Barnes v. Sabron, 10 Nev. 217

10 Nev. 217 | Nev. | 1875

Lead Opinion

By the Court,

Hawley, C. J.:

This action was brought by plaintiff to recover damages from defendants for the alleged unlawful diversion of water during the months of May, June, July and August, in the year 1873; to enjoin further diversion and to obtain a decree declaring plaintiff to be entitled to the use of all the waters of Currant Creek.

The cause was tried before the court without a jury, and judgment was rendered in favor of defendants for costs.

Plaintiff appeals from the judgment and from the order of the court overruling plaintiff’s motion for a new trial.

The case comes up for review upon the “ statement on motion, for new trial,” ancl tbe appeal is based upon tbe grounds tbat tbe findings are contrary to tbe evidence and that tbe judgment is not supported by tbe findings. It appears from tbe testimony tbat plaintiff and defendants are owners of respective ranches, or farms, situate upon the stream lmown as Currant Creek, in Nye County; tbat defendant Sabron has title in fee to tbe land; bis patent was issued by the State of Nevada, in January, 1874; tbat plaintiff has a contract for a deed from tbe State dated May 15, 1878, said contract being drawn in pursuance of section 9 of tbe act entitled “An act to provide for tbe selection and sale of lands tbat have been or may hereafter be granted by tbe United States to tbe State of Nevada,” approved March 5, 1878 (Stat. 1873, 120); tbat tbe other defendants have only a possessory title to their land; tbat all tbe land is agricultural and requires water for irrigation to make it productive; tbat plaintiff owns two ranches; tbe lower one was located by him in September, 1868, and tbe upper one, designated as the “Sought ranch,” was located in, January, 1869; tbat defendants’ ranches are located on Currant Creek, above tbe land of plaintiff; tbat Sabron’s land was -located in November, 1868, Lem-mon’s in December, 1868, and tbe other defendants are all subsequent in date to tbe Slaght ranch; tbat as early as tbe 6th day of January, 1869, a ditch was constructed on plaintiff’s lower ranch, which, be testifies, “was sixteen inches deep by thirty-six inches wide,” of sufficient capacity to carry, according to tbe testimony of tbe witness Bock, four hundred and thirty inches of water, and diverted water from tbe creek through and upon plaintiff’s land, for irrigating purposes; that in February, 1869, i>laintiff dug another ditch upon another portion of bis land, for tbe same purpose, which, be testifies, “was three feet wide and sixteen to twenty inches deep,” and further testifies tbat no change lias been made in either of these ditches since they were constructed, and tbat be has always used tbe same and bad water running therein, during tbe summer seasons, to irrigate bis land; tbat these were tbe first ditches tbrougb which water was diverted from the channel of Currant Creek; that there is a conflict in the testimony as to the capacity of these ditches, the testimony introduced by defendants tending to show that these ditches Avere not more than twelve inches wide and two or three inches deep; that in April, 1869, defendant Lemmon constructed two ditches, one on the north, the other on the south side of the creek, diverting water from a creek that heads about eighty rods above the head of his ditches, and from springs; that by means of his ditches he has about three hundred and fifty inches of water; that about the fifteenth of April, 1869, a ditch was commenced, on defendant McCullough’s land, of sufficient capacity to carry two hundred inches of water; that in May, 1869, there was a ditch constructed which diverted the water from the creek, upon and through the land of Sabron, that was two feet wide, spade deep, and of sufficient capacity to carry two hundred inches of water; that in April, 1870, on the upper end of Sabron’s land, there was a ditch constructed three feet wide and twenty inches deep —for one hundred yards — capable of carrying all the waters of Currant Creek; that in May, 1869, there was a ditch on the Slaght ranch which, plaintiff testifies, was at its mouth two by three feet, and that its depth, for forty yards, was about two feet; that the Slaght ranch was irrigated by this ditch from the Slaght springs, "which are in the bed of the creek on this ranch, and which, Slaght testifies, “are a drainage of water from above;” that the quantity of water flowing from these springs is variously estimated at from twenty-five to one hundred and fifty inches; that plaintiff cultivated in 1869 — according to his own testimony — about twenty-five acres of land on his lower ranch, in 1870 sixty acres, in 1871 sixty-five acres, in 1872 sixty-seven and one-half acres, and in 1873 seventy-five acres; that there were cultivated in 1869, on the Slaght ranch, about seven acres, in 1870 forty acres, in 1871 eighty acres, and in 1873 fifty acres; that on Sabron’s land, in 1869, there were cultivated about three and one-lialf acres, in 1870 thirty-five acres, in 1871 sixty-five acres, and in 1873 one hundred acres; that Lemmon cultivated, on his laud, in 1869, eighteen acres, in 1870 forty acres, in 1871 fifty-five acres, in 1872 seventy-five acres, and in 1873 about ninety acres; that in 1869 McCullough cultivated about four acres; that the other defendants commenced cultivating and irrigating their lands after the year 1869; that in 1873 there were about one hundred more acres of land cultivated than in any previous year; that plaintiff testifies that in 1869 he used one hundred inches of water, in 1870 from two hundred to three hundred inches,' and that he needed, in 1873, from three hundred to three hundred and fifty inches of water; that the defendants introduced testimony tending to show that plaintiff, in 1869, only cultivated, on his lower ranch, from twelve to thirteen acres, and only used' from fifteen to eighteen inches of water, and that on the Slaght ranch only water enough was used to irrigate the land under cultivation, amounting to eighteen or twenty inches; that the amount of water required to irrigate the crops of grain and vegetables on the land is estimated at from one to two inches per acre, constant use; that the irrigating season commences about the first of May and ends about the last of August; that plaintiff’s crops of grain and vegetables suffered for want of sufficient irrigation in 1873.

