89 F. 769 | 8th Cir. | 1898
(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 ex
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