Circuit Court for the District of Nevada. The Nevada court, therefore, having first acquired jurisdiction, may maintain and exercise it to the end, to the exclusion of the state court in Mono county.

The next and final question relates to the doctrine of lis pendens, and its application here. As to this, there need be but little said. In the case of Mellen v. Moline Iron Works, 131 U. S. 352, 371, 9 Sup. Ct. 781, 787, 33 L. Ed. 178, the court says:

"Purchasers of property involved in a pending suit may be admitted as parties, in the discretion of the court; but they cannot demand, as of absolute right, to be made parties, nor can they complain if they are compelled to abide by whatever decree the court may render, within the limits of its power, in respect to the interest their vendor had in the property purchased by them pendente lite. Eyster v. Gaff, 91 U. S. 521, 524, 23 L. Ed. 403; Union Trust Co. v. Inland Navigation & Improvement Co., 130 U. S. 565, 9 Sup. Ct. 606, 32 L. Ed. 1043; 1 Story's Eq. Jur. § 406; Murray v. Ballou, 1 Johns. Ch. (N. Y.) 566. As said by Sir William Grant, in Bishop of Winchester v. Paine, 11 Ves. 194, 197: "The litigating parties are exempted from the necessity of taking any notice of a title so acquired. As to them, it is as if no such title existed. Otherwise, such suits would be indeterminable; or, which would be the same in effect, it would be in the pleasure of one party at what period the suit should be determined.' The present proceeding is an attempt, upon the part of a purchaser pendente lite to relitigate in an original, independent suit the matters determined in the suit to which his vendor was a party. That cannot be permitted consistently with the settled rules of equity practice."

The text of 2 Black on Judgments, § 550, seems authoritative. It is as follows:

"It is a general rule that a purchaser of property, who buys pending a litigation concerning it, comes into privity with his vendor, so as to be bound by the judgment in that suit the same as if made a party of record. 'We apprehend it is well settled that he who purchases property pending a suit in which the title to it is involved takes it subject to the judgment or decree that may be passed in such suit against the person from whom he purchases. That he purchased bona fide, and paid a full consideration for it, will not avail against such judgment or decree. Nor will he be permitted to prove that he had no notice of the suit. The law infers that all persons have notice of the proceedings of courts of record. The law is that he who intermeddles with property in litigation does it at his peril, and is as conclusively bound by the results of the litigation, whatever they may be, as if he had been a party to it from the outset.' In a late case it is said that the purpose of the rule is to keep the subject-matter of the litigation within the power of the court until judgment or decree shall be entered, since, otherwise, by successive alienations pending the suit, the judgment or decree could be rendered abortive and impossible of execution. It is also said that two things seem to be indispensable to give effect to the doctrine of lis pendens: (1) That the litigation must be about some specific thing which must necessarily be affected by the termination of the suit, and (2) that the particular property involved in the suit must be so definite in the description that any one reading it can learn thereby what property is intended to be made the subject of litigation."

*

The conditions present meet every requisite of these authorities. As is apparent from the record the Rickey Land & Cattle Company came into the property and rights of Thomas B. Rickey after the suit to quiet title was begun in the Circuit Court for the District of Nevada, and after Rickey had answered therein, and the court had acquired full and complete jurisdiction both over the subject-matter of the suit and over the person of Rickey. So that the Rickey Land & Cat

tle Company stands in privity of title with Rickey, and can claim nothing beyond what Rickey could have claimed in the original suit. The company is bound as Rickey would have been bound, and must abide the termination of such suit for the adjustment of the adverse rights claimed to the appropriation of water from Walker river.

These considerations lead to the affirmance of the decree of the Circuit Court, and it is so ordered.

RICKEY LAND & CATTLE CO. v. WOOD et al.*

(Circuit Court of Appeals, Ninth Circuit. March 4, 1907.)

No. 1,365.

WATERS AND WATER COURSES-IRRIGATION-APPROPRIATION—QUIETING TITLE -CROSS-BILL-WHEN ALLOWED.

In a suit to quiet title to an alleged prior appropriation of water for Irrigation purposes in Nevada against appellant, an appropriator on the same stream in California, appellees, who were also appropriators from the same stream in Nevada, were made codefendants and filed a crossbill, in which they did not deny complainant's priority, but claimed a prior appropriation as against appellant, and prayed that their right be settled and determined. Held, that such cross-bill operated defensively on behalf of appellees, and was not therefore objectionable as not germane to the original bill.

Appeal from the Circuit Court of the United States for the District of Nevada.

For opinion below, see 146 Fed. 574.

