219 F. 365 | 9th Cir. | 1914
(after stating the facts as above). There, are three questions relating to the jurisdiction of the lower court involved in this case:
First. Is Sand Island, with its south shore or tide lands on that shore, within the territorial limits and jurisdiction of the state of Washington ?
If this question is answered in the negative, the next question is:
Second. Is the land under the waters of the Columbia river passing to the south of Sand Island within the concurrent jurisdiction of the courts of the state of Washington with respect to this controversy?
If this question is answered in the negative, the final question is:
Third. Had the lower court equitable jurisdiction by reason of having acquired jurisdiction of the person of the defendants ?
.Tf any one of these questions is answered in the affirmative, the jurisdiction of the lower court must be sustained. If they are all answered in the negative, the jurisdiction of the court fails.
The defendants in their answer to the supplemental bill admitted that a suit had been brought in the United States Supreme Court by the state of Washington against the state of Oregon for the purpose of determining the boundary line between those states, and that a decision in that suit had been rendered as set forth in the supplemental bill; but they denied that by that decision it had been established that the boundary line between the states was to the north of Sand Island. That contention is renewed in fhe brief filed by the defendants on this appeal! In support of it, it is urged that the Supreme Court fixed the boundary as “the center of the north channel, changed only as it may be from
“Whatever changes have come in the north channel, and although the volume of water and the depth of that channel have been constantly diminishing, yet, as all resulted from processes of accretion, or, perhaps, also of late years from the jetties constructed by Congress at the month of the river, the boundary is still that ehannel, the precise line of separation being the varying center of that channel.”
This is a complete answer to the claim of the defendants that the boundary as fixed by the Supreme Court in its first decision in the boundary suit is not the present boundary between-the two states. It follows that since the admission of Oregon into the Union, in 1859, Sand Island has been part of the territory of that state.
By section 1 of the act of Congress of March 2, 1853 (chapter 90, 10 Stat. 172), all that part of the territory of Oregon lying north of the “main channel of the Columbia river” was organized into the territory of Washington, and by section 21 of the same act it is provided that:
“The territory of Oregon and the territory of Washington shall have concurrent jurisdiction over all offenses committed on the Columbia river, where said river forms a common boundary between said territories.”
Section 1 of the act of Congress admitting Oregon into the Union (Act Feb. 14, 1859, c. 33, 11 Stat. 383), after describing in detail the boundaries of the state, provided:
“Including jurisdiction in civil and criminal cases upon the Columbia river and Snake river, concurrently with states and territories of which those rivers form a boundary in common with said state.”
In section 2 it is said:
“The * * * state of Oregon shall have concurrent jurisdiction on the Columbia and all other rivers and waters bordering on. the said state of Oregon, so far as the same shall form a common boundary to said state, and any other state or states now or hereafter to be formed or bounded by tbe same.”
The act of Congress admitting Washington into the Union, and the Constitution of that state, are silent on the subject of concurrent jurisdiction. There is therefore a question whether the state of Washington has, by appropriate concurrent action, acquired concurrent jurisdiction of the waters of the Columbia river; but we pass that question to
In Nielsen v. Oregon, 212 U. S. 315, 29 Sup. Ct. 383, 53 L. Ed. 528, one Chris Nielsen was a resident and inhabitant of the state of Washington, and a citizen of the United States. He had a license from the fish commissioner of Washington to operate a purse net on the Columbia river, and was found on the waters of the Washington side of that river fishing with a purse net. He was arrested for violating a law of the state of Oregon prohibiting the taking of fish in that manner. By the law of the state of Washington in force at that time fishing with a purse net was lawful by those having a license so to do from the fish commissioner of that state. Nielsen was tried and convicted in the courts of Oregon for violation of the law of that state. The single question was whether the law of Oregon prohibiting the taking of fish with a purse net extended over the entire waters of the Columbia river, or whether it was confined to the Oregon side. The Supreme Court of the state held that, where adjoining states had concurrent jurisdiction on the waters forming their boundary, the laws of each state regulating the common right to take fish from such waters were valid and binding when not in conflict, and if there was a conflict the law of that state which was the most restrictive in its character must prevail, and to that extent the state which first assumed jurisdiction maintained it to the exclusion of the other. The court accordingly held that the law of Oregon extended over the waters of the Columbia river, and the conviction of Nielsen in the Oregon court was sustained. State v. Nielsen, 51 Or. 588, 95 Pac. 720, 131 Am. St. Rep. 765, 16 Ann. Cas. 1113. The case was taken to the Supreme Court of the United States, where the judgment of the Supreme Court of the state of Oregon was reversed; the Supreme Court of the United States holding that for an act done in the territorial limits of the state of Washington, under authority of a license from that state, a person could not be prosecuted and punished in the state of Oregon. Nielsen v. Oregon, 212 U. S. 315, 321, 29 Sup. Ct. 383, 53 L. Ed. 528.
