67 P. 914 | Nev. | 1902
Lead Opinion
By the Court,
The preliminary motion to strike out the statement, interposed by respondents in the district court and renewed in this court, involves the construction of a stipulation between the parties entered into on the day the findings were filed and the judgment rendered.
The stipulation, inter alia, provides that all proceedings in the action shall be stayed until the 30th day of November, 1900, and that within forty days thereafter the appellants may make application for additional findings, file and serve notice of intention to move for a new trial, and file and serve the statement on motion for a new trial.
The notice of intention was filed and served on the 26th day of October, 1900, and the proposed statement on motion for new trial was filed and served -on the 5th day of January, 1901.
It is a general rule that stipulations between parties should receive a fair and liberal construction, in harmony with the apparent intention of the parties and the spirit of justice, and in the furtherance of fair trials upon the merits, rather than a narrow and technical one, calculated to defeat the purposes of their execution, and, in all cases of doubt, that construction should be adopted which is favorable to the party in whose favor it is made. (O’Neale v. Cleaveland, 3 Nev. 485; Insurance Co. v. Harris, 97 U. S. 331; Sweeney v. Railway Co., 11 Mont. 523; 20 Enc. Pl. & Prac. 657, et seq.)
Under this rule it is clear to us that the construction contended for by respondents is too -narrow and technical. The appellants were not bound to perform any one or all of the acts covered by the stipulation at any specified time. They could, we believé, under a liberal construction in the order named, perform any or all of the acts at any date within the time limited. To hold as contended by respondents would, it seems to us, necessitate the interpolation of language not found in the stipulation; and, if such had been the intention of the parties, it was useless and absurd to have included in the stipulation any matter relating to the time of filing and serving the statement on motion for a new trial. The intention of the parties, manifest from the language used, was that the stipulation should stand in lieu of the provisions of the statute regulating these matters.
The case of State v. Cheney, 24 Nev. 222, cited by respondents in support of their contention, is not in point, and the reading of the facts of that case is sufficient to distinguish it from the case at bar, without discussion.
The motion to strike out will therefore be denied.
The respondents brought this action against appellants for
Omitting all formal parts of the complaint, the matters pertinent to the question considered on this appeal, as alleged, are that the respondent Walsh and his predecessors in interest were, and had been since the 15th day of March, 18C3, the owners and in the possession of certain tracts of land containing 1,400 acres; that.the respondent A. P. Maestretti and his predecessors in interest were, and had been since said date, the owners and in possession of certain tracts of land containing 480 acres; that the respondents James and Margaret Ryan and their predecessors in interest were, and had been since said date, the owners and in the possession of certain tracts of land containing 400 acres; that the respondent L. F. Maestretti and his predecessors in interest were, and had been since said date, the owners and in the possession of certain tracts of land containing 800 acres; that the respondent Mrs. Bircham and her predecessors in interest were, and had been since said date, the owners and in possession of certain tracts of land containing 400 acres — all of which lands are situated upon Reese river, Lander, county, Nevada; that "said lands have been used during all said times for agricultural purposes; that Reese river has from time immemorial, until the diversions by the appellants in 1897, flowed over, through, and across said lands; that from the 15th day of March, 1863, until the diversions made b5r. appellants aforesaid, respondents and their predecessors in interest appropriated and used the waters of the river for irrigating and flowing over and through said lands, thereby raising crops of grass, hay, and vegetables; that the appellants claim and assert rights to the waters of the river, which claims and assertions are alleged to be subordinate and subject to the rights of the respondents; that the diversions of the water by appellants since 1897 have been wrongful; and that appellants threaten to continue the same.
The answer denied the material-averments; set up prior
The court found, among other matters, that Reese river had from time immemorial, and until the diversions by appellants, flowed over, through, and across the lands pf respondents ; that on the 15th day of March, 1863, the respondents and their imedecessors in interest had appropriated and used the waters of Reese river " in sufficient quantity ” for irrigating and flowing over part of their land. The court did not find the quantity of water appropriated by any or all of the respondents, or that respondents had appropriated all the waters of the river. The decision followed the findings, and a decree was entered perpetually enjoining the appellants, and each of them, their agents, etc., "from diverting any of the water of Reese river, and from in any way interfering with said water in sueli manner as to prevent said water from flowing on the lands of respondents in sufficient quantity to irrigate the same.”
