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"That method is adopted," says the witness, "on pastures that are grazed continuously during the summertime so as to keep up the growth of grass. I don't think it would require as much water, although I don't pose as an expert in that particular line, to produce a growth that was to be grazed off after the summer range has been exhausted, as it would if you had stock on it all the time. * It usually takes a little less water where the altitude is higher; there isn't so much evaporation, cooler nights, and the season is shorter."


Considering further, then, what is to be found in the discussion by this witness, as has been previously remarked, from the fact that defendant's hay and pasture lands lie low and approximately level, with the water table near the surface and the percolation from the streams and sloughs considerable, we are persuaded that 12 acre-feet to the acre for the pasture lands, as allowed by the court, is quite sufficient. for the economic irrigation of such lands.

There is another condition to be considered; that is, as the evidence seems to indicate, there is a time in June or early in July of each year when the water rises to such an extent that much of the land is flooded, notwithstanding the streams may be kept free from obstructions. These flood waters go to the benefit of defendant. The decree furthermore fixes no limitations upon the time of rise. So that defendant may use the water early or. late, as it is disposed, so that it does not use more than the quantity prescribed during the season.

The findings of the court, as to the quantity of water to which the defendant is entitled prior in right to the plaintiffs, are therefore approved.

The defendant challenges the jurisdiction of the court to make provision in its decree as follows:

(a) That defendant must use the waters constituting its prior right only upon certain lands irrigated prior to 1907; (b) that it must install in its canals and ditches automatic measuring devices and refrain from the use of any water for the irrigation of its lands without the use of such devices; (c) that such measuring devices shall at all times be subject to the inspection of the plaintiffs, who shall have the right perpetually to go upon and over defendant's lands in Nevada for the purpose of such inspection; and (d) that the court retain jurisdiction to make rules touching the manner of diverting, measuring, and distributing the waters belonging to defendant in Nevada, and for directing that defendant "keep accurate and detailed records of the amounts of water diverted and to require reports to be filed from time to time of the amounts so diverted, and generally to make such orders as may be found reasonably necessary to give effect to the decree, and to appoint commissioners or watermasters to make distribution in accordance with its terms."

[11] The question is presented as to the extent to which the judgment and decree of a court exercising jurisdiction in one state may become operative in another. And, incidentally, it is urged that, as to the waters of streams which are interstate in character, their benefits should be equitably distributed between the states through which they flow. The thought comes from the suggestion of the court, in Kansas v. Colorado, 206 U. S. 46, 117, 27 Sup. Ct. 655, 51 L. Ed. 956, that

there might come a time when such a distribution would have to be made of the waters of the Arkansas river. A sufficient answer to the contention is that the pleadings and evidence in this case disclose no such condition as to require an equitable distribution of benefits of the waters of Salmon river and its tributaries between the states of Idaho and Nevada; and besides, the matter is one for adjustment between the states; it is not for individual users to raise a controversy about the use of such water in another state, out of the territorial jurisdiction of the court.

[12] As to the main question, this court has determined, by the case of Rickey Land & Cattle Co. v. Miller & Lux, 152 Fed. 11, 81 C. C. A. 207, that a suit of the nature here maintained is essentially one to quiet title to real property, and that it is local and not transitory. The Rickey Land & Cattle Company, in that case, set up certain rights in California that it claimed to the waters of the stream, and we held that its cross-complaint setting up such rights could not operate to defeat complainant's cause, but only defensively, "and not to give the defendant a right to have its title also quieted in the state of California." Hawley, District Judge, in the same case, on the trial in the District Court, had this to say:

"It [the court] cannot, by any decree which it may make in this suit, directly reach the dams, reservoirs, or ditches belonging to the defendant located entirely within the state of California." Miller & Lux v. Rickey [C. C.] 127 Fed. 573, 575.

In this expression of the law we concur. But has the plaintiff no remedy where a defendant has been personally served and appears in the court, and is enjoined forever from doing certain things in another state to the detriment of plaintiff's rights? The authorities are clear that he has. Such a remedy was sustained in the Rickey Land & Cattle Co. Case, supra.

