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The next group of cross-bills to be taken up will be those represented by Mack & Farrington and George S. Green, of which the pleadings filed by J. W. Wilson may be considered a fair type of the entire group. These cases differ from those we have previously mentioned in this, that they are indorsed “Answer of J. W. Wilson,” and the demurrers thereto set up the additional ground that they are uncertain, in this, that it cannot be ascertained therefrom whether they are intended to be an answer, pure and simple, or are intended to be also cross-bills, which would require Miller & Lux to answer. This ground of demurrer is well taken. The answers set up the grounds of the defendant constituting a defense to the original bill, “further answering by way of new matter and cross-bill,” set up matters purely defensive in their character, such as prescription and the statute of limitation, which could, of course, be included in the answer.
The true rule in cases of this kind is well expressed by the court in Shain v. Belvin, 79 Cal. 262, 21 Pac. 747. The court said:
"In the next place, if a defendant has any cause of cross-complaint, he should plead it as such. Matters which are proper as a defense will not be turned into a counterclaim or cross-complaint merely by a prayer for affirmative relief. * * * And if a party calls his pleading a counterclaim, he will not afterward be allowed to maintain that it was really a cross-complaint, and required an answer. * * * Upon the same principle, a party will not be allowed to gain any advantage by giving his pleading two inconsistent characters. If matter is pleaded as a defense, it is denied by force of the statute; if it constitutes a cross-complaint, and is pleaded as such, it requires an answer from the plaintiff. It is inconsistent to say that the same matter does and does not require to be answered. The pleader should take one ground or the other, so that his adversary may know how to proceed. If he, as here, 'for further and separate answer and defense to the complaint, avers by way of cross-complaint, etc., the rule that a pleading must be construed against the pleader applies, and as against him it may be treated merely as a defense. The words 'by way of cross-complaint may be treated as surplusage.”
It was probably unnecessary for complainant to demur to these socalled “cross-complaints.” They are mere surplusage, and should be treated simply as answers. The demurrers are interposed to make it clear that the complainant is not required to answer, and counsel for the defendant expressed themselves as being “perfectly satisfied that the court shall say” the matters alleged for further answer by way of cross-complaint “is a part of the answer, and that the replication covers it.
These defendants also separately filed cross-complaints, which are subject to the rules announced in the former cases represented by other counsel
, and the same ruling will be made. The demurrers interposed by complainant will be sustained.
The next group of defendants, wherein John Lothrop appears as counsel for Penrose and others, will now be considered. One pleading is indorsed "Answer and Cross-Bill of Defendant William R. Penrose, the other "Cross-Bill of Defendant William R. Penrose," the same as in the first class of cases hereinbefore described. They differ somewhat from the cases presented by Cheney & Massey. These defendants are co-owners or co-tenants with the complainant Miller & Lux in certain of the appropriations mentioned in the bill of complaint. After asserting their rights to the water of Walker river, and alleging that they have been in the exercise of such rights as co-tenants with the complainant for more than five years, defendants in the cross-bill allege:
"(10) That this defendant submits, for the reasons hereinbefore set forth, that the complainant is not entitled to any relief whatsoever against this defendant, and that this defendant should be adjudged and decreed and to. be entitled to sufficient water of said Walker river as is or may be necessary to irrigate the aforesaid described lands, and for stock and domestic purposes, and to the exclusive use thereof, and for such other and further relief in the premises.” -And that Miller & Lux be required and commanded to appear herein and answer to the several allegations in this cross-bill contained.
As has already been said in the other cases, there is nothing contained in these cross-bills for affirmative relief except such relief as will naturally inure to the defendants' benefit if they establish the rights which they claim in their answers, and the complainant ought not, in any of such cases, be required to file an answer to the cross-bills. For the reasons heretofore given, the demurrers interposed to the pleadings herein referred to will be sustained.
Speaking generally of cross-bills, it may be said that the right of a defendant in a suit in equity to file a cross-bill against his codefendant, is admitted. The propriety of doing so in all cases may be seriously questioned, as it tends to prolong and complicate the trial, and often creates unnecessary expense, but the right exists, and in this regard I shall not interfere with the positions in which the respective parties have placed themselves. The responsibility they have assumed rests with them. The fact is that suits in equity are frequently complicated, and often involve many conflicting interests. In certain cases the subject-matter of the suits can be decided upon the issues made By the complaint and answer, but it sometimes happens that a suit cannot be completely disposed of without deciding upon the claims of defendant either against the complainant or against codefendants, or against property which is the subject of litigation, and, as a general rule, the regular way of bringing such claims before the court is by cross-bill.
