81 F. 73 | U.S. Circuit Court for the District of Nevada | 1897
(after stating the facts as above). This is a suit in equity to obtain a decree against the respondents for the alleged wrongful diversion of the water of the Carson river, to complainant’s injury and damage. The Carson river is a natural water course, having its source or head in the state of California, and run ning through the Carson valley, in Douglas county, Yev., to the “sink of the Carson,” in Churchill county, where its water sinks and disappears. The river has two branches or forks, designated as the “East Fork” and the “West Fork,” and there are many tributaries, branches, and sloughs which connect therewith, through which the water flows every month in the year. The headwaters of both of the main branches rise in California, flow into Carson valley, and unite at Boyd’s Bridge, and thence flow in a single channel to the sink. a. distance of over 100 miles. Above the main junction there are branches and sloughs from the East Fork, which flow into the West Fork.
Complainant claims the right to sufficient water of the Carson river to ran its mills (1) upon the ground that it is a lower riparian proprietor upon the river; (2) upon the ground that it is a prior appropriator of sufficient water of the river to propel the machinery of i;s mills; and (3) as against several of the respondents by reason of the decrees of this court and of the state court decreeing to it and Us grantors a sufficient quantity of water for such purposes, and perpetually enjoining such respondents and their grantors from the use of such water, to complainant’s injury and damage. The respondents admit the diversion of the water, and claim the right to divert all the water of the river (1) by reason of their being riparian owners along the upper course of the river above, complainant’s mills; (2) by reason of their being prior appropriators of the amounts of water respectively claimed by them; and (3) by prescriptive use, to complainant’s injury, of the respective amounts of water claimed by them for more than five years prior to the bringing of this suit.
Before proceeding with the discussion of the case upon its merits, there are certain preliminary questions that have been presented and are urged with much force by the respondents’ counsel, touching the right of the complainant to maintain this suit on account of the misjoinder or nonjoinder of certain parties, which will be first disposed of.
It is said to be the constant aim of courts of equity to do complete justice,' and to settle the rights of all persons interested in the subject-matter of the suit, in order that litigation may not be conducted by halves, and that the same persons may not be harassed by a multiplicity of suits in reference to the same subject-matter. Conceding this to be the aim of all courts of equity, and that their rules of procedure are molded to assist in the accomplishment of this end, it would naturally be expected that fixed and definite rules could be found regulating the conduct of suits by persons having a union of interests, and prescribing that those persons should unite in the prosecution of a common claim. But, instead of discovering such invariable rules, the courts are compelled to concur in the language of Judge Story, in which he reminds his readers of the impossibility of stating any rules which shall be of universal application to the joinder of parties in equity. Mr. Justice Story said:
*87 “The tenth is that the general rule iu relation to parties does not seem to "he founded on any positive and*uniform principle; and therefore it does not admit of being expounded by the application of any universal theorem, as a teste it is a rule founded partly in artificial reasoning, partly in considerations of convenience, partly in the solicitude of the courts of equity to suppress multifarious litigation, and partly in the dictate of natural justice, ihafc the rights of persons ought not to be affected in any suit, without giving them an opportunity to defend them. Whether, therefore, the common formulary be adopted, that all persons materially interested in the suit, or in the subject of the suit, ought: to be made parties, or that all persons materially interested in the object of the suit ought to be made partees, we express but a general truth in the application of the doctrine, which is useful and valuable, indeed, as a practical guide, but is still open to exceptions and qualifications and limitations, the nature and extent and application of which are not, and cannot independently of judicial decision be, always clearly defined.” 1 Story, Eq. Pl. § 76c.
1. It is contended that complainant ought not to be permitted to maintain this suit without making its co-tenants parties thereto. This contention cannot be sustained. It does not affect the jurisdiction of the court, but addresses itself solely to the policy of the court. Elmendorf v. Taylor, 10 Wheat. 152, 166. It is not shown either by the pleadings or the proofs herein that any injury will result to respondents by the failure of complainant to make its co-owners in the mills parties to this suit. Complainant’s interest is several. There is but a unity of possession. Its estate is capable of being injured, and it is entitled to have it protected from irreparable injury, without regard t:o the action of its co-tenants. The co-tenant is not: an indispensable party to the determination of its rights. The Debris Case, 16 Fed. 25, 34; Railroad Co. v. Ward, 2 Black, 485; Hewitt v. Story, 12 C. C. A. 250, 64 Fed. 524; Himes v. Johnson, 61 Cal. 259; Water Co. v. Perdew, 65 Cal. 447, 452, 4 Pac. 426.
2. It is claimed that: the Comstock Mill & Mining Company, the owner of the Eureka Mill, on the Carson river, ought to have been made a party complainant or respondent, and that all of the farmers diverting water from the Carson river below the Bock Point Mill, and the farmers above the Bock Point Mill and below the Merrimac Mill, and the farmers in Carson valley taking water from the tributaries of the 'Carson river, should have been made parties respondent, and that this suit cannot be maintained without the joinder of all such parties. This suit is not brought to determine the amount of wafer which each respondent is entitled to divert and use for the purposes of irrigation. It is a suit instituted for the purpose of determining complainant’s rights to a specific quantity of the waters of the Carson river, and to obtain a decree as against all parties who are asserting any right to such waters, to its injury and damage. This being the nature of the suit, complainant is only required to bring such parties before the court as interfere with its rights. The Comstock Mill & Mining Company does not appear to claim any right, to the water of the river adverse to complainant. It could not properly have been made respondent, and the attention of the court has not been (‘ailed to any principle of law which would authorize or compel it to be made a party complainant in order to prevent its commencing any suit against any party who might hereafter interfere whh any uf its rights. JSTo relief is sought or claimed against any of the farmcra on the river below the mills, or be
3. It is argued that inasmuch as the respondents who are made parties to the suit do not claim the water-of the river jointly, or by any common right, they cannot be jointly sued, and the complainant is not therefore entitled to the remedy it seeks to obtain in this suit. It is true that the respondents deny that they have entered into any combination to divert any of the waters of the river to complainant’s injury or damage, or that they jointly or in common divert or use said water, and allege that they claim individual, distinct, and separate rights independent of each other; but the pleadings and the proofs, without any conflict, distinctly show that the results of respondents’ acts are such as to make their individual diversion of the water injurious to complainant’s rights, if the complainant is entitled to any prior rights to the water. Their claims are of the same common character, in that they are adverse to complainant. They are therefore all properly united as respondents, because they all divert water from a common source, the Carson river, above the mills, and claim the right to divert it as against the complainant. These conflicting rights, whatever they may be, can be determined by one suit. Complainant might not be able to maintain its suit against them singly, for it may be that no one of the respondents acting individually has deprived complainant of all the water to which it is entitled. Complainant is only entitled, if at all, to a certain amount of the water of the river, and it is by the action of all the respondents that it has been deprived of the water to which it claims to be entitled. Each respondent claims the right to divert a given quantity of water. The aggregate thus claimed so reduces the volume of the water in the river as to deprive comnlainant of the amount to which it is entitled. To this extent, even if there is no such unity or concert of action or common design in the use of the water to injure complainant, there is certainly such a result in the use of the water by the respondents as authorizes complainant to maintain this suit, upon the ground that the action of all the respondents has produced and brought about the injury of which it complains. Every one who contributes to such injury is properly made a party respondent.
As was said by the court in Saint v. Guerrerio, 17 Colo. 448, 453, 30 Pac. 335, 337:
“Interference with the prior right of a party to the use of water for irrigation is unlike most private injury for which relief may be had by injunction. Priority of right to the use of water from a natural stream is a right peculiar to its nature. A party entitled to such priority, unless he can show that he is entitled to all the water of the natural stream, cannot, in the nature of things, identify certain specific water as belonging to himsolf while the. same is running- in the natural channel. Being- entitled only to a certain quantity of the water, less than' the whole, it is only after a proper diversion of such quantity into his own separate ditch or lateral that the prior appropriator can be said to have title, in kind, to the specific water thus diverted. * * Keeping this principle in view, it follows that if plaintiff had, by priority of appropriation,*89 actually acquired the hotter right to the use of the wafer of the natural stream than either oi all of the several defendants, he was entitled to have such priority protected against their acts, whether joint or several, and for that purpose was entitled, if necessary, to join all as defendants in one action. Plaintiff did net claim a prior right to the use of all the water in the natural stream, and the amount diverted by any single defendant might not interfere with plaintiff’s use; hence lie might not. be able to maintain an action against any one of the defendants separately for diverting the water. So, plaintiff might not be able to show that any two or more of the defendants acted jointly in diverting the water; nevertheless, he might be able to show that the result of their several diversions in the aggregate was to deprive him of its use altogether. The joint result of their several acts would, under such circumstances, justify their joinder as defendants.”
The following additional authorities sustain the right of complainant to maintain this suit against the respondents: Blaisdell v. Stephens, 14 Nev. 17; Hillman v. Newington, 57 Cal. 56, 63; People v. Gold Run Ditch & Min. Co., 66 Cal. 138, 4 Pac. 1152; Miller v. Highland Ditch Co., 87 Cal. 430, 25 Pac. 550; Foreman v. Boyle, 88 Cal. 290, 26 Pac. 94; The Debris Case, 16 Fed. 25; Woodruff v. Mining Co., 8 Sawy. 628, 16 Fed. 25; Id., 27 Fed. 795, and authorities there cited.
