Like the case of Hudspeth County Conservation and Reclamation District No. 1 v. Robbins, 5 Cir., 213 F.2d 425, the occasion for this suit is the shortage of rainfall in the watersheds of the Rio Grande River and its Tributaries.
This ease was first argued and submitted before a panel of this Court consisting of Circuit Judge Strum and District Judges Dawkins and Hooper, and, without agreement being reached on a decision, it was assigned to Judge Daw-kins for opinion. Judge Strum died before the case could be decided and, upon the suggestion of Judges Dawkins and Hooper, the case was restored to the docket, and, upon re-submission, it fell to the present panel.
With Judge Dawkins’ permission, we adopt the statement of the case prepared by him on former submission.
Statement of Case Prepared by Judge Dawkins.
Plaintiffs, Ben Martinez (alleging himself to be a citizen of the Republic of Mexico but residing in Webb County, Texas) and Terry Production Corporation (created under the laws of Delaware but having a place of business in said county), each allegedly owning or leasing lands enjoying “riparian” rights superior to those of defendants and fronting on the Rio Grande River, international boundary between the said Republic and the United States, brought this suit as a class action, in their own behalf and that of all others similarly situated, under Rule 23(a) of Civil Procedure, 28U.S.C.A. (1) against Maverick County Water Control and Improvement District No. 1 (called Maverick Water District), created by an act of the legislature of Texas; (2) against Wyatt C. Hendrick and Reg McQuatters, individually and as class representatives of all persons, firms and corporations (but excluding all cities, towns and villages), who own or are lessees of lands also fronting on said River in the same general area, having only “appropriation” rights because they were sold or patented to defendants or their authors in title by the State of Texas subsequent to March 19, 1889; and (3) against S. Otis Sullivan, W. C. Butler and J. W. Thompkins, individually and as class representatives of all persons, firms and corporations who or which own or lease and are in possession of lands fronting the Rio Grande within the bounds of defendant Maverick Water District, which also takes water therefrom for distribution to users, as well as against others who personally divert water for irrigation directly from the Rio Grande rather than buying it from said District; all of said defendants being in the class called appropriators.
The area involved is described as follows: “Commencing on the north with the most southerly boundary line of Maverick County Water Control and Improvement District No. 1 in Maverick County, Texas, the southeast corner thereof being near the point where the San Antonio Creek empties into the Rio Grande, extending to the south down the Rio Grande to the hereinafter alleged point above the boundary line of Hidalgo and Starr Counties (all of such land being situated in Maverick, Webb, Zapata and Starr Counties) * * * ” and plaintiffs’ lands so owned or leased are located either in “Spanish Grants, title to which passed out of the King of Spain in the 18th Century, or in Sections patented by the State of Texas prior to March 19, 1889, * * -X- ”
For cause of action plaintiffs allege that during the period of a severe drouth extending from May, 1953, to the filing of this complaint on August 6, 1953, the defendants named, as well as all others of defendant class upstream from plaintiffs, have taken from said Rio Grande River all of the water before it reached the complainants, thereby depriving them *668entirely of its use and causing great damage to their livestock and growing crops, all in violation of plaintiffs’ alleged superior lawful rights; that the water so withdrawn was also used by means of canals for irrigating lands'more than 100 miles distant from and in no sense riparian to said river.
Plaintiffs further allege that their lands and those of all others in the same class, having been severed from the public domain prior to the act of the Texas Legislature of March 19, 1889, enjoy riparian rights to the water of said river which run with their titles, embracing all “that is below the line of highest ordinary flow” for all purposes superior to the lands of defendants, appropriators, which were severed from the public domain after that date; and that complainants are entitled also to participate rata-bly in the flow above said line.
As the basis for the class action, plaintiffs allege that the numbers of persons on each side of this controversy, consisting of hundreds, are too numerous to be made parties in one complaint; for which reason they ask that the court appoint a master with authority to ascertain the names and locations of all others in each class within the segment named, to whom notice shall be given of their right, within a reasonable time, to intervene herein, after which all the parties be aligned according to class; that upon trial a declaratory, judgment be entered fixing the rights of each class with respect to said waters; and that the said master be ordered to stand by for the purpose of apportioning said water when necessary in periods of drouth with power to apply for writs of injunction to prevent violation and to enforce said decree.