A defendant may always avail himself of every possible defense that he can have to a suit by means of an answer alone, but there are cases in equity where the most effective way of making a complete defense is by attacking the assailant, whether complainant or a codefendant; and when a defendant in equity wishes to adopt that mode of defense an answer will not serve his purpose, he must resort to a cross-bill. “An answer is a shield, not a weapon.” The distinction between these lines of a defense and an attack belong to all systems of judicial procedure alike, but in the mode of dealing with this distinction there are wide differences. The same facts which will constitute a means of attack only in one system may be a defense proper in another system; but, as said in Langdell on Eq. Pl. $ 50, “this is not a difference in procedure, it is a difference in the law of rights."
Next in order come the cases relating to the proceedings against the "Rickey Land & Cattle Company," a corporation, which are contained
in all the suits. There are some questions that are common to all, and others apply only to certain of the suits. They may with propriety be classed under four separate heads, viz.: (1) The suit of Wood et al., No. 790; (2) the suit of Miller & Lux, No. 791; (3) the five suits from No. 793 to No. 797, inclusive; (4) the proceedings instituted by a group of defendants in the original suit of Miller & Lux, No. 731. All the cross-bills were filed by leave of the court.
The objective point to be reached in all the proceedings is as to the right, power, and jurisdiction of this court to reach the Rickey Land & Cattle Company, a corporation which was not a party defendant in the original suit of Miller & Lux v. Rickey et al.
The nature and character of this suit has hereinbefore been tersely stated, and a further reference is here made to the statement in Miller & Lux v. Rickey et al. (C. C.) 127 Fed. 575. The defendant Rickey appeared therein, and entered a plea to the jurisdiction of the court, which was overruled, and afterwards he filed an answer to the suit. It is, in substance, alleged in all the cross-bills and complaints herein that after this court acquired jurisdiction of the suit No. 731 the defendant Thomas B. Rickey organized a corporation called the “Rickey Land & Cattle Company”; that he conveyed to that corporation the water rights and the lands to which they were appurtenant, the ownership to which he had set up as a defense in his answer to suit No. 731; that the corporation as formed by him is, in substance, Thomas B. Rickey under another name; that although under the form of a corporation, and although there were necessarily, under the law, other incorporators than Thomas B. Rickey, nevertheless he was the only person beneficially interested in that corporation, and that the other persons who united with him in forming that corporation were merely his nominees, holding stock in fact for his benefit
. It is further alleged that this corporation, the Rickey Land & Cattle Company, thereafter commenced two certain suits in the superior court of Mono county, Cal. The complaint in that suit against Miller & Lux is set out fully in the bill brought by Miller & Lux against the Rickey Land & Cattle Company, and it appears from that bill that the issues tendered by the Rickey Land & Cattle Company in those suits were that it had a right, partly upon the law of riparian rights alleged to exist in California, and partly by appropriation, which is recognized by the law of Nevada, to certain waters of the Walker river, extending, in all, to about 2,000 cubic feet per second, and that the defendants in that suit, including Miller & Lux, complainant in suit No. 731, were claiming the right to divert the waters of that river adversely to the Rickey Land & Cattle Company, and alleged that the defendant Miller & Lux had no such right. If it had any right whatever, it was subsequent and subordinate to the right of the Rickey Land & Cattle Company to divert this 2,000 feet of water, and that the claim of Miller & Lux to do so was adverse to the Rickey Land & Cattle Company, and without right; and the prayer of the complaint in that case was that it should be adjudged and determined by that court that the Rickey Land & Cattle Company, plaintiff in this suit, had that prior right, that the defendants, including Miller & Lux, had no right to that quantity of water until that quantity of water
should be exceeded in the river, and that the title of the Rickey Land & Cattle Company to the amount of the waters of that river should be quieted as against Miller & Lux and the other defendants. And it is alleged that the issues in those two cases are the same as the issues in Miller & Lux v. Thomas B. Rickey et al. (No. 731), and that those suits were intended and have the necessary effect of bringing to trial before the said court the issues of which this court had already obtained jurisdiction in the suit of Miller & Lux v. Thomas B. Rickey et al., thereby hindering and embarrassing this court in its determination of the suit of Miller & Lux v. Thomas B. Rickey, and to the necessary prejudice of the complainant in that suit The nature of the injunction which is sought in these suits is an injunction to restrain the defendant from prosecuting, as against the complainant, Miller & Lux, and a number of other persons, the suits brought by the Rickey Land & Cattle Company in Mono county, and the ground on which an injunction against the further prosecution of those suits is sought is that the issues in those cases are the same as those in the suit of Miller & Lux v. Thomas B. Rickey et al., pending in this court, and that this court first obtained jurisdiction of that controversy, and therefore had a right to retain it to the end, to the exclusion of any interference by any other court. The injunction sought for is against the party, not against the court in Mono county, and on the ground that this court should complete the controversy, and should not be interfered with. A preliminary restraining order was issued by this court, and an order upon the Rickey Land & Cattle Company to show cause, if any it could, why this order or an injunction pendente lite should not be issued in the several cases. They were all set for hearing at the same time, and were all argued together. The defendant, to show cause why the relief should not be granted, interposed separate demurrers to the several pleadings in the several suits and proceedings herein, and also filed several affidavits as to the facts of the incorporation of the Rickey Land & Cattle Company, covering the whole field of its objection to the proceedings herein instituted by the several parties. The affidavits are quite lengthy. It is not deemed necessary to quote them in hæc verba, but a reference thereto will be made in order to illustrate the points upon which the corporation relies for a full and complete defense to all the suits and proceedings instituted by the respective com, plainants.
