cross-complainants and the complainant and the defendants named are entitled, and that the cross-complainant's rights to the use of the waters of the creek, or of the tributaries of the creek, from which they allege they are using waters, be quieted by decree of the court. They ask for an injunction, restraining the complainant and all other parties to the suit, and each and every of them, from in any manner interfering with the rights of the cross-complainant filing the bill, to the end that such cross-complainant may have the use of the waters of the tributary creek or main creek, according to his rights, as may be set forth in the particular cross-complaint.

No testimony has as yet been taken in the case. Counsel for several of the defendants, who have merely answered, present a question of jurisdiction by contending that there is no jurisdiction in this court to adjudicate the claims of cross-complainants where there is no diversity of citizenship, and no jurisdiction to enter a decree determining the relative rights of all the parties to the suit in and to the waters of the stream from which complainant claims to have made an appropriation. Counsel for answering defendants and for complainant have presented their views to the court, asking that a ruling should be had before testimony may be taken, to the end that the evidence may be confined to issues properly triable in this court.

The learned counsel for complainant argues that section 1891 of the Civil Code of Montana authorizes this court in one judgment to settle the relative priorities and rights of all the parties to the action, and that it lawfully has made parties to the action all persons who have diverted water from the Prickly Pear creek. His contention is that the subject for litigation tendered to the defendants by the bill of complaint is the stream of water known as Prickly Pear creek and its tributaries; that while the plaintiff only claims 404 inches of water, or rather the right to the use of 404 inches of the waters of the stream described, it is not a separate or separable part of the waters of such stream; that it is a usufruct right as against each and every one of the defendants; and that complainant's right to use the waters claimed by it depends upon the relative priorities of the parties. Placing stress upon the point that the amount claimed by the complainant may be controverted, he invokes broad principles of equity, which he says will not permit all the defendants to be sued simply to litigate the right of the complainant to waters as against each one of the defendants singly, but will uphold a jurisdiction to make a complete determination of the entire controversy among the users of the waters of the stream by allowing each defendant by cross-bill to set up his own right, and thus adjust all the claims in controversy in one suit. This argument needs find its foundation in the general application of the practice expressly recognized by the Codes of the state relating to actions to protect water rights to the equity practice of the federal courts. Section 1891 of the Civil Code of Montana is as follows:

"In any action hereafter commenced for the protection of rights acquired to water under the laws of this state, the plaintiff may make any or all persons who have diverted water from the same stream or source parties to such action, and the court may in one judgment settle the relative priorities and rights of all the parties to such action. When damages are claimed for the

wrongful diversion of water in any such action, the same may be assessed and apportioned by the jury in their verdicts, and judgment thereon may be entered for or against one or more of several plaintiffs, or for or against one or more of several defendants, and may determine the ultimate rights of the parties between themselves. In any action concerning joint water rights or joint rights in water ditches, unless partition of the same is asked by parties to the action, the court shall hear and determine such controversy as if the same were several as well as joint."

A cross-bill is often filed to obtain affirmative relief for the defendant in the original suit, to obtain a discovery in aid of the defense in that suit, to enable the defendant to interpose a more complete defense than that which he could interpose by answer, or to obtain full relief to all parties, and a complete determination of all controversies which arise out of the matters charged in the original bill. The Court of Appeals of the Eighth Circuit held in Springfield Milling Co. v. Barnard & Leas Mfg. Co., 81 Fed. 263, 26 C. Ċ. A. 389, that if a cross-bill "fairly tends to accomplish either of these purposes," it is generally a sufficient ground for its interposition. Section 399, Story on Equity Pleading, says a cross-bill is to be treated as a mere auxiliary suit, or as a dependency upon the original suit. In Cross v. De Valle, 1 Wall. 1, 17 L. Ed. 515, the Supreme Court of the United States quote this language of Judge Story, and, proceeding, say:

"It may be brought by a defendant against the plaintiff in the same suit, or against other defendants, or against both, but it must be touching the matters in question in the bill," etc.

