Taylor v. Hulett

Decision Date03 August 1908
Citation15 Idaho 265,97 P. 37
PartiesERNEST J. TAYLOR, Appellant, v. S. S. HULETT et al., Respondents
CourtIdaho Supreme Court

WATER APPROPRIATION-ACTION TO QUIET TITLE TO WATER RIGHT-PRIORITY OF RIGHT ON INTERSTATE STREAM-SUBSEQUENT DIVERSION MADE IN ANOTHER STATE-ACTION TO QUIET TITLE PROCEEDING IN REM-INJUNCTION PROCEEDING IN PERSONAM-JURISDICTION OF COURT.

1. A suit to ascertain, determine and decree the extent and priority of a water right and appropriation partakes of the nature of an action to quiet title to real estate.

2. An action to quiet title to real estate must be prosecuted and maintained in the jurisdiction in which the res or subject matter is situated.

3. The courts of Idaho in ascertaining, decreeing and protecting property rights in water appropriations within the jurisdiction of this state, may at the same time and for that purpose inquire into and determine rights and priorities on the same stream that are located and situated higher up the stream and beyond the state line, in order to fairly and finally judicially determine the relative rights of the parties, and decree the extent of title and right of possession of the subject matter located and situated within this state.

4. The jurisdiction of the courts of Idaho to ascertain and determine water appropriations within this state is not ousted or defeated by the fact that a defendant sets up in his answer that he has an appropriation of the waters of the stream in controversy, and that he diverts the waters from such stream in the state of Wyoming for use and application in irrigating lands situated within that state.

5. The injunctive remedy to prevent the continuance of the diversion of the water of a stream to the detriment of a prior appropriator of the waters thereof operates in personam, and where personal service has been had upon the defendant in the action for injunction, the court has jurisdiction to award the injunctive relief, and such decree is entitled to full faith and credit in the courts of every other state.

6. Where the court has jurisdiction of the subject matter, and acquires jurisdiction of the person of the defendant by service of process, it is thereby vested with full power and authority to hear and determine all questions that occur in the case and are essential to determine the merits of the issues raised, and it likewise has authority and jurisdiction to make such orders and issue such writs and process as may be necessary and essential to carry the decree into effect and render it binding and operative.

7. The fact that a defendant against whom a writ of injunction is ordered goes beyond the jurisdiction of the state, and cannot be reached by the courts in order to punish him for contempt does not avoid the judgment and decree, but the same may be enforced, in the orderly administration of the law, with like force and effect in the state in which the defendant is found and served with process.

(Syllabus by the court.)

APPEAL from the District Court of the Sixth Judicial District, for the County of Fremont. Hon. J. M. Stevens, Judge.

Action by the plaintiff to determine, adjudicate and quiet his title to a water right and appropriation from Spring creek in Fremont county. Judgment for defendants, dismissing the action. Plaintiff appeals. Reversed.

Reversed and remanded, with direction. Costs awarded in favor of appellant.

Clark &amp Budge, for Appellant.

Where the necessary parties are before a court of equity, it is immaterial that the res of the controversy, whether it be real or personal property, is beyond the territorial jurisdiction of the tribunal. It has the power to compel the defendant to do all things necessary, according to the lex loci rei sitae, which he could do voluntarily, to give full effect to the decree against him. Without regard to the situation of the subject matter, such courts consider the equities between the parties, and decree in personam according to those equities, and enforce obedience to their decrees by process in personam. (Massie v. Watts, 6 Cranch, 148, 3 L.Ed. 181; Phelps v. McDonald, 99 U.S. 298, 25 L.Ed. 473; Cole v. Cunningham, 133 U.S. 107, 10 S.Ct. 269, 33 L.Ed. 538; Rickey L. & C. Co. v Miller & Lux, 152 F. 11, 81 C. C. A. 207.

The district court of Wyoming has jurisdiction to adjudicate the rights of the owners of land in Montana to the water of the stream so far as may be necessary to protect their rights, though the court may not have jurisdiction to enter a decree for quieting the title of such owners to the water claimed. ( Willey v. Decker, 11 Wyo. 496, 100 Am. St. Rep. 939, 73 P. 210.)

