238 tion, designating the line of said road in Iowa, as indicated in the act of 1864, were filed in the office of the Commissioner of the General Land Office. 72, § 1, chap. 84. Consequently, it is contended by the United States, patents could not have been legally issued to the railway company under the act of 1864. The contention of the railway company, on the other hand, is that the lands in question were not, in fact, swamp or overflowed lands granted by the act of 1850, to which any right could legally attach in behalf of the state under that act; therefore, it is contended that nothing done under that act availed or could have availed the state except a decision or ruling by competent authority, in due form, that these lands were in fact within the class of swamp or overflowed lands mentioned in the act of 1850. In view of what has been said, it becomes necessary to inquire into the scope and effect of the swamp land act of 1850. By the act of Congress of September 28th, 1850, chap. 84, Congress granted to Arkan It is alleged in the bill of complaint that, at the date of such definite location, all the lands the proceeds of the sale of which the government now claims, by which were within the 10-mile or place limits of the railroad, were covered by existing claims of record in the office of the Commissioner of the General Land Office, consisting of homestead entries, pre-emption declaratory statements, warrant locations, etc., and were pending before the Department of the Interior for adjudication. If that were true, then, by the very terms of the act of Congress, the lands in question would have been excepted from the grant of 1864. But the defendant denied in its answer that such fact existed, and it does not appear from the evidence that any homestead entry, pre-emp-sas all the swamp and overflowed lands untion, declaratory statement, or warrant location had been made prior to the definite location of the line of the railroad. On the contrary, it was stipulated in the case that prior to and on*August 30th, 1864,-which was after the passage by Congress of the original granting act, and was the date of the filing of the plat of definite location of the road, none of the lands described in the bill of complaint had been covered by any homestead entry, pre-emption, declaratory statement, or warrant location or other existing claims of record in the office of the Commissioner of the General Land Office. In that view, and if this were the whole case, then, beyond all question, the law would be in favor of the railway company; for the grant of 1864 was one in præsenti for the purposes therein mentioned, and ac-propriation in kind, shall be applied, exclucording to the settled doctrines of this court, the beneficiary of the grant was entitled to the lands granted in place limits which had not been appropriated or reserved by the United States for any purpose, or to which a homestead or pre-emption right had not attached prior to the definite location of the road proposed to be aided. The grant plainly included odd-numbered sections, within 10 miles on each side of the road, which were part of the public domain, not previously appropriated or set apart for some specific purpose at the time of the definite location. But the government insists that before the passage of the act of 1864 these lands had been reserved by what was done under or in execution of what is known as the swamp Land act of September 28th, 1850 [9 Stat. at L. 519, chap. 84, U. S. Comp. Stat. 1901, p. 1586], and cannot, therefore, be regarded as granted by, but were excepted from, the operation of the act of 1864. 13 Stat. at L. fit for cultivation, within its limits, and which remained unsold at the time, to enable the state to construct the necessary levees and drains to reclaim such lands. That act provided that it should be "the duty of the Secretary of the Interior, as soon as may be practicable after the passage of this act, to make out an accurate list and plats of the lands described as aforesaid, and transmit the same to the governor of the state of Arkansas, and, at the request of said governor, cause a patent to be issued to the state therefor; and on that patent, the fee simple to said lands shall vest in the said state of Arkansas, subject to the disposal of the legislature thereof: Provided, however, that the proceeds of said lands, whether from sale or by direct ap sively, as far as necessary, to the purpose of reclaiming said lands by means of the levees and drains aforesaid" (§ 2); that "in making out a list and plats of the land aforesaid, all legal subdivisions, the greater part of which is 'wet and unfit for cultivation,' shall be included in said list and plats; but when the greater part of a subdivision is not of that character, the whole of it shall be excluded therefrom" (§ 3); and that "the provisions of this act be extended to, and their benefits be conferred upon, each of the other states of the Union in which such swamp and overflowed lands, known and designated as aforesaid, may be situated" (§ 4). 