In Remer v. McKay (C. C.) 38 Fed. 164, Judge Blodgett analyzed a pleading by answering the question whether the cross-bill was "germane to the subject-matter of the original bill." And in Morgan's Co. v. Texas Central Railway, 137 U. S. 171, 11 Sup. Ct. 61, 34 L. Ed. 625, the Supreme Court again quote Mr. Justice Story as follows:

"A cross bill,' says Mr. Justice Story (Eq. Plead. § 389), 'ex vi terminorum, implies a bill 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. A bill of this kind is usually brought either (1) to obtain a necessary discovery of facts in aid of the defense to the original bill, or (2) to obtain full relief to all parties touching the matters of the original bill.' And, as illustrative of crossbills for relief, he says (section 392): 'It also frequently happens, and particularly if any question arises between two defendants to a bill, that the court cannot make a complete decree without a cross-bill or cross-bills, to bring every matter in dispute completely before the court, to be litigated by the proper parties and upon the proper proofs.'"

Chief Justice Fuller writes of jurisdiction over the subject-matter, and says that "the subject-matter" of the cross-bill must be the same as that embraced in the original bill, and if it is the court will grant relief.

In Badger G. M. & M. Co. v. Stockton G. & C. M. Co. (C. C.) 139 Fed. 838, Judge Gilbert for the court of appeals sustains the doctrine that where facts are alleged in a cross-bill not alleged in the original bill, "but which are directly connected with the subject-matter of the original suit, and prays affirmative relief directly connected with and arising out of the matters of the original suit, and germane to the

same, the court will order the cause to be retained for final hearing and decree upon the cross-bill." What, then, are matters directly connected with the subject-matter of the original suit? In proceeding to a brief analysis, let us not confuse the question by misunderstanding the object of the action. The complainant herein, the Ames Realty Company, prays for a decree fixing its rights to the use of 404 inches of the waters of Prickly Pear creek, and for injunction restraining all defendants who claim rights from diverting water until complainant's prior rights are satisfied. The object of this action is, therefore, what the Ames Realty Company endeavors to obtain a decree that it is entitled to the prior use of 404 inches of water, and an order of court which will prevent all defendants from interfering with it in the enjoyment of such prior right of use. Plainly, therefore, the object of the action is the remedy asked, and which may be finally awarded. It is something ahead-a future result-which is sought. This object, however, is something apart from the subject-matter of the suit, and, as said, the subject-matter being the point which we are here inquiring into, let us proceed further. Substantial accord is to be found among the books in the discussion of what is meant by the subject-matter of the action. It is scarcely necessary to state that clearly it is not the cause of action here, for the cause of action springs out of the primary lawful rights of the Ames Realty Company to the use of 404 inches of the waters of Prickly Pear creek, the duty of the defendants not to interfere with such right, and the breach thereof by the improper diversion of water by the defendants in the modes described in complainant's bill. These elements constitute the cause of action, and from them the Ames Realty Company's right of action has arisen. Speaking exactly, the subject-matter involved is the right to use the physical thing the flowing water-susceptible of use for wetting the lands belonging to the Ames Realty Company and other owners. "Subjectmatter of the action," writes Pomeroy on Code Remedies, § 369, "rather describes the physical facts, the things real or personal, the money, lands, chattels, and the like in relation to which the suit is prosecuted." I am not losing thought of the distinction between the right to use the physical thing and the thing itself-the incorporeal from the corporeal. There is, of course, no exclusive ownership of the water itself. A right to use for beneficial purposes is the right involved. Nevertheless, the right of use of the physical thing becomes, in these water right cases, so identified with the water, that in ascertaining by strict analysis what is the subject-matter of the action, we find that the water itself is that in relation to which complainant prosecutes its suit, and so the water really becomes the subject of the action, in so far as there is a thing physical or real involved in the suit. Now these cross-complainants severally allege that they own rights in and to the waters of the Prickly Pear anterior to those alleged in the bill of complainant; moreover, they say that complainant and their codefendants are violating these rights by diverting the waters of the creek, and they demand relief by injunction.

