[215 U.S. 266, 267] The general object of this suit-which was brought by the United States in one of the courts of New Mexico on the 24th day of May, 1897-was to obtain an injunction to prevent the Rio Grande & Dam Irrigation Company from constructing and maintaining a dam across, and a reservoir over and near, the Rio Grande river at a certain point in that territory. In the court of original jurisdiction the suit was dismissed, and the dismissal was affirmed by the supreme court of the territory; but that judgment was reversed by this court, with instructions to set aside the decree of dismissal, and to inquire whether the intended acts of the defendants in the construction of a dam and appropriating the waters of the Rio Grande would substantially diminish the navigability of that stream within the limits of present navigability; and, if so, to enter a decree restraining those acts to the extent that they would so diminish. United States v. Rio Grande Dam & Irrig. Co. 174 U.S. 690, 708 , 710 S., 43 L. ed. 1136, 1143, 1144, 19 Sup. Ct. Rep. 770. The mandate date of this court to that effect was executed by the supreme court of the territory, and the cause went back to the court of original [215 U.S. 266, 268] jurisdiction with directions to proceed in accordance with that mandate.
The cause was again heard in the court of original jurisdiction, that court denying a motion, in behalf of the United States, for a continuance in order that it might more fully prepare its case. The suit, on final hearing, was again dismissed, and that judgment was sustained by the supreme court of the territory. But this court reversed the decree of the latter court, and remanded the cause, with instructions to reverse the decree of the court of original jurisdiction, and with directions 'to grant leave to both sides to adduce further evidence.' United States v. Rio Grande Dam & Irrig. Co. 184 U.S. 416, 424 , 425 S., 46 L. ed. 619, 622, 623, 22 Sup. Ct. Rep. 428. The mandate of this court to the above effect was executed, and the case was again placed on the docket of the court of original jurisdiction.
The record shows that on the 7th day of April, 1903,-after the last decision in this court,-the United States, by leave of the court of original jurisdiction, filed a supplemental complaint, which set forth the then status of the case. That complaint referred to the defendant's plea, stating that it had complied with the requirements of the act of Congress approved March 3d, 1891, repealing timber culture laws and for other purposes (26 Stat. at L. 1095 1102, chap. 561, 20, 21),** and 'had acquired a right to construct said dam and direct said water by reason of compliance with the terms of said act.' It then proceeded: '2. Plaintiff further alleges that defendant's plea above referred to, claiming a right to construct said dam under the said act of Congress approved March 3d, 1891, chap. 561, was filed on June 26, A. D. 1897, and that its articles of incorporation and proof of its incorporation, and the map and survey of its reservoir, had been filed and approved by the Secretary of the Interior long prior to the filing of said plea, as appears from an inspection of said plea itself. 3. Plaintiff
** U. S. Comp. St. 1901, p. 1571. [215 U.S. 266, 269] further alleges that in and by 20 of the said act of March 3d, 1891, above referred to, it was provided 'that if any section of said canal or ditch shall not be completed within five years after the location of said section, the rights herein granted shall be forfeited as to any uncompleted section of said canal, ditch, or reservoir, to the extent that the same is not completed at the date of the forfeiture;' and that although five years since the filing and approval of said articles of incorporation, proofs of organization, maps, and surveys have long since elapsed, defendant has not complied with the requirements of said act, but has failed to construct or complete within the period of five years after the location of said canal and reservoir any part or section of the same, and the same has, by reason thereof, become forfeited. 4. Plaintiff further alleges that during all of said time, except from May 24th, 1897, to -- 1897, the date when the temporary injunction was dissolved, the said defendants have been in no wise hindered, restrained, or prevented from complying with the provisions of said act by any judicial order or process whatsoever. 5. Wherefore, plaintiff prays to be permitted to file this supplemental bill of complaint, and that the same be considered upon the hearing of this cause, and that the defendants be decreed to have forfeited all the rights they may have had or claimed under and by virtue of said act of March 3d, 1891, not hereby admitting, however, that the defendants ever acquired any rights under and by virtue of said act. Plaintiff further prays that the injunction, and all other relief prayed for in and by said amended bill of complaint, be granted, and that said injunction be made perpetual, and that it have and recover its costs expended in this cause, and thus plaintiff will ever pray.'