9 Stat. at L. 519, chap. 84, U. S. Comp. Stat. 1901, p. 1587. We have seen that by the act of 1864 the railroad company, by the grant in præsenti in that act contained, was to get the oddnumbered sections within 10 miles on each side of its line, and not sold by the United States before definite location, or to which *240 *239 *241 paragraphs 11 and 12 of defendant's answer in this cause, were not in fact swamp or overflowed lands, and were not of a character embraced in said act of Congress of September 28, 1850, and known as the swamp land act; and that the state of Iowa and said several counties were never entitled to said lands, or any part thereof, under said act. Said hearings were had pursuant to the requirements of the act of Congress of March 5, 1872 [17 Stat. at L. 37, chap. 39], and said findings and decisions of the Commissioner were never appealed from, reversed, or modified in any manner, as shown by the records of said General Land Office." Nearly thirty years have passed since this decision of the Land Department, and the United States, without ever appealing from the decision of the Land Department, now comes forward and asks a court of equity to cancel the patent issued in 1880 and 1881, under which the railway claims. Touching this aspect of the case, the circuit court of appeals said: "Since then most, if not all, of the lands have been sold and conveyed to numerous purchasers of small tracts, who bought them in good faith and for value. *Twenty-five years or more of quiet enjoyment of the land in question have now elapsed. No fraud or unfair practices in any stage of the proceedings leading up to the final patents are charged against the railway company or any persons acting for it. In such circumstances, it would, in our opinion, be inequitable and conducive of no good results to grant the relief sought by this bill." [87 C. C. A. 600, 160 Fed. 826.] no right of pre-emption or homestead settle- | Alto counties, Iowa, mentioned and dement had attached at the time of such loca- scribed in complainant's exhibit 'A' and in tion, or which had not been previously reserved by the United States for some purpose. It is stipulated that when the line of the railroad was definitely located, none of the lands in question "were covered by any homestead entry, pre-emption, declaratory statements, or warrant locations, or other existing claims of record in the office of the Commissioner of the General Land Office of the Department of the Interior." But the United States contends that what was done, prior to the definite location of the road, for the purpose of bringing these lands under the operation of the act of 1850 as swamp and overflowed lands, created a claim that covered or attached these lands. But this contention of the government must be considered in the light of the fundamental inquiry whether the latter claim can avail anything whatever if the lands were not in fact swamp or overflowed lands; for only lands of that character were granted by the act of 1850, and no mere claim that they were swamp or overflowed lands could make them such, unless it was sustained by some decision or ruling by competent authority to that effect. There never was any such decision or ruling. It is true that Dickinson, Palo Alto, and Kossuth counties-acting, we may assume, for the purposes of this case, under the sanction of the state-made selections of those lands as swamp lands; but it is stipulated and agreed in this case that those selections were never adopted, ratified, or confirmed in any manner by the Interior or Land Department, but remained pending and undetermined therein down to the year 1876; that "during that time the state of Iowa claimed said lands as being swamp and overflowed lands granted to it under and by virtue of said act of Congress of September 28, 1850, and as having been selected as such by said several counties under authority of an act of its legislature, approved January 13, 1853; and said McGregor Western Railroad Company and said McGregor & Sioux City Railway Company (afterwards McGregor & Missouri River Railway Company) successively made claims to the same lands as being neither swamp nor overflowed in character, but as inuring to them respectively, under the act of Congress of May 12, 1864, as place lands, within the 10-mile limits of said grant, under the plat of definite location filed August 30, 1864; that on May 31, 1876, and on October 21, 1876, the Commissioner of the General Land Office, upon public hearings of the matter of such respective claims, and after due notice to all parties interested, duby held and adjudged in writing that the lands in said Dickinson, Kossuth, and Palo In determining this case, it must not be overlooked that the act of Congress confers upon the Secretary of the Interior, and upon him alone, the power to identify particu lar lands as swamp and overflow lands embraced by the act of 1850. Referring