4. It is next claimed that the farmers residing in California, who are not within the jurisdiction of this court, and who are diverting the waters from the East and West Forks of the Carson river, in said state, are indispensable parties to this suit. This proposition ir. untenable. If the parties were within the district of Nevada, where the suit is brought, it might be the duty of the court to compel complainant to bring them into court; but it does not necessarily follow that this suit cannot be maintained without them. They are proper, and perhaps necessary, parties, but they are not indispensable parties. The rights of the complainant and of the respondents before the court can be determined without them, and they will not in any manner be affected by the decree in this suit. This court must deal with the situation of the parties as it finds them, and proceed to determine the rights of the persons within its. jurisdiction who have been properly brought before it, where their rights can be determined without bringing in other parties who would oust the court of its jurisdiction.
Equity rule 47 was evidently adopted to bridge over the difficulties that might arise in all cases of this character. It reads as follows :
“In all cases where it shall appear to the court that persons who might otherwise be deemed necessary or proper parties to the suit cannot be made parties by reason of their being out of the jurisdiction of the court, or incapable otherwise of being made parties, or because their joinder would oust the jurisdiction of the court as to the parties before the court, the courts may. in their discretion, proceed in the cause without making such persons parties; and in such cases the decree shall be without prejudice to the rights of the absent parties.”
In Payne v. Hook, 7 Wall. 425, 431, the court said:
“It is undoubtedly true that all persons materially interested in the subject-matter of the suit should be made parties to it; but this rulo, like all general rules, being founded in convenience, will yield whenever it is necessary that it i-houlrt yield in order to accomplish the ends of justice. It will yield, if the court is able to proceed to a decree, and do justice to the parties before it.*90 without injury to absent persons equally interested in the litigation, but who cannot conveniently be made parties to the suit. Coop. Eq. Pl. 35. The necessity for the relaxation of the rule is more especially apparent in the courts of the United States where oftentimes the enforcement of the rule would oust them of their jurisdiction, and deprive parties entitled to the interposition of a court of equity of any remedy whatever.”
If a case in equity can be completely decided as between the litigant parties, the fact that there are other persons residing in another state who might have been made parties if they could have been reached by process should not prevent a decree as to all parties who are within the jurisdiction of the court. Joy v. Wirtz, 1 Wash. C. C. 517, Fed. Cas. No. 7,554; Abbot v. Rubber Co., 4 Blatchf. 489, Fed. Cas. No. 9; Harrison v. Urann, 1 Story, 64, Fed. Cas. No. 6,146; Elmendorf v. Taylor, 10 Wheat. 152, 168; Mallow v. Hinde, 12 Wheat. 193, 197; Vattier v. Hinde, 7 Pet. 252, 262; Shields v. Barrow, 17 How. 130, 139; Kennedy v. Gibson, 8 Wall. 498; Williams v. Bankhead, 19 Wall. 563, 571; Hotel Co. v. Wade, 97 U. S. 13, 21; Marco v. Hicklin, 6 C. C. A. 10, 56 Fed. 549, 553; Story, Eq. Pl. §§ 78, 79.
5. Have the respondents acquired any rights to the use of the water of the river as against complainant by prescription? The discussion of this question will, for the first time, bring to light a glimmering of the fact, which, sooner or later, will be made manifest and clear, that the entire controversy as to the right to the use of the water between the respective parties is really confined to a period of about three months in the year, known as the “summer months” or “dry season.” In the answer of respondents it is alleged “that continuously, for more than five consecutive years before the commencement of this suit, under claim of right and title thereto, each of the defendants have severally, openly, peaceably, uninterruptedly, and with the knowledge of the complainant, and adversely to the complainant and to all the world, and to the injury of complainant, taken, appropriated, and used for domestic purposes, and for watering their stock, and for the irrigation of their said land and the crops thereon, a portion of the water of said Carson river, and as much as was necessary or required for said purposes.” This averment is broad enough to cover the entire time. But the specific contention of counsel in summing up on this point is that respondents “have at all times claimed and used the water adversely to complainant until the middle of July, and for more than five consecutive years before suit, and their claim or right to have such use has been acquiesced in by complainant.”
From the mass of testimony introduced upon this point, the court is of opinion that it is clearly shown that complainant never at any time acquiesced in the use of the water by the respondents when it became scarce, or was needed at its mills. Complainant, every year for more than five years prior to the commencement of this suit, employed agents to visit the farmers in 'Carson valley, with instructions to prevent them from using'the water; and such agents did interfere with and interrupt respondents’ use every year when the water became reduced in quantity at the complainant’s mill, without regard to the month or the day of the month. The truth is that
The averment in the answer, if sustained by the proofs, was sufficient to establish a prescriptive right in the respondents’ use of the water. But there is no evidence to sustain the averment. The mere fact that respondents were never interrupted in the use of the water until the middle of July in each year, if sustained by the evidence, would not give them a prescriptive right, unless it was also shown that complainant was, by their acts, deprived of sufficient water to run its mills. An adverse use of water for the statutory period must be open, notorious, peaceable, continuous, and under claim or color of right; for, if any act is done by other parties claiming the water that operates as an interruption, however slight, it prevents the acquisition of any adverse right. Mining Co. v. Dangberg, 2 Sawy. 450, Fed. Cas. No. 14,370; The Mining Debris Case, 9 Sawy. 441, 513, 18 Fed. 753; Winter v. Winter, 8 Nev. 129, 135; Huston v. Bybee, 17 Or. 140, 20 Pac. 51; San Jose v. Trimble, 41 Cal. 536, 542; Lovell v. Frost, 44 Cal. 471: Hayes v. Martin, 45 Cal. 559; Cave v. Crafts, 53 Cal. 135, 138; Ball v. Kehl, 95 Cal. 606, 30 Pac. 780. Tin* burden of proving an adverse uninterrupted use of water, with the knowledge and acquiescence of the party having a prior right, is cast on the party claiming it. American Co. v. Bradford, 27 Cal. 360; Gould, Waters, § 341, and authorities there cited. Any person may obtain exclusive rights to water flowing in a stream or river by grant or prescription as against either riparian owners on the stream or the prior appropriation of the water by other parties. Bur the right acquired by prescription is only commensurate with the right enjoyed. The extent of the enjoyment measures the right. A mere scrambling possession of the water, or the obtaining of it by force or fraud, gives no prescriptive right; nor can this right, be acquired if, during the time in which such right is claimed to have accrued, there has been an abundant supply of water in the stream or river for all other claimants.
Tn order to enable respondents to maintain a prescriptive right to the flowing water in the Carson river as against complainant, there must have been an uninterrupted enjoyment by them, under claim of
In the application of these principles to the facts of the case under consideration, it clearly appears that respondents have not acquired any right to the use of the water of the Carson river by prescription, as against complainant.
6. We are now brought to a consideration of the interesting and important question as to what rights the respective parties have to the use of the water flowing in the river. Are their rights to be determined by the rules and principles applicable to riparian proprietorship, or be governed solely by the laws, rules, and decisions of the courts of Nevada, and of other states in the arid regions on the Pacific coast, touching the doctrines of appropriation of water to beneficial uses and purposes? Should the court follow the suggestion of counsel that some of the parties can claim riparian rights, and others claim the right to divert the water by prior appropriation, and others claim both rights? The difficulty encountered at the threshold of this discussion arises from the character, nature, and extent of the prior decrees entered in this court in Mining Co. v. Dangberg, 2 Sawy. 451, Fed. Cas. No. 14,370, and Mining Co. v. Ferris, 2 Sawy. 176, Fed. Cas. No. 14,371, in this court and in the state courts. These decrees were based upon the riparian rights of the respective parties. The fact is that, at the time such decrees were entered, the rule of riparian rights was held to be applicable to Nevada. Vansickle v. Haines, 7 Nev. 249. Since the rendition of the decrees, that case has been overruled, and the principles of prior appropriation accepted, as applicable to the existing conditions of the soil and climate of this state. Jones v. Adams, 19 Nev. 78, 6 Pac. 442; Reduction Works v. Stevenson, 20 Nev. 269, 21 Pac. 317. This change is the natural outgrowth of the conditions existing in this state. The climate is dry. The soil is arid. The land is unproductive, without irrigation. When water can be used thereon, it becomes capable of successful cultivation. There are but few streams of water. The benefits accruing to land along the banks of these streams by the mere flow of water in the channel is very slight. The bottom lands that can be irrigated by a diversion of the water, so that it can be turned back into the stream, are of limited extent. A large proportion of the area of land suitable for cultivation would have to remain in its wild and unproductive state, covered only by the natural growth of sagebrush and greasewood, unless the right to
7. It may be that the results would be substantially the same under the law of riparian proprietorship as under the law of prior appropriation. The difference would, perhaps, be more in the form of the decree than in the amount of water to which the respective parties are entitled. From any standpoint that may be taken, it is evident that the former decrees could not be successfully enforced. If this were not true, there would not have been any necessity for this suit. The former decrees, which are pleaded and relied upon by complainant as sustaining its superior rights to the water of the river, were based exclusively upon riparian rights; and if, as argued by complainant's counsel, the decrees make the matter in issue res judica ta so far as the original parties to those suits and all persons claiming under them are concerned, there would be an end of the presen t controversy as to such parties. The decrees in question did not give to complainant any fixed or definite quantity of water. They did not determine the amount of water which was necessary to enable complainant to propel its machinery at its mills. Under the rules of the common law, the riparian proprietors would all have the right to a reasonable use of the water of the river running through their respective lands for the purpose of irrigation. It is declared in all of the authorities upon this subject that it is impossible to lay down any precise rule which will be applicable to all cases. The question must be determined in each case with reference to the size of the river, the velocity of the water, the character of the soil, the number of proprietors, the amount of water needed to irrigate the lands per acre, and a variety of other circumstances and conditions surrounding each particular case; the true test in all cases being whether the use is of such character as to materially affect the equally beneficial use of the water of the stream by the other proprietors.