From a large mass of matter contained in a voluminous record we glean the following established facts, which appear not to be controverted, and which must control the questions which are clearly presented under a part of the assignments considered by the court:
Reese river has its source in the mountains of Nye county, and flows northerly into Lander county. The lands mentioned in this proceeding lie along, upon, or in the vicinity of said river. The quantity of water flowing in the river is variable, dependent upon the amount of snow and rain falling upon its watershed at its head and along its course, and the watersheds of its tributaries, during the various seasons.
The evidence does not show the quantity of water usually flowing in this stream, further than at some periods there was sufficient for all the parties claiming rights thereto in this proceeding, and at other times the quantity was insufficient to meet the claims of all.
Several miles above respondents’ lands the river divides
The appellants and their predecessors in interest settled upon the lands mentioned in their complaint in 1862 and 186J3. The predecessors in interest of some of the respondents settled on lands along the river a little later, but about the same time that the lands of appellants were settled. The settlers upon the lands claimed by respondents had their several holdings surveyed, marked the boundaries thereof, and protected the same to some extent by making so-called ditch fences.
The ditches thus made were not for the purpose of irrigation, and were not so used for many years after and until other rights of both respondents and appellants had been acquired to the waters. The settlers upon respondents’ land found wild grasses growing thereon at the time of their settlement, suitable for hay and grazing, and cut and grazed the same for a number of years. Up to 1869 whatever hay and grass grew upon these lands was produced by the natural overflow of the waters of Reese river, and waters flowing from springs upon part of the holdings.
No attempt was made to divert any of the waters of Reese river for the purpose of irrigation until 1869, when the ditch marked on respondents’ map by the figures 1, 2, and 3, taken from the so-called West Fork, above the lands now held by Ryan and Maestretti, was commenced. This ditch was not completed until many years after its commencement, and it appears from the evidence that no water has run through a part of this ditch since 1891.
As to the Walsh lands, it appears from the testimony of the respondent, Walsh, that no diversions were either made or attempted until 1870, and that the diversions made for the purposes of irrigating his lands cover the period from 1870 to 1884. It is shown by his testimony that he helped make the ditch marked "E to F” on respondents’ map in 1870; the ditch marked "J to K” on the same map, it appears, was
It nowhere appears in the testimony what the size of any one of these ditches was, or what is or was the carrying capacity of any one.
As to diversions of water for the purpose of irrigating the Ryan and Maestretti land, other than the attempted diversion by the ditch marked "1, 2, and 3,” above referred to, it appears that a dam at a point marked " 7 ” on the map was constructed in 1869, and a ditch taken from the dam to a point marked " 8 ” thereafter.
It also appears that some dams were also placed in what is called the "Sainpson Slough,” running through these lands. It also appears that in the 70’s one part of the ditch made to mark the boundary of the west line of the Ryan place was used to irrigate part of the land.
The facts regarding the first diversion of water for the purpose of irrigating the Maestretti land, formerly held by Bircham and Wallace, is of the most meager character.
It appears that S. B. Wallace, the former owner of this tract, afteí he and Bircham had divided their holdings, in 1869, constructed two dams and turned water onto his meadow land, but it is uncertain whether this water had its source in the river or in certain springs. The date of the first diversion upon the Bircham land is left by the evidence to be conjectured.
Some time between 1863 and 1869 it appears that a dam was constructed in the so-called West Fork of Reese river, above the Bircham house.
Whether the diversion so made was continued or abandoned is a matter, also, of doubt, as it appears from the testimony of the witness Campbell that, for a period of twenty years or more before the trial of this action, water to irrigate the Bircham land was diverted by a dam in the river about twelve miles above the Bircham ranch.
It is not necessary to fully state the facts as to the diver
In 1873 Wallace located another ranch higher up on the river, and started to construct a ditch for the purpose of irrigating this ranch. In 1877 he transferred his diversion of water, under the advice of counsel, from the MeQuitty place to his upper ranch, as it appears that the amount of water used on the MeQuitty ranch would irrigate, much more land upon the upper ranch.