These facts we glean from the record, independent of the pretended findings of facts in the court below.

Without drifting, along with counsel, upon the sea of uncertainty as to the law, it becomes necessary, before reviewing the findings, to determine the legal principles that must be considered in connection with the facts of this case. The question whether a right to running waters on the public lands of the United States for purposes of irrigation can be acquired by prior appropriation, as against parties not having the title of the government, has recently been decided in the affirmative in the case of Basey v. Gallagher, in the Supreme Court of the United States. Justice Field, in delivering the opinion of the court, said: “In the late case of Atchison v. Peterson (20 Wall. 507) we had occasion to consider the respective rights of miners to running waters on the mineral lands of the public domain; and we there held that by the custom which had obtained among miners in the Pacific States and Territories, the party who first subjected the water to use, or took the necessary steps for that purpose, was regarded, except as against the government, as the source of title in all controversies respecting it; that the doctrines of the common law declaratory of the rights of riparian proprietors were inapplicable, or applicable only to a limited extent, to the necessities of miners, and were inadequate to their protection; that the equality of right recognized by that law among all the proprietors upon the same stream would have been incompatible with any extended diversion of the water by one proprietor, and its conveyance for mining purposes to points from which it could not be restored to the stream; that the government by its silent acquiescence had assented to and encouraged the occupation of the public lands for mining, and that he who first connected his labor with property thus situated and open to general exploration did, in'natural justice, acquire a better right to its use and enjoyment than others who had not given such labor; that the miners on the public lands throughout the Pacific States and Territories, by their customs, usages, and regulations, had recognized the inherent justice of this principle, and the principle itself was, at an early period, recognized by legislation and enforced by the courts in those States and Territories, and was finally approved by the legislation of Congress in 1866. The views there expressed and the rulings made are equally applicable to the use of water on the public lands for purposes of irrigation. No distinction is made in those States and Territories by the custom of miners or settlers, or by the courts, in the rights of the first appropriator from the use made of the water, if the use be a beneficial one.” (20 Wall. 670.)

The act of Congress approved July 26, 1866, provides: “That whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and, owners of such vested rights shall be maintained and protected in the same.” (14 Stat. U. S., Sec. 9, 253.)

In Basey v. Gallagher, it was decided that it was “very-evident that Congress intended, although the language used is not happy, to recognize as valid the customary law with respect to the use of the water which had grown up among the occupants of the public land under the peculiar necessities of their condition; and that law may be showm by evidence of the local customs, or by the legislation of the State or Territory, or the decisions of the • courts. The union of the three conditions in any particular case is not essential to the perfection of the right by priority; and in case of conflict between a local custom and a statutory regulation, the latter, as of superior authority, must necessarily control.”

This act of Copgress was in force when plaintiff and defendants acquired their respective rights to the waters of Currant Creek. No testimony was offered, on the trial of this case, by either party as to the existence of any local custom, nor is there any statute of this State which recognizes the right of prior appropriation of water for the purposes of irrigation. The act entitled “An act to allow any person or persons to divert the Avaters of any river or stream, and run the same through any ditch or flume, and to provide for the right of way through the lands of others,” approved March 3, 1866, 'and amended March 5, 1869 (2 Comp. L. 415), is not, in our judgment, applicable to this case. It was intended to apply to cases where persons were desirous of constructing and maintaining a ditch or flume through or over the lands of another, and to provide for a right of entry upon such lands for the purpose of surveying such ditch or flume, and to declare how such lands might be condemned where the same.could not be obtained by the consent of the owner. There is no declaration that upon compliance with any of its provisions any right of priority will be secured, and the fact that neither plaintiff nor defendants conformed to the requirements of tbis law does not in any manner affect tlieir rights in this action.

