should be allowed here, the insured would, by reason of the libellant's delay, be without a clear recourse against the underwriter. The laches on the part of the libellant would thus enable it to make the owner pay and permit the underwriter to escape, notwithstanding a recognition of liability by its conduct and an actual contract made with the libellant, without the claimant's sanction. The libellant should not be permitted to recover here.

The libel is dismissed.

MILLER & LUX v. RICKEY et al. WOOD et al. v. RICKEY LAND & CATTLE CO. MILLER & LUX v. RICKEY LAND & CATTLE CO. GIGNOUX et al. v. SAME. GALLAGHER v. SAME. AMES et al. v. SAME. NICHOL et al. v. SAME. CONWAY et al. v. SAME.

(Circuit Court, D. Nevada. June 25, 1906.)

Nos. 731, 790, 791, 793-797.

1. WATERS AND WATER COURSES-SUIT FOR DIVERSION OF WATER FROM STREAM -DEFENSES.

In a suit by an appropriator of water from a stream to enjoin diversion of the water by others above him in violation of his prior right, in which no damages are claimed, it is no defense for one defendant, as against the claim of complainant, that others inferior in right to himself are diverting a larger quantity of the water than is claimed by complainant.

2. COURTS-EQUITY-PLEADING-MATTERS ADJUDICATED ON PLEA-AVAILABILITY

ON ANSWER.

Matters which have been adjudged on a plea not to constitute a defense cannot be again set up in the answer.

[Ed. Note. For cases in point, see vol. 13, Cent. Dig. Courts, § 340.]

3. EQUITY-CROSS-BILLS-PLEADING DEFENSIVE MATTER.

In a suit to enjoin diversion of water from a stream, a cross-bill filed by a defendant against the complainant, which merely alleges priority of right in such defendant and diversion by complainant, and prays affirmative relief, sets up only matter of defense, which may properly be taken by answer and is demurrable.

[Ed. Note.-For cases in point, see vol. 19, Cent. Dig. Equity, § 469.] 4. SAME.

A defendant cannot by calling his pleading a cross-bill, and praying for affirmative relief, require complainant to answer the same, where the matter set up therein is purely defensive.

[Ed. Note. For cases in point, see vol. 19, Cent. Dig. Equity, § 469.] 5. COURTS-JURISDICTION OF FEDERAL COURTS-ANCILLARY PROCEEDINGS ON CROSS-BILLS.

Cross-bills between defendants in a suit in a federal court to determine appropriators' rights in the waters of a stream, of which the court has jurisdiction by reason of the diversity of citizenship between complainant and defendants, are ancillary to the original suit, and within the jurisdiction of the court, without regard to the citizenship of the parties thereto.

[Ed. Note. For cases in point, see vol. 13, Cent. Dig. Courts, § 801. Supplementary and ancillary proceedings and relief in federal courts, see note to Toledo, St. T. & K. C. R. Co. v. Continental Trust Co., 36 C. C. A. 195.]

6. SAME FEDERAL AND STATE COURTS-PRIORITY OF JURISDICTION.

Where a federal court has first acquired jurisdiction of a suit to determine the respective rights of appropriators of water from a stream, it is its right and duty to protect such jurisdiction against interference, and it will enjoin a defendant from prosecuting a later suit brought by him against the complainant in a state court relating to the same subjectmatter.

[Ed. Note.-For cases in point, see vol. 13, Cent. Dig. Courts, §§ 1345, 1418-1430.]

7. SAME

PROTECTION OF PRIOR JURISDICTION-PURCHASER PENDENTE LITE. A corporation organized by a defendant in a suit in a federal court, and to which he has, pending the suit, conveyed his water rights, which are the subject of the litigation, takes the same subject to any orders which might be made therein against its grantor, and may be enjoined by the court from instituting and prosecuting a suit in a state court for the determination of the same rights.

In Equity. On exceptions to answer, demurrers to bill and crossbills, and motion for injunction pendente lite.

W. C. Van Fleet and W. B. Treadwell (Isaac Frohman, of counsel), for complainant Miller & Lux.

A. M. Kidd, for complainants and defendants Henry Wood et al. James F. Peck and Charles C. Boynton, for defendants Thomas B. Rickey and the Rickey Land & Cattle Company.

Cheney & Massey, for defendants the Mickey Ditch Company et al. Mack & Farrington and George S. Green, for complainants and defendants J. E. Gignoux et al., Patrick Gallagher, L. R. Ames et al., James Nichol et al., Patrick J. Conway et al., and Mary T. Shaw et al. John Lothrop, for defendants William R. Penrose et al.

