194 P. 1063 | Nev. | 1921
By the Court,
This was a suit in equity for injunctive relief to prevent the impounding of waste water in such manner as to injure plaintiffs’ land. In the lower court a temporary restraining order was granted, which was, upon the final hearing, made permanent. The defendant Nichol Land and Stock Company, a corporation, being dissatisfied with the result, in so far as it adjudged the plaintiffs to be entitled to an injunction against it, brings the case here upon numerous assignments of error.
An amended complaint was filed in the court below against the Nichol Land and Stock Company, a corporation, and Romeo Rosaschi, charging the defendant company owner and its codefendant as lessee with having, since March, 1917, unlawfully impounded waste water upon the land under their control and management, to the injury of plaintiffs’ land. They allege in their complaint that they are powerless to protect themselves or their land from the injury complained of, and that the wrong is of such nature that pecuniary damages will not and cannot adequately compensate them for the injury suffered and sustained, and that they have no adequate remedy at law. They allege that the defendants threaten to and will, unless restrained and enjoined, continue to so impound said waste water as to continue said injury to their land, and therefore demand injunctive relief.
The defendant corporation demurred to the complaint upon several grounds, which demurrer was overruled. Thereupon it filed its answer, in which it admits its corporate character and its ownership of the land described in the complaint, and asserts that said land has been leased, demised, and let during all the time since March, 1917, and prior to.the said date, to its
And for a further, separate, and affirmative answer and defense to the action, it alleges that for more than thirty-four years next preceding the commencement of the action the defendant, its grantors and predecessors in interest, have, with the knowledge, consent, and acquiescence of plaintiffs, openly, notoriously, continuously, uninterruptedly, peaceably, and exclusively, and under claim of right, and adversely to plaintiffs and all the world, irrigated and moistened said land for agricultural and grazing purposes, and caused water to flow thereon as fully and to the same extent, if any, that waters were caused to flow thereon since March, 1917, and that the defendant has obtained and acquired a prescriptive right and title to irrigate and so overflow said land owned by it.
And for a further defense and by way of cross-complaint it alleges that plaintiffs’ land is owned and controlled by C. F. Meizner, the father of Bertha Johnston; that said Meizner and others named in the pleading excavated, dug, built, and constructed an irrigation ditch along the dividing line between the land of defendant and said Meizner for irrigating the lands
Plaintiffs replied to the answer and cross-complaint of the defendant, and upon the issues thus formed, upon written application of defendant, the cause was tried by the court with a jury.
The defendant Romeo Rosaschi failed to appear and answer the complaint, and upon the trial, on application of counsel for plaintiffs, his default for failure to answer the complaint was duly -and regularly entered and taken, and the'cause proceeded to trial between the plaintiffs on the one side and the Nichol Land and Stock Company, a corporation, on the other.
Counsel for appellant take the position that the jury was called as advisory to the court upon special issues submitted to it by interrogatories propounded by counsel upon both sides of the case, and, in fact, one of the principal assignments of error is that the court erred in directing the jury in an equity case to render a general verdict when special issués only should have been submitted to the jury. Being of the opinion that the verdict of the jury was adopted and included in the court’s findings, made and entered of record long after the rendition of the verdict, we are impelled to conclude that the court treated the verdict as advisory, and its judgment was not based upon the verdict. Therefore, under the well-settled rule that, where the jury is called as advisory in the trial of an equity case, and the jury also finds a general verdict, until the latter has been sanctioned by the court it is no proof that the verdict was actually rendered in the case, and that the party against whom the verdict is found is entitled to ten days after the findings are filed by the court in which to give, his notice of motion for a new trial. Duffy v. Moran, 12 Nev. 94; Stanton v. Crane, 25 Nev. 119, 58 Pac. 53; State v. Murphy, 29 Nev. 253, 88 Pac. 335.
The other ground for dismissal being without merit, the motion to dismiss the appeal is denied.
We also concede that farmers engaged in the ordinary cultivation of their respective lands by artificial irrigation must be accorded a reasonable use of water, or their lands will be comparatively worthless. But the law
The complaint, though subject to adverse criticism in form, states sufficient facts to bring the case within the well-recognized rule of equitable jurisdiction.
Conceding that the complaint in this respect may be defective, uncertain, and ambiguous, we are of the opinion that where, in an action against the owner and tenant, it is alleged that the injury is of such nature as cannot be compensated in damages, and that the parties threaten to continue the injury, and it appears from the answer and affirmative defense and cross-complaint
Numerous errors are assigned as to the admission and rej ection of testimony. The court and j ury having found against appellant, and as we are of the opinion that the findings by the court and jury are supported by the evidence, it would serve no useful purpose to extend this opinion in order to cover a criticism of the rulings upon testimony which, in our opinion, would not have changed the result. The same may be said of exceptions taken to interrogatories given and refused.
The judgment and order appealed from are affirmed.