or had any immediate connection with the making of the contract. If there were such payments at New Orleans, they were before the steamer left that port. Nothing further is stated regarding the time at which, or the circumstances under which, they were made.

The Troop, The Alnwick, and The Neck, moreover, all involved the question of the right of a seaman who had received advance wages to leave the vessel before the term of service for which he had shipped was completed. No such question is raised in this case. These libelants have performed all the service on board the steamer which they agreed to perform by the contract now claimed to have been void. They never sought to escape its obligations, nor, so far as appears, did they ever attempt to repudiate it in any way until after it had been fully performed on their part without objection. The contract indeed is set up in the libel as the foundation of their claim. The only difference between them and the master, which the libel discloses, is as to the amounts due them under it. I do not think that they can now be heard to claim, for the purposes of the argument, that it was void.

I find nothing in the case presented, therefore, to warrant the conclusion that the contract made by the libelants at New Orleans was or ever became wholly void by our law. But, even if the contrary were sufficiently shown, since the libelants have, at any rate, rendered services on board throughout the voyage and have rendered them voluntarily and without compulsion so far as appears, I think they must still be considered members of the steamer's crew within the meaning of the treaty. They may have been free, so far as our laws are concerned, to claim wages at a rate higher than the contract rate (a claim which they do not make), or they may have had the right, notwithstanding their contract, to refuse service and leave the vessel after having gone on board (a right which they have never asserted), and the penalties may have been incurred which are imposed by clause f of section 24, above referred to; but, having once completed the voyage as members of the steamer's crew, I think that a difference arising in reference to the amount of wages to be paid them at the end of the voyage is still a difference within the treaty provisions. When the "crew" of a vessel is referred to, those persons are naturally and primarily meant who are on board her aiding in her navigation, without reference to the nature of the arrangement under which they are on board. "It matters not whether the contract is verbal or in writing or for a long or short voyage or period." The Marie (D. C.) 49 Fed. 286, 287. As used in a treaty, the word must be given its natural and obvious meaning, in preference to a meaning derived by construction from the laws of one only of the contracting nations. In Commonwealth v. Bartlett, 190 Mass. 148, 76 N. E. 607, already referred to above, it was held that no person not under a binding engagement for a term of service to continue for some time in the future was a "member of the crew," within the meaning of Rev. Laws Mass. c. 66, § 2. It is made an offense by that statute to entice or persuade a member of the crew to leave the vessel before the expiration of his term of service, and the defendant was indicted for that offense. In determining the meaning of "member of the crew" for the purposes of that case, it

is obvious that a different rule of construction was required from that which is appropriate here.

Section 24 of the act of 1898 is subsequent to the treaty, and might, of course, had Congress so intended, have modified the treaty provisions. No such intent, however, can be presumed. It must be clear from the language of the act. When a treaty and a legislative act relate to the same subject, "the courts will always endeavor to construe them so as to give effect to both, if that can be done without violating the language of either." Whitney v. Robertson, 124 U. S. 190, 194, 8 Sup. Ct. 456, 31 L. Ed. 386. "It will not be presumed that the legislative department of the government will lightly pass laws which are in conflict with the treaties of the country." The Chinese Exclusion Case, 130 U. S. 581, 600, 9 Sup. Ct. 623, 32 L. Ed. 1068. Clause f of section 24 expressly declares that the section is to apply to foreign vessels only so far as treaties in force do not conflict. The application of the section for which the libelants contend seems to me to involve a conflict with the treaty, and a conflict which does not appear to have been intended by Congress. The manifest purpose of the treaty is to secure to each nation the privilege of having its own laws govern questions of wages arising where its own vessels are concerned, in ports of the other nation. When, therefore, a provision is adopted into our own law of wages, and is declared by Congress applicable to foreign vessels provided that no treaty conflicts, the intention manifested is, in my opinion, not to make that provision applicable, where its application would require the assumption of jurisdiction by our courts in cases already excluded from their jurisdiction by a treaty, but to restrict its application, so far as vessels of that nation are concerned, to cases which are left by the treaty within the jurisdiction of our courts.

If the treaty obliges our courts not to take jurisdiction of differences in reference to wages where German vessels are concerned, it equally obliges the German courts not to interfere, in such cases, where vessels of the United States are concerned. The latter obligation is one upon which the United States insists. U. S. Consular Regulations 1896 (the latest edition), par. 88, p. 34; paragraphs 308, 309, pp. 118, 119. See Tellefsen v. Fee, above cited, 168 Mass. 188, 191, 192, 46 N. E. 562, 45 L. R. A. 481, 60 Am. St. Rep. 379. The same privilege is secured to the United States which it has conceded to the German Empire. Even, therefore, if it be assumed, although the case presented requires no such conclusion, that the determination of these claims for wages by the German Consul will result in a deduction of advance payments forbidden by our law in the settlement, the court is none the less forbidden by the treaty to interfere. A German court might with equal right interfere in a similar case occurring in a German port where a vessel of the United States was concerned, in order to enforce such a deduction, lest the United States Consul acting under our law might decline to make it in a settlement before him. A fair and faithful observance of the treaty stipulations would plainly forbid such interference by a German court, and equally forbids this court to take jurisdiction of the present case.