to the 2d section of that act, Mr. Justice Miller, speaking for the court in French v. Fyan, 93 U. S. 169, 171, 23 L. ed. 812, 813, said: "It was under the power conferred by this section that the patent was issued under which defendant holds the land. We are of opinion that this section devolved upon the Secretary, as the head of the Department which administered the affairs of the public lands, the duty, and conferred on him the power, of determining what lands were of the description granted by that act, and made his office the tribunal whose decision on that subject was to be controlling." To the same effect, on this point, are Ehrhardt v. Hogaboom, 115 U. S. 67, 68, 29 L. ed. 346, 5 Sup. Ct. Rep. 1157, and Rogers Locomotive Mach. Works v. American Emigrant Co. 164 U. S. 559, 571, 41 L. ed. 552, 557, *242 *244 ⚫243 17 Sup. Ct. Rep. 188. In the latter case the | what were not swamp or overflowed lands. court said: "The identification of lands em- We perceive no sound reason why what debraced by the swamp land act was therefore cision, unreversed and unmodified in any renecessary before the state could claim a pat- spect, should not be accepted as conclusive ent or exercise absolute control of them." of the essential facts upon which it was We repeat that it must be taken that based. In that view, the United States has these lands were not swamp or overflowed no standing in a court of equity to obtain lands that had been reserved by the United a decree that will be in disregard of the States under the act of 1850. That fact fact thus conclusively found by the Land must be regarded as conclusively established, Department. Therefore, their certification as between the present parties. We say con- to the state for the benefit of the railway clusively established; for, after full notice company, under the act of 1864, cannot be to all parties who were concerned in the held to have been an error. It is, in submatter, and who had asserted titles to these stance, admitted-at any rate, the record lands, the Commissioner of the General shows-that if the lands were not swamp or Land Office decided, in 1876, after full hear-overflowed, the company was entitled to ing, that these lands were not, in fact, them under the act of 1864, as lands not swamp or overflowed lands, and that neither | previously reserved, but granted for the the state nor any of its counties were en- benefit of the railway company. If, notwithtitled to them or any of them under the act standing the decision of the Land Departof 1850. That hearing by the Commissioner ment, the court should determine the rights was had pursuant to said act of Congress of the parties according to the facts presentof March 5th, 1872, chap. 39, which provided to that Department, it would be confronted, among other things, that the decisioned with the fact, established by the record, should be "without prejudice to legal entries or the rights of bona fide settlers under the homestead and pre-emption laws of the United States prior to the date of this act." 17 Stat. at L. 37. In any view, that decision was, in contemplation of law, one by the Secretary of the Interior, who, by the original act of 1850, was directed to make out accurate lists or plats of the lands described by that act as swamp and overflowed lands. Wilcox v. Jackson, 13 Pet. 498, 10 RICKEY LAND & CATTLE COMPANY, L. ed. 264; Wolsey v. Chapman, 101 U. S. 755, 768, 25 L. ed. 915, 919. The decision was never appealed from, and has never been reversed or modified. The United States that the lands in question were not swamp or overflowed. We omit any reference to other questions, which, if determined, would lead to the same result as above stated. The decree dismissing the bill was right and the judgment of the Circuit Court of Ap peals is sustained. (218 U. S. 258.) Petitioner, V. MILLER & LUX. LAND & CATTLE COMPANY, V. HENRY WOOD, James O. Birmingham, COURTS (§§ 489, 492*)-CONCURRENT Juris- now comes, many years after such decision, RICKEY 1. The Federal Circuit Court for the district of Nevada and the California state courts have concurrent jurisdiction to determine the relative rights of parties claiming, the one in Nevada and the other in California, to be entitled to appropriate, as against each other, the waters of an interstate stream, and whichever court first acfinal determination without interference quires jurisdiction is entitled to proceed to from the other. [Ed. Note.