18 Nev. 149 | Nev. | 1883
J3y tbe Court,
This suit is brought for the purpose of determining the relative rights of the parties hereto to the waters of Steamboat creek. Their rights, whatever they may be, are based upon appropriations made by themselves and their predecessors in interest.
•The joint answer of the defendants sets forth that a corporation known as the Eldorado Wood & Flume Company, is a necessary party defendant to the action, by reason of the fact that it was and theretofore had been, under claim of right, diverting permanently away from the natural channel all of the waters of the creek. The corporation was made a party defendant, and answered the joint answer. At the trial of the cause, and after the introduction of testimony touching the issues raised by the pleadings of the defendants and the corporation, the court. dismissed it as a party defendant.
It was shown that the flume company diverted a portion of the waters of the stream at a point several miles above the lands owned by plaintiff or defendants. The lands of defendants are situated below the point of diversion and above the lands of -the plaintiff. The waters diverted by the flume company were returned to the channel of the creek at a point below the lands of the defendants and above those of the plaintiff Testimony was introduced in behalf of the plaintiff and the flume company tending to show that “the water was not diminished by the flume company’s diversion and use, and that as much water was returned to the plaintiff’s land by the flume company as would have reached said land if none were diverted by the flume com-, pany.” Defendants introduced testimony in contradiction of this. There is no express finding upon this issue, but as the judgment was for the plaintiff, it is our duty to adopt
Defendants conceded upon the trial that plaintiff was the owner, in his own right, of a portion of the land described in the complaint. Other tracts of land were conveyed to him immediately prior to the commencement of this suit by grantors claiming to have acquired rights, by appropriation, to the waters of the creek, in connection with their ownership of the land. There was an oral agreement between grantors and grantee that upon the termination of the litigation the lands should be reconveyed to the grantors, respectively. Upon these facts appellant contends that plaintiff, as to the lands so conveyed, and the water rights appurtenant thereto, is not the real party in interest. The objection is founded upon the provision of the civil practice act (sec. 1067, Comp. Laws), which requires that “ every action shall be prosecuted in the name of the real party in interest. * * *” If the transactions between the plaintiff' and his grantors created any trust, it was an express trust, and the trustee of an express trust may sue without joining with him the person or persons for whose benefit the action is prosecuted. But the evidence introduced at the trial was incompetent to establish an express trust. Section 55 of the act concerning conveyances, requires such a trust to be established by deed or conveyance in writing. The statute is as follows : “No estate or interest in lands,
The next poiut made is based upon the delay of the district court in making additional findings of facts. The findings and decree were entered upon the thirty-first day of July. Upon the fifth day of August following, appellant requested the court to make certain additional findings. The record recites the fact that upon the said fifth day of August the court failed and refused to make any additional findings, and thereupon appellants filed their exceptions to the action of the court. Afterwards and upon the fifteenth day of August the court made its findings upon the issues covered by the exceptions. It is claimed that the court erred in failing to make the additional findings within the time required by law. The statute relating to defective and insufficient findiugs provides:
“Sec. 1669. In cases tried by the court without a jury, no judgment shall he reversed for want of a finding, or for a defective finding, of the facts, unless exceptions be made in the court below to the findings, or to the want of a finding; and in case of a defective finding, the particular de
The exceptions required to be filed in the court within five days are the exceptions of the party dissatisfied with the findings. Thereafter the court may “remedy the alleged error, ’ ’ but it will be observed that the statute does not prescribe the time within which the court must act. If any error could have occurred in this regard, the defendants could not have been prejudiced thereby, as all of. the additional findings were favorable to them.
Appellant assigns as error the failure of the district court to award defendant Logan the right to • use sufficient water to irrigate the twenty-acre tract of land heretofore referred to. Plaintiff Smith and defendant Logan each endeavored to purchase this tract from the railroad company. In the year 1880 the company entered into a contract of sale with Logan. Prior thereto Smith had occupied and'irrigated the land, aud appellant now claims that the waters of the stream had become appurtenant to the land, and went with it when Smith lost and Logan acquired it. We cannot admit this claim. Smith,' as to the true owner of the land, was a trespasser. Logan has not connected himself with Smith’s right to the use of the water, aud he could have changed its use to other lands.
Objection is made to the apportionment of the waters of the stream established by the decree.
The findings show that from the year 1861 until 1867 inclusive, Logan irrigated from ten to thirty-five acres of land. During the years 1868, 1869 and 1870 he made no use of the waters, and in 1871 and 1872 he irrigated but five acres. During these five years plaintiff and his predecessors in interest used the waters of the creek under
