18 Nev. 432 | Nev. | 1884
By the Court,
This is an action to determine conflicting rights to the
The witnesses for the defendant generally testified that since the year 1870 about one hundrel acres of the lauds occupied by defendant had been cultivated for grain and vegetables, and about fifty acres had been kept as meadow land. They estimated the volume of water used for the purpose of irrigation at from one hundred and thirty-inches to one hundred and fifty inches. Those who testified upon the point gave as their opinion that lands cultivated for grain or vegetables required an inch of water per acre, and that hay or grass lands required about half that amount. One witness, however, A. M. Self, testified that “one hundred acres of grass land requires one hundred inches of water.” And it was shown that during the years 1874 and 1875, two hundred acres of the land—one hundred of which was cultivated aud the remainder meadow— was irrigated. This was the maximum acreage irrigated. The amount of water to which defendant is entitled is lim
The evidence was conflicting- as to the quantity of water used. It is the peculiar province of the' trial court to determine controverted questions of fact, and this court cannot interfere with such determination where there is a substantial conflict in the evidence. Appellant also contends that defendant has not such an interest in the land as enables him to maintain the affirmative defense of ownership pleaded by him. It appeared that the land was owned by Withing-ton, between whom and defendant there existed a contract of purchase and sale. Defendant had been in possession of the premises for some time, but the uatui-e of his possession is not disclosed by the record. No objection, however, was made to the introduction of testimony proceeding upon the theory of a right in Williams to the possession of the land, and the use of the waters of the creek. Under these circumstances we must disregard questions first made upon motion for new trial, and which could -have been obviated by-amendment of the pleadings had objections been seasonably taken, and consider whether the facts of defendant’s (Williams’) case constitute a defense to this action. The justice of the case requires that he should be treated, for the purposes of this appeal, as the lawful occupant of the premises. As such occupant he could maintain án action for any interference with his rights injurious to his possession. The rule is thus stated in Dicey on Parties, 338:
“The person to sue for any interference with the irnmN
As the result of this principle, the author states,'at page 340, “that when land is in the hands of a tenant, the person to sue for a trespass is the tenant, and not the landlord.”
The judgment and order of the district court are affirmed.