The facts of this case differ from those upon which the case of Rickey Land & Cattle Company v. Miller & Lux (just decided) 152 Fed. 11, proceeded, only in that, in the original suit of Miller & Lux v. Rickey et al., the present appellees, being codefendants with Rickey in that suit, filed cross-bills therein, whereby they claimed to be entitled to certain appropriations of water from Walker river for use upon their lands-the diversions being made and the lands being situated in the state of Nevada; and it was alleged that Rickey had been and was then diverting the water from the stream above, which deprived the cross-complainants of the amount to which they were entitled under their appropriations. Such cross-bills were filed December 20, 1904, and writs of subpoena were issued thereon, and served upon Rickey the same day. And it is further shown that the summonses issued in the causes instituted in the superior court of Mono county, Cal., were served upon appellees December 26, 1904. The appellees obtained, after notice and hearing, an order of court temporarily restraining the appellant from making any diversions of water from Walker river to their detriment, from which order this appeal is prosecuted.

James F. Peck and Charles C. Boynton, for appellant.

W. C. Van Fleet and W. B. Treadwell (Frohman & Jacobs and Frank H. Short, of counsel), for appellees.

Before GILBERT and ROSS, Circuit Judges, and WOLVERTON, District Judge.

WOLVERTON, District Judge (after stating the facts). The single question urged here, in addition to those determined in the case of Rickey Land & Cattle Company v. Miller & Lux, 152 Fed. 11, is *Rehearing denied May 20, 1907.

whether the appellees have a standing in court whereby to maintain their cross-bills as against the appellant. The appellant and the appellees are all codefendants in the cause of Miller & Lux v. Rickey et al., and all citizens of the state of Nevada; and in their cross-bills, it will be seen, the appellees do not dispute the right of diversion by Miller & Lux, nor claim that its diversions are in any way subordinate to theirs, but they do allege that the appropriations of Rickey, whatever they may be, are subject and subordinate to theirs, and pray that the Rickey Land & Cattle Company may be enjoined from diverting the waters of Walker river in any manner to their detriment or injury.

The nature and purpose of a cross-bill in equity have been clearly determined. Says Mr. Justice Nelson, in Ayres v. Carver, 17 How. 591, 595, 15 L. Ed. 179:

"A cross-bill is brought by a defendant in a suit against the plaintiff in the same suit, or against other defendants in the same suit, or against both, touching the matters in question in the original bill. It is brought either to obtain a discovery of facts, in aid of the defense to the original bill, or to obtain full and complete relief to all parties as to the matters charged in the original bill. It should not introduce new and distinct matters not embraced in the original bill, as they cannot be properly examined in that suit, but constitute the subject-matter of an original, independent suit. The cross-bill is auxiliary to the proceeding in the original suit, and a dependency upon it. It is said by Lord Hardwicke that both the original and cross-bill constitute but one suit, so intimately are they connected together."

To the same purpose is Ex parte Railroad Co., 95 U. S. 221, 225, 24 L. Ed. 355, where it is said:

"A cross-bill must grow out of the matters alleged in the original bill, and is used to bring the whole dispute before the court, so that there may be a complete decree touching the subject-matter of the action."

So Sanborn, Circuit Judge, says in Stuart v. Hayden, 72 Fed. 402, 410, 18 C. C. A. 618:

"A cross-bill is brought either to aid in the defense of the original suit, or to obtain a complete determination of the controversies between the original ⚫ complainant and the cross-complainant over the subject-matter of the original bill. If its purpose is different from this, it is not a cross-bill, although it may have a connection with the general subject of the original bill. It may not interpose new controversies between codefendants to the original bill, the decision of which is unnecessary to a complete determination of the controversies between the complainant and the defendants over the subject-matter of the original bill. If it does so, it becomes an original bill, and must be dismissed, because there cannot be two original bills in the same case."

Cross v. De Valle, 1 Wall. 1, 17 L. Ed. 515; Rubber Co. v. Goodyear, 9 Wall. 807, 19 L. Ed. 587; Young v. Colt, 2 Blatchf. 373, Fed. Cas. No. 18,155; Stonemetz Printers' Mach. Co. v. Brown Folding-Mach. Co. (C. C.) 46 Fed. 851.

Counsel for appellant expressly admit that, if the cross-bills are ancillary in purpose and character, they should be entertained regardless of the citizenship of the parties defendant. This reduces the inquiry simply to whether such cross-bills are, in legal contemplation, ancillary to the original bill, or whether they introduce matter foreign to, and disconnected with, the subject-matter of the original suit.

