UNITED STATES FREEHOLD LAND & EMIGRATION CO. v. GALLEGOS et al., 89 F. 769

SANBORN, Circuit Judge (after stating the facts). A motion was made lo dismiss this appeal because the jurisdiction of 1he 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 court holds: If the question of jurisdiction is in issue, and the jurisdiction sustained, and then judgment or decree is rendered in l'avor 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 he 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 oilier 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 is uot a navigable stream, according to the settled rules of the common law, and riiat a diversion of these waters by the appellees is a continuing trespass, against which it is entitled to the injunction it seeks.

Counsel for the appellees contend, on the other hand, that the common law upon this subject is inapplicable t.o the arid region in which this land is situated, that the rights of riparian owners there are not governed by its rules, and that it: is, and always has been, the law in the country now included in the state of Colorado that, in the absence of express statutes to the contrary, the first appropriator of water from a natural stream to a beneficial purpose hits, with the qualifications contained in the constitution of that stale, a prior right to the water, to the extent of such appropriation.

The question is of serious import, and the effects of its decision must be grave and far-reaching. The opinion which determines it, or intimates the views of this court upon it, ought not to be delivered " in a case in which its decision is unnecessary, and a careful examination and analysis of the bill in this case have led us to the conclusion that it does not fairly present this issue. Accordingly, we deem it our duty to refrain from considering or expressing our opinion upon it, and nothing that is said in this opinion is intended to express or intimate our views concerning it.

Conceding all that the counsel for the appellees claim, — conceding that his contention is sound, — the charges of this bill seem to be sufficient to warrant the relief it seeks, or an answer on the part of the appellees.

It avers that the appellant and its grantors have been the owners of the banks of this stream since 1844, and that during all this time they have been, and still are, in the “actual, open, and notorious use, occupation, and enjoyment of said premises, embracing said Culebra river and both banks thereof.” It alleges that the appellees claim the right to divert from this stream and to use 23 cubic feet of water per second for domestic and irrigation purposes, that they are not entitled to any water from this stream for those purposes, and that they have diverted and are diverting or wasting large quantities of the waters of this river, which are entirely lost to the appellant, to its damage.

This is all the bill contains which goes to show any appropriation of the water by the appellees, and it certainly comes far short of either averring or admitting a lawful prior appropriation by any of them. Under the law of prior appropriation, which the appellees invoke, one may not take water to waste, or to apply to every whimsical purpose he-chooses. He cannot acquire any right , of appropriation, unless he applies, or honestly intends to apply, the waters he takes to a beneficial use; and even then he may not appropriate more than is necessary for that use. Thomas v. Guiraud, 6 Colo. 530, 532; Larimer Co.

R. Co. v. People, 8 Colo. 614, 616, 9 Pac. 794. The bill does not admit or show that the appellees have any land which they irrigate or intend to irrigate with the waters they divert, or that they supply or intend to supply those who have. It neither admits nor avers that they either have applied or intend to apply any of it to a domestic or any other beneficial use, or that they have ever supplied it to those who have done so, or who intend to do so.

Its allegations in this behalf are simply that the appellees make an unfounded claim to a right to divert and use this water, and that in pursuance of that claim they are wrongfully taking large quantities of it, to the serious damage of the appellant. Why is not this the' statement of a good cause of .action? It is claimed that it is not, because the appellant has alleged no appropriation on its part, and it is said that, without such an allegation the bill shows no right to prevent diversion by others. Is this contention sound, however?

Concede, for the purpose of the disposition of the demurrer, that the riparian owner may not restrain the diversion of water from a natural stream by one who has appropriated it, or is about to appropriate it, for irrigation or domestic use. Has he no rights or remedies against a trespasser who wrongfully diverts to no beneficial use, under an unfounded claim that he is entitled to it for some such use?

Must he first appropriate the water which flows through his land to some beneficial use, before he can restrain a trespasser from leading it across and away from his land, and applying it to his own use, or wasting it without right? That is the question which this bill presents, and it is susceptible of but one answer, either under the common law, or under the constitution and statutes of the state of Colorado. The appellant owns all the land on both banks of this river.

Regardless of its right to the water, it has the undoubted right to the undisturbed and exclusive possession of its land; and the appellees can divert no water without entering upon and leading it across this land, and committing a continuing trespass upon it. By the rules of the common law, the appellant has the right to restrain the diversion of the flow of the water of this river from its natural channel, as against all the world.

By the constitution and statutes of Colorado, it lias the same right, although it never has appropriated any oí the water to a beneficial use, as against every one but lawful prior appropriators; and, as the appellees are not such, it must have this right as against them. The constitution and statutes of Colorado expressly provide that, while those whose lands do not border upon a stream have the right °of way across the lands upon its borders for the purpose of constructing and maintaining a ditch, yet ¡hey can exercise that right only by condemnation, and the payment oí just compensation therefor, (Const.

Colo. art. 16, §§ 5-7; 1 Mills" Ann. St. 1891, §§ 2256, 2260, 2434. The result is that according to the averments of this bill the appellees are trespassers upon the land of the appellant, whether the common law or the statutes of Colorado govern their rights. It may be that they have condemned, or obtained by prescription or otherwise, a right of way for a ditch across the lands of the appellant; it may be that they have made a lawful prior appropriation of some of the waters of this stream, — as their counsel claims.

If so, they must plead and prove the facts which establish this claim, before they can invoke our decision as to their existence or effect. They do not appear from the statements contained in this bill, and we cannot conjecture what they are. It is insisted on behalf of the appellees that the bill is insufficient, because it fails to show their insolvency, or irreparable injury to the appellant. It discloses a continuing trespass, however, upon the lands of the Freehold Company, by 28 persons, and constant and wrongful diversion of water through those lands, which is continually depredating (heir value.

These facts, if established, — and they are admitted here, — are certainly sufficient, on well-settled principles, to entitle the complainant to the relief it seeks. A continuing trespass upon real estate, or upon an interest therein, to the serious damage of the complainant, warrants an injunction to restrain it. A suit in equity is generally the only adequate remedy for tuspasses continually repeated, because constantly recurring actions for damages would be more vexatious and expensive than effective. 2 Beach, Inj. §§ 1129, 1146; Tallman v. Railroad Co., 121 N. Y. 119, 123, 23 N. E. 1134; Uline v.

Railroad Co., 101 N. Y. 98, 122, 4 N. E. 536; Galway v. Railroad Co., 128 N. Y. 132, 145, 28 N. E. 479; Evans v. Ross (Cal.) 8 Pac. 88. Finally it is said that the statutes of Colorado provide for a proceeding in one of the district courts of that state for the determination of the respective rights of claimants to the waters of its streams, and forbid the issue of any injunction which will affect the distribution of the water adversely to the rights established by the final decree in that proceeding. 1 Mills’ Ann. St. 1891, § 2434.

It is suggested in the brief of counsel for the appellees that the rights of the parties to this suit have been adjudicated by such a decree, but there is no reference to or admission of that fact in the record in this case; and, in a consideration of the sufficiency of the bill, the question of the existence or effect of such a decree is in no way presented. There is no presumption of law or fact that any court has rendered such a decree, and if it exists, and the appellees rely upon it, they must plead and prove it as an affirmative defense before any court can consider it.

The motion to dismiss the appeal is denied, the decree is reversed, and this case is remanded to the court below for further proceedings not inconsistent with the views expressed in this opinion.