Defendant Maverick Water District first moved to transfer the case to the Western District of Texas, its alleged domicile, on the ground that neither plaintiffs nor defendants were residents of the Southern District of Texas as required by the applicable law, 28 U.S.C.A. § 1391, and the court of the latter District was without venue. This was followed by a motion to dismiss by the same defendant on the grounds that under the facts alleged:
I. The suit is “not maintainable” as a class action;
II. Martinez is an alien, and Terry Corporation is not a citizen or resident of the Southern District of Texas, while Maverick Water District is “a body politic or subdivision of the State of Texas, with its situs in the Western District”;
III. The Rio Grande forms the international boundary between the Republic of Mexico and the United States; that all who use water throughout its length are necessary parties; and that the court “should not take jurisdiction over a segment of the stream” and make decisions involving the rights of others above and below not made parties for the reason they would not be bound thereby, and particularly in view of the fact that a State Court of competent jurisdiction has already taken jurisdiction of the same subject matter;
IV. and V. The Rio Grande being a navigable stream, the disposition of whose waters as between Mexico and the United States has been determined by treaty, they are not subject to private ownership or control but are governed by “treaty provisions regulating the division, use and distribution”; that by that treaty (of November 14, 1944, 59 Stat. 1219) “no additional use of any kind was to be made of the waters * * from” that date “* * * until after the series of dams provided therein * * * had been completed * * * ”; and that the same circumstances were “recognized in the compacts between the State of Texas and Colorado and Texas and New Mexico in the construction of dams on the upper reaches of the Pecos River” and have been “so recognized for a period of over one hundred years”;
VI. The unprecedented drouth complained of has now ended and the issue thus raised has become moot because of an over-abundance of rain and water ip said river. The tentative location for a second dam in the series contemplated by the treaty of 1944 has been made and *669preparations for its construction are in progress, which will be above the segment involved here and as recognized in the plan “will alleviate the conditions of water shortage in the Rio Grande River. By reason of these facts, this court in the exercise of judicial discretion should not take jurisdiction in this case and inaugurate long, tedious, complicated and involved and expensive proceedings when in the light of human experience the condition of deficiency of water supply resulting from the unprecedented drouth will not recur during the lifetime of any of the parties * * * in this, generation, coupled with the program now in process of completion of the construction of dams on the Rio Grande River under the treaty * * * will take care of the water supply in the Rio Grande River.” Further, plaintiffs’ contention as to their legal priority is not supported by the law, and the State of Texas had the right to create the defendant water district with power to administer the waters in the streams of the state, superior to any claims by complainants.
VII. Plaintiffs’ contention “that the State of Texas in enacting its water laws from and after March 19, 1889, did so for the special benefit of holders of lands abutting the Rio Grande River * * * under Spanish grants” is fallacious.
VIII. And finally, “This defendant is a political subdivision of the State of Texas, and as an appropriator under an appropriation issued for its account by the Board of Water Engineers of the State of Texas, is entitled to the aggregate of all of the waters of the State of Texas falling and accumulated in the upper reaches of the Pecos River, the Devils River and other tributaries and all lands within its territorial confines, belonging to the State of Texas on March 19, 1889, and as is clearly stipulated and provided for in the treaty between the United States and Mexico, of November 14, 1944, it is entitled to the use of the bed of the Rio Grande River for transporting and receiving such waters, for all of which reasons plaintiffs have no justifiable complaint against this defendant in this cause.”
Defendant Water District prayed that, subject to its motion for change of venue, the complaint be dismissed.
Plaintiffs, of course, opposed the motion to dismiss, in detail, and submitted five affidavits supporting the allegations of their complaint as to the conditions which deprived them of water from the Rio Grande. They likewise opposed the motion to transfer the action to the Western District of Texas, on the ground that it was one of a local nature involving real rights with respect to lands within the Southern District and therefore maintainable therein.