But it is insisted here that the decree goes beyond the jurisdiction. of the court to adjudge and provide. A court of chancery is without. jurisdiction to give compensation for a nuisance or tort to real property lying in another jurisdiction or state, nor can it enjoin or restrain the continuance of such a nuisance. Northern Indiana R. Co. v. Michigan Cent. R. Co., 15 How. 233, 14 L. Ed. 674; Mississippi & Missouri R. Co. v. Ward, 2 Black, 485, 17 L. Ed. 311. Nor is it within the power of such a court to declare a deed to lands in another state null and void. Carpenter v. Strange, 141 U. S. 87, 11 Sup. Ct. 960, 35 L. Ed. 640.

[13] The reason assigned for the latter holding is that, while a court of equity may in a proper case compel a party to act in relation to property not within its jurisdiction, its decree does not operate directly upon the property, nor affect the title, but is made effectual through the coercion of the defendant. That is to say, the rem may not be affected by the direct operation of the decree where it is beyond the territorial jurisdiction of the court, but the court may, acting in personam, coerce action respecting it.

Massie v. Watts, 6 Cranch, 148, 3 L. Ed. 181, is illustrative as well as declarative of a like principle. The case was instituted in a Ken

tucky court for the purpose of obtaining a conveyance of land in Ohio. Objection was made to the jurisdiction of the court to give the relief desired. Chief Justice Marshall, after premising that there was much reason for considering the action local in character and for confining it to the court sitting in the state where the lands lay, says:

"Was this cause, therefore, to be considered as involving a naked question of title, was it, for example, a contest between Watts and Powell, the jurisdiction of the circuit court of Kentucky would not be sustained. But where the question changes its character, where the defendant in the original action is liable to the plaintiff, either in consequence of contract, or as trustee, or as the holder of a legal title acquired by any species of mala fides practiced on the plaintiff, the principles of equity give a court jurisdiction wherever the person may be found, and the circumstance, that a question of title may be involved in the inquiry, and may even constitute the essential point on which the case depends, does not seem sufficient to arrest that jurisdiction."

After citing cases, among which was Penn v. Lord Baltimore, 1 Vez. 444, where the Chancellor of England decreed the specific performance of a contract respecting lands lying in North America, the distinguished jurist deduces the principle that:

"In a case of fraud, of trust, or of contract, the jurisdiction of a court of chancery is sustainable wherever the person be found, although lands not within the jurisdiction of that court may be affected by the decree."

The principle is rather more broadly stated in Phelps v. McDonald, 99 U. S. 298, 308 (25 L. Ed. 473), as follows:

"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 site, which he could do voluntarily, to give full effect to the decree against him."

The principle, in its more comprehensive statement, was applied in Cole v. Cunningham, 133 U. S. 107, 10 Sup. Ct. 269, 33 L. Ed. 538, which was a suit by a citizen of Massachusetts to enjoin a defendant, a resident of the same state, from prosecuting an attachment and garnishment in the state of New York involving the property of complainant.

The principle was also applied by this court in Rickey Land & Cattle Co. v. Miller & Lux, supra, and was later applied in the Salton Sea Cases, 172 Fed. 792, 820, 97 C. C. A. 214. The latter cases were instituted in the superior court of California, and removed into the Circuit Court of the United States for the Southern Division of the Southern District of California, to restrain in one phase of the controversy the diversion of water in Mexico, which was beyond the territorial jurisdiction of the court. Among others, the decree contained the following provisions:

"That defendant be perpetually enjoined and restrained from diverting from the Colorado river any of the waters thereof, in excess of the substantial needs of the people dependent upon the canal, described in complainant's bill of complaint, for water supply for domestic and irrigation uses and purposes, and such other lawful purposes as the same may be applied to.

"That the said water so diverted, whatever may be the amount, shall be so controlled and used that the same shall not flow upon the lands of the complainant described in the bill of complaint.

"That the defendant be required to regulate the flow of any water that may be diverted by it so that there shall be no waste water flowing therefrom as the result of such diversion upon or over the lands of complainant, abovedescribed.

"That said defendant be restrained from turning out of its canals any waste water at any point whence the same will naturally flow upon or over the lands of complainant, or flow into the lake now covering the Salton Sink, and thereby substantially increase the amount of water therein, or maintain the amount of water therein, or prevent the decrease thereof by natural causes."

