17 P. 12 | Nev. | 1888
The facts are sufficiently stated in the opinion. This is an action to recover damages for the alleged wrongful diversion and use of the waters of Niagara creek, and the three southernmost branches of Snow creek, described in the complaint, and for equitable relief against further diversion.
In his answer defendant prays for a decree adjudging to him the right to use the waters of Snow creek, or a sufficient quantity thereof to irrigate so much of his land as may be irrigated by said waters; that his right to so much of the waters of Niagara creek as he had diverted through "Mahan's Ditch" be adjudicated superior to that of plaintiff; and that plaintiff be perpetually enjoined from interfering with his said rights. The action was commenced April 13, 1881, and on July 26, 1881, a trial was had which terminated in a verdict by the jury on eighty-three special issues of fact, and a general verdict in favor of plaintiff, for five dollars damages. On the same day the court made and filed certain findings, and plaintiff and defendant, each by his counsel, made a motion for judgment in his favor, upon the pleadings, general verdict of the jury, special verdict of the jury, and the findings of the court, which motions were taken under advisement by the court, but never decided. No further action was taken in the case, so far as the record shows, by the court or either party, until March 26, 1887, when plaintiff, by his present counsel, gave notice of a motion for judgment on the pleadings, general and special verdicts of the jury, and findings of the court before mentioned. When the last named motion came on to be heard, counsel for defendant objected to the hearing of the same, and the granting thereof, upon the ground that plaintiff had been guilty of laches, negligence and inexcusable delay in making the same. The objection was overruled, and an exception taken. Thereupon counsel for defendant proved that Hon. J. H. Flack, the judge before whom the case was tried, died in October, 1881, and, after the argument, judgment was rendered and *95 entered against defendant in the sum of five dollars damages; and it was ordered, adjudged, and decreed that, at the time this suit was brought, plaintiff was and is the owner of the usufruct, and entitled to use and enjoy, for the irrigation of the land described in complaint, all the waters of said Niagara creek, and all the waters naturally flowing in the two southernmost branches of said Snow creek at all times and whenever he requires the same for the proper irrigation of the land described in complaint; that defendant was and is the owner, and entitled to use for irrigation of the land described in his answer, and for stock and domestic purposes, all the waters of Snow creek naturally flowing therein, except that part naturally flowing in the two southernmost branches of said Snow creek; and each party was perpetually enjoined from depriving the other of any rights to him belonging, as set forth in the decree. Plaintiff recovered his costs.
1. It is urged that the court erred in granting the plaintiff's motion for judgment, on account of his laches, negligence, and inexcusable delay in making the same. From the facts above stated, it appears that each party claimed to be the owner, and entitled to the use, of the waters in dispute, and asked affirmative relief against the other in relation to the same; that on the date of the verdicts, each submitted a motion for judgment in his favor; that the motions were taken under advisement by Judge Flack, who died October 1881, before rendering judgment in the cause; that plaintiff made another and similar motion for judgment before Judge Fitzgerald in March, 1887, which was granted. It is also stated by counsel for defendant in their printed briefs, and is the truth, that Judge Bigelow, who was plaintiff's attorney when the suit was brought and tried, succeeded Judge Flack by appointment and election, and was the presiding district judge in Elko county, wherein the cause was tried, until January, 1887, when, for the first time after Judge Flack's death, a judge competent to render judgment was provided. Although it is not claimed that there is any statute of limitations within which this case falls, it is undoubtedly true, as claimed by the learned counsel for defendant, that all rights of action may be lost by lack of diligence in asserting them; and, in proper cases, actions may be dismissed for want of prosecution, and oftentimes equity refuses to aid a party who has slept upon his rights. "To let in the defense *96
that the claim is state, and that the bill cannot, therefore, be supported, it is not necessary that a foundation shall be laid by any averment in the answer of the defendants. If the case, as it appears at the hearing, is liable to the objection by reason of the laches of the complainants, the court will, upon that ground, be passive and refuse relief. Every case is governed chiefly by its own circumstances; sometimes the analogy of the statute of limitations is applied; sometimes a longer period than that prescribed by the statute is required; in some cases a shorter time is sufficient; and sometimes the rule is applied where there is no statutable bar. It is competent for the court to apply the inherent principles of its own system of jurisprudence, and to decide accordingly." (Sullivan v. Railroad Co.