The doctrine that the first appropriator has the superior right, “where the right to the use of running water is based upon appropriation, and not upon an ownership in the soil,” -has been recognized and acknowledged by the' decisions of this Court in Lobdell v. Simpson (2 Nev. 274), and the Ophir S. M. Co. v. Carpenter et al. (4 Nev. 534).

The facts of this case do not call in question the correctness of the decision in Van Sickle v. Haines (7 Nev. 249), where the title to the land had been obtained from the government prior to the acts of Congress herein referred to.

It logically follows from the legal principles we have announced that the plaintiff, as the first appropriator of the waters of Currant Creek, has the right to insist that the water flowing therein shall, during the irrigating season, be subject to his reasonable use and enjoyment to the full extent of his original appropriation and -beneficial use. To this extent his rights go, but no further; for in subordination to such rights the defendants, in the order and to the extent of their original appropriation and use, had the'unquestionable right to appropriate the remainder of the water running in said stream. (The Butte Canal and Ditch Co. v. Vaughn, 11 Cal. 143; The Nevada Water Co. v. Powell et al., 84 Cal. 109.)

In 1870 Congress amended the act of 1866, and provided: “That none of the rights conferred by sections five, eight and nine of the act to which this act is amendatory shall be abrogated by this act, and the same are hereby extended to all public lands affected by this act; and all patents granted, or pre-emption or homesteads allowed, shall be subject to any vested and accrued water-rights, or rights to ditches and reservoirs used in connection with such water-rights, as may have been acquired under or recognized by the ninth section of the act of which this act is amenda-tory.” (16 U. S. Stat. 218, Sec. 17.) The certificate of plaintiff from the State and the patent of Sabron must, under the provisions of this law, be held subject to such vested and accrued water-rights as were acquired by the respective parties under the ninth section of the act of 1886. The findings of fact, in the court below (here numbered for convenient reference), are as follows:

1. “That Currant Creek is not a living surface stream of water, continuously flowing; but that the same is supplied at certain seasons of the year from the snows on the mountains above the valley and from springs having their rise and flow along the banks and bed of the same; that the channel of the same has been formed from the high freshets produced by the melting snow on the mountains.”

2. “That the waters derived from the springs along the banks of said stream would not reach the premises of the plaintiff if the same were to remain unobstructed and uninterrupted; that the waters of the springs along the banks and bed formed by the freshets in the spring of the year sink and entirely lose themselves in the sand, gravel and debris, deposited in the bed formed as above stated; that said waters sink and disappear beneath the surface of the earth; that there is no evidence to establish the fact of the existence of a subterranean vein or channel of water; that the rise of water in the bed formed as above, is from the percolating water in the earth beneath its surface.”

3. “That the plaintiff at all times has had the uninterrupted enjoyment of all the water first appropriated and beneficially used by him; that the amount of water first appropriated and beneficially used by him is continuously supplied to him from the springs rising upon.the lands of plaintiff, formerly known as the Slaght ranch, and below the premises of either of these defendants.”

4. “That at the instance and request of this plaintiff the defendants permitted him the use of water above the last-named springs, to flow to plaintiff’s premises, (and that) it was necessary to confine and flow the same through the ditch of defendant Sabron, in order that the water might connect with the waters of the springs on the Slaght ranch.”

5. “That if all the water above the Slaght ranch had been turned into the bed formed as hereinbefore stated, that tbe same would bay© sunk and disappeared before forming a connection witb tbe Avaters of tbe springs on the Slaght ranch, and thereby have proved fruitless and of no aA'ail to said plaintiff.”

6. “That tbe plaintiff, at tbe time be needed tbe use of tbe water upon bis crops of grain and vegetables, by bis own acts permitted tbe water which bad been turned down to him by defendants, from above, through their ditches, to floAV past bis premises, for tbe use and benefit of other parties below him, thereby contributing to bis damage.”

7. “That by no act or acts of these defendants, or either of them, has this plaintiff sustained damage in any amount whatever.”

Tbe court finds as matters of law: “That tbe plaintiff is not entitled to recover, and that be take nothing by reason of bis suit; that defendants are entitled to recover of said plaintiff their costs in this behalf expended; that no injunction either temporary or perpetual issue against said defendants, or either of them, their agents or employees.”