In the present case the action is in the nature of a bill to restrain a trespass and abate a nuisance. When the action was commenced in 1908 in the United States court in Washington, it was believed by the appellant that the locality of the alleged trespass and nuisance on the south side of Sand Island was within the territorial limits of the state of Washington, and the action was accordingly brought in that jurisdiction. In the appellees’ answer to the appellant’s bill of complaint it was admitted that Sand Island, in the Columbia river, was in the state of Washington. Upon the final decision of the Supreme Court of the United States on May 24, 1909, holding that Sand Island was within the territorial jurisdiction of the state of Oregon, the appellant moved to dismiss its bill for want of jurisdiction, on the ground that the suit was a local one and concerned real estate and property situate in the state of Oregon. The court denied the motion to dismiss the bill, and, referring to the decision of the Supreme Court of the United States in the case of Nielsen v. Oregon, supra, held that, although the Constitution of the state of Washington defining the state’s boundaries made no mention of concurrent jurisdiction on the Columbia river, the state
We are of opinion that, assuming that the state of Washington has concurrent jurisdiction on the Columbia river, with respect to matters occurring on the river, it does not follow that the state has jurisdiction over a locality under the river within the territorial jurisdiction of the state of Oregon, and we do not understand that Nielsen v. Oregon so holds. The court in that case was dealing with the question of jurisdiction on the waters of the Columbia river, and with respect to a purse net or seine operated upon the surface of the water, and in that case the Supreme Court held that Oregon did not have concurrent jurisdiction to impose its laws upon the. Washington side of the river. In the present case we are dealing with a complaint relating to the operation of set nets placed upon the ground under the water in a fixed locality definitely known to be within the territorial limits of the state of Oregon. To hold that Sand Island and its shore, within the exclusive territorial jurisdiction of the state of Oregon, are also within the concurrent jurisdiction of the state of Washington, because the waters of the Columbia river separate and pass on both sides of the island, would be to extend concurrent jurisdiction to land for which we find no authority in any of the adjudged cases. We are of opinion that the courts of Washington acquired no concurrent jurisdiction over the locality in question under any construction of the statutes relating to concurrent jurisdiction on the Columbia river.
To determine this question it is necessary to clearly understand the subject-matter of the controversy. Sand Island, with its shore between high and low water mark, is the property of the United States- — the island by reservation of the President of the United States, August. 29, 1863, and the shore by grant of the state of Oregon, October 21, 1864, to the United States, of all the tide lands to Sand Island. Both land and shore of this island are within the territorial jurisdiction of the state of Oregon. By act of Congress approved July 28, 1892 (27 Stat. 321, c. 316 [Comp. St. 1913, § 6944]), the Secretary of War was authorized in his discretion to lease, for a period of not exceeding five years, such property of the United States under his control as might not at the time be required for public use. Under this authority, the Secretary of War had the United States engineers make a survey of the island, including the shore, and diyide the southwest and south side of the island into fishing sites to be leased for seining operations. The southwest and south side of the island was accordingly divided into five seining sites, and offered for lease to the highest bidder. Sites 2 and 3, with which alone we are concerned in this case, had a front
In Gilbert v. Moline Water Power & Mfg. Co., 19 Iowa, 320, this precise question was before the Supreme Court of the state of Iowa.