In the light of the above decisions let us now examine the claim of error under consideration. Conceding for the present that, aside from the question of laches, plaintiff was entitled to the relief granted, the granting or refusing of the motion was within the legal discretion of the court, and its action will not be disturbed unless such discretion was abused. (Hayne N. T. App. Sec. 289.) Lapse of time is the only evidence of laches or abandonment of the cause shown by the record. Judge Bigelow was disqualified except to call another judge or transfer the case to another judicial district for decision. We shall not stop to enquire whether he had power, or it was his duty, to dispose of it by either method upon his own motion. It cannot be said there was laches on the part of either party, during the time Judge Flack held the cause under advisement, that is to say, until October, 1881. It seems strange if no effort was made by either party to expedite a decision. But, under the circumstances, conceding there were five years and five months of inaction on the part of both parties after Judge Flack's death, we cannot say the court abused its discretion in overruling defendant's objection on the ground of laches. The facts on which the court acted, and upon which only it could, at any previous time, have predicated its decision, were among the files and records of the court, unaffected by time. There were no new facts to be ascertained. The result of the original transactions was embodied in the verdict and findings. There was no showing or pretense that, by reason of delay, defendant had been deceived as to plaintiff's intentions or claims, or that by reason thereof he had been induced to do anything he would not otherwise have done. It was not shown or intimated that defendant had suffered the slightest injury on account of the delayed judgment, and no reason existed why the court could not do complete justice to *98
both parties on the 8th day of April, 1887, as well as it could have done so the day succeeding Judge Flack's death. We are satisfied with the conclusion reached for the reasons above expressed, and will not extend the volume of this opinion by discussing a question suggested at the oral argument, that is to say, whether or not defendant can complain of the delay, inasmuch as he did not himself move the court to call another judge, or transfer the cause to another district for decision, although after Judge Flack's death, as well as before, his motion for judgment was pending. (But see Nevada Co. Canal Co. v. Kidd,
2. It is claimed that, under the law as declared in Jones
v. Adams,
3. It is asserted that "the judgment rendered by the court is unsupported by the findings, and the same are insufficient to *101 sustain the judgment." As to Niagara creek it is said they are insufficient because the amount of water necessary for the proper irrigation of plaintiff's land is not found. This assertion is based upon the answer to the seventh issue submitted to the jury on behalf of plaintiff as follows: "How much of the waters of that stream was required for the proper irrigating of the crops growing on that land during 1875?Answer. We do not know." In view of other findings we are by no means convinced that a finding of the amount of water required by plaintiff in 1875 was material but that question we need not decide. The findings of the jury must be construed together; and so treating them they show without substantial contradiction that all the waters of Niagara creek if properly used, were necessary to irrigate the quantity of land plaintiff had under cultivation in the years 1875, 1876, 1879, and 1881. The jury found that plaintiff's ditches constructed prior to and during the year 1875 were sufficient to carry all the water of Niagara creek during the irrigating season, that the entire waters flowed through said ditches, and were used by plaintiff and his tenants during that season for irrigating the land described in complaint; that all the waters of said creek, if properly used, were necessary to irrigate the quantity of land plaintiff had under cultivation in 1875, 1879, and 1881. It is true that, in answer to the question under consideration, the jury said they did not know how much of the waters of this creek was necessary for the proper irrigation of the cropsgrowing on plaintiff's land in 1875, but they did know and find that the entire waters of the creek were required to properly irrigate the quantity of land plaintiff had under cultivation that year. Since the last question was fully answered, there must have been some reason, real or imaginary, why they were unable to reply to the first. It may have been because the testimony did not show that crops were grown upon the entire amount of land cultivated that year. Crops do not always grow, although the seeds are planted and the ground is watered. It was found that in 1875 plaintiff and his tenants irrigated seventy-four and one half acres of land with water from Niagara creek, and, as before stated, that all the waters of said creek were necessary, in that year, to irrigate that amount of land in a proper manner. The jury may have said: "All the water was required to irrigate the land plaintiff cultivated in 1875, but we do not know there were growing crops on all the land, or half *102 of it, and consequently we do not know how much water was required to irrigate the growing crops properly." There is no necessary contradiction between the findings on this subject, and there is no failure to find that plaintiff required all the waters of Niagara creek for the proper irrigation of the land cultivated by him in 1875, 1879, and 1881. Finally, it is claimed that, as to all the waters of Snow creek, the findings contain every element of an adverse use known to the law for a period of more than eight years, that is to say, from 1872 to 1881, and consequently that the court erred in granting an injunction as to the waters of the two southernmost branches thereof. Again the findings must be construed together. At folio one hundred et seq. of the transcript, the jury was asked: "Has the defendant, since the year 1872, used the waters of Snow creek for the purposes of irrigating continuously, peaceably, openly, notoriously, under claim of right, and adversely to plaintiff and all other persons? Answer. Yes." The court below applied these findings to all the waters of Snow creek, except those naturally flowing in the two southernmost branches thereof; and the question is whether they embrace, or were intended by the jury to embrace, the entire waters of all the branches of Snow creek, or only those included by the court. From the pleadings and findings construed together, it is plain to us that the jury did not intend to find that since 1872 defendant had used all the waters of Snow creek in the manner stated at folio one hundred, or had so used any of the waters naturally flowing in the two southernmost branches thereof. Some of the reasons for this conclusion will be stated. It was found that in 1873 defendant moved on to plaintiff's land, described in complaint, and erected a dwelling-house thereon, as lessee of plaintiff; that defendantcommenced using the waters of the two southernmost branches on the lands now claimed by him in 1876; that his use thereof prior to that time was on plaintiff's land described in the complaint, and that in 1876 defendant changed the point of diversion of the waters of Snow creek from a point on plaintiff's land, described in complaint, to a point on the lands now claimed by defendant. It seems to us that, in the last finding, the two southernmost branches only were referred to, although the words, "the waters of Snow creek," were used; because plaintiff did not claim to have diverted, at any time, the waters of any of the other branches, and defendant "commenced using the waters of *103 the two southernmost branches on lands now claimed by him in 1876."