The duty devolved upon courts, of determining the truth Avhere the testimony is conflicting, is always unpleasant, and often difficult. It belongs almost exclusively to our nisi prius courts, and should always be exercised and determined by an impartial j udgment. It is, indeed, almost impossible for an appellate court to ever satisfy itself upon such questions, so much really depends upon the manner, bearing, character of witnesses, and the peculiar circumstances of each case, which the transcript fails to preserve, and Avhich always give value and weight to testimony. Hence it is that appellate courts are seldom, if ever, inclined to disturb the findings of the court below, where there is a substantial conflict in the evidence, if sufficient appears in the record to support the findings. Where there is a conflict, the question is often presented as to Avhich of the witnesses — apparently of equal credit — had the best opportunity to ascertain, or which was most likely,- on account of his interest, position, circumstances or surroundings, to remember the facts. Again, it does not necessarily íoIIoav that because there is a conflict in the testimony, that one or the other of the witnesses have testified falsely, and that the court must take the "whole statement of one and reject the entire testimony of the other. It is the duty of all. courts first to ascertain whether, or not, the testimony can be harmonized upon any given state of facts, before any part thereof is rejected. With these rules in view we have examined the testimony to ascertain whether the “findings” are supported by the evidence.

It appears from the testimony that Currant Creek is partly supplied at certain seasons of the year from springs having their rise and flow along its banks and bed, but mostly from the melting snow on the mountains. There is no regularity as to the quantity of water, for, to quote the language of several of tho witnesses, “no two seasons are alike,” the amount of water flowing being dependent upon the character of weather during the preceding winter. After a cold winter, when deep snows have fallen, the water flows in greater quantity and for a longer time than after an open winter with but little snow; hence the amount of water varies in the summer season — according to statements made by different witnesses — from nothing to five thousand inches. There is a conflict of evidence as to the real character of this stream; the conflict, however, is principally confined to the question, whether the water therein “continuously flows.” The fact that should have been found by the court below was, whether or not Currant Creek was a natural watercourse and surface stream. To ascertain that fact it was not necessary to determine whether the water was continuously flowing.

“A watercourse,” says Angelí, “consists of bed, banks and water; yet the water need not flow continually, and there are many watercourses which are sometimes dry. There is, however, a distinction to be taken in law between a regular flowing stream of water, which at certain seasons is dried up, and those occasional bursts of water which, in times of freshets or melting of ice and snow, descend from the hills and inundate the country.” (Angelí on Watercourses, Sec. 4.) Tliis distinction was entirely ignored by tlie court below. We are of opinion that the testimony clearly shows that Currant Creek belongs to the first class referred to by Angelí; that it is a “flowing stream of water,” a watercourse as distinguished from water flowing through hollows, gulches or ravines only in times of rain or melting snow. The finding “that the same is supplied at certain seasons of the year from the snows on the mountains above the valley, and from springs having their rise and flow along the banks and bed of the same ” (being sustained by the evidence), gives to this creek the character of a natural watercourse, in so far as finding one is involved. It is well settled that in order “to maintain the right to a watercourse or brook, it must be made to appear that the water usually flows in a certain direction and by a regular channel, with banks or sides. It need not be shown to flow continually, * * * and it may at times be dry, but it must have a well-defined and substantial existence.” (An-gelí, supra.)

Bindings two and five will be considered together. They are, in our judgment, without substantial support in the testimony. It is true that at certain places on the creek, at certain seasons of the year, the waters from the springs flowing in said stream “did sink and disappear beneath the surface of the earth,” but in nearly every instance it is shown either that it occurred when defendants were diverting all, or nearly all, of the waters from the creek, or that the water after sinking beneath the surface appeared within a very short distance in the bed of the stream. It appears from the testimony that at a certain point on the creek where it flows through the land of defendant Sabron, the water flowing in the natural channel from above loses its force, the bed of the stream rises, causing the water to spread out and run in different channels; as the soil is sandy a portion of the water is absorbed and the quantity flowing in the creek below is considerably reduced. In support of these findings defendants introduced considerable testimony, a portion of which we quote. Lemmon testifies that about three miles above tire narrows there are some springs that afford about twenty inches of watei’, which run a short distance and sink; above them it is dry, during dry seasons, for one mile above Kain’s house. Holloway testifies that “in the forepart of August, 1872, about two hundred yards above Travis’s house the water sunk; * * * a short distance below Travis’s house, about fifty yards, the water appeared again in the bed of the stream.” Boyd testifies that in 1870, upon Sabron’s ranch, after water was turned into the creek it did not get to plaintiff’s ranch until the nest year; but he says that in June and July, 1870, after irrigating land on Sabron’s ranch for two days, the water was turned off and that it found its way into the channel aud run down to Slaght’s ranch. English testifies that “if the water should flow unobstructed from "Whitehall's place to the Slaght place, a great deal of it would sink all the way down.” He also testifies that he knew a place on Sabron’s land, between those two places, where the water sinks, for he had “seen it dry for several months in succession;” yet he adds that “in irrigating season, the water, if turned into the natural channel and not obstructed, might run over the bar at Sabron’s place. I have seen it run over the bar plenty of times. * * * I saw water running over the bar last year (1873) in the summer months. * * * I saw water running on the bar in May and June, 1873.” Dennet testifies that in June, 1869, at the point where the water spread out, it did not reach Sabron’s ranch at the lower end. We have quoted the most favorable testimony for defendants, and it, in our judgment, fails to sustain the findings. When all the testimony bearing upon these findings has been sifted from the rubbish found in the record and closely scrutinized, we think the truth is that when the defendants were diverting all the water in the summer season the bed and bar become dry, and if either one of the defendants turned the water down without the co-operation of the others, but a small proportion, if any, of the water thus turned down into the natural channel would ever reach the premises of plaintiff; but if the water was all turned down and allowed to flow in the natural channel without interruption, it would run over the bar and reach plaintiff’s land, although its quantity might be reduced; the amount lost being to some extent dependent on the amount flowing in the creek — the greater the amount the lesser the proportion reduced.