In The Troop and in The Alnwick, above referred to, there was no treaty to be considered. The Neck (D. C.) 138 Fed. 144, also above referred to, deals with the treaty now under consideration, and is the only case which affords any authority for the contention that its provisions, or similar provisions in any treaty, are not to control upon the question of jurisdiction, if section 24 has been violated by the payment of advance wages. The libelant in that case was a citizen of the United States, a fact which in the opinion of the court gave him a right to invoke the jurisdiction of the courts of the United States of which no treaty could deprive him. These libelants can claim no such right. Other differences between the facts of that case and the facts here have been already referred to. If the decision is nevertheless in conflict, in any manner, with the conclusion here reached, I must, with due respect for its authority, decline to follow it.

The libel is to be dismissed, with costs.

AMES REALTY CO. v. BIG INDIAN MINING CO. et al.

(Circuit Court, D. Montana. June 11, 1906.)

No. 668.

1. COURTS-ENFORCEMENT OF REMEDY GIVEN BY STATE STATUTES-SUITS RELATING TO WATER RIGHTS.

Civ. Code, Mont. § 1891, which provides that in actions for the protection of water rights the plaintiff may make any or all persons who have diverted water from the same stream or source parties, and the court may in one judgment settle the relative priorities and rights of all parties to the action, establishes a procedure substantially consistent with the ordinary modes of proceeding in chancery, and the rights thereby given may be enforced by a federal court of equity having jurisdiction of the suit by reason of diversity of citizenship.

[Ed. Note. For cases in point, see vol. 13, Cent. Dig. Courts, § 972.] 2. SAME-JURISDICTION OF FEDERAL COURT-CROSS-BILLS.

In a suit in a federal court of equity to establish and protect rights in the waters of a stream against other separate appropriators of water from the same stream, all of whom are citizens of different states from complainant, the court may entertain cross-bills by any or all of the several defendants setting up priority of right as against complainant or their codefendants, since they relate to the subject of the original suit, which is the water of the stream, and, being ancillary to the original suit, the court has jurisdiction to determine the issues raised thereby without regard to the citizenship of the parties thereto.

In Equity. On questions of jurisdiction.
McConnell & McConnell, for complainant.
M. S. Gunn, for defendants.

HUNT, District Judge. Complainant, a corporation, resident and citizen of Missouri, brings this action to obtain an adjudication of the rights of itself and the defendants to the use of the waters of Prickly Pear creek and its branches and tributaries within the state of Montana, and for injunction against defendants, restraining them from diverting any of the waters of said creek and its tributaries until the prior

rights of complainant are first satisfied. There are about 90 defendants, some of whom are residents and citizens of Montana, while many are residents and citizens of other states. Complainant owns 1,926 acres of agricultural lands, which require irrigation. It alleges that in 1865 and 1866 its predecessors in interest tapped the waters of Prickly Pear creek by means of certain ditches, and carried the waters of said creek upon the said lands, and irrigated the same, and made appropriations of such waters to the extent of 404 inches, and said quantity of said waters has been used upon said lands ever since such appropriations, and is necessary now to the enyoyment of the lands of this complainant. Complainant alleges that the defendants, and each and every of them, claim some right to the use of the waters of said Prickly Pear creek or its tributaries, all of which said tributaries empty into the Prickly Pear creek above the points where complainant diverts its water, and that the waters of the tributaries are necessary in order to swell the waters of the main Prickly Pear creek, so that complainant and other prior appropriators to defendants may satisfy their prior rights. It is alleged that defendants are appropriating large quantities of the waters of Prickly Pear creek and its tributaries, and threaten to continue to do so, and thereby to exhaust the waters, so that complainant will be deprived of the use of water for its lands, and greatly damaged thereby. Complainant sets forth that all the rights claimed by the defendants, or any of them, are subsequent to the rights of complainant, and that, unless defendants are restrained from diverting and turning away the waters of Prickly Pear creek and its tributaries by means of ditches, complainant will be unable to cultivate its lands. It is set forth that, by reason of the diverse interests of each of the defendants, it is necessary that all and every of the claimants of the waters of Prickly Pear Creek and its tributaries be made and joined as defendants, in order to avoid a multiplicity of suits.

A number of the defendants have filed cross-bills, wherein each cross-complainant sets forth the substance of complainant's bill, pleads title to certain lands in the Prickly Pear valley, and that the lands described in the cross-complaint are agricultural lands, and have been irrigated with the waters of Prickly Pear creek by means of ditches carrying certain quantities of the waters of said creek, appropriated prior to the alleged dates of appropriation of the complainant. Crosscomplainants allege that the lands they own are patented, and that they and their predecessors in interest have had open, notorious, continuous, uninterrupted, and adverse use, possession, and enjoyment of specified numbers of inches of waters of Prickly Pear creek, as against the complainant and other cross-complainants who are codefendants mentioned in the complainant's bill, and all other persons. They allege that the complainant, and their codefendants mentioned in complainant's bill, claim some right, title, or interest, by virtue of appropriations, to the use of the waters of the said Prickly Pear creek and its tributaries, and are using the same; but they aver that the rights of the complainant and their codefendants are subordinate and subservient to the rights of cross-complainants, and that it is necessary that an adjudication be had of the amounts of water to which the

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