OCR Text |
Show SOME GENERAL PROCEDURAL MATTERS IN WATER RIGHTS LITIGATION 509 Company v. Miller & Lux369 that such a suit is essentially one to quiet title to real property and is local, not transitory. Where a party has been personally served and appears in court, the court may compel such party to act in relation to property not within its jurisdiction. Its decree does not operate directly upon such property not affect the title, but is made effective through coercion of the party. It was further said: " [T] he 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."370 Hence the Federal court, having jurisdiction in Idaho, had ample power to protect Idaho water users from a diversion of water within Nevada by a party to the action that would conduce to the injury of the Idaho appropriators.371 (5) New Mexico-Arizona. A controversy arose over the waters of Gila River, arising in New Mexico and flowing into Arizona. The Federal decision in the matter dealt with the power of the Arizona court to act where all the parties were before it and were consenting to a decree therein with relation to both Arizona and New Mexico water users. Defendants had been adjudged guilty of contempt of court for violating a decree defining water rights on the Gila River, issued by the Federal court for the District of Arizona. It was a consent decree, and defendants, who owned land in New Mexico irrigated from the river, had been parties to it. Each of the parties had been enjoined from interfering with the water rights of the other parties to the decree. Defendants now claimed that the Arizona court had no right to consider or determine the rights of the defendants in the waters in New Mexico. The Federal Court of Appeals held that the court in the lower State had the power to adjudicate water rights of the users from the same stream in the upper State, because that was necessary to a determination of the rights of the lower users. " [J] urisdiction is concurrent with that of [the court in] the upper state, and * * * as an incident thereto the court in the lower state first securing jurisdiction had power to prevent the parties thereto from litigating their rights in either a state or federal court in any actions subsequently commenced in the upper state." The uniform holding is that an action to determine such rights is not a transitory action. Nevertheless, in order for the Arizona court to exercise its unquestioned power to settle effectively Arizona water rights on the river, it must also reach out and consider the amount of water which should rightly be in the stream when it enters Arizona. Hence, the trial court must consider the question of the rights of the upper owners to interfere with the waters in the upper State.372 and decree of a court exercising jurisdiction in one State may become operative in another State are discussed chiefly in 245 Fed. at 25-29. 369Rickey Land & Cattle Co. v. Miller & Lux, 152 Fed. 11 (9th Cir. 1907), supra note 365. 370 245 Fed. at 26. 371 245 Fed. at 29. 372Brooks v. United States, 119 Fed. (2d) 636, 639-641 (9th Cir. 1941). |