By the second and last of the Salton Sea Cases, which was in the nature of a proceeding for contempt for violating these provisions of the decree, the provisions were themselves in effect approved, although they were designed to be effective in Mexico outside of the territorial jurisdiction of the court. The object of the cases was to prevent the continuation of a nuisance being perpetrated in Mexico as well as in California, causing damage to the complainant's properties in California.

[14] Now, turning to the case in hand, the decree complained of goes but little further, if any, than that part of the decree above set out in the Salton Sea Cases. It is true that the trial court has confined the use of the water to be diverted by defendant, to which it has a right superior to that of the plaintiffs, to such lands as were irrigated prior to 1907. This is setting bounds to the territorial use of the water. Ordinarily, one having obtained the right to prior use of a given quantity of water is not restricted as it respects the place of its use, and may change it to a different locality from that where first applied. He may also change the point of diversion and the character of its use if the rights of others be not affected thereby. Union Mill & Mining Co. v. Dangberg (C. C.) 81 Fed. 73, 115.

[15] In the case at bar there is a special reason for confining the use of defendant's prior right to the lands irrigated prior to 1907. By the estimate of the trial court, in which we concur, if the 12,500 acrefeet of water is used upon such lands, by reason of percolation 8,500 acre-feet would find its way back into the stream, and the loss to the plaintiffs would amount to about 4,000 acre-feet only. If, however, the whole of the 12,500 acre-feet was carried away to another locality, where it would all be absorbed and none of it would reach the channel of the river again, the loss to the plaintiffs would be that much greater. The real condition is, when the plaintiffs' rights are consulted, that the defendant's absolute appropriation prior in time to that of plaintiffs is the 4,000 acre-feet only, because the remainder of the 12,500 feet is returned to the stream after use. So that, if the defendant is to have the use of 12,500 acre-feet of water superior in right to that of plaintiffs, in justice and equity its use should be confined to that particular locality where it was being used when plaintiffs acquired their appropriation.

Now, if the court has not the power, proceeding in personam, to restrict the defendant's use of the water to a circumscribed locality,

it would be practically powerless to do justice between the parties litigant. We are convinced, however, from the authorities above considered, that it has such power in ample scope to protect the plaintiffs from the diversion of the water to any locality where it would conduce to their injury. It will be noted that the decree does not attempt to describe the exact metes and bounds of the lands to which defendant's appropriation was first applied, or was being applied at the time of plaintiffs' appropriation, but declares only that the same is included within certain legal subdivisions which embrace a very much enlarged territory as compared with that upon which appropriations were actually made, the purpose being to confine the use of the water to certain definite delimitations, with a view to preventing its being carried away to localities where the result would be to lessen the flow in the stream, to the detriment of plaintiffs. There is no attempt by the decree to quiet the defendant's title to its appropriations, but only to determine what they were and to what lands applicable, with a view to doing justice between the parties.

[16] It is furthermore necessary, to protect the plaintiffs against the encroachments of defendant, that the water be measured. The proper measurement is a duty personal to the defendant. It was altogether appropriate, therefore, that the court impose upon the defendant the obligation of installing automatic measuring devices, and, for the protection of the plaintiffs, these should be subject to their inspection. So it is respecting rules regulating the manner of diverting, measuring, and distributing the water and the keeping of records of The amount of water diverted, etc. These were all directions of the Court operating in personam, and not directly upon the res, and were and are within the court's equitable jurisdiction to determine and declare.

[17] It is also assigned as error that the court quieted title in plaintiffs to more than 45,000 acre-feet of the waters of Salmon river. This feature of the controversy is regulated by the laws of Idaho. Sess. Laws 1915, p. 216. Under a project like this, 10 years is allowed within which to make the diversion and proof thereof for a beneficial use. The appropriation is contingent upon the use, of course, but in the larger projects the appropriation speaks as of the date of the license, though if not applied to a beneficial use within 10 years, it lapses. In the meantime no one will be deprived of the use of the water not reduced to a beneficial use under the project.

Another assignment of error relates to the refusal of the court to admit certain testimony. We have carefully examined the matter, and find no merit in the assignment.

The decree will be affirmed.

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