The court below, in a memorandum opinion, dismissed the suit apparently on the grounds, first, of absolute discretion as to both the class action and the prayer for a declaratory judgment, and, second, that the real plaintiffs were members of an association composed of individuals who were citizens of Texas (as were all other alleged riparian claimants) between whom and the defendants there was no diversity, and no jurisdiction in a federal court. This interpretation seems justified from the following condensation of what was said:
“Conceding, without discussing: that plaintiffs, and the class they want to represent, have vested riparian rights, that they are appurtenances to the realty in the nature of an incorporeal heriditament; that such rights are superior to appropriation rights under the Texas statutes; that diversion of the normal flow so as to deprive riparian owners of their reasonable share of the water, even though it takes place upriver before the water reaches the land in question, clouds the title and is, therefore, a local action and might therefore be maintained in either district; that ordinarily this type of action might properly be prosecuted as a class suit; that a federal court has jurisdiction of a class action, if there is diversity of citizenship between the original parties of record, *670even if there are other members of the same class who, if original parties to the action would defeat jurisdiction, even though they later intervened; conceding all of these propositions, since allowing either a declaratory judgment or class action, or both, to be prosecuted involves discretion, I feel that, under all the circumstances of the record and matters of which I may take judicial knowledge, I should decline the invitation of counsel for plaintiffs to ‘accept the challenge presented in this case, that is, to help solve the problem of water rights which it looks like the legislature of Texas cannot solve * * * ’
“ * * * the Texas water laws and decisions are in hopeless confusion ; * * * their application and administration would be difficult * * * ; said laws confer little, if any, real authority upon the State Board of Engineers; that the Board has granted permits on many streams * * * very few of which have been canceled, in such numbers and for such quantities that if riparian rights are given the full effect for which plaintiffs contend, practically every drop of water, normal flow or flood, is ‘bespoken’ * * * particularly true in the Rio Grande Valley * * * ;” (Emphasis supplied.)
The lower court then pointed out that many efforts had been made to solve the problem by the Texas Legislature and other agencies without success, and further, that “among other difficult problems are the ones posed in this action: what are riparian rights, how far they extend, how long they last, etc.”, observing that the “pitiful plight of cities and towns became so acute in the lower [Rio Grande] valley in 1952, and in the Laredo area in 1953” that it “led to the unprecedented action in Hidalgo County W[ater] I[mp.] Dist. [No. 2] v. Cameron County [Tex.Civ.App., 253 S.W.2d 294] and the appointment of a water master and the issuance of a temporary injunction. The practical difficulties inherent in such supervision by a Court are pointed up in the dissenting opinion by Chief Justice Murry.” (Emphasis supplied.)
This was followed by the statement that “in the face of all this, in spite of the plight of these communities and the failure of state authorities to act, this Court is asked to take over the waters that belong to the state in trust * * * until the legislature acts * * * to solve its own problems * * *.” Yet, he added: “I do not believe they [the questions involved] can be determined in orne segment of the Rio Grande, without consideration of the whole. If the Courts are to be called upon to administer state problems, it should be done in the State Courts; especially where, as here, a State Court has taken jurisdiction over the waters of a part of the same river.” (Yet, in the statement quoted above the lower court termed action by a state court, such as is sought here, “unprecedented”.)