Fred Ahlers, whose administrator is one of the appellants, settled upon Reese river in 1864, and commenced farming that year. He made diversions of the water of the river for the purpose of irrigation, but the dates of s.uch diversions and the amounts of water so diverted are not shown by the testimony. The appellants Charles Ahlers and Hess claim rights through Fred Ahlers, deceased. McMahon started farming on Reese river in 1864, and that year put under cultivation eight acres, but the dates and amounts of diversions made by him are not shown by the testimony.
The above facts are sufficient, as above stated, to illustrate the question considered and determined by this court, and furnish a sufficient basis for its conclusion. It is well to note here that the record does not disclose the quantity of water diverted at any time, by any means, by any one or all of the parties to this action. Neither does it show the quantity sufficient or necessary „to irrigate the lands, or any part of the lands, of respondents, as found by the court. Neither is there any showing in the record from which these facts, or any one of these facts, could be ascertained by any known process.
Counsel, under the many assignments made, have discussed in their briefs nearly the entire subject-matter of the law of irrigation prevailing in the arid and semi-arid states; but, as we view the matter, it is necessary to consider only such questions as are plainly and sharply made under the assign
It is evident from the facts recited that the finding of the court fixing the date of the appropriation of respondents on the 15th day of March, 1863, is contrary to both the law and the evidence.
This conclusion involves directly the question as to what constitutes an appropriation of water, as used in the decisions of this court and the laws of this state as they have existed and now exist.
Under two rules of the law may rights to use of water flowing in a natural stream be acquired — under the rule of riparian rights and under the rule of appropriation.
It is conceded by counsel in this action, and it has been held by this court, that the doctrine of riparian rights is so unsuited to the conditions existing in the State of Nevada, and is so repugnant in its operation to the doctrine of appropriation, that it is not a part of the law, and does not prevail here.
In order, therefore, to constitute a valid appropriation of water, within the meaning of that term as understood by the decisions of this court and the laws of the state, and, as we believe, by the decisions of the courts and laws of other states in the arid region, there must be an actual diversion of the same, with intent to apply it to a beneficial use, followed by an application to such use within a reasonable time. (McDonald v. Bear River Mining Co., 13 Cal. 220; Larimer Co. R. Co. v. People, 8 Colo. 614; Port Morgan Land & Canal Co. v. South Platte Ditch Co., 18 Colo. 1; Lowe v. Rizor, 25 Or. 551; Nevada Ditch Co. v. Bennett, 30 Or. 59; Offield v. Ish, 21 Wash. 277; Reservoir Co. v. Southworth, (Colo.) 21 Pac. 1030; Simmons v. Winters, (Or.) 27 Pac. 7; Charnock v. Higuerra, 111 Cal. 473.)
While this court has never been required in its decisions to thus formally state the rule, yet an examination of the various cases which have been before it, and the large number of legislative acts, state and territorial, shows an actual diversion
Under the rule announced above, the rights of the respondents to the use of the waters of Reese river did not have their inception on the 15th day of March, 1863. Their rights were not initiated by settlement upon the land, by having the same surveyed, or by marking the boundaries thereof. No actual diversion was made on that date, or attempted on that date, and for a period of several years after, as appears from the facts stated. Cutting wild grass produced by the overflow of the river, or, as expressed by the witnesses, by the water of Reese river coming down and spreading over the land, was not an appropriation of that water, within the meaning of that term.
Neither was the grazing of the land an appropriation of the water, under the facts. The established facts as to the rise of the waters of the river by respondents from 1863 to 1869, under the averments of paragraphs 14 and 15, as to the flowing of Reese river, and its appropriation and use, is the mere assertion and proof of riparian rights, if anything; and all parties’ concede that that rule does not prevail in Nevada.
If these facts should be held to constitute a valid appropriation of water, within the meaning of that term, then, under the contention of counsel that Reese river is a well-defined stream, with banks, bed, and channel, flowing over, through and upon respondents’ land, would the channel have to run full of water before respondents could obtain the quantity of their appropriation, and before subsequent appropriators could acquire rights thereto, thus entailing a wasteful use of that which is so essential and necessary to the welfare and development of the state.