HAWLEY, District Judge. In the multitude of questions involved in these cases it will be the endeavor of the court to group them together, as far as possible, under one general head. There are, however, certain motions and demurrers relating exclusively to the case of Miller & Lux v. Rickey et al. (C. C.) No. 731, 123 Fed. 604, 127 Fed. 573, which will first be disposed of. The general nature and character of this suit may be briefly stated as one in tort to obtain an injunction restraining the defendants from diverting the waters of Walker river above complainant's lands to its prejudice. No damages are asked for. Complainant interposed an exception to paragraphs 28 and 29 of defendant Rickey's answer to the bill of complaint for impertinence. This answer, after containing denials and admissions, sets up new matter, to the effect that certain rights to the water, which are alleged to be prior in point of time to those claimed by complainant, and, in paragraph 28, for further answer alleges, in substance, that below the place where he is diverting the water, and above the place where complainant is diverting the water, a large number of persons named in the answer, some of whom are defendants in this suit, are diverting a quantity of water from the Walker river greater than the quantity which complainant claims, and that their diversions and appropriations of the water are subsequent in point of time to those of the defendant Rickey, and also subsequent in point of time to those of the complainant. This allegation is not responsive to any of the allegations

contained in complainant's bill, and does not, of itself, constitute a defense to this suit. The question involved, so far as the defendant Rickey is concerned, is not whether other parties are diverting the water, but whether he has the right to divert it. If he establishes the fact that his own diversion of the water which he claims is prior in point of time to the appropriation and diversion of the water by the complainant, he has a complete defense to the suit, and if he does not establish that fact he should be enjoined in this suit from diverting the water to the prejudice of complainant. If defendant's diversion of the water was wrongful, he could have no defense as against the injunction on the ground that other persons were guilty of the same wrongful act. Such proof would be irrelevant and inadmissible. Evidence to prove such facts is only admissible on the question of damages. Here no damages are claimed. Gould v. Stafford, 77 Cal. 66, 18 Pac.

879.

The matters set up in paragraph 29 of the answer were previously set up by plea and overruled. I think the rule is well settled that such matters cannot be again set up in the answer.

In Pentlarge v. Pentlarge (C. C.) 22 Fed. 412, it was held that neither equity rule 39 nor the practice of equity courts outside of the equity rules would allow the defendants to set up in an answer matter which had on the plea been adjudged not to constitute a defense. The same principle is announced in Sharon v. Hill (C. C.) 26 Fed. 337, 341.

2. The next preliminary question to be disposed of is presented by demurrers to the cross-bills filed by three different corporations, the Mickey Ditch Company, the Fox Ditch Company, and the Greenwood Ditch Company, and a large number of individual defendants in No. 731, and the demurrers interposed to the cross-bills by divers and sundry others of the defendants. The different counsel representing the different defendants have not pursued the same course in filing their alleged cross-bills, but the controlling principles upon the points raised by the demurrers are substantially the same.

The complainant interposed a demurrer to all the cross-bills, substantially on the ground that no matter contained therein entitles the defendants to any relief in equity other than that to which they are entitled by their answers. In the group of defendants represented by the firm of Cheney & Massey they are all alike, and we select, for the purpose of illustration, that of the defendant the Mickey Ditch Company. It filed what is entitled "Answer and Cross-Complaint of Mickey Ditch Co.," and a separate paper entitled "Cross-Bill in Equity of the Mickey Ditch Co."

The first pleading proceeds in proper form as an answer to the bill of complaint, amounting to a complete defense, and then proceeds with what may be designated as proper matter for a cross-bill, which contains the same allegations as those in the answer, and further makes the following allegation, which distinguishes it from the answer:

"(11) That within three years last past said defendant Miller & Lux, a corporation, has wrongfully diverted the waters of the East Fork of said Walker River at divers places on said river, a large portion of which water

so diverted by them is never returned to the river; that they are now continuing the diversion aforesaid, and threaten to continue such wrongful diversion."

Then follows an averment that the diversions made by Miller & Lux are without right. In this connection it is proper to refer to the fact that the original complaint alleged:

"(21) That within three years last past the said defendants have, and each of them has, diverted the waters of the said Walker river at divers places on said river above the said lands of complainant, and above the points at which the said complainant so diverts said water, a large portion of which water so diverted by them is never returned to said river; and they are now continuing the diversions aforesaid, and have thereby deprived, and are now depriving, the complainant of a large portion of the said water to which the complainant is so entitled."