The court then conceded, as it must, that “in diversity actions a plaintiff has his choice as to whether he will sue in a State or Federal Court * * * .” However, it added that “with commendable frankness” the affidavits filed in support of the plaintiffs’ bill showed that about fifty persons suffering from the same circumstances “consulted with plaintiffs’ counsel, formed an association, incorporated it under Texas laws” and, failing to work out a settlement with defendants, this suit was filed. Further, the affidavits showed some 250 farmers and ranchers in Starr, Webb and Zapata Counties requested that they also be included and they would help pay the attorney’s fees and expenses of such an action; that it was agreed the present plaintiffs, having the right to sue in the federal court, should bring the suit in their names on behalf of all, as a class action, with the understanding that they (plaintiffs) should bear “only their proportionate part of such costs as assessed by the said associations”. The court stated that, while the affidavits had not mentioned all of this large group were citi*671zens of Texas, “I am sure it will not be denied * * * and it is clear that the association is the real party at interest * * * and it could not sue Texas defendants in this court”. It was then observed that, while “Courts have gone pretty far in permitting class suits where there is diversity between the parties of record, even though the members of the class may not meet these tests * * * it is carrying the faction [fiction] a bit too far” to permit what was attempted in this case. “On brief, counsel for the association (styling themselves as attorneys for plaintiffs) even asked that the Court cause the many farmers to be made parties. This just will not do.” The court expressed the further view there was “no difference here from Johnson v. Riverland Levee Dist., 8 Cir., 117 F.2d 711, 134 A.L.R. 326, 333” and, finally, concluded: “No immediate and irreparable injury is threatened. The condition of which complaint is made are admittedly due to the unprecedented drought of the past spring and summer. Plaintiffs ask, however, that after their and all other riparian rights are determined and declared, the Court appoint a master to find the facts as to the correlative rights of the various users, and then set up basic rules and regulations for division of the waters in time of shortage by a Water Master; and that the Court stand ready with an injunction to enforce these orders ‘until adequate storage dams are built to insure an adequate supply of water in the Rio Grande.’ As pointed out above and conceded by plaintiffs’ counsel, these are legislative and administrative problems for the state. If state authorities continue to fail to act and another emergency appears, I see no reason why plaintiffs, and those for whom they sue, cannot secure their rights in the State Courts.”
The dismissal was without prejudice, but at plaintiffs’ cost.
Appellants make only two general assignments of error: (1) the suit was properly brought as a class action and there was no legal justification for its dismissal; and (2) the reasons given by the trial court for declining to give declaratory relief were wrong, and this court should “supersede its judgment * * * and order this case to be tried on its merits.”
Appellee, of course, contends that the decision appealed from was correct and should be affirmed for the reasons stated in the memorandum opinion.
The clarity and completeness of Judge Dawkins’ statement of the case, just concluded, make possible a comparatively brief treatment of the specifications of error. The first specification presents interesting and difficult questions of law, the decision of which may be pretermitted because, assuming those questions decided favorably to appellant, nevertheless, under the second specification, we have no doubt that the district court properly exercised its discretion in refusing to entertain the action for declaratory judgment. Clearly the court could refuse a decree that would not “ ‘terminate the uncertainty or controversy giving rise to the proceeding.’ ” Public Service Commission of Utah v. Wycoff Co., 344 U.S. 237, 243, 73 S.Ct. 236, 240, 97 L.Ed. 291; see 6 Moore’s Federal Practice, 2nd Ed., Sec. 57.08(4), pp. 3032 et seq.; Borchard, Declaratory Judgments, (2nd Ed., 1941), p. 299; Aetna Cas. & Surety Co. v. Quarles, 4 Cir., 92 F.2d 321; Samuel Goldwyn, Inc., v. United Artists Corporation, 3 Cir., 113 F.2d 703.
As has been often stated, Rule 23(a), Federal Rules of Civil Procedure divides class actions into three types according to the jural relations of the members of the class. The first type, 23(a) (1), covers cases where the right sought to be enforced is joint, common, or derivative, and is termed the true class suit. 3 Moore’s Federal Practice, 2nd Ed., Sec. 23.08, pp. 3434 et seq. Professor Moore states that “The doctrine of res judicata as applied to true class actions has been clearly settled by the United States Supreme Court in Supreme Tribe of Ben Hur v. Cauble, (255 U.S. 356 [41 S.Ct. 338, 65 L.Ed. 673] )”, 3 Id., Sec. 23.11, p. *6723460. The,second type, 23(a) (2), covers cases calling for the distribution or management of specific property, and is termed the hybrid class suit. 3 Id., Sec. 23.09, pp. 3439 et seq. As to hybrid class actions, Professor Moore succinctly states the rule as follows: “Insofar as the proceedings operate in rem they are conclusive; insofar as they are in per-sonam they do not bind those not parties.” 3 Id., Sec. 23.11(4), pp. 3468, 3469. The third type, 23(a) (3), covers cases where the class is formed solely by the presence of a.common question of law or fact, is in reality a permissive joinder device, and is termed the spurious class suit. 3 Id., Sec. 23.10, pp. 3442 et seq. In a spurious class action the decree does not bind the class, but binds only those actually before the court. 3 Id., Sec. 23.11(3), pp. 3465 et seq., and authorities there cited.1
The present suit is sought to be maintained as a double-barreled class action, that is by plaintiffs representing a class and against defendants representing a class. On neither side is it claimed, nor can it be, that this is a true class suit. Instead, appellants claim in their brief that it is either a hybrid or a spurious class action or both:
“Appellants submit that this is unquestionably a proper ‘hybrid’ class suit and furthermore that the intervention of the individual members is ancillary to the main suit and established practice in a hybrid or spurious class action after the common questions of law and fact are settled and it is necessary to distribute the property involved between the members of the class. In fact, under Federal Rule (a) (3) the right of the members of the class to intervene is absolute and independent grounds of Federal jurisdiction are not necessary. Intervention in this case would only be after the Court has determined that plaintiffs have riparian rights, what the riparian waters are, and that the Court should take judicial custody of the American share of the waters in order that same might be prorated in times of shortáge.”