Plaintiff’s appropriation, when made, applied to the then condition of the stream. At that time and for several years afterwards sufficient water flowed down to plaintiff’s premises to irrigate his land independent of the water flowing from the Blaght springs. This was the condition of the creek until defendants commenced using all, or nearly all, the waters from above to irrigate their lands. The fact that their use of the water has caused the channel to dry up, is no excuse for depriving plaintiff of the amount of water to which he i§ entitled by virtue of his prior appropriation. All the defendants procure water from the surface, either from the creek or from springs, and no facts are presented which call in question the legal rights of any of the parties to percolating waters beneath the surface of the earth.

The first clause of finding three is a conclusion dependent upon facts not found by the court. How much water was plaintiff entitled to as the first appropriator ? Upon this important question the finding is silent; yet the court says “that plaintiff at all times has had the uninterrupted enjoyment of all the water first appropriated by him,” and evidently bases this part of the finding upon the latter clause, ‘ ‘ that the amount of water first appropriated and beneficially used by him, is continually supplied to him from the springs rising upon the lands of plaintiff, formerly known as the Slaght ranch, and below the premises of either of these defendants.” How much water is supplied to plaintiff from these springs ? No answer to this question can be found by examining the findings. It is questionable whether such a conclusion based upon such an uncertainty rises to the dignity of a finding of fact worthy of review. From the phraseology of the last clause it may be that the court was of the opinion that plaintiff should be limited in his rights to tbe amount of water actually used by him in the first year of liis appropriation. The words “first appropriated and beneficially used ” are susceptible of that construction. The plaintift’s rights to the water are not, however, dependent upon the amount beneficially used by him in the first year of his appropriation, as will more fully appear in our review of other findings; hence this view of the case cannot be sustained.

The position contended for by respondents’ counsel, that this finding could be sustained upon the ground that plaintiff had failed to produce any title or prove actual possession to more than fifteen acres of land, that being the amount inclosed by a substantial fence, and that he was only entitled to sufficient water to irrigate that number of acres, is equally untenable. From an examination of the record it is manifest that no such question was presented or considered in the lower court, and it is doubtful whether from tho facts of this case we are called upon to consider it. The objection will, however, be briefly noticed. From the testimony it clearly appears that plaintiff cultivated at least one hundred and twenty-five acres on his two ranches. There is no testimony showing that it was necessary to inclose the land in order to cultivate it. The plaintiff must be considered as in possession of all the land actually under cultivation. In addition to plaintiff’s proof of actual possession, he in-, troduced without objection a contract of purchase from the State of Nevada for the lower ranch (three hundred and twenty acres). To this land he has the beneficial estate or interest, as well as the possession, and as such equitable owner and actual possessor is entitled to enjoy all the incidents to the land and its ownership, as well as the land itself. In our judgment, he is entitled to the use of the waters of said creek for the purpose of irrigating the land under cultivation, as well as for his stock and domestic purposes.

Finding four is, to some extent, sustained by the evidence. It is true that at the instance and request of plaintiff the . defendants permitted a portion of the water above the Slaght springs to flow to plaintiff’s premises for a period of from two to four days; it also appears, however, from the testimony, that defendants thereafter refused to allow the water to flow down to plaintiff, claiming a right thereto adverse to plaintiff. In this respect, the finding ought to have been qualified so as to conform to the facts. Again, it was not necessary, as the finding states, “to confine and flow the same through the ditch of defendant Sabron, in order that the water might connect with the waters of the springs on the Slaght ranch.”

We have, upon reviewing other findings, decided that the water, if left unobstructed and uninterrupted, would flow down to plaintiff’s premises, but that its quantity would be diminished. The plaintiff requested defendant Sabron, when the defendants turned the water down, to let it run through his ditch instead of the natural channel, “ because,” says plaintiff, “ the natural channel was dried up, there had been no water turned into it for some time, and it would take the water some time to get to my place through it.” This was the fact, and it ought to have been so stated in the finding.

Is finding six sustained by the evidence ?.

