140 P. 720 | Nev. | 1914
Lead Opinion
The appellant company, being the owner of the Steamboat Canal, has for many years been engaged in the business of diverting water from the Truckee River and delivering the same to and upon the lands under that canal for a valuable consideration. It is admitted that for many years last past and until the year 1909 the defendant by means of its canal conveyed to and upon the lands of the respondents, and delivered to the respondents, fifty inches of water for a valuable consideration, to wit, the sum of $6 per annum for each inch of water so conveyed and delivered. It is admitted that in the year 1910 the appellant company refused to deliver to the respondents the usual fifty inches of water, notwithstanding the fact that respondents offered to pay the customary charge for said water. The appellant company in that year delivered to the respondents a much smaller quantity of water and one which was alleged and found by the lower court to be insufficient for irrigation of the lands of the respondents. The case was .commenced in the lower court and judgment in that court rendered upon the theory that an annual purchaser of water at a stipulated price, from a corporation engaged solely in the business of diverting water from a natural stream and conveying the same through its own canal and at its own cost, to purchasers thereof, the latter, taking the same from the canal where it is discharged, acquires a prior right to purchase and compel the delivery of such water as he has been accustomed to receive, as against any other purchaser of water flowing in such canal whose initial purchase thereof commenced at a later date than did that of such claimant. The trial court held this to be true as a principle of law and issued an injunction against the appellant company in favor of respondents restraining the appellant from failing to permit fifty inches of water to flow through and from the Steamboat Canal upon the lands of plaintiffs so long as there shall be diverted from the Truckee River and
In reviewing this case we are confronted with somewhat different conditions from those under which and in the light of which other courts have in recent years passed upon this all-important subject. There is nothing in the constitution of Nevada applicable to this subject from which we may derive any light whatever. In the year 1907 (Stats. 1907, c. 18) our legislature passed an act to provide for the appropriation and distribution and use of the water by which it is declared that all natural watercourses and natural lakes and the waters thereof, which are not held in private ownership, belong to the state and are subject to appropriation for beneficial uses. Section 2 of the act is as follows: “All existing rights to the use of water, whether acquired by appropriation, or otherwise, shall be respected and preserved, and nothing in this act shall be construed as enlarging, abridging, or restricting such rights.” Section 3 prescribes: “There is no absolute property in the waters of a natural watercourse or natural lake. No right can be acquired to such waters, except an usufructuary right — the right to use it, or to dispose of its use for a beneficial purpose. When the necessity for the
The legislature of Nevada in the year 1913 passed an act to provide a water law for the State of Nevada, and section 4 of this act provides: “All water used in this state for beneficial purposes shall remain appurtenant to the place of use; provided, that if for any reason it should at any time become impracticable to beneficially or economically use water at the place to which it is appurtenant, said right may be severed from such place of use and simultaneously transferred and become appurtenant to other place or places of use, in the manner provided in this act, and not otherwise, without losing priority o'f right heretofore established; and provided, that the provisions of this section shall not apply in cases of ditch or canal companies which have appropriated water for diversion and transmission to the lands of private persons at an annual charge.” (Stats. 1913, p. 192.)
In determining the case at hand no principal proposition is to be determined, i. e., under the facts as presented
A secondary proposition presents itself and which in a sense is concurrent in importance to the first or major proposition, i. e., does a perpetual right to the use of water from an irrigating canal, acquired or reserved under contract either expressed or implied, constitute a right in the nature of an easement in the canal which the owner of the canal has no power to cut off so long as the party in whose favor the easement has accrued meets the reasonable demands of the canal owner in the way of charges or recompense for services in the delivery of the water by and through the means of his canal ?
In determining this question it must be constantly kept in mind that absolute property in the waters of a natural stream does not exist; that the only, right that one can acquire to such water and the only right by reason of which one can divert such waters from their
The history of the arid west is replete with legislation and judicial expression upon the subject of irrigation. Much of the modern law applicable to this subject has grown out of the conditions found prevalent in this region, and the paramount thought, both in the legislative acts of the several states and in the j udicial expressions coming from the several jurisdictions, is the actual
As was well stated by the Supreme Court of Arizona in the case of Slosser v. Salt River Valley Canal Company, speaking through Mr. Justice Sloan: “The appropriator may thus, immediately, by constructing and owning his own ditch or canal, or, mediately, by acquiring the permanent right to the service of another’s ditch or canal, whether the latter be owned by a natural or artificial person, perfect his appropriation. A corporation thus organized for the purpose of furnishing water for agricultural purposes, to be used by others in privity of contract with it, becomes the mere agent of the latter, and, under the statute, may divert from a public stream water which the latter may acquire and use for purposes of irrigation. The measure of its right so to do is the needs and requirements of those owners or possessors of arable and irrigable lands with whom, by contract, it stands in relation as agent. The doctrine of agency, therefore, unless we concede to such corporations a right not enjoyed by other inhabitants under the statute, must be invoked, in order to confer upon them any right to the diversion of water from a public stream.” (Slosser v. Salt River Co., 7 Ariz. 376, 65 Pac. 336.)