“Now, while it is, of course, not claimed that the laws of this state woul4 have any inherent authority beyond the jurisdiction of the state, or that our laws can bind or ’affect property out of or beyond our territorial limits, It is insisted that this property, or that this alleged nuisance, is so situated that either state may direct the manner of its use, and order its abatement or removal, if found to be of the character charged. That the courts of Illinois might do this, there is, of course, no doubt. But the claim is that oar courts have the same concurrent right, on the complaint of one of our citizens, whose property, situated within our jurisdiction, is injured by the alleged unlawful obstruction. We do not believe, however, that the acts and constitutional provisions referred to include cases like that now before us. There is an immense commerce on this great common highway. Water crafts, rafts, and boats of almost every kind and description, are each' day floating upon its waters. Thousands of persons are engaged in this commerce. Contracts are made, and obligations assumed, for which these boats and crafts may, under certain proceedings, be made liable. Injuries are inflicted upon persons and property, by persons while on the river, for which they should be held answerable, criminally as well as civilly. If jurisdiction in all such cases were made to depend on the inquiry whether the boat or vessel was on one side or the other of the main channel, whether the injury was inflicted or crime committed east or west or north or south of such line, it can be readily seen that it would be frequently almost impossible to determine such jurisdiction, and that a mistake in this respect would prove fatal to the action or proceeding; and hence the reason of making the jurisdiction concurrent in all such eases. Such property and persons are, as a rule, transitory, moving — here to-day, and gone to-morrow. Here is a common highway open to the citizens of all states and all nations. It is declared common territory, and, as to matters arising thereon, or persons found thereon, the sovereignties on either side have common or concurrent jurisdiction. Not so, however, as to an obstruction, where the property therein, and the use thereof, is wholly on one side of the channel. It is as though an unhealthy, dangerous, or illegal manufactory should be erected and continued on the Illinois shore, to the injury and annoyance of citizens on the Iowa side; and though such erection should extend below low-water mark, there would be no jurisdiction to declare its abatement in our courts. Such injuries are not on the river, within the purview of the acts referred to and relied upon by counsel. And this conclusion is the more warrantable, when we consider that in this case the main dam extends from the shore to the island (Rock Island), that this island, containing hundreds of acres of land, is indisputably a part of the territory of our sister state, and that, to reach this obstruction or nuisance, our courts and the officers thereof must go beyond this island, and decree and procure the removal of a work attached to the main shore, and placed there, too, we are bound to suppose, with the consent of the state to which the corporation owes its life.”
“The bridge is 1,570 feet long, and the number of piers is six. Three of them are on the Iowa side of the river. The draw pier is the fourth. It is 386 feet long at its bottom, and 45 feet wide. The draw space on the Iowa side is 111 feet and on the Illinois side 116 feet wide in the clear. The distance from center to center of the small piers is 257 feet. The long pier stands at an angle with the thread of the current of about 24 degrees, and the small piers are nearly on a line with the thread of the current. The Illinois draw passage is directly over the deepest channel, of the, river, and directly over the usual track of steamboats before the bridge was built. The Mississippi is about 1,410 feet wide at the bridge, and the middle of 'the river is about 80 feet westwardly of the long pier. The Illinois draw passage (116 feet), and width of the long pier (45 feet), and the 80 feet between it and the eastern line of Iowa, cover a space of 240 feet of water way, and which embraces the main channel, where steamboats have at all times navigated. It was at the long pier, and in the Illinois draw east of that pier, that the complainant’s boats sustained the injuries on which he founded his right to sue the Iowa corporation, and to proceed against the bridge in rem as a public nuisance. An indictment could only have been prosecuted against the owner for keeping up the nuisance in Illinois in the courts of that state, because the nuisance was a trespass and crime against the laws of Illinois, and the injuries to complainant’s boats, giving him the privilege to sue and abate the obstruction were as local as the public right to indict. He asks nothing from the person of the defendant, but seeks to remove a local object, because he has sustained special damage from that object. The District Court had no power over the local object inflicting the injury; nor any jurisdiction to inquire of the facts, whether damage had been sustained, or how much. These facts are beyond the court’s jurisdiction and powers of inquiry, and outside of the case.”