One who has acquired a right to the waters of a stream flowing through public land by prior appropriation, in accordance with the laws of the state, is protected in such right by secs. 2339 and 2340, Rev. Stat., as against subsequent appropriations, though the latter withdraw the water within the limits of a different state. (Howell v. Johnson (Mont.), 89 F. 556.)

We do not ask to have the court adjudicate the rights of the defendants who reside in Wyoming, neither do we believe the court could do so if the parties consented, but to have our own right declared, and a judgment against the persons of the defendants, they having been personally served, and having made personal appearance, enjoining them from interfering with that right.

Hamer & McConnell, for Respondents.

The district court of Fremont county cannot adjudicate the rights of the Wyoming parties to the water in question, and in order for them to settle their rights as among themselves, they must go into the Wyoming courts. (Conant v. Deep Creek & Curlew Valley Irr. Co., 23 Utah 627, 90 Am. St. Rep. 721, 66 P. 188.)

The remedy by injunction does not lie unless the rights of the party invoking it are clearly established, and if the title to real estate situated in another state is involved or the rights to the use and enjoyment of the same curtailed, then the court is acting in excess of its authority when it assumes jurisdiction of the case. (Willey v. Decker, 11 Wyo. 496, 100 Am. St. Rep. 939, 73 P. 210.)

AILSHIE, C. J. Sullivan, J., and Stewart, J., concur.

OPINION

AILSHIE, C. J.

--Appellant, a resident citizen of Fremont county in this state, commenced his action in the district court of the sixth district for the purpose of obtaining a decree establishing his right and quieting his title to a certain quantity of the water of Spring creek for irrigation purposes, and for an injunction restraining and enjoining the respondents from interrupting or interfering with his right, or in any manner preventing the water of the stream flowing down to his point of diversion.

It is alleged in the complaint that Spring, or Seymour, creek has its source in Uinta county, Wyoming, and flows from thence into the Teton basin in the state of Idaho, and that the plaintiff has appropriated the water of the stream and diverted it at a point in this state, and uses and applies it on his land situated in this state; that his grantors and predecessors in interest in the year 1901 obtained a judgment and decree that has become final, wherein and whereby their right and priority to eight and two-fifths cubic feet per second of the water of this stream has been determined. It was further alleged that during the irrigation season of 1906, the defendants interfered with plaintiff's rights by diverting water from the stream at a point above plaintiff, so as to hinder and prevent plaintiff from receiving the amount of water to which he was entitled.

The defendants were each personally served within this state, and all appeared and demurred to the complaint except defendant Hulett, who filed an answer. Thereafter a motion was made to dismiss the action on the grounds that the defendants were residents and citizens of the state of Wyoming, and that all the water that they diverted or used from Spring, or Seymour, creek was diverted from the stream at a point within the state of Wyoming, and was used on lands within that state. The motion was sustained and the action dismissed and this appeal is taken from the judgment. No point is made as to the question of practice or manner of presenting the jurisdictional question to the lower court. Any irregularity as to that is apparently waived here.

The question to be determined here is as to whether the court of this state has jurisdiction to quiet plaintiff's title to his water right and appropriation in this case as against defendants, and to enjoin and restrain defendants from interfering with that right. In this case appellant's appropriation, diversion and place of use are all within Idaho. The respondents are up the stream above appellant, and their diversion and place of use are all within the state of Wyoming. Under these circumstances, can the Idaho courts, after personal service of process on the respondents and their appearance in court, determine the priorities between the parties and adjudicate and decree appellant's rights and enjoin respondents from interfering with such rights?

Appellant's water right is real property appurtenant to the land to be irrigated thereby. (Sec. 2825, Rev. Stat.; Ada Co. etc Co. v. Farmers' etc. Co., 5 Idaho 793, 51 P. 990, 40 L. R. A. 485; McGinness v. Stanfield, 6 Idaho 372, 55 P. 1020; Hall v. Blackman, 8 Idaho 272, 68 P. 19.) An action to ascertain, determine and decree the extent and priority of that right partakes of the nature of an action to quiet title to real estate. (Conant v. Deep Creek & Curlew Valley Irr. Co., 23 Utah 627, 90 Am. St. Rep. 721, 66 P. 188; Rickey Land & Cattle Co. v. Miller & Lux, 152 F. 11, 81 C.C.A. 207.) This action, therefore, to quiet appellant's title should be maintained in the jurisdiction in...

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