19 Nev. 69 | Nev. | 1885
By the Court,
This case presents an interesting question which has never been decided in this state. Appellant is the owner of certain lands which require irrigation, and the water used for this purpose flows, by the laws of gravitation, onto the adjacent- and lower lands owned and cultivated by respondent. This action was instituted by respondent to recover damágestíFhis' land and crops alleged to have been caused by the waste water flowing from appellant’s land, and for an'injunction. The facts as found by the court, at the request of plaintiff, are as follows: “ That plaintiff has been iñ the possession of and has cultivated all of the lands described in the complaint, except the S. W. quarter of section 20, township 19 N., R. 20 E., since A. D. 1862, and enteredTitikrpossession of and cultivated said last-mentioned lands since 1875; that defendant entered into pos
In a dry and arid climate, where irrigation is necessary in order to cultivate the soil, the question as to the rights of the proprietors of upper and lower lands in regard to the waste water has seldom arisen, because, as a general rule, the lower land-owner is willing to receive, dispose of, and profit by the use of all water flowing from the upper lands of another in irrigating his own land. It is seldom that any land-owner in this state has occasion to complain of too much water. The cry is, usually, not for less, but for more. As to the flow of water
Washburn, referring to the respective rights of adjacent land-owners, in respect to waters which fall in rain, or are in any way found upon the surface, but not embraced under the head of streams or watercourses, nor constituting permanent bodies of water, like ponds, lakes, and the like, before reviewing the authorities upon the subject, says; “ It may be stated, as a general principle, that by the civil law, where the situation of two adjoining fields is such that the water falling, or collected by melting snows, and the like, upon one naturally descends upon the other, it must be suffered by the lower one to be discharged upon his land, if desired by the owner of the upper field. But the latter cannot, by artificial trenches, or otherwise, cause the natural mode of its being discharged to be changed to the injury of the lowrer field, as by conducting it by new channels, in unusual quantities, onto particular parts of the lower field.” (Wash. Eas. 450.)
In Livingston v. McDonald, 21 Iowa, 160,
In the case under consideration, the facts are different from any of the decided cases. Here both .parties are farmers, engaged in the ordinary cultivation of their respective lands by artificial irrigation. To conduct and carry on this business profitably, it is absolutely necessary to bring water from points where it can be obtained, remote and distant from their lands. Without the reasonable use of this water, their lands would be comparatively worthless. The law should not be so construed as to deny or materially abridge the rights of either party to prosecute his agricultural pursuits, or deprive him of any of the incidents necessary to cultivate and improve his lands. We are of the opinion that the upper land-owner, while having the undoubted right to make a reasonable use of the water for irrigation, must so use, manage, and control it as not to injure his neighbor’s land. Sic utere tuo ut alienum non Uedas. He should not be permitted to make his estate more valuable by an act which renders the estate of the owner of the lower lands less valuable. This general doctrine is derived from the civil law; it is in harmony with the rules established by a majority of the decided cases having any analogy to the case at bar, and it is, in our opinion, founded upon substantial reasons of justice and equity. In the discussion of these principles, the words of Pothier are often quoted with approval: “Each of the neighbors may do upon his heritage what seemeth good to him; in such manner, nevertheless, that he doth not injure the neighboring heritage.” (Shane v. Kansas City R. Co., 71 Mo. 245.
In Livingston v. McDonald, supra, the court said: “ In examining this subject, and in seeking to settle it upon proper principles, it would be inexcusable to overlook the doctrines of the civil law respecting it. That law, embodying the accumulated wisdom and experience of the .refined and cultivated Roman people for over a thousand years, though not binding as authority, is often of great service to the inquirer after the principles of justice and right. * * * In the determination of this case, we recognize the general rule that each may do
But it is claimed by appellant that he has acquired the right by prescription to have the waste water flow down to and upon the lands of respondent, and that the court erred in giving certain instructions in relation to this right. We are of opinion that the instructions substantially embody correct principles of law that are applicable to the facts of this case; that the objections urged are more technical than substantial; and that it is apparent, even if the instructions were erroneous to some extent, that the jury could not have been misled thereby to the prejudice of appellant. It is useless to discuss the particular phraseology in the instructions to which objection is made, for it is manifest, from the findings of the court and jury, that appellant failed to prove the essential facts necessary to enable him to defeat the action on this ground. The court, at the request of defendant, found the following facts: “That from 1870 to 1879, both years inclusive, defendant irrigated the lands mentioned in the answer herein, and used water thereon, in sufficient quantity to raise valuable crops of grass and hay; that the quantity of water so used by defendant, during this period, varied in quantity each year, but was always sufficient in amount to properly and reasonably irrigate his said lands; that the waste water arising from such irrigation flowed upon plaintiff’s lands; that such flowing was open, notorious, continuous, peaceable, and uninterrupted, and under claim of right, and an infringement of the estate of plaintiff; but that the quantity of water flowing from this irrigation, and the manner of its use, was not the same, but different, during the years, and it was not shown or determined what quantity of surplus or waste water was so permitted or suffered to flow or drain upon plaintiff’s land, during any time of said period, and the same did not result in any damage to plaintiff’s estate.”
In the findings requested by the plaintiff, the court says: “ That defendant has steadily increased the quantity of water used upon this land, and the surplus thereof, since A. D. 1869; that neither defendant nor his predecessors in interest, at any time for five years, continuously, under claim of right, openly notoriously, peaceably, and with the acquiescence of the plaintiff,-[did] flow, or suffer or permit to flow, any certain
The jury, in answer to the special issues submitted in this case, found that the defendant, in the irrigation of his lands in the years 1880,1881, and 1882, used “more water than was used in preceding years ”; that the surplus water discharged upon plaintiff’s land in these years was “ greater in quantity than in previous years”; that the plaintiff objected against the discharge of water upon his lands, and remonstrated with defendant “ whenever water was discharged on his land to his claimed damage”; that in 1881 and 1882 the waste or surplus water flowing upon plaintiff’s land was twice turned off, and the flow thereof 'ceased, “ upon request or demand made by plaintiff.” All of these findings are sustained by the evidence.
A mere acquiesence or permission on the part of the respondent, to allow the flow of the waste or surplus water in such limited quantity as did his land no injury, cannot be so construed as to give appellant a prescriptive right to increase the flow to such an extent as to damage respondent’s land. (Blaisdell v. Stephens, 14 Nev. 23.
The right acquired by prescription is only commensurate with the right enjoyed. The extent of the enjoyment measures the extent of the right. The right gained by prescription is always confined to the right as exercised for the full period of time required by the statute, which is, in this state, five years. A party claiming a prescriptive right for five years, who, within that time, enlarges the use, cannot at the end of that time claim the use as enlarged within that period. To acquire the right, it was incumbent on appellant to prove that he had, for the full period of five years, flowed the water upon respondent’s land to such an extent as to occasion damage and give respondent a right of action. The right by prescription had its origin in a grant, and where a grant is lost, the user is the
There is no assignment of error which authorizes this court to consider any of the objections urged by appellant against the injunction granted by the court. The judgment of the district court is affirmed.
86 Am. Dec. 563.
1 36 Am. Rep. 480.
. 33 Am. Rep. 523.