mr. Justice Nelson, in Ayres v. Carver, 17 How. 591, 595, 15 L.Ed. 179:

'A cross-bill is brought by a defendant in a suit against the plaintiff in the same suit, or against other defendants in the same suit, or against both, touching the matters in question in the original bill. It is brought either to obtain a discovery of facts, in aid of the defense to the original bill, or to obtain full and complete relief to all parties as to the matters charged in the original bill. It should not introduce new and distinct matters not embraced in the original bill, as they cannot be properly examined in that suit, but constitute the subject-matter of an original, independent suit. The cross-bill is auxiliary to the proceeding in the original suit, and a dependency upon it. It is said by Lord Hardwicke that both the original and cross-bill constitute but one suit, so intimately are they connected together.'

To the same purpose is Ex parte Railroad Co., 95 U.S. 221, 225, 24 L.Ed. 355, where it is said:

'A cross-bill must grow out of the matters alleged in the original bill, and is used to bring the whole dispute before the court, so that there may be a complete decree touching the subject-matter of the action.'

So Sanborn, Circuit Judge, says in Stuart v. Hayden, 72 F. 402, 410, 18 C.C.A. 618:

'A cross-bill is brought either to aid in the defense of the original suit, or to obtain a complete determination of the controversies between the original complainant and the cross-complainant over the subject-matter of the original bill. If its purpose is different from this, it is not a cross-bill, although it may have a connection with the general subject of the original bill. It may not interpose new controversies between codefendants to the original bill, the decision of which is unnecessary to a complete determination of the controversies between the complainant and the defendants over the subject-matter of the original bill. If it does so, it becomes an original bill, and must be dismissed, because there cannot be two original bills in the same case.'

Cross v. De Valle, 1 Wall. 1, 17 L.Ed. 515; Rubber Co. v. Goodyear, 9 Wall. 807, 19 L.Ed. 587; Young v. Colt, 2 Blatchf. 373, Fed. Cas. No. 18,155; Stonemetz Printers' Mach. Co. v. Brown Folding-Mach. Co. (C.C.) 46 F. 851.

Counsel for appellant expressly admit that, if the cross-bills are ancillary in purpose and character, they should be entertained regardless of the citizenship of the parties defendant. This reduces the inquiry simply to whether such cross-bills are, in legal contemplation, ancillary to the original bill, or whether they introduce matter foreign to, and disconnected with, the subject-matter of the original suit.

In the light of the foregoing authorities, it may well be premised that if the cross-bills operate defensively in behalf of the appellees in some substantial way, then they are pertinent, and afford appellees a standing whereby to assert such rights as will protect them against the suit of complainant in such cause, and this although they might impinge upon the alleged rights of the appellant. A suit respecting water appropriations from a stream is sui generis, and it may, and does frequently, happen that, in order fully to protect the rights of one appropriator against those of another, it is necessary to determine also the rights of the former, not only...