The testimony shows that about the middle of June the plaintiff turned all the water down to his neighbors below. He says that “ at that time their crops were suffering badly for want of water;” that his own crops “had ju'st been irrigated once, but were suffering on the edges some,” and that if he had had water sufficient after this,‘ ‘ his crops would have been good.” The water used by Cook must be considered as having been used by the plaintiff. Cook was farming on tlie lower end of plaintiff’s lower ranch, and had plenty of water to irrigate some thirteen acres of land leased from plaintiff; he used the water during the months of May, June, July and August, and at times when plaintiff needed the water on his own crops. When Cook leased this land plaintiff agreed to furnish him with water. Plaintiff had an undoubted right to furnish the water to his tenants, or to allow them to use it; but if by allowing them to use more than was necessary to irrigate the leased land be was deprived of the water for bis own use, be could not bold defendants responsible for any damages to bis crops wbicb were caused by allowing bis tenants to use more water than was necessary to irrigate their lands; certainly not, if defendants allowed the quantity of water to wbicb be bad a prior right to flow down to bis premises. Tlie water used by English must also be considered as having been used by the plaintiff. English testifies that be used water iu 1873, on Sabron’s ranch, without permission of any one— “when it came down I took it.” It seems that plaintiff claimed the land which 'English cultivated, and knew that be was using the water when it came down and never objected to it; in fact, English testifies that plaintiff told him be could have the water. The plaintiff not only allowed Cook and English to have a very liberal supply of water (more, in our judgment, than appears from the testimony to have been necessary to irrigate their lands), but allowed the water to rub down to bis neighbors below him at times when bis own crops needed irrigation. It is difficult to determine from the record the exact amount of water that was allowed by plaintiff to pass bis premises. Lemmon testifies that on the 15th of June be was at plaintiff’s ranch and saw water running in the creek past jDlaintiff’s premises. “I am positive,” says witness, “there was three hundred inches; think there was five hundred inches.” On the 6th of July, Lemmon was at plaintiff’s ranch, and he testifies that at that time a portion of the water run in the creek-bed and a portion in a ditch; that he could not say whether plaintiff was using this water, as he did not go below the house, but plaintiff told him “the water was going below McKenzie.” Again, about the first of August, Lemmon had another conversation with plaintiff about the ¡water. Lemmon asked him if he got the water, and he said in reply that “he got all he wanted.” Boyd testifies that he was at plaintiff’s ranch twice, about the last days of June, and “that there was a large body of water running down the creek both times.” He describes its bulk at three or four feet wide and two inches deep, with a swift current. Plaintiff commenced harvesting his crops of grain on the 21st day of July, and finished in the early part of August. It is shown that he raised a better crop than defendant Sabron, who at all times had plenty of water.

In the application of this testimony to the question under consideration it must be borne constantly in mind that the defendants turned down the water and allowed it to flow to plaintiff at or about the time plaintiff allowed it to run to -waste. In this connection must also be considered the declarations of plaintiff as to the condition of his crops and the amount of water needed to irrigate the same. Sabron testifies that a short time after the 4th of July, 1873, he was at plaintiff’s lower ranch; that plaintiff “complained of not having plenty of water,” and said to witness, “If you will let me have water for the wheat I can get along; * * * the upper ranch is all right;” and that the defendants let him have water to irrigate his wheat. McCullough testifies that between the 4th and 15th of July, he ■was on plaintiff’s ranch; that plaintiff then said that if defendants would let him have water four days he could save his Avheat; that he did not want any more water on the Slaght place — it was safe. “We agreed to let him have water and he got water.”

If plaintiff did not require the full amount of his appropriation, he could not hold the defendants responsible in damages for not turning it down to him; he was only entitled to as much water — within his original appropriation —as was necessary to irrigate his land, and was bound, under the law, to make a reasonable use of it. In a dry and arid country like Nevada, where the rains are insufficient to moisten the earth, and irrigation becomes necessary for the successful raising of crops, the rights of prior appropriators must be confined to a reasonable and necessary use. The agricultural resources of the State cannot be developed and our valley-lands cannot be cultivated -without the use of water from the streams, to cause the earth to bring forth its precious fruits. No person can by virtue of a prior appropriation claim or bold any more water than is necessary for the purpose of the appropriation. Reason is tbe life of the law, and it would be unreasonable and unjust for any person to appropriate all the waters of a creek when it was not necessary to use the same for the purposes of his appropriation. The law which recognizes the vested rights of prior appropriators has always confined such rights within reasonable limits. “We say within reasonable limits,” with the court in Basey v. Gallagher, “for this right to water, like the right by prior occupancy to mining ground, -x- * * ig not unrestricted. It must be exercised with reference to the general condition of the country and the necessities of the people, and not so as to deprive a whole neighborhood or community of its use and vest an absolute monopoly in a single individual.” What is a reasonable use depends upon the peculiar circumstances of each particular case. In this case plaintiff should not be confined to the amount of water used by him in 1869 or 1870, nor his rights regulated by the number of acres he then .cultivated. He did not cultivate more land, because “his team was poor” and he “had no money to hire help.” The object had in view at the time of his diversion of the water must be considered in connection with the actual extent of his appropriation. If the capacity of his ditches is greater than is necessary to irrigate his farming land, he must be restricted to the quantity needed for the purposes of irrigation, for watering his stock and for domestic purposes. If, however, the capacity of his ditches is not more than sufficient for those purposes, then, under all the facts of this case, no change having been made in either of plaintiff’s ditches since they were constructed, and no question of the right of enlargement being involved, he must be restricted to the capacity of his ditches at their smallest point; that is, at the point where the least water can be carried through them. (Ophir S. M. Co. v. Carpenter et al., 6 Nev. 393.)

