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wrongful diversion of water in any such action, the same may be assessed and apportioned by the jury in their verdicts, and judgment thereon may be entered for or against one or more of several plaintiffs, or for or against one or more of several defendants, and may determine the ultimate rights of the parties between themselves. In any action concerning joint water rights or joint rights in water ditches, unless partition of the same is asked by parties to the action, the court shall hear and determine such controversy as if the same were several as well as joint.”
A cross-bill is often filed to obtain affirmative relief for the defend. ant in the original suit, to obtain a discovery in aid of the defense in that suit, to enable the defendant to interpose a more complete defense than that which he could interpose by answer, or to obtain full relief to all parties, and a complete determination of all controversies which arise out of the matters charged in the original bill. The Court of Appeals of the Eighth Circuit held in Springfield Milling Co. v. Barnard & Leas Mfg. Co., 81 Fed. 263, 26 C. Ĉ. A. 389, that if a cross-bill "fairly tends to accomplish either of these purposes,” it is generally a sufficient ground for its interposition. Section 399, Story on Equity Pleading, says a cross-bill is to be treated as a mere auxiliary suit, or as a dependency upon the original suit. In Cross v. De Valle, 1 Wall. 1, 17 L. Ed. 515, the Supreme Court of the United States quote this language of Judge Story, and, proceeding, say:
"It may be brought by a defendant against the plaintiff in the same suit, or against other defendants, or against both, but it must be touching the matters in question in the bill,” etc.
In Remer v. McKay (C. C.) 38 Fed. 164, Judge Blodgett analyzed a pleading by answering the question whether the cross-bill was "germane to the subject-matter of the original bill.” And in Morgan's Co. v. Texas Central Railway, 137 U. S. 171, 11 Sup. Ct. 61, 34 L. Ed. 625, the Supreme Court again quote Mr. Justice Story as follows:
"'A cross bill,' says Mr. Justice Story (Eq. Plead. $ 389), 'ex vi terminorum, implies a bill 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. A bill of this kind is usually brought either (1) to obtain a necessary discovery of facts in aid of the defense to the original bill, or (2) to obtain full relief to all parties touching the matters of the original bill.' And, as illustrative of crossbills for relief, he says (section 392): 'It also frequently happens, and particularly if any question arises between two defendants to a bill, that the court cannot make a complete decree without a cross-bill or cross-bills, to bring every matter in dispute completely before the court, to be litigated by the proper parties and upon the proper proofs.'”
Chief Justice Fuller writes of jurisdiction over the subject-matter, and says that “the subject-matter” of the cross-bill must be the same as that embraced in the original bill, and if it is the court will grant relief.
In Badger G. M. & M. Co. v. Stockton G. & C. M. Co. (C. C.) 139 Fed. 838, Judge Gilbert for the court of appeals sustains the doctrine that where facts are alleged in a cross-bill not alleged in the original bill, “but which are directly connected with the subject matter of the original suit, and prays affirmative relief directly connected with and arising out of the matters of the original suit, and germane to the
same, the court will order the cause to be retained for final hearing and decree upon the cross-bill.” What, then, are matters directly connected with the subject-matter of the original suit? In proceeding to a brief analysis, let us not confuse the question by misunderstanding the object of the action. The complainant herein, the Ames Realty Company, prays for a decree fixing its rights to the use of 404 inches of the waters of Prickly Pear creek, and for injunction restraining all defendants who claim rights from diverting water until complainant's prior rights are satisfied. The object of this action is, therefore, what the Ames Realty Company endeavors to obtain—a decree that it is entitled to the prior use of 404 inches of water, and an order of court which will prevent all defendants from interfering with it in the enjoyment of such prior right of use. Plainly, therefore, the object of the action is the remedy asked, and which may be finally awarded. It is something ahead—a future result—which is sought. This object, however, is something apart from the subject-matter of the suit, and, as said, the subject-matter being the point which we are here inquiring into, let us proceed further. Substantial accord is to be found among the books in the discussion of what is meant by the subject-matter of the action. It is scarcely necessary to state that clearly it is not the cause of action here, for the cause of action springs out of the primary lawful rights of the Ames Realty Company to the use of 404 inches of the waters of Prickly Pear creek, the duty of the defendants not to interfere with such right, and the breach thereof by the improper diversion of water by the defendants in the modes described in complainant's bill. These elements constitute the cause of action, and from them the Ames Realty Company's right of action has arisen. Speaking exactly, the subject-matter involved is the right to use the physical thing—the flowing water—susceptible of use for wetting the lands belonging to the Ames Realty Company and other owners. "Subjectmatter of the action,” writes Pomeroy on Code Remedies, § 369, “rather describes the physical facts, the things real or personal, the money, lands, chattels, and the like in relation to which the suit is prosecuted.” I am not losing thought of the distinction between the right to use the physical thing and the thing itself—the incorporeal from the corporeal. There is, of course, no exclusive ownership of the water itself. A right to use for beneficial purposes is the right involved. Nevertheless, the right of use of the physical thing becomes, in these water right cases, so identified with the water, that in ascertaining by strict analysis what is the subject-matter of the action, we find that the water itself is that in relation to which complainant prosecutes its suit, and so the water really becomes the subject of the action, in so far as there is a thing physical or real involved in the suit. Now these cross-complainants severally allege that they own rights in and to the waters of the Prickly Pear anterior to those alleged in the bill of complainant; moreover, they say that complainant and their coclefendants are violating these rights by diverting the waters of the creek, and they demand relief by injunction.