A copy of this supplemental complaint was served on the attorney of the defendants on the day (April 7th, 1903) it was filed. More than forty days thereafter, on the 21st day of May, 1903, a decree was entered finding the allegations of the supplemental complaint-no demurrer, answer, or other [215 U.S. 266, 270] pleading having been filed thereto-'are confessed and are true.' The court further found 'that the articles of incorporation and the map, survey of the reservoir of the defendant corporation, the Rio Grande Dam & Irrigation Company, were filed with the Secretary of the Interior prior to the 26th day of June, A. D. 1897, and were, prior to said date, approved by the Secretary of the Interior; and it further finds that the said defendants have not completed its said reservoir or said ditch, or any section thereof, within five years after the location of the said reservoir and its said ditch line, or within five years after the approval of the same by the Secretary of the Interior; and the court further finds that five years since the filing and approval of the said articles of incorporation, proof of organization, maps, and surveys of the said reservoir and ditch line of the defendants had long since elapsed prior to the filing of the said supplemental bill, and that the defendants had not complied with the requirements of the act of Congress approved March 3, 1901, under which the same were filed, but has failed to construct or complete, within the period of five years after the location of the said canal and reservoir, any part or section of the same.' And it was adjudged 'that the rights of the said defendants, or either of them, to so construct and complete the said reservoir and said ditch, or any part thereof, under and by virtue of the said act of Congress of March 3, 1901, be and the same are hereby declared to be forfeited. It is further ordered, adjudged, and decreed by the court, by reason of the premises, that an injunction be, and the same is hereby, granted against the said defendants, enjoining them from constructing or attempting to construct the said reservoir, or any part thereof, and that the same be made perpetual.' (By an amended decree filed October 5th, 1903, and entered nunc pro tunc as of May 21st, 1903, the date given as March 3d, 1901, in the decree was made to read March 3d, 1891, in order to conform to the actual date of the act of Congress intended to be referred to both by the United States and by the court.)
A statute of New Mexico, in force at the time and before the above decree was rendered, provided: 'Every pleading subsequent to the complaint shall be filed and served within twenty days after service of the pleading to which it is an answer, demurrer, or reply.' N. M. Comp. Laws 1897, title 33; Code Civ. Proc. chap. 1, art. 4, subsec. 46. [215 U.S. 266, 271] On the 31st of October, 1903, the defendants moved the court to vacate the order allowing the supplemental bill to be filed, and that they be permitted to come in and answer the supplemental bill. This motion was denied, and, upon appeal to the supreme court of the territory, the action of the trial court on this point was sustained. The former court, at the same time, March 2d, 1906, adjudged that the right of the defendants, or either of them, to construct and complete its reservoir and ditch, or any part thereof, within the time required by the act of Congress of March 3d, 1891, was forfeited. It was also adjudged that the defendants be enjoined from constructing, or attempting to construct, the said reservoir or any part thereof. The injunction was made perpetual. From that judgment the present appeal was prosecuted.
Messrs. William W. Bride, Frederick S. Tyler, and Charles A. Douglas for appellants.
[215 U.S. 266, 272] Solicitor General Bowers for appellee.
Mr. Justice Harlan delivered the opinion of the court:
We perceive no error in the judgment now under review. [215 U.S. 266, 275] The main contention of the defendants is that it was error to permit the United States to file its supplemental bill. We do not accept this view of the trial court's duty. When the cause was last here, the court expressed the conviction that, if the case was finally disposed of on the record as it then was, great wrong might be done to the United States and to all interested in preserving the navigability of the Rio Grande. Hence, the cause was sent back that each side might adduce further evidence, if they had any to adduce. When the government asked to file its supplemental bill, the suit was, of course, reinstated on the docket of the court of original jurisdiction, for such action as might be proper or necessary. The case having been opened that further evidence might be produced, it was certainly open for an amendment of the original pleadings, or for such additional pleadings as might be appropriate to the issues between the parties. The parties were not limited to the production merely of evidence. The defendants, in the discretion of the court, could have been allowed, upon a proper showing, and before taking further proof, to amend their pleadings, and equally the government, before taking further proof, could have been allowed to file a supplemental complaint. Marine Ins. Co. v. Hodgson, 6 Cranch, 206, 218, 3 L. ed. 200, 203. Besides, subsection 87 of the New Mexico Civil Code would seem to be broad enough to cover the question of power. It provides: 'A party may be allowed, on motion, to make a supplemental complaint, answer, or reply alleging facts material to the cause, or praying for any other or different relief, order, or judgment.' The facts set forth in the supplemental complaint were manifestly not foreign to the government's original cause of action. In every substantial sense those facts were material. Strictly speaking, they may have constituted new matter, but they did not present a new cause of action. Jenkins v. International Bank, 127 U.S. 484 , 32 L. ed. 189, 8 Sup. Ct. Rep. 1196. They grew out of and were connected with the same transaction from which this litigation arose, and were germane to the object of the suit. That object was to restrain the defendants [215 U.S. 266, 276] from constructing and maintaining dams, reservoirs, canals, or ditches that would obstruct the navigable portion of the Rio Grande river. If all the grounds of relief set out in the supplemental complaint did not exist when the original complaint was filed, they were alleged to exist when the supplemental complaint was tendered, and, being connected with the original cause of action, it was right to bring them, in proper form, to the attention of the court when determining whether the government was entitled to the relief it asked. So the supreme court of the territory held, and so we hold. There was, plainly, no abuse of discretion or of the established rules of practice in permitting the supplemental complaint to be filed. The allowance of amendments of equity pleadings must, 'at every stage of the cause, rest in the discretion of the court, and that discretion must depend largely on the special circumstances of each case.' Hardin v. Boyd, 113 U.S. 756 , 28 L. ed. 1141, 5 Sup. Ct. Rep. 771.