In Mining Co. v. Ferris, 2 Sawy. 176. 195, Fed. Cas. No. 14.371, the respondents claimed that in a hot and arid climate like Nevada the use o£ water for irrigation was a natural want; that the upper pro
“To lay down the arbitrary rule contended for by the defendant, and say that one proprietor on the stream has so unlimited a right to the use of the water for irrigation, seems to us an unnecessary destruction of the rights of other proprietors on the stream who have an equal need and an equal right.”
But the right to use water for the purpose of irrigation was expressly recognized. The court said:
“Irrigation must be held in this climate to be a proper mode of using water by a riparian proprietor, the lawful extent of the use depending upon the circumstances of each case. With reference to these circumstances, the use must be reasonable, and the right must be exercised so as to do the least possible injury to others. There must be no unreasonable detention or consumption of the water.”
When it is said that such use must be made of the water as not to affect the material rights of other proprietors, it is not meant that there cannot be any diminution or decrease of the flow of water; for, if this should be the rule, then no one could have any valuable use of the water for irrigation, which must necessarily, in order to be beneficial, be so used as to absorb more or less of the water diverted for this purpose. The truth is that under the principles of the common law in relation to riparian rights, if applicable to our circumstances and conditions, there must be allowed to all, of that which is com-’ mon, a reasonable use. But, if prior appropriation is to prevail, then different rules must be applied. Under the principles of prior appropriation, the law is well settled that the right to water flowing in the public streams may be acquired by an actual appropriation of the water for a beneficial use; that, if it is used for irrigation, the appropriator is only entitled to the amount of water that is necessary to irrigate his land, by making a reasonable use of the water; that the object had in view at the time of the appropriation and diversion of the water is to be considered in connection with the extent and right of appropriation; that, if the capacity of the flume, ditch, canal, or other aqueduct, by means of which the water is conducted, is of greater capacity than is necessary to irrigate the lands of the appropriator, he will be restricted to the quantity of water needed for the purposes of irrigation, for watering his stock, and for domestic use; that the same rule applies to an appropriation made for any. other beneficial use or purpose; that no person can, by virtue of his appropriation, acquire a right to any more water than is necessary for the purpose of his appropriation; that, if the water is used for the purpose of irrigating lands owned by the appropriator, the right is not confined to the amount of water used at the time the appropriation is made; that the appropriator is entitled, not only to his needs and necessities at that time, but to such other and further amount of water, within the capacity of his ditch, as would be required for the future improvement and extended cultivation of his lands, if the right is otherwise kept up; that the intention of the appropriator, his object and purpose in making the appropriation, his acts and conduct in regard thereto, the quantity and character of land owned by
These general principles are of universal application throughout the states and territories of the Pacific coast. They have, in one form or another, been declared, upheld, and maintained by a uniform current of decisions in this state. Lobdell v. Simpson, 2 Nev. 274; Mining Co. v. Carpenter, 4 Nev. 534; Proctor v. Jennings, 6 Nev. 83; Barnes v. Sabron, 10 Nev. 218; Simpson v. Williams, 18 Nev. 432, 4 Pac. 1213. The same rules prevail in California: Kelly v. Water Co., 6 Cal. 106; Ditch Co. v. Vaughn, 11 Cal. 143; Kimball v. Gearhart, 12 Cal. 28; Ortman v. Dixon, 13 Cal. 34; Kidd v. Laird, 15 Cal. 161; Weaver v. Lake Co., 15 Cal. 274; McKinney v. Smith, 21 Cal. 374; Hill v. Smith, 27 Cal. 476; Davis v. Gale, 32 Cal. 26; Water Co. v. Powell, 34 Cal. 109; Nevada Co. v. Kidd, 37 Cal. 283; Osgood v. Water Co., 56 Cal. 571; Mitchell v. Mining Co., 75 Cal. 482, 17 Pac. 246; Ramelli v. Irish. 96 Cal. 214, 31 Pac. 41; Barrows v. Fox, 98 Cal. 63, 32 Pac. 811. In Colorado: Coffin v. Ditch Co., 6 Colo. 443; Sieber v. Frink, 7 Colo. 149, 2 Pac. 901; Wheeler v. Irrigation Co., 10 Colo. 583, 17 Pac. 487; Hammond v. Rose, 11 Colo. 524, 19 Pac. 466; Reservoir Co. v. Southworth, 13 Colo. 111, 21 Pac. 1028; Platte Water Co. v. Northern Colorado Irrigation Co. (Colo. Sup.) 21 Pac. 711; Strickler v. City of Colorado Springs, 16 Colo. 62, 26 Pac. 313; Combs v. Ditch Co., 17 Colo. 146, 28 Pac. 966; Ft Morgan Land & Canal Co. v. South Platte Ditch Co., 18 Colo. 1, 30 Pac. 1033. In Oregon: Kaler v. Campbell, 13 Or. 596, 11 Pac. 301; Simmons v. Winters, 21 Or. 35, 27 Pac. 7; Speake v. Hamilton, 21 Or. 3, 26 Pac. 855; Hindman v. Rizor, 21 Or. 112, 27 Pac. 13. In Utah: Munroe v. Ivie, 2 Utah. 535; Irrigating Co. v. Moyle, 4 Utah, 327, 9 Pac. 867; Salina Creek Irr. Co. v. Salina Stock Co., 7 Utah, 456, 27 Pac.
8. To these general principles, which are of universal application, it will only be necessary to notice a few others as we proceed, that have a direct bearing upon the special facts of this particular case. The character of this suit, as before stated, is not such as to require the court to determine the amount of water to which each of the respondents is entitled for the proper irrigation of his land. Their rights, as against each other in this respect, are in no wise involved in this litigation. But, in order to obtain a correct understanding of the question of the alleged wrongful waste of the water, it is necessary to give at least a general outline of the claims made by the respondents concerning the quantity of water to which they are respectively entitled, and the manner in which it has been used by them.
The testimony shows that the aggregate amount of land owned by the respondents, in round numbers, is in the neighborhood of 15,000 acres; that the aggregate amount of water claimed by them is 51,200 inches, making an average of about 3J- inches of water to the acre. .There is no uniformity among the respondents in this particular. The lowest claim made is 1 inch to the acre, by Chris. Larsen; the highest, 71 inches to the acre, by H. F. Dangberg, one of the largest landowners in the valley.
Upon the cross-examination of L. H. Taylor, a witness introduced by the respondents, he testified, in answer to questions upon this subject, as follows:
“Q. About how much water does it take, on an average, to irrigate an acre of land in Nevada, during the irrigating season, if properly handled, and handled with reason and economy and proper regard for the rights of others? A. I will state in a general way that it is my opinion, with a good distributing system, and the use of economy in applying the water, that ultimately you can count on a duty of about 150 acres to each cubic foot per second, or a third of an inch to the acre. There will be places that will require more, and others that will require less-, depending on the soil, climate, character of crops, etc. * * * Q. So far as you have had opportunity to examine this subject in Oarson valley, are you able to say that a cubic foot of water per second in that valley will irrigate 150 acres? A. It is my opinion that it would and will ultimately do so. Q. Would it do so now with a proper system of ditches, well regulated, and no water wasted? A. I think it would, but, with the system of irrigation they have there now, they could not do it.”
T. B. Rickey, a witness on bebalf of respondents, testified as follows :
“Q. How much land in that country will 1,500 inches of water irrigate? * * * A. If I owned all the water and all the land, I could irrigate 3,000 acres of land with 1,000 inches of water; but if I owned one piece here, and another man owned a piece there, the water is wasted and used up. Q. Assuming that two branches of the Virginia ditch are large enough to carry 8,000 inches, and that 1,000 or 1,500 inches are put out through those ditches upon the lands belonging to Chris, and H. F. Dangberg, using the water as they can use it with their experience, how much land could they irrigate? A. I think a quarter of an inch to the acre is abundant.”
The thought is here suggested from the reading of the testimony in the record upon these points that if a system of economy in the use of the water had been adopted, and more care taken that no water should have been allowed to run to waste, the occasion for the present litigation would probably have never arisen. The time is near at hand when greater attention must be given to these matters, and greater care and caution be exercised, to prevent parties from loss and damage which are or may be occasioned to other parties having equal right; to the waters of the river. An excessive diversion of wafer for any purpose cannot be regarded as a diversion to a beneficial use. Water in this stale is too scarce, needful, and precious for irrigation and other purposes, to admit of waste. Vo person, whether an appropriator or riparian proprietor, should be allowed to “he extravagantly prodigal in dealing with this peculiar bounty of nature.” Combs v. Ditch Co., 17 Colo. 146, 154, 28 Pac. 966, 968. The maxim of the law which he is bound to respect, while availing himself of his right, is, “Sic utere tuo ut alienum non laedas.” Tyler v. Wilkinson, 4 Mason, 397, Fed. Cas. No. 14,312; Ferrea v. Knipe. 28 Cal. 340, 344; Gibson v. Puchta, 33 Cal. 310; Shotwell v. Dodge, 8 Wash. 337, 341, 36 Pac. 254. Every year the area of land for which water is needed is increasing, and the supply is constantly diminishing.
