IN RE HELENA & LIVINGSTON SMELTING & REDUCTION CO.

609

sion of the mortgaged property. Are these allegations sufficient to give a federal court of equity jurisdiction, and to entitle the plaintiffs in the cross-bill to relief? It would seem not. Jones v. Green, 1 Wall. 330. It is· more than doubtful whether such a bill can be maintained upon the ground that the complainant has issued an attachment and caused it to be levied upon the property; because, if such be the case, it would seem thllthis remedy would be by proceeding to judgment in the attachment cause, and by selling, or oflering to sell, the attached property upon special execution. But, however this may be, it appears from the allegations of the cross-bill in this case that no levy upon the property has been· made. It is clear that no lien was obtained by the garnish.. ment of the parties in possession. Mooar v. Walke-r,46 Iowa, 167; White v. Griggs, 54 Iowa, 651, 7N. W. Rep. 125; Silve:rmanv.Kuhn, 53 Iowa, 452, 5 N. W. Rep. 523. . 1 do not inquire what the practice in the state courts may be, for in equity causes, whether originally brought in the federal courts or removed from the state courts, the former are bound to observe the general principles of the equity practice and jurisprudence. It follows that the motion to remand must be sustainedj and it is so ordered.

In re

&

LIVINGSTON SMELTING

&

REDUCTI()N

Co.

(Circuit Oourt, D. Montana. November 28,.1891.)

L

An action in a state court, based upon an allegation that the defendant, In operating its quartz-mill, by means of a water-right claimed by it, has poured over the complainant's lands a quantity of tailings and debris, only questions the defendant's right so nse the land, and does not involve any right secured by Rev. St. U. S· . §§ 2339, 23W, which declare that vested water-rights shall be protected, and all patents"granted and pre-emption or bomesteads allowed shall be sUbjecttheretoj and hence the ·cause is not removable to a federal court on the ground that It involves a right secured by the laws of the United States.
,

REMOVAL OF CAUSES-FEDERALQUESTION-WATER-RIGHTS.

.. SAME. ,.

Under Rev. St. U. S. § 2ll89, declaring that vested water-rights, "recognized and acknowledged by the local customs, laws, and the decisions of the courts " shall be protected, the question whether defendant, in using a water-right for the operatioll ot, his quartz-mill, has a right to pollute the water of the stream, is purely a question of local law, and cannot be made the ground of a removal to a federal court.

Petition by the Helena &; Livingston Smelting &; Reduction Company for a writ of certiorari commanding a state court of Montana to remove the cause of John J. Hall against said company to the United States circuit court. Writ denied. Cullen, Sander8 &- Shelton, for petitioner. AdkinBOn &- M"Uler, for respondent.
KNOWLES, J. In this case the Helena &; Livingston Smelting & RednctionCompany petitions this court for a writ of certiorari, directed to v.48B'.no.S-39

610

FEDERA.L REPORTER,

vol. 48.

the district court of the fifth judicial district, in anq for. the state of Montana, 110mmanding said court to remove the'. cause of John J. Harl VB. Helena Livingston S'melting Reduction Company to this court,anq that a transcript of the record be made1;>ythe clerk of said payment or the tender of the fees therefor, district court,and, to transmit the same forthwith to this court. There is no dispute but that the petition for removal in this case was filed in the state court withintpe time prescribed by the statutes of the United States of 1887 and ,1888,upon the Sl;lbjectof removal of causes from .state to the federal courts. The removal was. not claimed in this case upon the ground that the parties, were citizens, of different states, but upon the ground that cause was one under the laws of the United States. The question presented then: for consideration is as to the correctness of this claim. The amount in controversy, the petition. sets forth, exceeds .. exclusive of costs and interest. This is sufficient. In order to show the court that the caui!le is one which arises under the laws of the United States, qefendallt has set forth in his petition for removal the following, Jacts: , "That your petitioner is thepw'ner of certain concentt:ator and quartz-mill. situated at Corbin. in the county of Jefferson, state of Montana, and is the owner of a certain mill-site and water-right. That the said quartz-mill and conct-ntrator has been ill operation for a period of six years, and during aU of said time has been engaged in concentrating and crushing ores from mines Ilear it, and in the vicinity, in said county and state. That the owner of said andconjlentratorholds title t,o said mill-site, and the adjoining land which they occupy in their mining operations, and the waterright, and to each and every thereof, under letters patent from the United Stat...s. Your petitioner'further shows that it will be claimed by the plaintiff in this action upon the trial, therllof. under the issues tendered by the complaintberein. that your in operating its sald mill and concentrator; and in using the waters afQr!lsaid, has poured down upon and over the land set forth and described in plaintiff's complaint. a large quantity of tailings and deb1'is from said mill, and has polluted the waters of Prickly Pt"ar creek, which flow .overthe land plaintiff in the operations of Baid mill and con· centrator, to sucb an extent as to render the BaIDe unlit for the use of plaintiff. " Then follow allegations in the petition showing that defendant priattld thawaters of Prickly Pear cre,ek, 'and erected its mill and concentrator,anq. acquired title to the premises on which they are erected, 19n9 prior to the time that plaintiff purchased his land from the United States, and that defendant's mill and conCentrator were in operation before that time, and that defendant was accustomed to load the waters it had appropriated with tailings, and send the same down upon plaintiff's land, and that plaintiff received:his patent subject to this right of defendant to load his waters; so, appropriated, and send them down upon plaintiff's land. . Defendant claims these rights by virtue of sections 2339 and 2340 of the Revised Statutes of the United States. Let us see what theSe sections provide: .. Sec. 2339.· Whenever; bi priority rights to the use of water and for mining, agricultural, manufact,uring, or other purposes have

«

«

IN BE HELENA

&

LIVINGSTON S!lIEL'rING &;REDUCTION CO.