In the light of the foregoing authorities, it may well be premised that,

if the cross-bills operate defensively in behalf of the appellees in some substantial way, then they are pertinent, and afford appellees a standing whereby to assert such rights as will protect them against the suit of complainant in such cause, and this although they might impinge upon the alleged rights of the appellant. A suit respecting water appropriations from a stream is sui generis, and it may, and does frequently,' happen that, in order fully to protect the rights of one appropriator against those of another, it is necessary to determine also the rights of the former, not only with reference to those of that other, but also with reference to those of still others upon the same stream. We can adduce no better illustration than that suggested by counsel for appellees. Suppose that A., B., and C. are appropriators of 10 cubic feet of water each from the same stream, within which is running but 30 cubic feet. A., the lower appropriator, sues, and procures a decree and injunction against B. and C. from diverting more water than will allow A.'s 10 cubic feet to come down to him. B. might divert 20 feet, and C. but 10, the amount only to which the latter is entitled, and yet both B. and C. would be guilty of a violation of the injunctive decree, because A. has been deprived of his 10 feet of water. Now, does it not seem perfectly clear that if C. had set up, by cross-bill to A.'s original bill, his interest in the stream, the decree would have been different, and would have gone against B. and C. severally, and not jointly, so that a violation of the injunction by B. would not have been also a violation by C., who was innocent of any wrong? Is there not here matter for substantial defense to sustain such a cross-bill? The answer is obvious. The cross-bill in such a case would be germane to the subject-matter of the original bill, and would operate defensively in behalf of the defendant interposing it. So it would be a matter of defense for C. to have his appropriation fixed as against B. The identical question has received careful consideration, in the case of Ames Realty Co. v. Big Indian Mining Co. (C. C.) 146 Fed. 166, at the hands of Hunt, District Judge, whose reasoning is so able, lucid, and cogent as to scarcely admit of any further controversy. He concludes, after making apt illustration of the case in hand, as follows:

"Will not a court of equity take jurisdiction with respect to this property right as ancillary to its jurisdiction over the case between complainant and first defendant, and, having jurisdiction of the whole proceeding, will it not proceed to do justice between all the parties? Reflection leads me to answer the questions in the affirmative. It is true that, if complainant can secure protection of its own right, junior appropriators might be left to fight out their relative rights among themselves; but, as conditions frequently exist in litigation over usufruct of water, where it is practically impossible to make a just decree between complainant and one defendant without ascertaining rights of defendants as against one another, the court will permit cross-complaints to stand, to the end that a multiplicity of suits may be avoided, so that tedious, expensive, and unnecessary litigation may be saved."

In Union Mill & Mining Co. v. Dangberg (C. C.) 81 Fed. 73, as against the objection that the defendants, of whom there were about 125, were not all jointly interested in their appropriations to the injury of complainant, and therefore should not have been made parties, Judge Hawley has this to say:

"These conflicting rights, whatever they may be, can be determined by one suit. Complainant might not be able to maintain its suit against them singly, for it may be that no one of the respondents acting individually has deprived complainant of all the water to which it is entitled. Complainant is only entitled, if at all, to a certain amount of the water of the river, and it is by the action of all the respondents that it has been deprived of the water to which it claims to be entitled. Each respondent claims the right to divert a given quantity of water. The aggregate thus claimed so reduces the volume of the water in the river as to deprive complainant of the amount to which it is entitled. To this extent, even if there is no such unity or concert of action or common design in the use of the water to injure complainant, there is certainly such a result in the use of the water by the respondents as authorizes complainant to maintain this suit, upon the ground that the action of all the respondents has produced and brought about the injury of which it complains. Every one who contributes to such injury is properly made a party respond. ent."

The reasoning is cogent in demonstration of the interdependent relations that exist among different appropriators from the same stream, and of the condition that one appropriator cannot always be fully protected against the injunctive process of another, unless at the same time he has his own rights ascertained and determined with relation to still others who are also subject to the same process. And so we conclude that the order appealed from should be affirmed, and it is so ordered.

UNITED STATES v. CHANDLER-DUNBAR WATER POWER CO. (Circuit Court of Appeals, Sixth Circuit. March 2, 1907.)

No. 1,543.

1. ATTORNEY GENERAL-OUTSIDE COUNSEL-EMPLOYMENT-UNITED STATES-ACTIONS BY.

The question of employing the attorney for a private party to assist in the prosecution of a suit by the United States in the public interest is one addressed to the judgment and discretion of the Attorney General, and such employment should not influence the action of the court if the object of the private party and that of the United States are one and the

same.

[Ed. Note. For cases in point, see Cent. Dig. vol. 5, Attorney General, §§ 2, 5.]

2. PUBLIC LANDS-SUIT FOR CANCELLATION OF PATENT-LIMITATION.

Under Act March 3, 1891, c. 559, 26 Stat. 1093 [U. S. Comp. St. 1901, p. 1521], which provides that "suits by the United States to vacate and annul any patent heretofore issued shall only be brought within five years from the passage of this act," possession by the grantee is not necessary to the running of the limitation; and, while the limitation would not apply to patents for lands which were not public lands subject to disposition by the United States, it will protect a patent for public lands reserved from sale for a temporary purpose which was accomplished long prior to the issuance of the patent, although technically the reservation had not been withdrawn.

8. SAME-VALIDITY OF PATENT-SUFFICIENCY OF SURVEY.

Where the boundaries of a camp ground reserved to Indians by a treaty were fixed by a government survey of the adjoining lands and shown by the plat returned, the tract containing less than 40 acres, such survey was sufficient for the purpose of a subsequent conveyance of the land by the land department after the reservation had been relinquished by the Indians.