Rodgers v. Pitt

• Decision Date: 18 September 1899
• Docket Number: 658.
• Citation: 96 F. 668
• Parties: RODGERS v. PITT et al.
• Court: U.S. District Court — District of Nevada

96 F. 668

RODGERS v. PITT et al.

No. 658.

United States Circuit Court, D. Nevada.

September 18, 1899

Rodgers Patterson & Slack and A. E. Cheney, for complainant.

R. R Bigelow and J. W. Dorsey, for defendants Pitt and Hauskins.

HAWLEY District Judge.

The questions presented for decision herein arise upon the presentation of a petition on behalf of the complainant for a writ of injunction against the defendants, their attorneys and agents, enjoining them from prosecuting or conducting any further proceedings in a certain suit now pending in the district court of Humboldt county, Nev., entitled 'J H. Thies, P. N. Marker, and H. C. Marker, Plaintiffs, vs. W C. Pitt, J. T. Hauskins, and L. L.

Downs, Defendants. ' 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, 404 cubic feet per second, for the purpose of irrigating the lands of the plaintiffs, the watering of their stock, and for their domestic purposes, etc. 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 435 inches of water as against the defendants. No injunction was every 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, complainant, 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 prayed that the claim of said defendants to have, divert, or use the waters 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 his 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 3,500 inches thereof, measured under a 4-inch pressure, from flowing in the bed of the river to the head of the complainant's ditch during the irrigating 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, later, 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 supplementary answer.' In this answer defendants in the suit petitioned the court for affirmative relief therein against the complainant, 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,' the '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.

The defendants interposed a demurrer to complainant's petition, upon the ground that the petition does not state facts sufficient to entitle him to the injunction or to any relief. Is this demurrer well taken? The general rule is well settled that, where different courts have concurrent jurisdiction, the court which first acquires jurisdiction of the parties, the subject-matter, the specific thing, or the property in controversy, is entitled to retain the jurisdiction to the end of the litigation, without interference by any other court. This rule is important to the exercise of jurisdiction by the courts whose powers are liable to be exerted within the same spheres and over the same subjects and parties. There is but one safe road for all the courts to follow. By adhering to this rule, the comity of the courts, national and state, is maintained, the rights of the respective parties preserved, and the ends of justice secured, and all unnecessary conflicts avoided. Any other rule would be liable at any time to lead to confusion, if not open collision, between the courts, which might bring about injurious and calamitous results. This rule is elementary law, and a citation of all the authorities in its support would be endless and useless. The following cases, among numerous others, have been examined: Bell v. Trust Co., 1 Biss. 260, Fed. Cas. No. 1,260; Gaylord v. Railroad Co., 6 Biss. 286, 291, Fed. Cas. No. 5,284; Union Trust Co. v. Rockford, R.I. & St. L.R. Co., 6 Biss. 197, Fed. Cas. No. 14,401; Union Mut. Life Ins. Co. v. University of Chicago, 6 Fed. 443, 447; Owens v. Railroad Co., 20 F. 10; Judd v. Bankers' & Merchants' Tel. Co., 31 F. 182; Sharon v. Terry, 36 F. 337, 359; Gates v. Bucki, 4 C.C.A. 116, 53 F. 961, 966; Reinach v. Railroad Co., 58 F. 33, 44; Wadley v. Blount, 65 F. 667, 674; Cohen v. Solomon, 66 F. 411, 413, 414; Hatch v. Bancroft-Thompson Co., 67 F. 802, 807; Foley v. Hartley, 72 F. 570, 573; State Trust Co. v. National Land Imp. & Mfg. Co., Id. 575; In re Hall & Stilson Co., 73 F. 527; Gamble v. City of San San Diego, 79 F. 487, 500; Atlantic Trust Co. v. Woodbridge Canal & Irrigation Co., Id. 501; Zimmerman v. So Relle, 25 C.C.A. 518, 80 F. 417, 420; In re Foley, 80 F. 949, 951; Thorpe v. Sampson, 84 F. 63, 66; Smith v. McIver, 9 Wheat. 532, 535; Hagan v. Lucas, 10 Pet. 400; Peck v. Jenness, 7 How. 612, 625; Taylor v. Carryl, 20 How. 583, 596; Freeman v. Howe, 24 How. 450, 457; Riggs v. Johnson Co., 6 Wall. 166, 196; French v. Hay, 22 Wall. 238; Id. 253; Covell v. Heyman, 111 U.S. 176, 4 Sup.Ct. 355; Heidritter v. Oilcloth Co., 112 U.S. 294, 300, 302, 5 Sup.Ct. 135; Harkrader v. Wadley, 172 U.S. 148, 164, 19 Sup.Ct. 119; Brooks v. Delaplaine, 1 Md.Ch. 351, 354; Craig v. Hoge, 95 Va. 275, 279, 28 S.E. 317; Stearns v. Stearns, 16 Mass. 176, 170; Powers v. City Council of Springfield, 116 Mass. 84, 86; Carson v. Dunham, 149 Mass. 53, 20 N.E. 312; Insurance Co. v. Howell, 24 N.J.Eq. 238, 241; Schuehle v. Reiman, 86 N.Y. 270, 273; In re Schuyler's Steam Towboat Co., 136 N.Y. 169, 175, 32 N.E. 623, Gay v. Iron Co., 94 Ala. 303, 308, 317, 11 So. 353; Howell v. Mores, 127 Ill. 68, 79, 12 N.E. 863; Mount v. Scholes, 21 Ill.App. 192; Louden Irrigating Canal Co. v.

Handy Ditch Co., 22 Colo. 102 114, 43 P. 535; State v. Chinault, 55 Kan. 326, 329, 40 P. 662.

The general rule, as above stated, is clear, plain, and positive. There is no room for any dispute or controversy as to its correctness, but a careful examination of the authorities shows that many of them do not march up the the full-breasted jurisdiction therein enumerated. The truth is that the language of the courts is used with reference to the facts presented in the cases before them, and is properly confined to such facts, and limited to the direct question there presented. To illustrate: Some of the authorities say, the court 'which first acquired jurisdiction of the subject-matter'; others, 'of a cause which presents the same issues and seeks the same relief'; others, the court which 'first takes cognizance of the controversy'; others, the court which 'first obtained possession of the property' in controversy. It is clear that this court first obtained jurisdiction over the person of the complainant. There is no pretense that the state court ever acquired any jurisdiction over him until long after the commencement of the suit and service of process in this court. Neither court has ever acquired possession of the land or water. There is no case cited by counsel which can be said to be on 'all fours' with the present, and it is the duty of this court to ascertain, from the facts before it the germ of the principle that must govern and control the disposition of the question before the court; for enough appears to make it certain that, notwithstanding the difference in the parties to the respective suits and other matters, there is need of but one trial, and the parties should not be compelled to be and appear in both courts at the same time, and litigate substantially the same questions. The proceedings in one court or the other should be stayed, at least, until the other has finally disposed of the suit before it, and then, if any question remains to be disposed of, the other court might be called upon to decide it. Union Mut. Life Ins. Co. v. University of Chicago, 6 Fed. 443, 447; Foley v. Hartley, 72 F. 570, 574; Zimmerman v. So Relle, 25 C.C.A. 518, 80 F. 417, 420; Hughes v. Green, 28 C.C.A....