For the purposes of this discussion, judicial knowledge may be taken of the fact that Prickly Pear creek is not a very large stream, and that
in midsummer its waters diminish greatly; indeed, it is but a statement which counsel would surely accept as of common knowledge that never does the Prickly Pear creek carry enough water to enable all the farms throughout the valley to receive during the irrigating season the full benefit of the water rights claimed by valid but ineffectual appropriations. Despite the most careful husbanding of the waters, much land suffers from drouth, and the many appropriators along the creek and its tributaries are obliged to protect their rights with the utmost vigilance, lest their crops languish for moisture. Such circumstances well illustrate the somewhat peculiar nature of the right of use of water from a stream of limited flow. Of course, there is no way of singling out certain specific water as belonging to any one appropriator. For instance, the use of a small quantity (404 inches) is all complainant in this case alleges it is entitled to. Such a quantity is doubtless considerably less than the whole stream. There is no ownership in kind, at least before the water complainant claims has passed into its own ditches, and even then it is but an ownership sub modo. Nevertheless, priority of appropriation is what the law jealously protects; it is of a species of property which has become immensely valuable as the western country has developed in its agricultural resources. By juridical law principles have been enunciated which protect the better right to the use of the waters of a creek by permitting a complainant who has such right to invoke protection of it against the acts of others, whether jointly or severally done. And the protection that is afforded should be as broad as the demand calls for, consonant always with those fundamental truths, which, under systems of administering justice, are recognized as the foundation of equitable jurisdiction. The quantity of water which a single one of these defendants may be diverting from Prickly Pear creek or its tributaries might not interfere at all with the Ames Company's use. But the result of the several diversions alleged against defendants might be shown to deprive complainant wholly of the enjoyment of any use. All users are therefore properly brought in to defend. By like reasoning, when they have come into court, these alleged diverters may ask relief against complainant, whose rights they say are subsequent to theirs.
But a still different condition may exist. One of the defendants may show that he is prior in right to complainant, and it may appear water is left in the creek sufficient to satisfy complainant's, as well as his own, right. As against him, complainant must fail. Another defendant may be proved to be subsequent in right to complainant, and is therefore defeated by complainant; but, though defeated by complainant in so far as his right is fixed in point of time, still, as the quantity of water which he claims a right to use is very limited, he might also enjoy his right without interfering with complainant in any injurious way, provided he can try and maintain his rights as against a codefendant, who has been defeated by complainant, but whose rights are subsequent to his (cross-complainant's), and who diverts so much water that he, the first cross-complainant, cannot use that to which he is justly entitled, though, as between him and original complainant, he might enjoy his right were it not for the extent to which his codefend
ant is diverting. We may test this in this way: let us say that Prickly Pear creek carries 600 inches of water. The Ames Realty Company alleges it is entitled to 400 inches by appropriation taken out, let us say, one mile below the head of the stream; its appropriation dating January 1, 1864. An upper proprietor, who is a defendant, and whom we call B., claims a right to the use of 25 inches of water, which he says is his by appropriation dated January 1, 1865, or one year later than the complainant's. His ditch taps the crek half a mile above the point of diversion of the complainant. Another proprietor, whom we may call C., claims 200 inches, which were appropriated January 1, 1866. C. taps the creek above A. and above B. Subtracting 200 inches that C. takes out, there would still be enough water flowing to satisfy the original complainant claiming 400 inches. B., though, could get no water, notwithstanding his rights are superior to those of C., and notwithstanding the fact that he could enjoy his right without injury to the original complainant; enjoyment being denied because C. is diverting so much water that he (B.) is deprived of the use of that to which he is justly entitled, and which he would enjoy were it not for the extent to which his codefendant, C., is diverting the water. Will not a court of equity take jurisdiction with respect to this property right as ancillary to its jurisdiction over the case between complainant and first defendant, and, having jurisdiction of the whole proceeding, will it not proceed to do justice between all the parties ? Reflection leads me to answer the questions in the affirmative. It is true that if complainant can secure protection of its own right, junior appropriators might be left to fight out their relative rights among themselves; but, as conditions frequently exist in litigation over usufruct of water, where it is practically impossible to make a just decree between complainant and one defendant without ascertaining rights of defendants as against one another, the court will permit cross-complaints to stand, to the end that a multiplicity of suits may be avoided, so that tedious, expensive, and unnecessary litigation may be saved.