If the Supreme Court of the United States could not sustain the jurisdiction of the Iowa court on the waters of the Mississippi river to the abatement of a nuisance thereon in the state of Illinois, in a case in which a part of the nuisance at least was admitted to extend into the jurisdiction of the court, much less in this case can the jurisdiction of the state of Washington on the waters of the Columbia be extended into the state of Oregon and sustained to abate a nuisance which is entirely within the jurisdictional limits of the state of Oregon.
The appellees, in further support of the claim of jurisdiction, invoke the equitable maxim that equity acts in personam and not in rem. They contend that the jurisdiction of the court below was dependent neither upon the location of Sand Island nor upon the concurrent jurisdiction of the state of Washington and the state of Oregon on the waters of the Columbia river. They assert that, having secured jurisdiction of the parties to the controversy, the court below, as a court of equity, had full jurisdiction to try and dispose of all of
Neither the maxim, nor the argument which the defendants adduce from it, is applicable to this case. Pomeroy, in his work on Equity Jurisprudence (3d Ed., § 1318), speaking of actions in personam, says:
“The power to act in personam, through their remedies, is still held by all «Qurts of equity. * * * Of this nature must always be the remedies when the subject-matter, either real or personal property, is situated beyond the territorial jurisdiction of the court, in another state or country. The jurisdiction to grant such remedies is well settled. Where the subject-matter is situated within another state or country, but the parties are within the jurisdiction of the court, any suit may be maintained and remedy granted which directly affect and operate upon the person of the defendant, and not upon the subject-matter, although the subject-matter is referred to in the decree, and the defendant is ordered to do or to refrain from certain acts toward it, and it is thus ultimately but indirectly affected by the relief granted. As examples of this rule, suits for .specific performance of contracts, for the enforcement of express or implied trusts, for the final accounting and settlement of a partnership, and the like, may bo brought in any state where the jurisdiction of the defendant’s person is obtained, although the land or other subject-matter is situated in another state, or even in a foreign country, On the other hand, where the suit is strictly local, tho subject-matter is specific property, and the relief when granted is such that it must act directly upon the subject-matter, and not upon the person of the defendant, the jurisdiction must be exercised in the state where the subject-matter is situated; “ * * for example, a suit to abate a nuisance” — citing Mississippi & Missouri Ry. Co. v. Ward, supra.
In the Salton Sea Cases, 172 Fed. 792, 812, 97 C. C. A. 214, the objection was made that the Circuit Court of the United States for the Southern District of California had no jurisdiction to decree an injunction in effect abating a nuisance injuring property within the jurisdiction of the court. It was claimed that there was a rule supporting the objection that a court of equity could never compel a defendant to do anything which was not capable of being physically done within the territorial jurisdiction of the court. This court upheld the jurisdiction of the lower court, but placed the jurisdiction expressly upon the ground that the injured property was within the jurisdiction of die court — citing Northern Indiana Ry. Co. v. Michigan Central Ry. Co., 15 How. (56 U. S.) 233, 14 L. Ed. 674; Mississippi & Missouri Ry. Co. v. Ward, supra; Gilbert v. Moline Water Power, etc., Co., supra.
There is nothing in the facts of this case to render these well-settled rules of equity inapplicable, or, when applied, to render their application inequitable. The plaintiff accepting the general belief that Sand Island was within the territorial jurisdiction of the state oí Washington, filed his suit in good faith in that district. Answers and cross-complaints were filed by the defendants, and answers to the cross-complaints were filed by the plaintiff after demurrer overruled. That was as far as the suit had progressed, when the Supreme Court decided that Sand Island was within the jurisdiction of the state of Oregon. No hearing had been had and no testimony taken on the
The decree of the court below is reversed, - with directions to dismiss the bill. The costs will be divided; the costs prior to the appellant’s motion to dismiss the bill to be paid by the appellant, and the remaining costs to be paid by the appellees.