17 Nev. 133 | Nev. | 1882
Lead Opinion
By the Court,
This action is brought for the purpose of restraining defendant from using the waters of Indian creek, and recovering damages for an alleged unlawful diversion thereof. ■ The parties to the suit are engaged in the cultivation of land in the valley through which the creek runs. Their rights to the use of the waters are based upon appropriation. Appellant, whose farming land is ten miles below that of respondent, claims the right to use the water by virtue of an earlier appropriation than that of respondent.
Judgment was rendered in favor of defendant, awarding him a limited quantity of the water.
One of the points presented by this appeal is whether this conclusion is. warranted by the evidence, and this embraces the priority of appropriation.
In the years 1874 and 1875 one John Jones, cultivated the-land of the defendant, and irrigated the crop growing thereon with the waters of the creek. In the fall of the year 1875 Jones sold his interest in the premises to the defendant, who-entered into the possession during the month of November, of that year, and in the following spring, and continuously since, used the portion of the water allotted him by the court for the-purpose of irrigating and for domestic wants.
This 'testimony shows that defendant’s right is based upon an earlier appropriation of the waters, than that of the-plaintiff.
There was a slight conflict in the testimony, but it is the-province of the jury to determine the weight to be attached to conflicting testimony. The verdict is. fully warranted by the testimony.
The remaining exception arises upon the- admission in evidence, against plaintiff’s, objection, of a duplicate receipt of the receiver of the .land office of the United States- for his fees, and compensation for the entry of defendant’s- lands as homestead under the acts of congress., approved May 20, 1862, and March 21, 1864.
No question of the title to the lands occupied by the parties, plaintiff or defendant, was involved.
The case turned upon the question of priority of appropriation of the waters. The judgment was rendered upon the theory that defendant had a right to use the amount of water apportioned to him .by virtue of an appropriation earlier than that of plaintiff. This being the case, no injury could have resulted to plaintiff by the introduction of the register’s, receipt, although its introduction in evidence was. error.
' Judgment and • order overruling motion for new trial affirmed.
Rehearing
on rehearing :
In affirming the judgment of the district court in this case-we held that the failure of the appellant to connect himself in interest with those who first appropriated the water of the creek; remitted him to the appropriation made by himself in 1876 as the inception of his right.
To escape this position, and for the purpose of showing that he had acquired by mesne conveyances the rights of the early appropriators, a diminution of the record was suggested for the purpose of bringing up the documentary evidence and the special verdict.
No documentary evidence has been presented, but the special verdict has been certified to us.
The respondent moves that it be stricken from the files for several reasons; among others, that it shows the judgment ought not to be disturbed, irrespective of the question of priority of appropriation.
The defense to this action was based upon a right in the defendant to a portion of the waters in the creek.
The first special issue presented to the jury was: “Did the plaintiffs grantors ever appropriate all of the waters of Indian creek, in Esmeralda county, Nevada?” To which the jury replied: “ No.”
The judgment of the district court awarded six inches of the waters to the respondent.
The statement does not contain any testimony touching the-portions of the stream to which the parties were respectively entitled. We cannot, therefore, say that respondent is not entitled to the amount of water awarded him by the judgment.
But it is claimed in behalf of appellant that the special issue is unsupported by the evidence, and that the uncontradicted evidence shows that appellant and his grantors, appropriated all of the waters of the creek.
One of the witnesses testified that in the year 1869 all of the waters of the creek were used in irrigating appellant’s, lands. The others testified to the use of “ all the waters of the creek that flowed down to the point where the water was diverted to plaintiffs land from Indian creek.”
The exceptional use of all the waters- in the- year 1869 is insufficient to establish a right thereto against respondent.
Further, during, the years 1864, 1865, 1866, 1870, 1873, 1874 and 1875, some of the waters of the creek were used upon the land of respondent. He has not connected himself in interest with this use. But the fact that the waters were used, although by others, sustains the finding that neither appellant nor his predecessors in interest used all of the waters.
The motion must be granted and the judgment affirmed.
It is so ordered.
