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statute the plaintiff's as much as thirty years before. All claimants to the waters of the river, including the plaintiff, were brought into the proceeding by due notice and in conformity with the statute.

A general outline of the statute, as it has been construed by the Supreme Court of the State,1 will serve to simplify the questions to be considered. It recognizes that in Oregon rights to use the waters of streams for irrigation and other beneficial purposes may be acquired by appropriation, adopts a comprehensive scheme for securing an economical, orderly and equitable distribution of the waters among those entitled to their use, incidentally prescribes a mode of determining the relative rights of the various claimants to the waters of each stream, and in large measure commits the administration of the scheme to the State Water Board and officers acting under the supervision of its members. When one or more users of water from any stream request it the board, if finding that the conditions justify it, is required to set in motion a proceeding looking to an ascertainment and adjudication of all rights to the waters of that stream. Every material step in the proceeding is to be attended with notice and an opportunity to be heard, the adequacy of which is manifest. In the beginning each claimant is required to present to the division superintendent a sworn statement of his claim showing its nature, inception and extent and all the particulars upon which it is based. These statements are to be exposed to public inspection, so that every claimant may determine whether there is occasion for him to oppose or contest the claims of others. The State Engineer, or a qualified assistant, is to measure the flow of the stream, the carrying capacity of the several ditches taking water

1See Wattles v. Baker County, 59 Oregon, 255; Pringle Falls Power Co. v. Patterson, 65 Oregon, 474, 484; Claypool v. O'Neill, ibid. 511; Pacific Live Stock Co. v. Cochran, 73 Oregon, 417; In re Willow Creek, 74 Oregon, 592; In re North Powder River, 75 Oregon, 83.

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therefrom, and the land irrigated or susceptible of irrigation from each ditch, and also to take such other observations as may be essential to a proper understanding of the claims involved, a report of all of which is to be made in writing. Any claimant desiring to contest the claim of another may present to the division superintendent a sworn statement showing the grounds of contest and obtain a hearing before that officer at which the parties may present whatever evidence they have and may secure the attendance of witnesses by compulsory process. After the evidence in the contests is taken, it and the sworn statements of the several claimants, with the report of the engineer's measurements and observations, are to be laid before the board, the statements and the report both being regarded as evidence appropriate to be considered. The board is then to examine all the evidence, make findings of fact therefrom, enter an order embodying the findings and provisionally determining the relative rights of the several claimants, and transmit the evidence and a copy of the order to the circuit court of the county wherein the stream or some part of it lies. Exceptions to the board's findings and order may be presented to the court and in disposing of them the court is to follow as near as may be the practice prevailing in suits in equity. All parties in interest, including the board as representing the State, are to be fully heard. Further evidence may be taken by the court, or the matter may be remanded with directions that additional evidence be taken and that the matter be again considered by the board, in which event the evidence and a copy of the further order of the board are to be transmitted to the court as in the first instance. In short, upon exceptions the court may reexamine the whole matter and enter such decree as the law and the evidence may require, whether it be an affirmance or a modification of the board's order. And even where no exceptions are presented a decree giving effect

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to the order is to be entered, that is to say, the matter is not to be left as if the order in itself constituted an effective adjudication. An appeal from the court's decree may be taken to the Supreme Court of the State "as in other cases in equity," except that the time therefor is substantially shortened. When the rights involved are adjudicated the decree is to be "conclusive as to all prior rights and the rights of all existing claimants,' and the right of each claimant as so settled is to be appropriately entered and shown upon the records of the board and upon those of the proper county. Each claimant also is to receive from the board a certificate setting forth the priority, extent and purpose of his right, and, if it be for irrigation purposes, a description of the land to which it is appurtenant. That the statute is not intended to take away or impair any vested right to any water or to its use is expressly declared in its first and seventieth sections, 3 Lord's Oregon Laws, Tit. XLIII, c. 6, §§ 6594, 6595.