The following quotation from Kinney on Irrigation (section 30) is directly applicable to the facts of (his case:
“It has been the policy of legislatures and courts, as far as possible, to suppress all wastefulness or wasteful methods in the use of waters. In the early days a prior appropriation was esteemed to cover all water in sight, whether it was needed or not. But the principle of ‘beneficial use/ as the population increased, soon put an end to that conception. More stringent regulations may still be made in places, which will benefit not only those who have at present water rights in a certain stream, but also those desiring to divert water from the same. There are many appropriators who still demand the*98 amount of water claimed, by them at first, although that amount is many times more than is actually needed by them for the purpose to which they apply it. Having no knowledge whatever of the proper use of water as an aid to agriculture when they first made the appropriation, and there being at that time an entire absence of any written authority on the subject from which they could learn, and water then being plentiful, it followed, as a matter of course, that settlers adopted very wasteful methods in the use of it. Many of them still keep up those methods, notwithstanding the fact, demonstrated by practical experience, that by so doing they are raising smaller and poorer crops than they could raise by using the water more sparingly. In many places it has been shown that from a given stream five or six times as much land could be irrigated as had been thought possible in early days. But, even with the present various enactments for the prevention of these wasteful methods, the natural flow of streams is becoming daily more and more inadequate to meet the, demand; and finally it has become apparent that, if the progress of the irrigation development is not to be seriously checked, more stringent measures will have to be enacted, or other sources of supply must be sought.”
See, also, sections 165 and 166; Black’s Pom. Water Rights, § 142; Peregoy v. McKissick, 79 Cal. 572, 21 Pac. 967; Barrows v. Fox, 98 Cal. 63, 32 Pac. 811.
9. An earnest argument is made on behalf of the respondents to the effect that the agricultural interests of Carson valley are of paramount importance to those of the mill owners on the Carson river; that the necessaries of life are. produced by the farmers, and cannot be successfully brought forth without the use of water for the irrigation of their crops. But of what general use, independent of the wants and necessities of themselves and their families, would the products of their farms be, unless the other industries which furnish a market for the crops were equally protected in their rights? The money necessary to be obtained in order to enable the farmers to sell their crops with profit must be obtained from other sources, — from other avenues of industrial and business pursuits. The prospector and capitalist, laborer and miner, searching for the precious metals that lie imbedded in the earth in the mineral regions of the state, have certain rights that need protection, as weli as other classes. When these discoveries are made, the metalliferous ores cannot be at all times successfully reduced without the aid of expensive machinery, the building of mills to be propelled by water power, etc. Water for this purpose is as much a want or necessity of the community as it is for the purpose of irrigating the land. The mining-industry of this state has always been considered of as great importance as the agricultural interests. The right to the water of a stream for any beneficial use should always be protected and encouraged. The only exception that has ever been made arises solely from necessity, and that is to give to every person, in whatever busi•ness he may be engaged, the absolute right to a sufficient supply of the water for household and domestic purposes, watering his stock, and raising vegetables sufficient to supply the wants of himself and family. In Gould, Waters, § 205, the author, in relation to this exception, says:
‘‘Back riparian proprietor bas a rig-lit to the ordinary use of the water flowing past his land, for the purpose oE supplying his natural wants, including the use of the water for the domestic purposes of his home or farm, such as drinking, washing, or cooking, and for his stock. For these natural uses,*99 by the weight of authority, he may, if necessary, consume all the water of the stream. This right is his only, and is strictly confined to riparian land. He has also the right to use it for any other purpose, as for irrigation or manufactures; but this right to the extraordinary use of the water is inferior to the right to its ordinary use, and, if the water of the stream is barely sufficient to answer the natural wants of the different proprietors, none of them can use the water for such extraordinary purposes as irrigation or manufactures.”
¡áee also, Black’s Pom. Water Bights, § 140.
Without dwelling at any length upon the arguments that have been made upon this subject as to the extent of the rights of individuals in this regard (as they are not, in my opinion, necessarily involved in this case), we confine the discussion to the general doctrine advanced, as to the superiority of rights acquired for the purpose of irrigating arable lands as against rights acquired for mining ot milling purposes. Upon this point, keeping in touch with the principles which have from time to time been announced in the state and national courts of this district, it is enough to say that there is no general distinction to be made. The general rights of each stand upon the same plane. Both are entitled to the equal and due protection o'f the law. Both must be protected, and both governed by the general principles of law pertaining to water rights which have been clearly established and defined. The rule upon this subject is correctly stated in Gould, Waters, § 233, as follows:
“Whether the appropriation is for mining, as originally it was solely, or for mills, for irrigation, or for agricultural, horticultural, domestic, or municipal purposes, the rights thereby acquired now stand upon the samo footing, and an appropriation or use of the water for one of these purposes is not justifiable when it interferes with a prior appropriation or location for another purpose.”
10. A point is now readied where it becomes necessary to digress, aud take up oilier questions, less interesting, but of equal importance, in order to ascertain the facts as to the time when the rights of the respective parties were first acquired, and the amount of water used by them. One can naturally understand that lapse of memory comes with lapse of time, and that any man, however conscientious or honest, may be mistaken as to events that transpired 40 or more years ago; and the truth of such matter, as to the’ time of any given transaction, can often only be solved by comparing the testimony of the witnesses with known and uncontradicted facts as to the date of other events which all concede occurred at or about the same time. One can also readily understand the uncertainty, and sometimes, if not always, the unreliability, of the testimony of witnesses who attempt to give with any degree of precision the amount of land under irrigation, or the exact amount of water flowing in a river, stream, cut, canal, or ditch, by merely looking at it. But the court is not able to fully comprehend the cause of the conflict in the testimony of witnesses who have been accustomed to measure and determine with accuracy the grade of a ditch or flume, their exact size and dimensions, and the amount of water that will flow therein to the full extent of their capacity, when they have within their reach and at their command tables prepared upon this subject, which have for many years been accepted and acknowledged as giving a true and cor
“It may not be practicable to attain mathematical exactness in measuring the flow of water, but a reasonable approximation to substantial accuracy should be aimed at in determining controversies relating to water supply.”
If parties, in litigating their rights, are actuated solely by a desire to get at the truth, they generally do, and always should, have their witnesses on the ground at the same time and place, so that the measurements and calculations could then be made by each in the presence of the other. Then, if it were claimed by either that the conditions were not favorable or proper, the other party could suggest other places where the measurements would be nearer an average as to the capacity of the flume or ditch, and both parties would have the opportunity of discovering what means were used by the other in making such measurements. The duty devolved upon the court, of determining the truth where the testimony is conflicting, is always unpleasant, and oftentimes difficult; and especially is this true in a case like the present, where all of the testimony was taken before an examiner, and the court is deprived of the opportunity of observing the character of the witnesses,, their degree of intelligence, their manner, demeanor, and bearing on the witness stand, their interest, their prejudices, if any, and all the peculiar circumstances surrounding the giving of their testimony, as well as other matters which always give more or less value and weight. In this case the question is presented as to which of the witnesses, on behalf of complainant or respondents, — apparently of equal credit, — had the better opportunity to ascertain, or which was most likely, on. account of his interest, position, circumstances, or surroundings, to remember, the facts. It does not necessarily follow that, because there is a conflict in the testimony, one or the other of the witnesses have testified falsely, and that the court must take the whole statement of one, and reject the entire testimony of the other. It is the duty of the court, in weighing such testimony, to ascertain whether or not it can be harmonized, upon any given state of facts, theories, or conditions, before any part thereof should be rejected. Keeping these rules constantly in mind, the court is compelled to take the record as it finds it, deprived of the opportunities it would have had if the testimony had been given in court, and determine therefrom, as best it can, by the use of the scales of justice, and all other judicial means within reach, what the facts are as established by the weight of the c ,idence.
The first settlements were made in. the valley in the “early fifties,” when the country was á part of the territory of Utah and subject to its laws. The settlements were made by persons who might be denominated as “squatters” on the public land of the United States, without any title thereto save such as the custom of the locality recognized, or in some few instances such as might be acquired under the
“Q. In your testimony, do you call everything irrigated that naturally overflows at high water? A. Yes, sir; grass would n'ot grow without the overflow. Q. When you testified * * * as to the amount of land irrigated, you counted all the land that was overflowed at high water as irrigated land? A. Yes; I mean hy the overflow and otherwise that the land was irrigated so as to raise crops. Q. That is what you mean by counting the land that was naturally overflowed at high water, as well as the land that was irrigated by means of ditches; you estimated that there were so many acres of land irrigated on the different 'ranches that you have named and described? A. Yes, sir; all the land that -was overflowed I considered irrigated, because the grass would not grow without it.”
The testimony of D. E. Jones, upon which great reliance is placed, and from which copious extracts were made in the brief of respondents’ counsel, is substantially based upon the same theory, and guessed at, to the best of his present recollection, as to the amount of land irrigated, and the quantity of water used. His testimony as to the appropriation made by Mr. Wheeler in 1860 is as follows:
“Q. How much did he farm? A. I should think 200 acres. Q. How much did he farm in 1860? A. He did not farm all of it then. Q. How much do you think he farmed then? A. Probably half of it. * * * Q. How much water did he take out in I860, and irrigate his land with? A. There was a ditch there in 1S00, and there was a large stream, of throe or four hundred inches, — 400 or 500 inches.”