Upon the question of the diligence or want of diligence of the parties, it may be said that the supplemental complaint was tendered at a time when the court was open; the leave to file was given in open court; and the defendants' attorney was served with a copy of that complaint on the very day it was tendered and filed. On this part of the case the supreme court of the territory said that attorneys of record are presumed to be present during terms of the court in which their causes are pending, and in contemplation of law were chargeable with notice of all proceedings transpiring in open court in respect of such causes; also, that, 'under the facts of this case, counsel are presumed to have been present, and to have such notice as the law requires of matters transpiring in open court on the day on which leave was granted to file the supplemental complaint, and the same was filed and served upon them. Yonge v. Broxson, 23 Ala. 684; Saunders v. Savage (Tenn. Ch. App.) 63 S. W. 218. The court was vested with discretion by the last clause of 104, supra. [Code of Civ. Proc. as amended by chap. 11 of Laws of 1901], which does not seem to have been abused, nor was there any abuse of the general [215 U.S. 266, 277] discretion to allow an amended or supplemental bill in equity, conferred upon the courts of the United States, as may be seen by reference to the case of Berliner Gramophone Co. v. Seaman, 51 C. C. A. 440, 113 Fed. 750, in which it was held that 'the granting of leave to file an amended and supplemental bill is a matter within the discretion of the court, and its action will not be reviewed in an appellate court unless there has been a gross abuse of this discretion." [13 N. M. 398, 85 Pac. 396.]
The objection that the trial court erred in taking the supplemental complaint for confessed cannot be sustained. That objection was thus properly disposed of by the supreme court of the territory: 'There being no error or irregularity in the court's order allowing the supplemental complaint to be filed, the same having been done in open court, and a copy of the same having been served upon one of the attorneys of record on the same day on which it was filed, the statute required an answer or other proper pleading to be filed within twenty days from the date of such filing, and in the event of failure to plead, or secure additional time to plead, neither of which were done in this case, it was perfectly regular for the court to render decree. Gregory v. Pike, 29 Fed. 588. Appellants seek to be relieved from their own default by alleging neglect on the part of their attorneys. . . . There being service of a copy of the supplemental complaint upon one of the attorneys of record on the day on which it was filed, it was entirely regular for the court to render the decree when applied for forty-four days after such service, in the absence of any appearance or pleading by the appellants.'
Some stress is laid on the fact that the government obtained an injunction to prevent the defendants from constructing its reservoir and dam. That fact, it is contended, estops the government from relying on the five-years' limitation prescribed by the above act of March 3d, 1891, chap. 561. But this view is without merit. The preliminary injunction referred to was dissolved July 31st, 1897, and was never reinstated. The supplemental bill was taken as confessed on [215 U.S. 266, 278] May 21st, 1903, and a perpetual injunction was then awarded against the defendants. So that, between the dissolution of the preliminary injunction and the granting of the perpetual injunction, more than five years elapsed, during which the defendants were not impeded or hindered by any injunction against them. This is sufficient to show that the point just stated is without merit. We need not, therefore, consider the larger question, whether the five-years' limitation prescribed by Congress in the above act of March 3d, 1891, could have been disregarded or enlarged, either by the action or nonaction of the parties, or by any order of injunction made by the court in the progress of the cause.
There are some minor questions in the case, but they are not of substance and need not be noticed. We perceive no error of law in the record, and the judgment is affirmed.
Mr. Justice McKenna did not participate in the consideration or determination of this case.
[ Footnote * ] U. S. Comp. St. 1901, p. 1571.