-For other cases, see Courts, Cent. 2. The doctrine of lis pendens applies to a corporation to which the defendant, in a suit brought in a Federal court sitting in another state, conveys his water rights with For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes $259 court. [Ed. Note. For other cases, see Lis Pendens, 3. Cross bills filed by some of the defendants in a suit brought in a Federal circuit court to establish the relative rights of the parties as appropriators of the waters of the same stream are maintainable, although they may admit the right of complainants, since a decree as between themselves and the other defendants may be necessary to prevent a decree for complainants from working injustice. in the state in an interstate stream, which | those of the parties lower down on the are the subject of the litigation, with the stream. On June 10, 1902, Miller & Lux intent to evade the jurisdiction of that brought a bill in equity in the circuit court for the district of Nevada against Rickey and certain other defendants, some of whom are respondents in the second of the present cases, to enjoin interference with its use of water. Rickey appeared, pleaded to the jurisdiction that the diversion of water by him was in California (127 Fed. 573), and, later, answered. But, after appearing, he, with other members of his family, organized the petitioning corporation, and he conveyed his lands and rights in California to it. On October 15, 1904, this corporation began two actions in a state court of California against Miller & Lux, the defendants in the bill of Miller & Lux other than Rickey, and others, to quiet its title and establish its prior right to 1575 cubic feet per second on the West Fork, and to 504 feet on the East Fork. In December, a few days before they were served with process in the last-mentioned suits, other defendants in the bill brought by Miller & Lux brought a cross bill against their codefendant Rickey to establish their priority as against him. In brought by Miller & Lux, and defendants 1906, the bills in these present cases were other than Rickey in the original Miller & fornia actions, on the ground that the Unit Lux suit, to restrain proceedings in the Cali [Ed. Note-For other cases, see Equity, Cent. Dig. 455-459; Dec. Dig. § 197.*] [Nos. 4 and 5.] Argued January 18, 19, 1910. Ordered for reargument January 31, 1910. Reargued October 24, 25, 1910. Decided November 7, 1910. ON N Writs of Certiorari to the United States Circuit Court of Appeals for the Ninth Circuit to review decrees which affirmed decrees of the Circuit Court for the District of Nevada, restraining proceed ings in suits in the California courts over water rights in an interstate stream on the ground that the Federal court had acquired jurisdiction before the California actions were begun. Affirmed. The facts are stated in the opinion. See same case below, No. 4, 81 C. C. A. 207, 152 Fed. 11; No. 5, 81 C. C. A. 152 Fed. 22. 218, Messrs. James F. Peck, Charles C. Boynton, and Frederick D. McKenney for petitioner. Messrs. Aldis B. Browne, Alexander Britton, Frank H. Short, Isaac Frohman, Edward F. Treadwell, and W. B. Treadwell for respondents. Mr. James F. Peck for petitioner on reargument. Messrs. Edward F. Treadwell, Aldis B. Browne, and Alexander Britton for respondents on reargument. *Mr. Justice Holmes delivered the opinion of the court: These cases are brought to this court by certiorari. The facts material to the understanding and decision of them are these: Miller & Lux is a corporation using the water of the Walker river in Nevada, and claiming rights in the same. The two branches of this river, known as East Fork and West Fork, rise in California and unite in Nevada above Miller & Lux. One Rickey used the water of both of these branches in California, and claimed rights superior to ed States court for Nevada had acquired jurisdiction before the California actions were begun. Injunctions were granted as prayed, and now are before this court for review. 81 C. C. A. 207, 152 Fed. 11, affirming 146 Fed. 574, 581, 588. The petitioner contends that there is no conflict of jurisdiction, and that the proceedings in the California court should go on. Its argument is this: When a right is asserted in favor of land in one jurisdiction over land in another, different principles are involved from those that suffice when both parcels are subject to the same law. When such rights have been recognized, it has been on the ground of an assumed "concurrence between the two states, the one, so to speak, offering the right, the other perMannville Co mitting it to be accepted. v. Worcester, 138 Mass. 89," 52 Am. Rep. 261. Missouri v. Illinois, 200 U. S. 496, 521, 50 L. ed. 572, 579, 26 Sup. Ct. Rep. 268. But still there are two parcels of land subject to different systems of law; and although the rights and liabilities in respect of each may require a consideration of the other if they are to be dealt with completely, the fact remains that each may be regu lated by the state where the land lies according to its sovereign will. Kansas v. Colorado, 206 U. S. 46, 93, 51 L. ed. 956, For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes *260 •261 involve a relation between parcels of land that cannot be brought within the same jurisdiction. This relation depends as well upon the permission of the laws of Nevada as upon the compulsion of the laws of California. It is true that the acts necessary to enforce it must be done in California, and require the assent of that state