The son of Mr. Wheeler, upon the same point, testified as follows:
“O- When did your father go to the Bast Pork? A. In 1S59. Q. What time in that year did he come? A. In the fall. Q. Did he locate a place and build a house that year? A. Yes, sir. Q. Did he keep a station on the Aurora road at that time? A. Yes, sir. Q. What was that station called? A. The ‘12-Mile House.’ Q. When did you first go there? A. It was in September, "about the 15th, in 1860. Q. When you got to your father’s place, * * * what did you find there? A. He had a small flitch, and had in about six or seven acres of land that he put in in 1860. * * * Q. What did he put in the 6 of i acres that he cultivated in 1860? A. Grain.”
Again, Mr. Jones testified as follows:
“Q. What do you mean by ‘cultivation’? You say all this land described was cultivated since 1865, etc. What do you moan? A. I mean cutting hay on it, raising grain and vegetables, etc. Q. Did they cut hay on all the land that you have talked about? A. On portions of it. Q. Do you mean by ‘cultivation’ that if a man fenced a large tract of land, and fed stock on it, that he cultivated the land? A. Yes; it is making use of the land.”
The entire testimony of this witness is of the same general character. It covers about 250 typewritten pages.
“Before 18G0 there were perhaps 50 main ditches, many of them with capacity to carry every drop of water flowing in both forks of the river between July 1 and September 11, 1889. Of Fred Dangberg’s ditches alone, the Island ditch would carry 1,500 inches of water; the Mast ditch, 1,200; the Slough ditch would carry 1,500 to 2,000 inches. * * * Of the ditches in existence prior to 1800, the following may be mentioned: Singleton and others constructed a ditch in 1858, é feet wide, 15 inches deep, a mile or a mile and a half long.”
It is true that Singleton upon his direct examination testified as stated by counsel, but upon his cross-examination it will he discovered what he meant:
“Q. Yon testified about taking out a ditch, and carrying it on the banks of a slough one and a half miles. Do you mean that the water ran that far, or that you dug'a ditch that long? A. I didn’t take out any ditch that long. It must have been the water that went that far. Q. If you testified that you took out a ditch along the banks of a slough one and a half miles long, it was wrong, and you only meant that the water went that far? A. Yes; that was wrong. Q. What you meant was that you made a cut through that high bank of the river, ana that the water ran through that cut one and a half miles after it got through the cut? A. Yes; that is what I meant. Q. The water would run over the low land and spread out? A. Yes; that is where the mistake is.”
From a somewhat extended examination of all the testimony in this case, it may fairly be stated that the respondents, during the years mentioned, only irrigated their lands by the natural overflow of the river, or by making cuts through the high banks of the river to let the water out when it was not bank full, and several small ditches, taking water from these cuts, and from the sloughs and other low places, so as to lead the water off to other portions of the land. From the flood of testimony upon this point, the cross-examination of Samuel Singleton, a witness introduced on behalf of the respondents, who has no interest: in the jiresent litigation, is set out at some length in the statement of facts. It is similar in character to that of the great mass of testimony relating to this point. It would not accomplish any useful purpose to pursue this matter further, because, as before intimated, the law is well settled that the respondents cannot avail themselves of the rights of these early settlers, with whom they have in no manner connected themselves by title. In Lobdell v. Hall, 3 Nev. 507, 522, where the defendants acquired the possession of a dam or ditch for the diversion of water from an Indian by mere verbal sale, Judge Lewis said:
“Section 55, Laws 1861, p. 18, declares that ’no estate or interest in lands other than for leases for a term not exceeding one year, or any trust or power over or concerning lands, or in any manner relating thereto, shall hereafter be created, granted, assigned, surrendered or declared, unless by act or operation of law, or by deed or conveyance In writing, subscribed by the party creating, granting, surrendering or declaring the same, or by his lawful agent thereunto authorized in writing.’ This is substantially the Utah law, which prevailed in the territory of Nevada at the time of the transaction in question. That the right to the enjoyment of the dam, and to have the water flow through the ditch in question, is an interest in land, is fully supported by the following authorities: * ® * The defendants do not pretend to claim as lessees; hence, there being no deed or conveyance in writing, as required by the statute, they acquired nothing from the Indian.”
“The plaintiff testified that early in the year 1876 he appropriated all of the waters of the creek. Before that time these waters had boon used to irrigate plaintiff’s land, but, as he has not in any wise connected himself in interest with those who first cultivated the land and appropriated the water, his own appropriation in 1876 must he treated as the inception of his right.”
To the same effect, see Salina Creek Irr. Co. v. Salina Stock Co., 7 Utah, 456, 27 Pac. 578; Smith v. O’Hara, 43 Cal. 371; Burnham v. Freeman, 11 Colo. 601, 606, 19 Pac. 761; Gould, Waters, § 234; Black’s Pom. Water Rights, § 60; Kin. Irr. § 253.
With reference to the exceptions heretofore referred to, it will only be necessary to notice one. Bespondents H. F. Dangberg, D. B. Jones, A. P. Squires, and Benjamin Palmer, and perhaps a few others, prior to 1860, resided upon a portion of the lands they now occupy. Palmer’s land is not on the river. The others’ are. Dangberg located upon bis land in 1857, upon the part now known as his “home ranch.” The facts concerning his right to the water are certainly as strong, and in many instances stronger, than any of the other respondents. With reference to his early acquisition of lands, the record shows that on July 30, 1857, one P. A. Jackman executed a bill of sale in favor of Charles E. Holbrook, Benjamin Mast, and H. E. Dangberg, for 320 acres of land, known as lot 1 in block 4, for the sum of $30; that on October 30, 1858, Thomas Anderson and others conveyed by hill of sale to Dangberg and Mast 280 acres for $100; that on May 7, 1860, Dangberg and Henry Luhman located a piece of land under the laws of the territory of Utah (number of acres not given, but, from description, judged to be in the neighborhood of 320); that on May 20, 1862, A. Dangberg conveyed to H. F. Dangberg, by bill of sale, 320 acres for $3,000; that on July 7, 1863, James Dove' and others conveyed to Dangberg, by bill of sale, 160 acres, for $1,000. H. F. Dangberg testified as follows:
“Q. When did you first settle in Douglas county, where you now reside? A. In the year 1857. Q. Have you resided there ever since? A. Yes, sir. * * * Q. Did you assist the water in any way to spread oVer your land in those early times? A. Yes, sir. Q. How? A. By damming the sloughs and depressions, and by cutting' the. banks, and by digging ditches arid leading: the water over the land. Q. Did 'you make any cuts in the hanks of the river to let the water out when the water would fall, and did you put obstructions in the river to assist the water in rising, and getting it on your laud? A. Not the first year, but I did prior to 1861. I done all that prior to 1861. Q. IIow many acres of your land that you claim now was flooded prior to 1801? A. * * * The land I owned at that time, my home ranch, * * * was all flooded prior to 1861,with the exception of 15 or 20 acres around about the schoolhouse, — where the selioolhouse is now. I could not get the water on that at that time. * * * Q. How much land was in your home ranch at that time? A. Very near the same as now. Q. State about the number of acres. A. * * * About 1,500 acres. * * * Q. What did you do to aid the distribution of the water over your land? A. I dammed the low places and cut the high places in the hanks of the river, and let the water out, and I made ditches in 1859. I took water out in two places by ditches in 1838: one place in particular.”
The Coral ditch, constructed in 1858, the Island ditch and the Mast ditch, constructed in 1859, referred to by respondents’ counsel as having a carrying capacity of between three and four thousand
“On the---day of -, 1857, lie, tliis defendant, his associates, and those through and with whom he claims .title, were the owners of, and as such owners wore in the possession of, a tract of agricultural, grazing, and meadow land, situate on both banks of the East Fork of said river, about 20 miles above the plaintiff's said mill in Douglas county, in this territory, containing about 600 acres.”
He further alleged that he—
“Now is, and over since the--- day of March, 1860, has been, the owner in his own right, and in the possession, of so much and such part of said tract of laud as is now known and described by the government survey as the northeast quarter of section 36 in township 13 north, of range 19 east, containing 160 acres; also, the northwes1 quarter of same section.”
fie then claimed a sufficient amount of the water of the river to irrigate the lands mentioned in his answer. In the present case the amount of land claimed is 6,900 acres, and it is alleged in the answer that the amount of water required for the purpose of irrigating- his land is 21,000 inches, under a 4-inch pressure.