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At the time the statute was adopted, and continuously until this suit was begun, there were pending undetermined in the District Court 1 two suits in equity brought by the present plaintiff, one against two Oregon corporations and the other against another corporation of that State, in each of which suits the relative rights of the parties thereto in the waters of Silvies River were in controversy. These rights are reasserted and again brought in controversy in the proceeding before the board.

When that proceeding was first set in motion, the Pacific Live Stock Company, the plaintiff in this suit, presented to the board a petition and bond for the removal of the proceeding, or a part of it alleged to involve a separable controversy, to the District Court of the United States

1 The suits were begun in the Circuit Court and when it was abolished were transferred to the District Court.

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upon the ground that it was a suit between citizens of different States. But the attempted removal was not sustained, for the District Court remanded the proceeding and in that connection held that while it was pending before the board it was essentially preliminary and administrative, and not a suit at law or in equity within the meaning of the removal statute. In re Silvies River, 199 Fed. Rep. 495.

Thereafter the plaintiff presented to the division superintendent a sworn statement of its claim, accompanied by the fee prescribed, at the same time protesting that the fee was extortionate, that the matter should be adjudicated in the Federal court and that the local statute was repugnant to the Fourteenth Amendment. More than two hundred other claimants also appeared and submitted statements of their claims, all being described as higher up the stream than that of the plaintiff. When the statements were opened to public inspection many contests were initiated. Several of these were against the plaintiff's claim; a large number were by the plaintiff against other claims, and there were others in which, it is said, the plaintiff was not directly concerned. It was at this stage of the proceeding, and before any evidence was taken in any of the contests, that this suit was brought.

Upon the assumption (1) that the removal proceedings were effective, (2) that the proceeding before the board is substantially identical with the pending suits, and (3) that that proceeding is essentially judicial in its nature, the plaintiff insists that the continued prosecution of the proceeding before the board constitutes an inadmissible interference with the District Court's jurisdiction and that this jurisdiction should be maintained and protected by an appropriate injunction. The insistence must

1 See Rev. Stat., § 720; Taylor v. Taintor, 16 Wall. 366, 370; French v. Hay, 22 Wall. 250, 253; Rickey Land Co. v. Miller & Lux, 218 U. S. 258, 262; Ches. & Ohio Ry. v. Cockrell, 232 U. S. 146, 154.

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be overruled, because the assumption upon which it rests cannot be indulged.

Nothing was accomplished by the removal proceedings. The District Court did not take jurisdiction under them, but, on the contrary, by its remanding order adjudged that they were unauthorized. That order is not subject to review, either directly or indirectly, but is final and conclusive. Jud. Code, § 28; Missouri Pacific Ry. v. Fitzgerald, 160 U. S. 556, 580–583; McLaughlin Bros. v. Hallowell, 228 U. S. 278, 286. In so holding it is not intimated that the result would be different if the order were now open to review. See Upshur County v. Rich, 135 U. S. 467, 474, et seq. and cases cited.

The rule that where the same matter is brought before courts of concurrent jurisdiction, the one first obtaining jurisdiction will retain it until the controversy is determined, to the entire exclusion of the other, and will maintain and protect its jurisdiction by an appropriate injunction, is confined in its operation to instances where both suits are substantially the same, that is to say, where there is substantial identity in the interests represented, in the rights asserted and in the purposes sought. Buck v. Colbath, 3 Wall. 334, 345; Watson v. Jones, 13 Wall. 679, 715; Rickey Land Co. v. Miller & Lux, 218 U. S. 258, 262. This is not such an instance. The proceeding sought to be enjoined, although in some respects resembling the prior suits, is essentially different from them. They are merely private suits brought to restrain alleged encroachments upon the plaintiff's water right, and, while requiring an ascertainment of the rights of the parties in the waters of the river, as between themselves, it is certain that they do not require any other or further determination respecting those waters. Unlike them, the proceeding in question is a quasi public proceeding, set in motion by a public agency of the State. All claimants are required to appear and prove their claims; no one can refuse without

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