Hobart v. Wicks

15 Nev. 418 | Nev. | 1880

By the Court,

Beatty, C. J.:

This is a suit to enjoin the diversion of a stream of water from its natural channel upon and across the lands of the plaintiff. ■

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

The plaintiff appeals from the judgment and from an order denying his motion for a new trial.

The only point made in support of the appeal, is that the conclusions and judgment of the district court are against the findings of fact, and not supported thereby. The material findings of fact are, that the defendants and their predecessors in interest appropriated the waters of Alder creek, in 1868, for the purpose of operating a Y flume for tlie transportation of wood, lumber, and timber, from the mountains to a point on the Pacific railroad near Bronco, in Washoe county. In that year they diverted the water from the creek into their flume at a point below the lands now owned by the plaintiff. Subsequently, and prior to July, 1872, they constructed a branch flume extending further up the stream, and in that month diverted the water of the creek into said branch flume, at a point above the lands now owned by plaintiff. Since the year 1872, defendants have continued to use both the original flume and the branch flume as their business required, sometimes diverting all the water at the original point of diversion, and at other times diverting it at the point where it was taken out in 1872.

The plaintiff became the owner of the lands lying on the creek between the two points of diversion in 1873, after the appropriation of the water by the defendants, and after they had begun to divert it at the upper point, and to use it, as it was convenient to them, to operate either the old flume or the branch flume. Prior to that time said lands were vacant and unoccupied timber lands belonging to the United States.

Upon these facts it is adjudged that the defendants are owners of the water of the creek and entitled to use it, and the whole of it, during the ordinary stages of its flow for the purpose of operating their flumes and the ditches connected therewith.

We can not see that the decree awards to the defendants any greater right than the facts above stated entitle them to. They had acquired by appropriation. the right to all the water- in the stream before the plaintiff purchased his lands, and while they were still the property of the United States. Defendants had not only appropriated the water for their original flume, but they had constructed their branch flume, and commenced the practice of diverting the water from the channel of the stream at the upper as well as the lower point, as their convenience dictated. If they had a right to do this before plaintiff’s purchase — and we see no reason for denying such right — then he has no reason to complain that they continue the practice. What they were doing in 1873, at the date of plaintiff’s purchase, they ■were doing with the express permission of the United States (Stat. July 26, 1866, sec. 9), the then owner of the lands, and plaintiff took subject to their right.

We do not agree with counsel for appellant that there is anything inconsistent in the claim of defendants to divert the water now at one point and now at the other. It may be necessary, and presumably is necessary, to do so in the proper conduct of their business.

The judgment and order appealed from are affirmed.