Conceding to all of the respondents who have, in any manner recognized by law, connected themselves „ with the early setilers by any title to the land, or to the use of the water of Carson river for irrigating the same, it still follows that, if such use of the water was prior in date to the appropriations made by complainant’s grantors, it would not materially interfere with the rights subsequently acquired by complainant. The respondents, having appropriated a portion of the water of the river, and diverted it by cuts in the high hanks and by ditches, as before stated, only acquired the right to appropriate and use said portions of the water to the extent necessary to irrigate the amount of land they then owned, (riving to such rights the broadest scope to which any judicial sanction has ever been extended, it would not impair the rights of the complainant, who subsequently acquired a rigid to the then surplus water of the river in its bed or hanks to an extent that would not interfere with such rights as respondents had previously acquired. When the right of the complainant alta died and became fixed, the respondents could not in any maimer encroach upon or Interfere with it by afterwards extending and enlarging their own rights beyond their first appropriation, by the acquisition of additional land, and the construction of ditches or other means to convey additional quantities of water away from said river to any' portion of their subsequently acquired lands. No rule of law is better settled, ofiener applied, more rigidly enforced, or
Under the law of riparian proprietorship,' an upper riparian proprietor is entitled to make a reasonable use of a portion of the water of a.river to irrigate his riparian land, but he does not have any right to take the water away from the river to irrigate other lands, that are not riparian. Kin. Irr. § 284; Gould v. Stafford, 77 Cal. 66, 18 Pac. 879. During the years from 1860 to 1864 the raising of hay on the natural meadow lands was the principal and most profitable business carried on by the farmers in the valley. Some of the witnesses testified that during those years they sold hay to the mill men and teamsters for from $75 to $100 per ton,, and that they sold hay to parties directly and indirectly connected with the mills as early as 1861 and 1862. It is the diversion of the water from the river to the outside, high, sagebrush lands, since 1864, in connection with the wasteful use of the water hereinbefore referred to, that has caused the shortage of water which interferes with complainant’s rights. The quantity of water to irrigate the sagebrush lands is greater than would be required to irrigate the lands in the river bottom, or low lands throughout the valley. Prior to 1864 there were experiments made in the irrigation of small quantities of sagebrush land; but annually since 1864 additional quantities of such land have been taken up, and additional amounts of water appropriated for the irrigation thereof. The Virginia and Klauber ditches were among the first appropriations made for the purpose of diverting the water away from the river at low stages. The Klauber ditch was located and constructed in 1864. This fact is gleaned after a careful comparison of all the conflicting evidence in regard thereto, and a reference to the testimony affords a clear illustration of the uncertain
“Q. Who first settled the Klauber ranch? A. It was first settled by brothers named (Iroenleaf in 1857. * » * Q. Was there any ditch constructed on that land in 1858? A. Not that I know oí. * * * Q. What kind oí a ditch was there in 3859? A. It was a large ditch in 1859. It must have been 3% or 1 feet in width, and 2% feet in depth. Q. Has that ditch been enlarged since then? A. No, sir; I don’t think so.”
Henry Eppstein, who was one of the owners, and had charge of the Klauber ranch from 1860 to 1867, and Henry Vansickle, who lived near it since 1855, and who owned it for many years, both testified that the Klauber ditch was built about 1864. Several other witnesses testified to the same effect. During the time the testimony was being taken the original contract for the construction of the Klauber ditch was discovered, and introduced in evidence. This contract was made and entered into January 11, 1864, and the ditch was to be excavated of the following dimensions, viz.:
“2 feet deep, 2% feet wide at the bottom, and 3% feet wide at the top, and to be 417 rods in length; * • * * the party of the second part, also contracting and agreeing that they will commence said work within three (3) days after this dale hereof, and fully complete and finish the whole of the same by or before the first: day of April next.”
With reference to the irrigation of sagebrush lands, Henry Eppstein testified as follows:
“Q. When was irrigation first commenced or carried on by means of diverting water from the main stream on the Klauber ranch, and the adjoining-ranch of Fred Dangberg, or any of the ranches in the valley along the Oarson river, by means of water diverted from the Oarson river? A. As near as I can recollect at the present time, we built dams on the river, on what we called the ‘iliddle Fork,’ as early as, perhaps, 18(51 or 18(52. It was for the purpose, however, of regulating the water, in order that we should not have too much water in one place, and not enough in another. It was done for the purpose of irrigating some of the high places on the lower land, where we had a natural growth of grass, and we regulated the water, also, to keep it from the lower ponds and lower places. Wo did this by putting dams in the river, and by cutting the banks lower down the river, to turn the water back in the channel. The banks of the river are always a little higher than Hie land adjoining, but for the purpose of cultivating new land, which we termed ‘sagebrush land,’ that was not done until later on. We did not endeavor to irrigate sagebrush land until later on. Q. How much later on? A. As near as I can recollect, the value of the sagebrush land was not known, and Hiere was a difference of opinion amongst ranchers as to whether anything could be raised on sagebrush land or not, and there were experiments made on a small scale in 1861, ’2, ’3, to cultivate sagebrush land. Q. On how largo a scale were those experiments made? Would you say on two or three acres, or on a hundred acres? A. Oh, only a few acres. And it was shown that the land could be made productive, and then there was more work done,*108 but that was done later. Q. When was more work done' to show that sagebrush land could be made productive? A. Not earlier than 1804, and to a limited extent. Q. To what extent, about, in acres? A. On small tracts of 10 or 15 acres at a time, because labor was very high and hard to get, and, as it was only a matter of experiment, they could test it with a. few acres as well as with large tracts of land. Q. As early as 1862, ’3, ’4, liow many people do you know of in the Carson valley trying these experiments to see whether sagebrush land would produce or not? A. I think the most extensive work done in that direction was done by Dangberg, * * * and there was some people above him, too. * * * Q. Do you think of Frevert? A. Tes; and Peter Lyttle and others, and Madison; but they made their improvements after that. Q. Do you say that Dangberg made his improvements later? A. No; Frevert. Q. About how much later? A. I do not think they started before the latter part of 1864, or early in 1865, in the cultivation of sage- ■ brush land. Q. Would you say that Frevert, Dangberg, and yourself, for Klauber, made any experiments to cultivate sagebrush lahd earlier than 1862 or 1863? A. I do not tñink we made any experiments as early as 1862. We did not make such experiments on sagebrush land earlier than 1863, and then only on a few acres. Q. In 1863, how extensive were the experiments made, — about how many acres of sagebrush land were cultivated, in the aggregate in the valley, or by each one? A. * * s: I should judge, between 250 and 300 acres on the Klauber, Frevert, and Dangberg ranches, altogether. * * » Q. Was there any other land anywhere in the valley, except the natural grass land and meadow land, cultivated prior to 1864, than the two or three hundred acres you have mentioned? A. Not to any extent. I know there was some improvements made as low down on the river as Gracllebaugh’s ranch, and they talked about digging ditches. That was all done on a small scale.”
The date when the Virginia ditch was constructed cannot be as definitely ascertained as ,the Klauber ditch, owing to the fact that there is no written contract as to the time of its commencement. It is claimed by the respondents to have been built in 1861, while the complainant contends it was not built until the fall of 1863, or spring of 1864. The testimony, which is quoted in the statement of facts, leaves the question in doubt, and it can only be approximately determined. It is too vague, uncertain, and unsatisfactory to base any rights upon it prior to the fall of 1863, which is long subsequent in date to the appropriation made by the complainant. All ditches constructed subsequent to the time when complainant acquired its rights are subject thereto, and need not be further noticed.
11. With reference to the time when the complainant’s rights were first acquired, the record shows that the Vivian Mill was built in the winter of 1859-60, was washed away in 1861, and rebuilt in 1862; that the Rock Point Mill was built in the fall of- 1860, or early in 1861, and was completed and put in operation in the fall of 1861, or early in 1862; that the Merrimac Mill was constructed in the summer or fall of 1860, and the ditch completed in August, 1861; that this ditch was about 10 feet on the bottom, 12 feet on top, and 4 feet deep, with the usual slope; that it took nearly all the water power in the ditch to run the mill with all its pans; that the Brunswick Mill was completed in 1864; that the other mills were built in 1861. The first notice of the mill site and water privilege for the Mexican Mill reads as follows:
“We, the undersigned, claim this mill site and water privilege, with the banks and sufficient land to form a pond that may be so formed by the backwater caused in building a dam 20 feet in height across said river [Carson*109 river], and appurtenances thereunto belonging, for the purpose of driving machinery, and milling purposes. O. P. Patterson.
“March 20, 1800. Wm. H. Mead.”
“Situate at eastern end of the canon on Carson river; the moutli of said canon being opposite in an easterly direction from Penrod’s house, and mouth of -where Clear creek empties into Carson river.
“Filed for record May 5, 1800. Carson County Records, U. T. Now in office of the secretary of state of Nevada.”
Tlie second notice reads as follows:
“River Claim.
“The undersigned claim the waters of Carson river at a point 4% miles above Dutch Nick’s, or a sufficient amount of the waters of said river to fill a ditch 8 feet wide on the bottom, 14 feet wide at the top, and 3 feet deep. Said ditch will be built and tlie waters taken out on the north side of the river, and said water used and returned into said river at or near Dutch Nick’s (Umpire).
“Carson City, May 1st, 1861. J. H. Atchinson & Co.
“Filed for record May 1st, 1801.”
Tlie mill was built in 1861, was destroyed by fire tlie same year,, and immediately rebuilt. Work was commenced on the Mexican ditch in the fall of 3860, or spring of 1861, and fully completed in 1862. W. Cook, who owns land through which the Mexican ditch runs, testified that “from the summer of 1860, until the ditch was completed, in 1.862, the work was prosecuted without interruption until it was finished.” From the time of the completion of the several mills and ditches, up to the time of the commencement of this suit, they have, with the exception of temporary suspensions by Hoods in the river, occasional scarcity of ore, and lack of sufficient water in the summer or fall months, and other causes, been continuously in operation; and the complainant and its grantors have made a beneficial use of the water of the river, to the full extent of the carrying capacity of the ditches, races, etc.. The water to propel the machinery for the various mills, after use, flows back into the river, and is used in the ditches and races of the other mills lower down on the river. It will thus be seen that complainant’s rights to the water for tlie Mexican Mill were acquired as early as March, I860, some others prior to 1861, and for all except the Brunswick prior to 1862. In determining the question of the time when a right to water by appropriation commences, the law does not restrict the appropriator to the date of his use of the water, but, applying the doctrine of relation. fixes it as of the time when he begins his dam or ditch or flume, or other appliance by means of which the appropriation is effected, provided the enterprise is prosecuted with reasonable diligence. Mining Co. v. Carpenter, 4 Nev. 534, 544; Irwin v. Strait, 18 Nev. 436, 4 Pac. 1215; Kimball v. Gearhart, 12 Cal. 28; Canal Co. v. Kidd, 37 Cal. 283, 311; Osgood v. Mining Co., 56 Cal. 571, 578; Sieber v. Frink, 7 Colo. 149, 154, 2 Pac. 901; Woolman v. Garringer, 1 Mont. 535; Kin. Irr. §§ 160, 161; Black’s Pom. Water Rights, § 55.