It thus appears that the complainant in the original bill is lower down the stream than the defendants, and that the defendants' diversions of the water are at places on the Walker river "above the said lands of complainant."

The general principle is well settled that a cross-bill for affirmative relief must contain within itself sufficient averments to entitle the cross-complainant to the relief asked for, or for some equitable relief. A cross-bill must not be founded solely on matters which can properly be availed of by way of answer. The effect of a cross-bill is to compel the original complainant to file an answer thereto, while the answer only calls for a replication.

The contention in support of the demurrer is that all the defenses that can be made are contained in the answer, and that the cross-bills state no cause of action against the complainant; that the defendants, being above the stream from complainant, cannot complain of a diversion of the water by the lower owner, because there is no wrong or injury done by him to the defendants. The only relief which the cross-bills ask for, in addition to the relief asked for in the answer, is as prayed for:

"That your honors adjudge and decree that the rights of your orator in and to the waters so diverted and appropriated by it, as herein alleged, may be adjudged and decreed by your honors prior and superior to any right or rights of said defendant Miller & Lux, and that the title of your orator in and to said waters may be forever quieted, and that said Miller & Lux be forever enjoined and restrained from diverting any water from said river in such manner and to such extent as to deprive your orator of any of the water aforesaid, and that your orator may have such further or other relief as the nature of the case may require and to your honors may seem meet."

If the defendants are able to show that their appropriations and diversions of the water are prior in time to the appropriations and diversions of the water by Miller & Lux, the decree of the court would be against the complainant in the suit, and such a decree would, in effect, quiet the title of the defendants, and give them all the relief to which they are entitled.

The matters contained in the cross-bill annexed to the answer are, it seems to me, purely defensive in their nature and character, and can be and are set up in the answer, and the complainant, Miller & Lux, ought not to be required to put in an answer to such cross-bills.

146 F.-37

In American & G. M. & I. Co. v. Marquam (C. C.) 62 Fed. 960, it was held that a cross-bill seeking no discovery, and setting up no defense which might not as well have been taken by answer, will be dismissed. The court said:

"The cross-bills present mere matters of defense. Such is not their office. Such a bill, seeking no discovery, and setting up no defense which might not as well have been taken by answer, will be dismissed, with costs. 2 Daniell Ch. Pr. 1552, note."

See Dickerman v. Northern Trust Co., 80 Fed. 450, 458, 25 C. C. A. 549.

In Mills v. Fletcher, 100 Cal. 142, 148, 34 Pac. 637, the court said: "The facts stated in the so-called 'cross-complaint' constitute a mere answer, and not a cross-complaint. So far as material they are, that defendants are the owners of, in the possession of, and entitled to the possession of, the demanded premises. The averment that plaintiffs claim an interest in the premises adversely to defendants is unnecessary, since that fact is even more explicitly averred in plaintiffs' complaint, and is put in issue by the general denial in the answer; and the averment that plaintiffs' claim is without right is also included in the general denial of all the allegations of the complaint. It is immaterial what the defendants called their pleading; its character is to be determined by the court."

In Story's Eq. Pl. (10th Ed.) § 629, the author, in summing up a discussion on this subject as applicable to the facts of this case, said:

"But wherever the cross-bill seeks relief, it is indispensable that it should be equitable relief otherwise it will be demurrable; for to this extent it is not, as we have seen, a pure cross-bill, but it is in the nature of an original bill, seeking the further aid of the court beyond the purposes of defense to the original bill; and under such circumstances the relief should be such as in point of jurisdiction the court is competent to administer."

With reference to the pleadings filed by Cheney & Massey, entitled "Cross-Bill in Equity," they include Miller & Lux with other defendants in No. 731, and also name other parties not included in the original bill. It contains similar averments to the other pleadings we have noticed, and, among other things, alleges:

"That within three years last past said defendants, excepting the defendant Miller & Lux, a corporation, have, and each of them has, wrongfully diverted the waters of the East Fork of said Walker River at divers places on said river above the lands herein before described, and above the point at which your orator so diverts said water, a large portion of which water so diverted by them is never returned to the river; that they are now continuing the diversion aforesaid, and have thereby wrongfully deprived, and are now wrongfully depriving, your orator of a large portion of the water to which it is so entitled, under the diversion herein alleged, and threatening to continue such wrongful diversion."

There is no specific allegation against Miller & Lux, and no relief is prayed against this corporation. There is no reason why it should be required to answer cross-bills of this character. The principles heretofore announced which are applicable to this case need not be repeated.

The demurrers filed by Miller & Lux to the answers and cross-complaints and to the cross-bills in equity filed by Cheney & Massey are sustained.