6 Nev. 77 | Nev. | 1870
By the Court,
“ Sec. 9. And be it further enacted, that whenever by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes have vested and -accrued, that the same are recognized and acknowledged by the local customs, laws and the decisions of the Courts, the possessors and owners of such vested rights shall be maintained and protected in the same, and the right of way for the construction of ditches and canals, for the purposes aforesaid, is hereby acknowledged and confirmed : Provided, however, that whenever after the passage of this Act any person or persons shall in the construction of any ditch or canal, injure or damage the possession of any settler on the public domain, the party committing such injury or damage shall be liable to the party injured for such injury or damage.”
This section, which by its turbid style and grammatical solecisms, more surely than by the enacting clause of the Act, is shown to be a production of Congress, may be found on page 253, Vol. 14, of the Statutes at Large.
In its adoption there appear to have been three distinct objects in view: first, the confirmation of all existing water rights; second, to grant the right of way over the public land to persons desiring to construct flumes or canals for mining or manufacturing purposes; and third, to authorize the recovery of damage' by settlers on such land against persons constructing such ditches or canals for injuries occasioned thereby. That this section grants the right of way over the public land to all who may desire to construct ditches or canals for mining or agricultural purposes, is about as clear and
It is argued, however, that the privilege thus granted is not available in this case, because:
1st. The plaintiff pleads and relies on a statute of this State for the right claimed by him, and:
2d. Sufiicient facts are not alleged to bring him within the Act-of Congress.
Undoubtedly, the plaintiff claims the right to construct his flume from the law of 1866 enacted by the State Legislature, and pleads all the facts necessary to bring him within its provisions: so also all - the facts necessary to bring him within the Act of Congress are pleaded. Under that Act, as we understand it, nothing is necessary to be shown except that the construction of a canal or ditch is desired for some mining or agricultural purpose, and that the land over which it is to be constructed is public. These facts are shown in the complaint alleging the building of the ditch or flume for certain mining purposes, that the land claimed by the defendant is public land, that it is necessary to construct the ditch over it; and that he unlawfully obstructs and prevents its construction over the premises claimed by him. Surely, nothing further is required. All the facts necessary to bring him within either law being pleaded, there appears to be no better reason for holding that he is confined
It is not the intention here to determine whether the plaintiff has the right to divert the water or tailings from the defendant’s premises. He has not answered, nor is it shown that he has the right to the water or tailings claimed by him as against the plaintiff. If hé has not, then certainly the plaintiff has not only the right to construct his flume, but also to divert the water and tailings. If however, on the other hand, the defendant has the better right, then as a matter of course the plaintiff could have no right to cause the diversion of water from him. This is a question not determined in this proceeding; but the plaintiff seems to have made out a prima facie case by his complaint and upon the hearing of the application, to entitle him to the order made in his favor. At least, as the granting of these preliminary orders rests very much in the discretion of the Court below, we would not feel authorized in reversing its action upon the showing made, especially as no answer is filed, and it is not known that any defense to the merits exists.
If Ford had the title to the land here in question, we are inclined to believe with counsel that an order of this kind, which in effect places the plaintiff in possession of a portion of it, ought not to be granted, for it would be ejecting the owner before the trial of the . right. Here however, it is admitted that the land is public; that being the case, Congress had a perfect right to grant the right of way over it: having done so, Ford, has no more right to complain than a person who had never been in the possession.