Tlie averment in tlie complaint concerning the Mexican ditch., viz. “that said ditch will carry 8,640 inches of wafer flowing on the grade thereof, to wit, 1 foot to the mile,” is not sustained by the evidence. The testimony in relation to this ditch covers a wide range, and is in many respects unsatisfactory, owing principally to the fact that the witnesses measured the ditch at different times and places, and
“I now offer to provide a carriage to counsel and Mr. Taylor, and take them to' the Mexican ditch and mill, where Mr. Taylor can make the measurements for himself, and know that they are accurate.”
Counsel for respondents said:
“I consent that Mr. Taylor may go any time to make such measurements as he desires.” v
Counsel for complainant:
“I now offer to place the entire Mexican mill, ditch, and wheel at the disposal of defendants’ engineers and counsel, so far as its inspection and survey of the same may he concerned.”
For some unexplained reason, neither Mr. Taylor nor respondents’ counsel ever availed themselves of this offer, which was certainly fair
Eugene May, by occupation and profession a practical mechanic and millwright, who bad been engaged at the Mexican Mill for 2-1 years, and is (lie foreman of the same, gave a full description of the Leffel double turbine “¡(¡-inch wheel used at the mill, with all the mechanism and machinery connected therewith, and verified the tables of Mr. Leifel as being correct. On this point he testified as follows:
“I would rather take his tables, if I were planning a mill or wheel or a. penstock, in preference to consulting a civil, engineer, to develop a certain amount of power with a given amount of water and fall. 1 consider his works reliable.”
Mr. Taylor was recalled for further cross-examination. Hypothetical questions were propounded to Mm, based upon the testimony of Mr. May, given thereafter, as to the facts, and the tables of Leffel as to the calculations. Among other portions of his testimony upon this point is the following:
“Q. Examine plaintiff’s Exhibit No. 20, on page 37, and the table where Ijpffol gives the amount of water that will pass through a 56-ineh turbine wheel measured in the tail race after it has left the wheel, with 28-foot pressure in (he penstock, and reduce to cubic feet; per second, and inches, under a 4-inch pressure, the table giving the quantity of water and cubic; feet per minute. A. That gives 129.15 cubic feet per second, or 6,437^ miners’ inches, measured under a 4-inch pressure. Apparently he takes the actual discharge as being 00 per cent, of the theoretical discharge! taking the 00 per cent, as the coefficient for velocity and contraction combined. I figured that here a. few moments ago, and used 60 per cent, as the only coefficient for discharge occasioned by contraction in passing through the tubes and friction, and by the retarding effect of the revolution of the wheel, and 1 got a discharge, instead of 129 cubic feet per second, 133 cubic feet per second. [That would lie 6,050 indies, miners’ measure.] Q. You figured that more water would pass through the wheel than Eeffel does? A. Yes, sir; using a coefficient that he uses, it gives a difference of 4 cubic feet per second; using a coefficient tiiat you state he uses, the difference is less than 3 per cent.”
I am of opinion that in a case like tMs, where a certain state of facts has been testified to on behalf of the complainant, and the respondents are given a fair opportunity and afforded every facility, and requested, to visit the spot and ascertain the truth or falsity of such testimony, and they decline to go, and offer no excuse for their failure so to do, they ought to be estopped from denying the truth of the testimony. Everything is clear that can be made clear, and the court has the right to assume that respondents would have shown the testimony to be false, by actual measurements made by a reliable witness, if it could have been done. Taking the measurements of the water in the Hume at the mill as above stated, we have as a result a self-evident, convincing fact, which needs not the evidence of any civil engineer, or a comparison of the scientific tables from standard works, that when a given quantity of water, flowing from the head through the ditch, is found at the lower end where it is discharged into the penstock of the mill, it is conclusive evidence that the ditch, throughout its entire length, must have had at the time the measurements were made a carrying capacity equal to the amount of water found at the place of delivery. This being true, it would be but an
Just as soon as one fact is disposed of, another question is presented, upon which there is anpther conflict, that must be likewise solved by the court. It is zealously, earnestly, and confidently asserted by respondents’ counsel that the Mexican ditch, since its construction, has been repeatedly enlarged, and that complainant is not entitled to have its rights established herein by the present carrying capacity of the ditch. Every page of the. testimony is suggestive of matters that ought to be discussed, and the temptations to quote from the record become greater as we proceed; but, if the end is ever to be reached, the admonition of the court as to the necessity of only giving conclusions must be adhered to. An outline of the general testimony .upon this point will alone be given. Great reliance is placed upon the testimony of G. K Dobbs, who had charge of the workmen engaged in cleaning out and repairing the ditch and flumes in the year 1862, after a heavy flood which occurred either in January or February of that year. This flood washed away one side of the dam at the head of the ditch, and some portions of the ditch and flumes. The dam was rebuilt, and the ditch thoroughly repaired. Most of the flumes along the line of the ditch had to be replaced, but the testimony does not show that all of them were. A number of men were employed for two or three months before the entire -work was fully completed. The opinion of Mr. Dobbs is to the effect that the result of this work was to materially enlarge the capacity of the ditch, because the sediment in. the flume was thrown .upon the lower bank, increasing its height, and in some places the sides of the ditch were widened. But he never measured the ditch before or after the repairs were made, and, at best, his testimony is only guesswork, from memory. The same witness testified that the ditch was again repaired in 1865, and at that time there was some blasting of rock on the upper side of the ditch, above Cook’s ranch. At that point there were big rocks that had fallen into the ditch, and caused eddies in the water, that broke the ditch; and these rocks and other overhanging rocks were blasted out, and thrown upon the lower side of the ditch, and from this fact it is claimed the ditch was again enlarged.- The truth is, in order to obtain the supply of water to the extent of the capacity of the ditch, it is necessary to clean it out every two or three years, or of tener, and for this reason it is argued that the ditch has been constantly enlarged. The testimony on behalf of the complainant is to the effect that the renairs never increased the amount of water flowing through the ditch; that the banks, projecting points at curves, and the sides of the ditch that were cut away, were only done for the purpose of making the flow more regular; when the ditch was first constructed, the grade was not even, and when the repairs were made there were some places
“The ditch might tie so imperfectly constructed, with irregular and improper grades, and with incomplete excavation, that it could not actually carry so large an amount of water as its general plan and size rendered it capable of carrying, and as its proprietor hail intended t,o appropriate. Under these circumsianccs, unless the use of the ditch had continued so long a time as to show an intention of the appropriator to adopt it in its existing imperfect condition, the proprietor would be entitled to perfect his ditch by removing obstructions, imploring- the grades, and the like, so that it could actually carry the amount of water indicated by its general size and character, and originally intended to be appropriaied; and ¡he increase in the acUial flow of water thus caused would not be an invasion of the rights of subsequent appropriators, although their rights accrued before the improvements were ma.de.”
The weight of the testimony is, when thoroughly examined in its entirely, to the effect that the carrying capacity of the ditch, as it now stands, is no greater than when originally built. The Mexican Mill, after the Hood in 1862, was enlarged from 12 to 44 stamps, but it: is not shown that any greater amount of water was needed to run the mill after it was enlarged than the amount appropriated by the capacity of Us ditch when first constructed. Complainant, under these circumstances, ivas entitled to enlarge its mill within'a reasonable time so as to use the whole amount of water to the capacity of its ditch, upon the same principle that an agriculturist: who diverts a given quantity of water to irrigate his lands is not confined to the amount of land irrigated by him the first or second year after his appropriation. The object had in view at the time of his diversion of the Wilier must always be considered in connection with the actual extent of Ms appropriation. Barnes v. Sabron, 10 Nev. 217, 244, and other authorities cited in applying the doctrine of relation. The working capacity of some of complainant’s mills, especially of the Mexican, has been materially increased, not by any increase of wafer, but by cutting down the tail races and increasing the vertical fall of wafer on the wheels, discarding the old-fashioned wooden overshot: and breast: wheels, and substituting the latest improved turbine wheels and oilier machinery. The complainant, as well as the respondents, should be required to make an-economic ¡is well as a reasonable use of the water. If the capacity of the ditch is shown to be greater than is necessary to enable complainant to make such an economic and reasonable use, then it should be con tilled to the amount necessary for such use. although it is less than the capacity of its ditches. This principle applies to the mills as well as to the agricultural lands. The weight of the testimony clearly shows that the Mexican ditch has a carrying capacity of 130 cubic feid: per second, equal to 6,500 inches of water, under a 4-inch pressure. It is, of course, a matter of common knowledge that persons build their ditches with a view to the quantity of water needed. Blight testimony is therefore usually sufficient to show that the full capacity of tin1 ditch was used. Faulkner v. Rondoni (Cal.) 37 Pac. 883. But,
“The rule of law is that in cases for the diversion of water, where there is a clear violation of a right, and equitable relief is prayed for, it is not necessary to show actual damage. Every violation of a right imports damage. And this principle is applied whenever the act done is of such a nature as that, by its repetition or continuance, it may become the foundation of an adverse right.”
