Opinion
No. 4727.
February 23, 1926.
Appeal from District Court of the United States for the Southern Division of the Eastern District of Washington; Stanley Webster, Judge.
Action by the Black Rock Power Irrigation Company against W.R. Adamson and others. From the decree, defendants appeal. On motion of appellee to dismiss the appeal. Motion denied.
H.J. Snively, of Yakima, Wash., for appellants.
George Donworth, Elmer E. Todd, John C. Higgins, and Hyman Zettler, all of Seattle, Wash., for appellee.
Before HUNT and McCAMANT, Circuit Judges, and PARTRIDGE, District Judge.
This is a motion to dismiss an appeal. The facts are fully set forth in the former opinion of this court, in Adamson v. Black Rock Power Irrigation Co., 297 F. 905, by which the first decree was reversed. Upon the going down of the mandate, the district court entered another decree, from which the present appeal is prosecuted. The bill was against 357 defendants, and of that number 40 are now appealing. The ground of the motion to dimiss is that all the parties to a judgment or decree must join in an appeal or writ of error, or be detached from the right by some proper proceeding. Dolan v. Jennings, 11 S. Ct. 584, 139 U.S. 385, 35 L. Ed. 217. But it is equally well settled that, when the interest of a defendant is separate from that of other defendants, he may appeal without them. Winters v. United States, 28 S. Ct. 207, 207 U.S. 564, 52 L. Ed. 340.
The very point raised by the assignments of error is that the interest of the defendants in the right to receive water is not defined and determined. In the former opinion of this court, it was said that the rights of defendants are "rights in water that are the subject of barter and sale and of the dignity of estates in real property." That a water right is real property is well settled. Fudickar v. East Riverside Irrigation District, 41 P. 1024, 109 Cal. 29; Travelers', etc. Co. v. Childs, 54 P. 1020, 25 Colo. 360; Knowles v. New Sweden Irrigation District, 101 P. 81, 16 Idaho 217; Rickey Land Water Co. v. Miller Lux, 152 F. 14, 81 C.C.A. 207.
This rule (at least since the act of Congress of July 26, 1866, c. 262, § 9, 14 Stat. 251 (Comp. St. § 4647) has been the rule as to appropriators. Sowards v. Meagher, 108 P. 1113, 37 Utah, 212. It has likewise been applied to water received under a contract with a company like this.
In Graham v. Pasadena Land Water Co., 93 P. 498, 152 Cal. 596, the Supreme Court of California said that "the right to receive water from the supply under the control of the defendant, is clearly appurtenant to the land of the plaintiff." If this is so, each defendant in this case has a several interest in the water supply, which is part and parcel, or at least appurtenant, to his land.
Let the motion to dismiss be denied.