so far as this court does not decide that they may be demanded as a consequence of whatever right, if any, it may attribute to Nevada. But, leaving the latter possibility on one side, if California recognizes private rights that cross the border line, the analogies are in favor of allowing them to be enforced within the jurisdiction of either party to the joint arrangement. Great Falls Mfg. Co. v. Worster, 23 N. H. 462. Full justice cannot be done and anomalous results avoided unless all the rights of the parties before the court in virtue of the jurisdiction pre 973, 27 Sup. Ct. Rep. 655. If, then, the courts of one state are about to deal with one parcel, they should not be indirectly interfered with by a foreign court that has no power to control the use of the res. It is said to be a general principle that apart from some privity, such as is created by contract, trust, or fraud, courts of equity recognize the impropriety of using their power over the person to achieve such a result. Northern Indiana R. Co. v. Michigan C. R. Co. 15 How. 233, 242-244, 14 L. ed. 674679; Carpenter v. Strange, 141 U. S. 87, 35 L. ed. 640, 11 Sup. Ct. Rep. 960; Norris v. Chambres, 29 Beav. 246, 253, 254, s. c. 3 De G. F. & J. 583, 584. It is conceivable, to be sure, that the decisions of this court may determine that the states have rights as against each other in invitum in streams that flow through the land of both. Kansas v. Colorado, 206 U. S. 46, 84, 51 L. ed. 956, 969, 27 Sup. Ct. Rep. 655; Missouri v. Illi-viously acquired are taken in hand. To nois, 200 U. S. 496, 519, 520, 50 L. ed. 572, 578, 579, 26 Sup. Ct. Rep. 268. These rights may vary according to the system of law required by natural conditions. They may be more or less analogous to common-law rights between upper and lower proprietors, where irrigation is not necessary, as in most of the older states. See New York v. Pine, 185 U. S. 93, 96, 46 L. ed. 820, 821, 22 Sup. Ct. Rep. 592. There may be some, perhaps limited, right of appropriation in the upper state, at least in the watershed of the stream, where irrigation is the condition of using the land. See Kansas v. Colorado, 206 U. S. 46, 100-104, 117, 51 L. ed. 956, 975-977, 983, 27 Sup. Ct. Rep. 655. But whatever this court may decide, if a private owner should derive advantage from such a decision it would not be in his own right, but by reason of and subordinate to the rights of his state, and those rights, the petitioner insists, can, or at least should be, determined only in a suit brought by the state itself. But if for any reason the foregoing argument should not have prevailed as against Rickey if he had brought the actions in California after the beginning of the suit in Nevada, the present petitioner is not affected by the proceedings against Rickey, as they were purely personal, and did not concern a purchaser of land outside the jurisdicTo affect a purchaser with a suit against his vendor, it is said that at least the res must be within the territorial jurisdiction of the court, in which the suit is brought. See Fall v. Eastin, 215 U. S. 1, 54 L. ed. 65, 23 L.R.A. (N.S.) 924, 30 Sup. Ct. Rep. 3. tion. We are of opinion that the petitioner fails to establish the conclusion for which it contends. The alleged rights of Miller & Lux adjust the rights of the parties within the state requires the adjustment of the rights of the others outside of it. Of course, the court sitting in Nevada would not attempt to apply the law of Nevada, so far as that may be different from the law of California, to burden land or water beyond the state line, but the necessity of considering the law of California is no insuperable difficulty in dealing with the case. Foreign law often has to be ascertained and acted upon, and one court ought to deal with the whole matter. We are of opinion, therefore, that there was concurrent jurisdiction in the two courts, and that the substantive issues in the Nevada and California suits were so far the same that the court first seised should proceed to the determination without interference, on the principles now well settled as between the courts of the United States and of the states. Prout v. Starr, 188 U. S. 537, 544, 47 L. ed. 584, 587, 23 Sup. Ct. Rep. 398; Ex parte Young, 209 U. S. 123, 161, 162, 52 L. ed. 714, 729, 730, 13 L.R.A. (N.S.) 932, 28 Sup. Ct. Rep. 441. As to the argument that the Rickey Land Company is not affected by any priority that may have been gained as against Rickey, it might be a question, even if the petitioner was a purchaser without notice, whether the purchaser would not be confined to asserting its rights in the pending cause. See Whiteside v. Haselton, 110 U. S. 296, 301, 28 L. ed. 152, 154, 4 Sup. Ct. Rep. 1. But in this case, if the judge below was of opinion as matter of fact on what appears that the institution of the petition was merely a device to dodge the jurisdiction of the Nevada court, and that the Rickey Land & Cattle Company was merely Rickey under *263 |