Willey v. Decker

• Decision Date: 03 August 1903
• Citation: 73 P. 210,11 Wyo. 496
• Parties: WILLEY, ET AL., v. DECKER, ADMINISTRATOR, &c., ET AL
• Court: Wyoming Supreme Court

73 P. 210

11 Wyo. 496

WILLEY, ET AL., v. DECKER, ADMINISTRATOR, &c., ET AL

Supreme Court of Wyoming

August 3, 1903

RESERVED questions from the District Court, Sheridan County HON. JOSEPH L. STOTTS, Judge.

The case is stated in the opinion.

Appelget & Mullen, for the plaintiffs.

The proposition that prior appropriation gives the better right is no longer a controverted question. (Broder v. Water Co., 101 U.S. 274.) Such rights are based upon the Congressional enactments, and are dependent upon them. (Basey v. Gallagher, 87 U.S. 670.) The right to divert water for beneficial purposes was early recognized by the laws of this State. (Compiled Laws 1876, p. 377; Moyer v. Preston, 6 Wyo., 308.) Also in Montana. (Atchison v. Peterson, 87 U.S. 507; Basey v Gallagher, 87 U.S. 670; Thorp v. Freed, 1 Mont. 652 665.)

The rights of the respective parties standing upon prior appropriation, the rights of the plaintiffs in the case at bar are superior to the rights of the defendants. The fact that a portion of the lands irrigated under such prior appropriation are situated in one state, and the remainder in another, can make no difference, for the law of Congress was of uniform operation, where such rights were recognized and acknowledged by the local customs and laws and decisions of the courts. Whatever may now be the rule in this State under its constitution and laws, the rights of the plaintiffs in this controversy became fixed by the act of diversion at the time under the provisions of the laws of Congress, and the owners, grantees or successors in rights of those appropriators, acquired such vested rights as must be maintained and protected.

We believe the second reserved question submitted should be answered in the affirmative.

We believe it to be a general rule that an injunction is a personal remedy. That is, it acts upon the person and not upon the rem; that, therefore, the jurisdiction of the court depends, not upon the locus of the thing, but, rather, upon the physical presence of the person. It is defined by our statute as being "a command to refrain from a particular act." (R. S. 1899, Sec. 4038.)

A writ of injunction operates in personam. (Beach Modern Equity Juris., Sec. 638; High on Injunctions, Sec. 1.) The general jurisdiction of courts of equity rests in personam and not in rem. (Lindley v. O'Reilly, 1 L. R. A., 79-82; Hart v. Sansome, 110 U.S. 151; 3 Pomeroy Eq. Juris Sec. 1318; Storey's Equity, Secs. 899, 744.)

Courts of equity under this principle have given relief in a great variety of cases, where the defendant was in the jurisdiction of the court, although it related to lands situated in another state. A frequent example is the exercise of chancery powers by courts to compel the specific performance of a contract in relation to lands situated in another state, after having acquired jurisdiction of the person of those upon whom the obligation rests. (Burnley v. Stevenson, 24 O. St., 474; Davis v. Headley, 22 N. J. Eq., 115; Wilson v. Joseph, 5 West., 681.)

And such courts have jurisdiction upon a bill for the removal of cloud upon title. (Hart v. Sansom, supra.) And courts of equity of one state may restrain one of its citizens from maintaining an action against another of its citizens in the courts of another state. (Snook v. Snetzzer, 25 O. St., 516; Wilson v. Joseph, 5 West., 681.)

When a party is within a territory he may justly be subjected to its process and bound personally by the judgment pronounced on such process against him. (Pennoyer v. Neff, 95 U.S. 714; 1 Pomeroy Eq., p. 332.)

And this is true, although the subject matter may be situate in another state and referred to in the decree, and the defendant is to do or refrain from doing certain acts with reference to that property. (3 Pomeroy Eq., Sec. 1318.)