Until 1876 defendant's use of the waters of the two southernmost branches was upon lands occupied by him as tenant of plaintiff. But, say counsel for appellant: "This fact does not imply that defendant was tenant of plaintiff's water right also. A man may rent another's land and trespass upon his water right, or vice versa." But let us consider the fact of defendant's tenancy in connection with others. It is admitted by the pleadings that the two southernmost branches of Snow creek flow naturally through and over plaintiff's land, and the jury found that the two other branches pass over defendant's land, described in the answer, in two natural channels. Defendant rented plaintiff's land in 1873, but it is not found that he used any of the waters of Snow creek for its irrigation in 1873, and in 1874 plaintiff, by means of dams and ditches, appropriated the waters of the two southernmost branches running through his land. Now, to say the least, it would have been an anomalous proceeding on the part of plaintiff to lease land to defendant that was valuable with irrigation, but practically valueless without it, and allow him to continue an adverse use of water diverted from the natural channels by plaintiff, for the sole purpose of irrigating the leased lands. There is no finding that plaintiff appropriated all the waters of the two southernmost branches in 1874, but the answer substantially admits it. The complaint contains an averment of such appropriation and use by means of dams and ditches, and defendant only denies that plaintiff constructed dams and ditches * * * whereby he diverted all the waters from the two southernmost channels, or that it was necessary to use all the waters of said channels, or that defendant had diverted or used all the waters of said channels, thus admitting plaintiff's appropriation and necessary use and his own diversion, except as to the smallest quantity flowing in said channels or branches. After making the admission just stated, defendant then alleges that in 1871, by means of dams and ditches leading from the channels ofSnow creek, he diverted therefrom all the waters thereofwhen necessary to irrigate his said land, and that he diverted said waters for the purposes of irrigation every year thereafter. He does not allege that, at any time prior to plaintiff's admitted appropriation and use, he appropriated any of the waters of the *104 two southernmost branches, which were the only ones in dispute on the question of prior appropriation and use, but contents himself with the allegation that he diverted all the waters of Snow creek when necessary to irrigate his ownland, without alleging that all of said waters was necessary, or that he used any portion thereof, except upon his own land described in the answer. In fact he limits all adverse use since 1871 to his own lands; that is to say, in his answer, his claim of right and title by prescription rests upon a use of the waters of Snow creek, — not of the two southernmost branches thereof, — upon his own lands described in the answer, — not plaintiff's. But the jury found that he did not commence using the waters of the two southernmost branches on his own land until 1876, and that his prior use was upon plaintiff's land, undoubtedly as plaintiff's tenant. Again, as to Niagara creek, it appears in both complaint and answer that defendant diverted only a portion of its waters. He claimed only so much thereof as ran through the "Mahan ditch," which was but a part of the creek. But, in many instances, the form of questions put to the jury, is the same as that of those under consideration in relation to defendant's adverse use of the waters of Snow creek. For instance, at folio 72 is this question: "When did Mahan commence running the waters of Niagara creek through the ditch above Jerrett's lands? Answer. Between April 25, 1876, and May 1, 1876." Now the jury did not intend to say that all the waters of that creek ran through defendant's ditch, nor did the court mean to submit such a question to them, because that was not claimed by either party, and was not the fact. And at folio 94 it is asked: "Upon what quantity of land did the defendant use thewaters of Niagara creek in 1872, if any? Answer. About one acre." It would hardly be claimed that the jury intended to find that all the waters of that creek were used on one acre; because, as to that stream, it is alleged in the answer that "at all seasons of the year it affords a supply of water far beyond the necessities of the plaintiff for the proper irrigation of the lands described in the complaint, and that all of said waters cannot be used profitably or reasonably in the irrigation of said lands."
The court did not err in excluding the two southernmost branches of Snow creek from the findings under consideration; and there is no finding that defendant used any of the waters *105 of said branches continuously, peaceably, openly, notoriously, under claim of right, and adversely to plaintiff, for the period of five years before the commencement of this action. The plaintiff was entitled to his costs. Judgment affirmed.