611

accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of 06urts, the P088e880ts',imd owners of such vested of way rights shall be maintained and protected in the same; and the for the constructionol ditphes, and canals for the pl,upose$hereill specified is acknowledged and confirmed; bUL whenever any person, in the construction of allY ditch or canal, illjureaor of any settler on the pUblic!lomain, the party committing such injury or damage shall be liable to or damage. Sec. 2340. All patents granted, the 'P1\rty injured for such orpre..emptionor homesteads allowed, shall be subject to any vested and ac· orued water-rights, 01" rights to ditches and,reservoirs used ill connecUonwith such water-rights, as may have been acquired nnderorrecognized by the preceding section."
It will be seen by reference to these sections that the right here cOnceded is that of water-rights, and the right of way for ditches and canals, and of the nse ofthe pnblic lands for reservoirs in connection with such water-rights. If we look at the allegations of d'efendant's petition for removal, it will be seen that it claims the right to use a portion of plaintiff's land as a place for depositing the tailings it sends down from its quartz-mill and concentrator upon the land of plaintiff. This is a. different right from that of appropriating water. and constructing ditches and reservoirs connected with the same. It is the claim of an easement upon the land of plaintiff, and I cannot see that any such an easement as is claimed by defendant is granted to defendant in any manner in the above sections. This is not the claim of a. right of way for a ditch, but of a right to deposit tailings on plaintiff's land. If defendant has this by prescription, that prescription right would arise under the state, and not under natiunal, statutes. Then it is set forth that defendant is polluting the waters of Prickly Pear creek to such an extent as to render the snme unfit for plaintiff's . Whether these waters so pollufed are the waters of Prickly Pear creek appropriated by defendant does not fully appear. If they are not, I do not see how the right to pollute the waters not appropriated can be claimed under the above sections. If the waters polluted are those appropriated by defendant, then the question may arise, from whence this Tight to pollute these waters? The· water-rights specified in section 2339 are those "recognized and acknowledged by the local customs, laws, and the decisions of the courts" in the localities where such rights are claimed. The laws referred to are local laws, and not national statutes. It will be seen, therefore, that in determining whether a party has llo water-right, and its extent and character, the local customs, laws, and decisions of courts must be consulted and determined. The ascertainment of what these are involves no construction of any United States statute. This point, then, will be decided in the case of Traftm v. NO'Ilf]'IU8, 4 Sawy. 178, where it was held that where the only question was, whll.t are the local laws, rules, regulations, and customs by which the rights of the parties are governed? no federal question is presented. For these reasons I hold that this court has no jurisdiction of this canse, and the writ of ccrtiorariiS consequently denied.

FEDERAL REPORT.l\'R,

voL 48.

WENHAM

".SWITZER.

November 23,1891.)

(Circuit Oottrt, D. Montana.

DBPOSITIONs-STRIKING I'ROM FILES--TIME 01' TAKING.

Under Equity Rule 69, providing that "three months, and no more, sball be allowed for the taking of testimony after the cause is at issue, unless the court, or a judge thereof, shall, upon special cause shown by either party. enlarge the time." a deposition not taken withm three months will be stricken from the files when no motion bas been made to ilie it nwnc pro tunc, and no extenuating circumstances are llhoWJ1, ,

In:IJ}quity. Suit by A. A. against ,William S. Switzer. Heard on motion to strike depositions from, the files. Motion granted. Rbbi'lison Stapleton and Word Smith, for complainant. Aaron H. Nelson, for defendant.

J. The defendant moves to strike from tile files the depotaken on the part of complainant in the above cause, because not taken within three months after issuewasjoined There seems to be no dispute but that the deposition was ,not taken within three months after that date. The cause is one in equity. A portion of rule 69 ipequity, prescribed by tile supreme court, reads: "Three months, and no more, shall be allowed for the :taking of testimony afte,r tb,ll! cause is at issue, ,unless the court, or a judge t1:lereof. shall, upon special by either, party, enlarge the time; and no, testimony taken after such period shall be allowed to be read in e'Vidence at the hearing." It seems under the Q,ecision of fischer v. Hayes,19 Blatchi. 25, Rep. 16,,)':hen proofs ar.e not taken"in propertirne they may be file\l under certajn conditions nunc pro tum:. But no motion qf th,at kind has this an,d I do not know that the extenuating causes which w:ouldallow thise:;ist.· Under. the above rule there seems 110 discourt but. to the of del'endant.. It is therefore. and .said depositions are hereby stricken from the files.
KNOWLES,

WAKELEE

v.

DAVIS.

(01rcu-tt O(YUrt, S. D. New York. January 8,1892.)
4'froNOTION.-AoTION AT LAW-ApPEAL-STAY OF PROCEEDINGS.

The defendant in an action upon a judgment which was void for want of service was enjoined from setting up the invalid,ity because, 'While procuring a discharge in bankruptc.v. be obtained substantial benefits by contending that the judgment wall valid. Held, that he was' ·not entitled to a suspension of tile tion or to a stay of in that aotion an appeal from the inJunction decree, since, in case of reversal, the court would so mould its judgment, should the plaintiff obtain· one; in the ·action at law commenced by her as to allow defendant the full advantage of his defense.