For the purposes of this discussion, judicial knowledge may be taken of the fact that Prickly Pear creek is not a very large stream, and that

in midsummer its waters diminish greatly; indeed, it is but a statement which counsel would surely accept as of common knowledge that never does the Prickly Pear creek carry enough water to enable all the farms throughout the valley to receive during the irrigating season the full benefit of the water rights claimed by valid but ineffectual appropriations. Despite the most careful husbanding of the waters, much land suffers from drouth, and the many appropriators along the creek and its tributaries are obliged to protect their rights with the utmost vigilance, lest their crops languish for moisture. Such circumstances well illustrate the somewhat peculiar nature of the right of use of water from a stream of limited flow. Of course, there is no way of singling out certain specific water as belonging to any one appropriator. For instance, the use of a small quantity (404 inches) is all complainant in this case alleges it is entitled to. Such a quantity is doubtless considerably less than the whole stream. There is no ownership in kind, at least before the water complainant claims has passed into its own ditches, and even then it is but an ownership sub modo. Nevertheless, priority of appropriation is what the law jealously protects; it is of a species of property which has become immensely valuable as the western country has developed in its agricultural resources. By juridical law principles have been enunciated which protect the better right to the use of the waters of a creek by permitting a complainant who has such right to invoke protection of it against the acts of others, whether jointly or severally done. And the protection that is afforded should be as broad as the demand calls for, consonant always with those fundamental truths, which, under systems of administering justice, are recognized as the foundation of equitable jurisdiction. The quantity of water which a single one of these defendants may be diverting from Prickly Pear creek or its tributaries might not interfere at all with the Ames Company's use. But the result of the several diversions alleged against defendants might be shown to deprive complainant wholly of the enjoyment of any use. All users are therefore properly brought in to defend. By like reasoning, when they have come into court, these alleged diverters may ask relief against complainant, whose rights they say are subsequent to theirs.

But a still different condition may exist. One of the defendants may show that he is prior in right to complainant, and it may appear water is left in the creek sufficient to satisfy complainant's, as well as his own, right. As against him, complainant must fail. Another defendant may be proved to be subsequent in right to complainant, and is therefore defeated by complainant; but, though defeated by complainant in so far as his right is fixed in point of time, still, as the quantity of water which he claims a right to use is very limited, he might also enjoy his right without interfering with complainant in any injurious way, provided he can try and maintain his rights as against a codefendant, who has been defeated by complainant, but whose rights are subsequent to his (cross-complainant's), and who diverts so much water that he, the first cross-complainant, cannot use that to which he is justly entitled, though, as between him and original complainant, he might enjoy his right were it not for the extent to which his codefend

ant is diverting. We may test this in this way: let us say that Prickly Pear creek carries 600 inches of water. The Ames Realty Company alleges it is entitled to 400 inches by appropriation taken out, let us say, one mile below the head of the stream; its appropriation dating January 1, 1864. An upper proprietor, who is a defendant, and whom we call B., claims a right to the use of 25 inches of water, which he says is his by appropriation dated January 1, 1865, or one year later than the complainant's. His ditch taps the crek half a mile above the point of diversion of the complainant. Another proprietor, whom we may call C., claims 200 inches, which were appropriated January 1, 1866. C. taps the creek above A. and above B. Subtracting 200 inches that C. takes out, there would still be enough water flowing to satisfy the original complainant claiming 400 inches. B., though, could get no water, notwithstanding his rights are superior to those of C., and notwithstanding the fact that he could enjoy his right without injury to the original complainant; enjoyment being denied because C. is diverting so much water that he (B.) is deprived of the use of that to which he is justly entitled, and which he would enjoy were it not for the extent to which his codefendant, C., is diverting the water. 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, complainant there brought suit in equity to obtain a decree against respondents for the alleged wrongful diversion of the waters of the Carson river in Nevada. He made about 125 persons respondents, alleging that they were farmers living above a certain mill, and that they used the waters of the Carson river for irrigation and other purposes. One of the contentions of the respondents was that, inasmuch as they did not claim the water of the river jointly, or by any common right, they could not be jointly sued, and that, therefore, complainant could not obtain the relief it sought. It was admitted that the respondents did not jointly or in common divert or use the water, and that they alleged that they claimed individual, distinct, and separate rights, independent of each other. Judge Hawley was of the opinion that the proofs and pleadings distinctly showed that the result of respondents' acts were such as to make their individual diversion of the water injurious to complainant's rights. He held that the claims of the respondents were of the same character, and were adverse to the complainant, and that they were, therefore, all properly united as respondents, because they