If defendants could save any water by turning it around the bar on Sabron’s land and thereby procure a greater quantity for their own use, they have a right so to do. Moreover, as it is shown by plaintiff’s' testimony that it is only necessary to irrigate bis lands three or four times during the season, usually from ten to fifteen days apart, the defendants can only be required to turn the water down to him at those periods.

We think the rule is well settled, upon reason and authority, that if the first appropriator only appropriates a part of the waters of a stream for a certain period of time, any other person, or persons, may not only appropriate a part, or the whole of the residue and acquire a right thereto, as perfect as the first appropriator, but may also. acquire a right to the quantity of water used by the first appropriator at such times as not needed or used by him. In other words, if plaintiff only appropriated the water during certain days in the week, or during a certain number of days in a month, then the defendants rvould be entitled to its use in the other days of the week, or the other days in the month.

The Supreme Court of California, in Smith v. O'Hara, have announced what appears to us to be the correct doctrine. “It is usually the case,” says the court, “that the amount of water to which the several persons claiming its use are entitled, is measured by inches, according to miners’ measurement, or by the capacity of the ditches through which it is conducted from the stream,- but there is no reason why the amount may not be measured in some other mode. They hold the amount appropriated by them respectively as they would do had the paramount proprietor granted to each the amount by him appropriated. The right to use the waters, or a certain portion of them, might be granted to one person for certain months, days, or parts of days, and to other persons for other specified times. An agriculturist might appropriate the waters of a stream for irrigation during the dry season, and a miner might appropriate them for his purposes during the remainder of the year. And so may several persons appropriate the waters for use during any different periods. There is no difference in principle between appropriations of waters measured by time and those measured by volume.” (43 Cal. 376.)

Upon a careful review of tlie evidence, we are of opinion that plaintiff was negligent in allowing bis tenants to use more water than was necessary to irrigate their crops, and also in allowing the water which defendants turned down to him to run to waste when his own crops needed irrigation. By these acts we think he caused the damages which, he claims, resulted from his. failure to procure a full crop for want of irrigation. We think, although the testimony is not clear, and many of the findings of the court are unsatisfactory and some, of them contradictory, that there is a substantial conflict in the evidence to warrant the conclusion reached by the court that plaintiff contributed to his own damage. In entertaining this view of the case, we must not be understood as deciding that defendants were wholly ivith-out fault. It is the immediate consequences of the injurious acts that must be regarded in assessing damages, and even if defendants were to some extent in fault (and we ■ think they were) they still had the right to show that the injury of which plaintiff complained was the immediate result of his own negligence, and was not in any way attributable to any act of theirs. Does this finding, however, support the judgment? We think not.

It does not necessarily follow from the language used that plaintiff could not recover. The principles that control this case are not, as counsel assume, analogous to the rules applied in actions brought to recover damages on the ground of defendants’ negligence, wherein such a finding sustains the judgment for costs, in favor of defendants, upon the theory that both parties were at fault in producing the injury complained of, and that the plaintiff in the action so contributed'to his own damages as to render it impossible for the court to apportion the damages, or to exactly ascertain how much each party contributed. In such actions the rule of contributory negligence is applied to prevent any recovery by either party. In sustaining the finding we must not be understood as holding that because plaintiff was at fault in allowing the water to run to waste, that his negligence in this respect would authorize or justify the defendants in thereafter withholding from him the amount of water to which he was legally entitled. It was the duty of the defendants every fifteen days, or thereabouts, as plaintiff might need the water, to turn down a sufficient quantity, within plaintiff’s appropriation, required to irrigate his lands, provided always, that he was not by other means supplied with sufficient water for that purpose; and if they did not do so, or if plaintiff did not, on account of their wrongful acts, get all the water within his appropriation that was necessary for the irrigation of his crops, then, notwithstanding his own previous negligence, he would be entitled to recover at least nominal damages and costs, with a decree for equitable relief. There is another reason why the judgment cannot be sustained upon this finding. Defendants, in their pleadings, deny that plaintiff is entitled to any of the Avaters of Currant Creek except the waters flowing from the springs situate upon the Slaght ranch, below the lands orvued by defendants, and assert an adverse right to all the waters flowing in said creek above said springs. The evidence shows that Avhen defendants allowed the water above said springs to Aoav down to plaintiff’s premises it was as a favor to plaintiff; that when they after-wards refused they based their refusal upon the ground that they had a better right to the use of the water. This Avas, in our judgment, such a diversion as by lapse of time might ripen into a prescriptive right; and although plaintiff’s crops of grain and vegetables were not actually damaged by the acts of defendants, it was, nevertheless, an injury to plaintiff’s rights and entitled him to recover nominal damages, and to an equitable decree declaring the amount of water to which he is entitled.