In Union Mill & Mining Co. v. Dangberg (C. C.) 81 Fed. 73, complainant there brought suit in equity to obtain a decree against respondents for the alleged wrongful diversion of the waters of the Carson river in Nevada. He made about 125 persons respondents, alleging that they were farmers living above a certain mill, and that they used the waters of the Carson river for irrigation and other purposes. One of the contentions of the respondents was that, inasmuch as they did not claim the water of the river jointly, or by any common right, they could not be jointly sued, and that, therefore, complainant could not obtain the relief it sought. It was admitted that the respondents did not jointly or in common divert or use the water, and that they alleged that they claimed individual, distinct, and separate rights, independent of each other. Judge Hawley was of the opinion that the proofs and pleadings distinctly showed that the result of respondents' acts were such as to make their individual diversion of the water injurious to complainant's rights. He held that the claims of the respondents were of the same character, and were adverse to the complainant, and that they were, therefore, all properly united as respondents, because they
all diverted water from the Carson river, and claimed the right to divert it, as against the complainant. He said:
"These conflicting rights, whatever they may be, can be determined by one suit. Complainant might not be able to maintain its suit against them singly, for it may be that no one of the respondents acting individually has deprived complainant of all the water to which it is entitled. Complainant is only entitled, if at all, to a certain amount of the water of the river, and it is by the action of all the respondents that it has been deprived of the water to which it claims to be entitled. Each respondent claims the right to divert a given quantity of water. The aggregate thus claimed so reduces the volume of the water in the river as to deprive complainant of the amount to which it is entitled. To this extent, even if there is no such unity or concert of action or common design in the use of the water to injure complainant, there is certainly such a result in the use of the water by the respondents as authorizes complainant to maintain this suit, upon the ground that the action of all the respondents has produced and brought about the injury of which it complains. Every one who contributes to such injury is properly made a party respond
The analogy found between the reasoning of the case just quoted from and that at bar consists in the recognition of the rule that conflicting claims to the right to divert waters from a common source may be determined in one suit, and, although each respondent may claim a right to divert a given quantity of water, the aggregate thus claimed may so reduce the volume of the water in the stream as not only to deprive complainant of the amount to which it may be entitled, but may also so affect the volume of the water as to deprive one as against the other of the respondents of the amount to which he may be entitled. Pleadings, by way of cross-bills, setting forth such facts, would seem to touch the matters in question in the original bill in a way to authorize the court to proceed under the usual rules of pleading and practice in equity. Mitford's & Tyler's Pleading and Practice in Equity, page 178. But if, under the old chancery practice, no affirmative relief could be given to these defendants under their cross-bills, still the courts of the United States will not deny jurisdiction to proceed under the statute of the state already quoted, unless the equitable remedy afforded by the state statute impinges upon the rights of the litigants to a trial by jury at common law. No statute of the state can control modes of procedure in equity cases in the federal courts, nor deprive them of their separate jurisdiction in equity. Cummings v. National Bank, 101 U. S. 153, 25 L. Ed. 903. But the federal courts will enforce a new right' or new remedy furnished by the laws of a state, as the nature of the new right or remedy requires. Reynolds v. First Nat. Bank, 112 U. S. 405, 5 Sup. Ct. 213, 28 L. Ed. 733.
One of the most interesting discussions sustaining the doctrine that, while alterations in the jurisdiction of state courts cannot affect the jurisdiction of the Circuit Courts of the United States so long as the equitable rights themselves remain, yet an enlargement of equitable rights may be administered by the federal courts as well as by the courts of the state, is to be found in the case of Holland v. Challen, 110 U. S. 15, 3 Sup. Ct. 495, 28 L. Ed. 52. That was a suit in equity to quiet title of plaintiff to certain real estate in Nebraska as against the claim of the defendant to an adverse estate in the premises. It was