See authorities there cited; Mining Co. v. Dangberg, 2 Sawy. 450, 454, Fed. Cas. No. 14,370; Hatch v. Dwight, 17 Mass. 289; Webb
Under the rules of riparian proprietorship, the right to the use of the water in its natural flow is not a mere easement or appurtenance, but is inseparably annexed to the soil itself. It does not depend upon appropriation, or presumed grant from long acquiescence on the part of the other riparian proprietors above and below, but exists, jure natural, as parcel of the land. It is not suspended or destroyed by mere nonuser, although it may be extinguished by the long-continued, adverse enjoyment of others. It is not affected by the use to which the water has been or may be applied. Use does not necessarily create the right, and disuse cannot destroy or suspend it. Kin. Irr. § 59; Gould, Waters, § 204; Lux v. Haggin, 69 Cal. 255, 10 Pac. 674. The right to water acquired by prior appropriation is nol dependent upon the place where the water is used. A party having obtained the prior right to the use of a given quantity of water, is not restricted in such right to the use or place to which it was first applied. It is well settled that a person entitled to a given quantity of the water of a stream may take the same at any point on the stream, and may change the point of diversion at pleasure, and may also change the character of its use, if the rights of others be not affected thereby. Hobart v. Wicks, 15 Nev. 418; Kidd v. Laird, 15 Cal. 162, 180; Davis v. Gale, 32 Cal. 26; Junkans v. Bergin, 67 Cal. 267, 7 Pac. 684; Ramelli v. Irish, 96 Cal. 214, 31 Pac. 41; Coffin v. Ditch Co., 6 Colo. 444; Sieber v. Frink, 7 Colo. 148, 2 Pac. 901; Strickler v. City of Colorado Springs, 16 Colo. 62, 68, 26 Pac. 313; Woolman v. Garringer, 1 Mont. 535; Kin. Irr. §§ 233, 248; Black’s Pom. Water Rights, § 69; Gould, Waters, § 237. If there was any loss of complainant’s rights at the Merrimac, it might be necessary to examine the rights of the complainant in the other mills lower down on the river. They are all involved in this litigation. Prom a cursory examination of the testimonv in relation thereto, the court is satisfied that the same results would be produced, and, as it is of opinion that complainant has lost none of its rights at the Mexican or Merrimac, it declines to enter into any of the details as to the other mills.
From this lengthy review of the facts, and enunciation of the legal principles applicable thereto, it follows that complainant is entitled to a decree against the respondents for a wrongful diversion of the water of the Carson river to its injury and damage, whether the right of riparian ownership or prior appropriation is to be applied. This result has been reached without any special discussion relative to the prior decrees in this court or in the state court, but these decrees cannot be ignored. Their effect "must be determined before the court can order any decree to be entered herein. The records in the former suits brought by the complainant or its grantors against some of the same parties for the same purpose, and the decrees obtained therein, were admissible in this case as against all of the respondents who were parties in the former suits. It is claimed by respondents’ counsel that the former decrees should not be treated as res judicata, for the reason that the issue joined in the former
“Perpetually restraining them from diverting the waters of Carson river, upon their lands or elsewhere, so as to prevent the same from flowing freely to the lands and mill of idaintiff, to the extent necessary for the lawful uses and purposes of plaintiff in carrying on upon its said premises the business of reducing metalliferous ores, or other lawful business in which it may now or hereafter be engaged.”
Similar decrees were entered in the other suits referred to in the statement of facts. It is claimed that under these decrees — rendered upon the riparian rights of the parties — the complainant is confined in its rights to the locus in quo of the Merrimac Mill at the time the decrees were rendered, and that, inasmuch as no water was used at that point when this suit was commenced, the former decrees ought not to be considered as res judicata. The decrees in question are not susceptible of such a narrow or limited construction. It will be noticed that it was not confined solely to the business of “reducing metalliferous ores,” but the right to engage in any “other lawful business” is expressly mentioned. It was because its lands and mill were on the bank of the river that it became entitled to the decrees under riparian rights, and not because of the particular spot on which the mill was erected. The Merrimac Mill could have been torn down, and complainant could have built a flour mill on the opposite side of the river, or used the water power at the Mexican higher up, or at any other of its mills lower down, on the river, if it owned the land, without any loss of its original rights obtained under the prior decrees. The material parts of the decrees are found in that portion which enjoined and restrained respondents from any diversion of the water of the river to the extent necessary to enable complainant to conduct its business. To that extent the respondents were required to allow sufficient water to flow freely down the Carson river to enable complainant to run its mill by water power. In Ditch Co. v. Heilbron, 86 Cal. 1, 18, 26 Pac. 523, the point was made by appellant that the plaintiff was estopped by matter of record from claiming or diverting any of the waters of Cole slough, or interfering with the free flow thereof. This point was sustained bv the court. Substituting Carson river for Cole slough, its application to this case is apparent. It appeared that in a prior suit, entitled “Heilbron et al. v. Last Chance Water-Ditch Co.,” where the waters of Cole slough were involved, judgment was duly given and made, forever enjoining the Last Chance Water-Ditch Company, the defendant therein—
“From digging out, enlarging, or lowering the channel of Kings river at and immediately below the head of Cole slough, and from erecting or maintaining any dam or other obstruction in or across the channel of said Cole slough at Or near its head, and from doing any act or thing which shall interfere with, or in any manner prevent, the free flow of water into or down the channel of said Cole slough.”
The court, after making this quotation, said:
“This judgment has become final. Respondent insists that this judgment does not work an estoppel in this case, for the reason, as it claims, that the*118 trespasses then complained of and enjoined were those, and those only, at the head of Cole slough. We do not so read either the complaint or the judgment in that case. The locus in quo was a mere incident of the cause of action or the relief sought. The substantive wrong complained of was the prevention of the water from flowing into and down the channel of Cole slough, and into the head of the ditch of plaintiffs in that case. The judgment restrained, not only the acts at the place complained of, but any act which would have the effect of preventing the water from flowing into or down the channel of said Colé slough. The injunction therefore ran, not alone as to the head, but as to the entire length, of Cole slough, and in doing so it did not exceed the relief warranted by the allegations and the prayer of the complaint. The effect of the judgment in the present case is to restrain and enjoin these defendants [the plaintiffs in the former ease] from interfering with such trespasses of the plaintiff herein [defendant in the former case] as are committed in violation of the former. injunction, and are intended to, and do, defeat its purpose. In other words, the effect of this judgment is to enable the plaintiff to deprive the defendants of the fruits of the former judgment rendered in their favor, and still remaining in full force. The right to have the water flow, according to the course of nature, through the channels of Cole slough, from end to end, not only might have been, but, as we read it. was, within the purview of that former action, both in respect to matters of claim and defense, and was there adjudicated and determined. That determination is res judicata as between these parties.”
What decree is complainant entitled to? If its rights were to he based solely on prior appropriation, it would be entitled to a decree as against all of tbe respondents who are subsequent in time to the appropriation made by it in the spring of I860. It has not enlarged its rights since then. The same water is used over and over again, but there is no increase in quantity. All of the respondents who stand in the same situation as H. F. Dangberg and others heretofore mentioned, who connected themselves in interest with the early settlers prior to the time of the acquisition of complainant’s rights, would be entitled to a decree of priority for the amount of water necessary to irrigate all the lands owned by them prior to the spring of 1860, when complainant’s rights attached, but complainant would be entitled to a decree against them as to the water appropriated by them on their subsequently acquired lands. If riparian proprietorship is to prevail, then all of the respondents who are owners of riparian lands would be entitled to a reasonable use of the water in common with the complainant as a riparian proprietor. Their rights as to such lands are the same now as then. They were heard, settled, and determined in the former suits, and are binding upon them and all parties privy thereto, unless the changed conditions are such as will justify the court in departing therefrom, so as to make a new decree applicable to the present, existing situations and surroundings. The quantity of water flowing in the Carson river is dependent, not only on the amount of snow which falls upon the mountains and in the canons from which the river draws its supply, but also upon the time of the year when it falls, and further upon the amount of rain that comes in the spring or summer season of the year. The truth is that in some years, in every month thereof, there is more than water enough to meet and supply all the demands of the farmers and of the mill owners, and that in seasons of extra drought, for a few months in such years, there is scarcely enough for either. The real controversy between the respective parties is con
“When we come to consider the terms of the decree, we find it impossible, however desirable such certainty may be, to measure out to the defendants a specific quantity of water, in cubic inches, flowing under a given pressure, as reasonable, or to designate a certain number of acres of land which a defendant may at all times reasonably irrigate, and restrict him to that quantity of water or number of acres.”
This court must follow its former decrees, in so far as they were . based on riparian proprietorship. It clearly appears from the testimony that the complainant, at the time of, and since, the commencement of this suit, has not been able to continuously run its mills,— all or any of them, — on accofint of the scarcity of ore. It has no other use for, and makes no other claim to, the water of the river, except for the purpose of propelling the machinery at its mills by water power for the reduction of metalliferous ores. On the other hand, the testimony shows that respondents, who are equally entitled, as riparian owners, to a reasonable use of the water, have, during a small portion of the dry season, been unable to use the same for irrigating purposes without practically using all the water, or at least leaving an insufficient quantity to flow down to complainant’s mills. The respondents cannot be compelled to supply any given quantity of water which the elements fail to furnish. It is easy enough for the courts to say that each riparian proprietor is only entitled to use, for the purpose of irrigating his own land, that portion of the water of the stream which- is in excess over the amount