The rule of law is, that in cases for the diversion of water, where there is a clear violation of a right and equitable relief is prayed for, it is not necessary to show actual damage; every violation of a right imports damage; and this principle is applied whenever the act done is of such a nature as that by its repetition or continuance it may become the foundation of an adverse right. (Parker v. Griswold, 17 Conn. 288; Webb v. The Portland Manufacturing Company, 3 Sumner C. C. 189; Blanchard et al. v. Baker et al., 8 Greenleaf (Me.) 253; Stein v. Burden, 24 Ala. 130.)

The findings of fact by the court are like a special verdict of a jury, and must be taken in connection with the pleadings to support the judgment. (Swift v. Muybridge, 8 Cal. 445; Reynolds v. Harris, 8 Cal. 617.) They cannot be detached from each other, but must be read together for the purpose of ascertaining their meaning (Millard v. Hathaway, 27 Cal. 140; Kimball v. Lohmas, 31 Cal. 156); and if there is any conflict or discrepancy between general and specific findings the specific findings must control. (Hidden v. Jordan, 28 Cal. 302.) Applying these principles to the case under consideration it becomes at once apparent that the judgment rendered by the court was based upon the specific findings that support the pleadings of defendant, which allege that plaintiff’s rights are confined to the water flowing from the springs on the Slaght ranch, and for this reason upon the merits of the case we are satisfied that the judgment ought to be reversed.

The preliminary objections urged by respondents’ counsel are not, in our judgment, well taken. We think the court below was authorized, upon the application for a new trial under the specifications in the sixth subdivision of section 195 of the Practice Act (Stat. 1869, 226), to decide whether the findings sustained the judgment, and that its action in regard thereto can properly be reviewed by this Court on an appeal from the order overruling plaintiff’s motion for a new trial.

The judgment and order appealed from are reversed and cause remanded for a new trial.

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Concurrence Opinion

Beatty, J.,

concurring:

In this case I concur in the judgment of the court upon the following grounds:

The defendants, by their answers, admit and justify the diversion of the waters of Currant Creek above the Slaght Springs, asserting that they did not naturally flow down to that point in the bed of the stream, and consequently that plaintiff could have made no appropriation of any waters except those of the springs. They claim for themselves a prior appropriation of all the waters of the creek flowing above the springs. Such being the defense set up, if the plaintiff could prove that the waters of Currant Creek did naturally flow down to his premises, that he made an appropriation of the whole or any part of the water flowing from above the Slaght Springs prior to any appropriation by the defendants, and that they afterwards diverted the whole of the water above the springs at times when he needed it, and by virtue of his appropriation was entitled to it, — upon such a showing the court should at least have decreed the amount of water that he had first appropriated, enjoined the defendants from any future diversion of so much water, and given him a judgment for his costs, and that whether he proved any specific amount of damages capable of being exactly assessed or not. But the court, among other findings upon which it bases the judgment against the plaintiff for costs, finds that he contributed to his own damage by not making use of all the water that he might have used. That is to say, the court holds, that if a man is deprived of three-fourths of the water he is entitled to by the wrongful act of another, he can obtain no relief, legal or equitable, if he has allowed any portion of the remaining fourth to run to waste, because he has thereby contributed to his own damage. It is scarcely necessary to say that the doctrine of contributory negligence has no application to such a case, and consequently that the finding in question is wholly immaterial.

The judgment must, therefore, be sustained upon the other findings if sustained at all. In all the balance of the findings there is but one material fact asserted, and that is, in effect, that Currant Creek does not naturally flow down to plaintiff’s premises, but sinks above the Slaght Springs; all the rest is merely argument to prove this fact or deduction from it, and the finding is opposed to all the testimony in the case. It is, moreover, inconsistent with the other finding, that plaintiff contributed to his own damage; for to say that plaintiff contributed implies that the defendants also contributed, and they could only contribute by diverting water which would have flowed down to plaintiff except for their diversion. The motion for a new trial should have been allowed.