It is true that the court would have no jurisdiction were the property to be affected situated in another state, and by the mere force of its decree to establish a title to lands in that other jurisdiction, for the reason that the situs of the property is fixed and determinable by the laws of the state of its location. (Carpenter v. Strange, 141 U.S. 87.) But that is not the case here, for plaintiffs seek to enjoin the unlawful acts of defendants against property only, and not to establish a title. The facts beyond controversy show the title in the plaintiffs, and we assert that the court has jurisdiction to enjoin the trespass. It is an elementary rule that where jurisdiction of the person of the defendant is obtained by a court of equity, and a state of facts is shown, which forms a ground for compelling a party to refrain from asserting a right or title, or from interfering with the established right of another, that a court of equity has jurisdiction to act, and especially so when the relief prayed for can be obtained through the defendants' personal obedience. (Lindley v. O'Reilly, supra; Howell v. Johnson, 89 F. 556; Conant v. Deep Creek, &c. (Utah), 66 P. 188.)

If water appropriated for purposes of irrigation be a real property right, when does it take this character? Is it at the point of diversion, or is it at the place where it is applied to the soil? If it becomes such only when applied to the soil, then so far as the Demmons are concerned, they stand in no different position than if their headgate was in the State of Wyoming. In that case, all of the real estate would be within the jurisdiction of the state courts where defendants reside. If, however, the water becomes real property at the point of diversion, then the locus of the rights of the plaintiffs, Willey and Ellison, are in the State of Wyoming. We think, under the facts stated, that from either point of view the District Court of Sheridan County has jurisdiction to restrain the defendants from interfering with the rights of the plaintiffs. We believe we might go still further, and say that the court has jurisdiction of not only the person of the defendants by reason of personal service of its process, but of the subject matter as well, and this without reference to the location of the property.

The District Court of Sheridan County is a court of general jurisdiction, both at law and in equity. The subject matter of an action is considered as being equivalent to cause of action, and means the facts constituting the plaintiffs' cause of action. (Chamboret v. Cagney, 2 Sweeney, 378; Borst v. Corey, 15 N.Y. 505; Lehmair v. Griswold, 40 N. Y. Sup., 100.)

An action is variously defined, but generally said to be "a proceeding in a court of justice for the enforcement or protection of a right, the redress or prevention of a wrong." (Bliss Code Pleading, Sec. 1.)

An action of injunction is for the protection of a right and the prevention of a wrong. "A command to refrain from particular act." (R. S., Sec. 4038.)

The subject matter of the action here, then, is the prevention of a wrong by a command to refrain from a particular act. The wrongful trespass of the defendants as against the property of the plaintiffs is the act complained of. It cannot be seriously controverted that the District Court, having jurisdiction of the defendants by personal service, has also jurisdiction of the subject matter when the subject matter is not property, but a wrongful act. Whether the plaintiffs have a good and perfect title is not a matter of inquiry. For if their rights were only founded in peaceable possession the defendants would not have right, without process of law, to oust the plaintiffs of that possession. The defendants forcibly possess themselves of rights which the plaintiffs or their grantors have exercised for years.

There is no attempt to vest title by this action, but, rather, to command the respect of defendants to an existing right.

There is no other remedy than by injunction, and that can be obtained only when defendants can be brought within the jurisdiction of the court by a decree in personam. The process of the courts of Montana cannot reach the defendants beyond its territorial limits. It cannot act upon the rem, the point of diversion, for of itself it is neither a trespass nor a nuisance. There is no contractual relation between the parties plaintiff and defendant, so that neither at law or in equity can the courts of Montana, under the peculiar facts existing in this case, afford any relief. The maxim of the law that there is no wrong without a remedy has no force unless it has an application here. The Wyoming court can enforce personal obedience from the defendants. It can punish the failure to obey by proceedings in contempt. It has jurisdiction to enter a decree and to enforce its terms when entered. The courts of no other state as between the parties have that power.

Independent of the period of time when the waters diverted from a natural stream for the purposes of irrigation takes upon itself the characteristics of real estate, we say that the District Court of Sheridan County, under the facts stated, has jurisdiction to adjudicate the right to water. We do not understand that by adjudication of a court new rights are conferred, but, rather, a judicial confirmation of rights already existing. It means only to try and determine what the right is.

While a court of equity cannot create title, or transfer one in another state, it may determine the character and extent of an existing title in the other state, to the extent at least of fixing the personal rights and obligations of the citizen defendant and limiting him to the proper exercise of the rights belonging to him, and in so doing restram him from interfering with the rights so found existing in the non-resident. (Pom. Eq. Juris., 332; Massie v. Watts, 6 Cranch, 158; Story Eq. Juris., Sec. 1291; McGregor v. McGregor, 9 Ia., 65; ...