United States Freehold Land & Emigration Co. v. Gallegos, 1,060.

• Citation: 89 F. 769
• Decision Date: 17 October 1898
• Docket Number: 1,060.
• Parties: UNITED STATES FREEHOLD LAND & EMIGRATION CO. v. GALLEGOS et al.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

89 F. 769

UNITED STATES FREEHOLD LAND & EMIGRATION CO. v. GALLEGOS et al.

No. 1,060.

United States Court of Appeals, Eighth Circuit.

October 17, 1898

This is an appeal from a decree sustaining a demurrer to and dismissing a bill to restrain the appellees from diverting from their natural channel any of the waters of the Culebra river, in the state of Colorado, other than such as they may show themselves lawfully entitled to for irrigation and domestic purposes. The bill contains an averment of these facts: The appellant, the United States Freehold Land &amp Emigration Company, is a corporation organized under an act of congress approved on July 8, 1870 (16 Stat. 192). On December 30, 1843, the governor of the department of New Mexico granted to Louis Lee and Narciso Beaubien a tract of land containing nearly 1,000,000 acres which included all the land on both banks of the Culebra river, from its source to its mouth; and on January 12, 1844 they were placed in possession of this land. By the treaty of Guadalupe Hidalgo, which took effect on July 30, 1848, the department of New Mexico, which included the land comprised in this grant, was ceded to the United States, and they agreed to recognize and protect all private rights and titles in existence at the date of cession. By 'An act to confirm certain private land claims in the territory of New Mexico,' approved June 21, 1860, the United States confirmed this grant to Charles Beaubien, who had by inheritance and by mesne conveyances succeeded to the rights of the original grantees. The appellant has succeeded by subsequent conveyances to all the rights of Charles Beaubien in the most southerly 500,000 acres of this grant, with the exception of certain small tracts donated by him for town sites and similar purposes. The Culebra river has its source and flows its entire length through these lands of the appellant, and it is the owner of the lands on both banks thereof, from the source to the mouth of this river. Ever since January 12, 1844, the appellant and its grantors, according to the averments of the bill, have 'been in the actual, open, and notorious use, occupation, and enjoyment of said premises, embracing said Culebra river and both banks thereof, from its source to its mouth, under claim and color of title thereto, and during said entire period have paid all taxes lawfully levied on said premises. The waters of said stream are of great value to your orator, as the means of irrigation of the lands of your orator adjoining and in the vicinity of said stream, and for other purposes. The waters of said stream are insufficient, as your orator is informed and believes, for the purpose of irrigating all the lands of your orator to which the same may be diverted; and, without such water for irrigation and domestic purposes, said lands are greatly depreciated in value, and are rendered unavailable, except for grazing stock in limited numbers. ' The appellees, Diego Gallegos and others, 'as owners of the San Luis People's ditch, have diverted and still continue to divert from the natural channel of said stream, and without the consent of your orator, large quantities of the water of said stream, which water so diverted by defendants is used or wasted by them, and is not returned to said stream, but is wholly lost to your orator, to its (your orator's) manifest wrong, damage, and injury. And your orator further shows, in information and belief, that the said defendants and their confederates, associated together as the owners of the said San Luis People's ditch, without the consent of your orator claim the right to divert and use for domestic and irrigation purposes a very large quantity of water from said Culebra river, to wit, 23 cubic feet per second of time, and more than sufficient water for the irrigation of nine hundred acres of land, and for domestic purposes, whereas, your orator charges the contrary thereof to be true, and that said defendants and their confederates are not entitled to any water from said stream for some purposes, and that twenty-three cubic feet of water per second of time is greatly more than sufficient for the reasonable and proper irrigation of said quantity of land, and for domestic purposes in connection therewith, and greatly more than has ever at any one time been used by defendants for such purposes; and your orator further charges that no such quantity of land has ever at any one time been irrigated from the waters diverted by said San Luis People's ditch from the said Culebra river. That the value of the water rights in controversy in this action exceeds the sum of $2,000." The court below sustained a demurrer to this bill on the ground that it contained no allegation that the appellant had appropriated the water of the Culebra river to a beneficial use prior to the time when the appellees diverted it.

Charles J. Hughes, Jr. for appellant.

Charles C. Holbrook, for appellees.

Before SANBORN and THAYER, Circuit Judges, and SHIRAS, District Judge.

SANBORN Circuit Judge (after stating the facts).

A motion was made to dismiss this appeal because the jurisdiction of the circuit court was challenged by the demurrer. This, however, was not all that was done by this demurrer. It raised not only the question of jurisdiction, but also the question of the sufficiency of the allegations of the bill to constitute a cause of action on the merits. The motion must therefore be denied, because the case falls within that class concerning which the supreme courts holds:

'If the question of jurisdiction is in issue, and the jurisdiction sustained, and then judgment or decree is rendered in favor of the defendant on the merits, the plaintiff, who has maintained the jurisdiction, must appeal to the circuit court of appeals, where, if the question of jurisdiction arises, the circuit court of appeals may certify it. ' U.S. v. Jahn, 155 U.S. 109, 114, 15 Sup.Ct. 39, 41.

The power to certify, as was said in the same case at page 113, 155 U.S., and page 40, 15 Sup. Ct., implies the power to decide this question of jurisdiction; and, as it does not appear to be difficult or doubtful, we proceed to consider it. It is contended that the circuit court had no jurisdiction, because the bill contains no allegation of the diverse citizenship of the parties, or of any other jurisdictional ground. But it has an averment that the appellant is a corporation organized under an act of congress (16 Stat. 192), and that fact makes this a case 'arising under the laws of the United States,' and confers jurisdiction upon the federal court. 25 Stat. 433, c. 866; 1 Supp.Rev.St.p. 611; Railway Co. v. Myers, 115 U.S. 1, 5 Sup.Ct. 1113.

We turn therefore to a consideration of the sufficiency of the averments of the bill to constitute a cause of action. It is insisted on behalf of the appellant that by virtue of the Mexican grant, and its confirmation by act of congress in 1860, the Freehold Company acquired the rights of a riparian owner to the waters of the Culebra river, which...