Up to the rendition of the declaratory decree this proceeding, at best for appellants, would be a spurious class suit; then, if the court should proceed to execute its declaratory judgment by taking the American share of the waters of the river into custody and setting up machinery for their apportionment in time of shortage, the proceeding may become a hybrid class suit, purely ancillary to the original spurious class suit. See Hoffman v. McClelland, 264 U.S. 552, 558, 44 S.Ct. 407, 68 L.Ed. 845; 54 Am.Jur., U.S. Courts, Sec. 34. The declaratory judgment would be binding only on those parties actually before the court; each new party asserting his rights in the waters of the river, in the same or any other court, would have the right to relitigate the questions already adjudged as between those before the court.
Considering next the effect of the decision under the doctrine of stare decisis,. we observe what the court is asked to determine, viz.: that under tfie laws of Texas, riparian rights are superior to the rights of appropriators; that the *673plaintiffs do have riparian rights, and that defendants do not; what are the riparian waters of the Rio Grande in the reach here described; to declare that plaintiffs’ rights to such riparian waters are superior to the rights of defendants; and to provide a basis for the speedy enforcement of the court’s judgment in the event of a subsequent water shortage. Every question of law presented is one of local State law, as to which the decisions of the Texas State Courts would be controlling as precedents. Hence, the declaratory judgment of the federal court would not be binding as stare decisis. See Public Service Commission of Utah v. Wycoff Co., supra, 344 U.S. at page 247, 73 S.Ct. 236.
Further, if the court should ever reach the stage of executing its declaratory judgment, of taking judicial custody of the Rio Grande within such reach, appointing a water master, and requiring all parties using any such waters to secure prior permission from the water master or the court, then indeed the federal court would pre-empt issues of state law between citizens and residents of Texas and which should be left to state courts or tribunals. It would be hard to conjure up a case more incompatible with a proper federal-state relationship. Cf. Public Service Commission of Utah v. Wycoff Co., supra, 344 U.S. at pages 246, 247, 73 S.Ct. 236. See 6 Moore’s Federal Practice, 2nd ed., Sec. 47.08(7), pp. 3044 et seq., and authorities there cited.
We conclude that the district court properly exercised its discretion in refusing to entertain plaintiffs’ complaint, and the judgment is
Affirmed.
. For an interesting discussion- of the three species of class actions see Kainz v. Anheuser-Busch, Inc., 7 Cir., 194 F.2d 737, 740 et seq. Professor Moore gives an effective summary of what we have been trying to say:
“To summarize: A new subdivision to Rule 23 based on case law and the practicalities of litigation would read as follows:
“(d) Effect of Judgment. The judgment rendered in the first situation [the true class action, Rule 23(a) (1)] is conclusive upon the class; in the second situation [tbe hybrid class action, Rule 23(a) (2)] it is conclusive upon all parties and privies to the proceeding, and upon all claims, whether presented in the proceeding or not, insofar as they do or may affect specific property, unless such property is transferred to or retained by the debtor affected by the proceeding; and in the third situation [the spurious class action, Rule 23(a) (3)] it is conclusive upon only the parties and privies to the proceeding.” 3 Moore’s Federal Practice, 2nd ed., Sec. 23.11(5), p. 3472.