The demurrers in all the cases are based upon the proposition that the bills of complaint or cross-bills show that the complainants are not entitled to the relief prayed for against the defendant; that the bills are without equity; and that the said bills are uncertain in this: that it cannot be ascertained therefrom what issues are tendered, showing, or tending to show, that the suits brought by defendant in Mono county, Cal., present the same issues which were tendered in the bill of complaint of Miller & Lux v. Rickey et al. in this court. In addition to these propositions, in some of the other classes of cases the demurrer to the cross-bill is based upon the ground that it does not appear that this court has any jurisdiction over the subject-matter of the controversy in said cross-bill; that the facts set forth in said cross-bill are independent of, distinct and different from, any controversy set out in the original bill, and is an attempt to interpose a new controversy between cross-complainant and this defendant, both of whom are codefendants in the original bill; that said cross-bill is multifarious, in that it is brought in regard to matters having no connection with the subject-matter of the original bill, and not proper to be investigated in this suit; that several defendants in the original suit are not made parties to this cross-bill; that there is a misjoinder of parties plaintiff, in that several parties have been joined as parties plaintiff who have no common interest or community of interest or joint interest in the water, the subject-matter of the cross-complaints, and that the interest of each plaintiff therein is several.
Under the facts of this case the question arises whether or not this court has the power and authority to issue the injunction against the Rickey Land & Cattle Company that is prayed for; in other words, has this court any jurisdiction in the premises ?
The main discussion of this question will be first confined to the suit of Miller & Lux against that corporation (No. 791), as it is free from certain objections raised in the other cases. This suit was brought by Miller & Lux for an injunction prior to the date of service of summons in the Mono county cases instituted by the defendant.
In Rodgers v. Pitt (C. C.) 96 Fed. 668, 670, this court said:
“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. *
If this court first obtained jurisdiction of this cause, it has the power and it is its duty to restrain the defendants herein from taking any proceedings in the state court which would have the effect of defeating or impairing the jurisdiction of this court."
These general principles are not denied, but their application to the facts of this case is seriously questioned. In the bill of complaint in No. 791 the pleader sets forth the proceedings had in No. 731, and then sets forth in full the proceedings in the two actions brought by defendant in Mono county, Cal., and alleges :
“(22) That the issues tendered by said complaints in said two actions so brought by the defendant herein as plaintiff against your orator and said other persons are, so far as concerns your orator, the same issues which were tendered by the said bill of complaint of your orator so filed in this court, so far as the same related to the defendant Thomas B. Rickey in said suit. (23) That at the time of the filing by the defendant herein of its complaints aforesaid, the said defendant did not have or claim to have, and does not now have or claim to have, any right whatever in or to any of the waters of said Walker river, or of any branch or tributary thereof, except such rights, if any, as it acquired by said conveyance to it from the said Thomas B. Rickey. (24) That the defendant herein, in and by the actions aforesaid, intended, and the necessary effect of said actions is, to bring on for trial and determination in said superior court the same issues presented by the said bill of complaint of your orator in the said suit so brought by it in this court, so far as relates to the issues between your orator and the said Thomas B. Rickey, and to obtain from said superior court, a judgment determining said issues in advance of a determination of the same by this court, and thereby to defeat the jurisdiction of this court in the said suit so now pending before it, and to hinder and embarrass this court in the trial