It being our judgment that the rule as asserted in the case of Slosser v. Salt River Co., supra, is applicable in this case, it follows that the appellant company can be regarded in no other light than that of the agent for those who, having in years past taken the water from
The Supreme Court of Colorado, in the case of Wright v. Irrigation Co., 27 Colo. 313, 61 Pac. 603, held in substance that a contract existing between the company, as the conveyor of the water from the natural stream, and the actual appropriator, is not for the purchase of the given volume of water, but rather the acquirement of the right to use the canal of the conveyor as a means of conducting a given volume, or so much thereof as may be necessary to irrigate a certain number of acres.
The Supreme Court of Idaho, in passing upon this subject in the case of Farmers’ Cooperative Co. v. Riverside Irr., 14 Idaho, 450, 94 Pac. 761, adhered to a different rule from that announced by the Supreme Court of Arizona and the Supreme Court of Colorado, wherein the Supreme Court of Idaho said: “The appropriation of waters carried in the ditch operated for sale, rental, and distribution of waters does not belong to the water users, but rather to the ditch company. The right to the use of such water, after having ‘once been sold, rented, or distributed to any person who has settled upon or improved land for agricultural purposes,’ becomes a perpetual right, subject to defeat only by failure to pay annual water rents and comply with the lawful requirements as to the conditions of the use.”
It must be observed in this respect, however, that the Supreme Court of Idaho in formulating this rule did so under express provisions of its constitution.
Following out the reasoning that he who actually applies the water to the soil is the appropriator, even where he obtains the water from the canal of one who has diverted it for distribution, the law of appropriation must apply to determine his right as against other users from the same canal or system. Hence, the rule that a prior appropriation constitutes a prior right applies to the appropriators of water, where the appropriation is made by and through the agency of another, as well as where the appropriation is made directly from the public stream. The respondents in this case were entitled to the amount of water formerly diverted and used by them so long as the delivery of that water to them did not interfere with those whose rights of appropriation under the same system were prior in point of time. (Lanning v. Orborne, 76 Fed. 319; Mandell v. San Diego Co., 89 Fed. 295.)
As was said by Judge Ross in the case of Mandell v. San Diego Co., supra: “A consumer whose land is situated within the flow of such a distributing system, * * *
It is the duty of the diverting corporation in cases of this kind, where a consumer has once established a right the use of water by acquiring the same and applying it to a beneficial purpose, to continue to furnish him water in preference to latter applicants, provided he has never waived his rights nor forfeited the same. The company has the right, and it is its duty, to discriminate between appropriators of water from their irrigation system, giving the preference to those appropriators who are oldest in point of time. In cases of this character the company is but a diverter inasmuch as its only purpose and power is to divert the water from the natural waterway. The. consumer is the converter inasmuch as it is he who converts the water to the land covered by the canal, and, having once applied the water to the land for beneficial purposes, he should not be deprived of the use or benefit of such water in favor of later applicants, so long as he complies with the reasonable requirements of the diverting company. (3 Kinney, Irr. & Water Rights, sec. 1500.)
The question as to the amount of damages assessed by the j ury in the trial court in this case is not before us.
The judgment should be affirmed.
It is so ordered.
Rehearing
On Petition for Rehearing
By the Court,
Since we rendered the decision in this case, the Supreme Court of the United States has rendered the decision in the case of San Joaquin and Kings River Canal and
In the San Joaquin-Stanislaus case, supra, the court, speaking through Mr. Justice Holmes, makes some very pertinent observations relative to the property rights to be recognized in favor of the party furnishing the water, where the sole object for the diversion is that of sale and distribution. As to whether or not the appellant had a property interest in the right to furnish the water is not an issue in the case at bar, and our observations made in the opinion are not to be considered as decisive of this matter.
Application for rehearing in the above-entitled cause is hereby denied.