This leads up to another important question presented by the assignments, involving the award of the injunction under the findings and facts.
It appears that the inception of the rights of the respondents to the waters of the Reese river was not of the same date, but at different dates.
It appears that the rights of the respondent Walsh and the appellant Wallace were initiated at or about the same time. The first diversion by Walsh was made by his prede
As early as 1870 the appellant D. T. Wallace appropriated water from Reese river on the McQuitty place, if McQuitty had not made the appropriation before Wallace became his vendee.
In 1873 Wallace made a further appropriation on his upper place, and at a subsequent date transferred his diversion from the McQuitty ranch to the upper ranch.
Under the settled rule of the law, it is not claimed by respondents that this transfer by Wallace was not authorized and proper.
Without further reference to the facts of the case, it will be seen that in part, and to some extent, the rights of the respondent Walsh and the appellant Wallace were initiated at the same time, and that the claim of priority as between them, so far as this record shows, could not be maintained by either.
The facts as to the appropriation of waters made by other respondents and appellants are not the same, in many respects, as those recited in reference to the appropriations made by Walsh and Wallace; but the above sufficiently illustrates the conclusion that the findings of the court as to the priority of rights, and its decision thereon, are contrary to both the law and the evidence.
Again, conceding, for the purpose of the argument, that the findings and decision of the court as to the priority of right of the respondents are supported by the evidence- and the law, such findings are not sufficient to base a decision and decree of the court.
- This is an equitable action to determine conflicting claims of right to the use of water by appropriation.
The respondents did not claim by their complaint that they had appropriated all the waters of the river, and the court did not find, expressly or impliedly, that they had.
It did find that they had appropriated sufficient water to irrigate certain portions of their land — much less than they claimed in their complaint.
It is conclusively shown, and not denied, that for many years appellants and their predecessors in interest have done all those things necessary under the law to constitute a valid appropriation of whatever surplus might remain after respondents had taken the amount to which they were entitled.
All the parties, under the pleadings and proof, were claiming and asserting rights to the use of the water of Reese river by appropriation; and all had acquired rights therein, and were asking that those rights be determined.
The court, by its findings and decision, determined but one issue. It did not determine all the rights of either of the respondents, or any of the rights of the appellants. It left undetermined the quantity of water sufficient to irrigate respondents’ lands, and to that extent it left undetermined respondents’ rights, and thereby all the rights of the appellants. It cannot be ascertained from the findings or the decision when the respondents have taken the quantity of water sufficient to irrigate their land, or whether respondents can take subordinate to appellants’ rights at any time any of the waters by virtue of their appropriation.
So far as the findings, express or implied, are concerned, based upon the pleadings and the evidence, the quantity appropriated is left to mere conjecture — is left to be determined by future litigation between the parties.
The parties have no right to determine what is sufficient or what is not sufficient to irrigate their land.
The judgment and decree in this respect should be certain and definite, and,- unless the decree is certain and definite in this respect, it cannot be upheld, except, under the circumstances of the case, the indefinite and uncertain quantity given by the decree is capable of ascertainment. (In re. Huntley, 29 C. C. A. 468; 85 Fed. 889; Dougherty v. Haggin, 56 Cal. 522; Barrows v. Fox, 98 Cal. 63; Ditch Co. v. Crane, 80 Cal. 181; Riverside Water Co. v. Sargent, 112 Cal. 230;
A decree should be based upon definite findings, and the finding’s can be no more definite or certain than the evidence justifies; and where, as in the case at bar (an equitable action to determine conflicting claims of right to the use of water, with the parties before the court), there is nothing whatever in the record upon which to base findings or decision of those rights, either expressly or impliedly, and the findings and decision leave a material part of the controversy undetermined, or to be determined by piecemeal, by future litigation, the action of the court in leaving undetermined essential rights of all the parties cannot be upheld, and is contrary to law. (Watson v. Sutro, 86 Cal. 500; People v. Gold Run Mining Co., 66 Cal. 155; Quint v. McMullin, 103 Cal. 381; Frey v. Lowden, 70 Cal. 550; Feeney v. Chester, (Idaho) 63 Pac. 192.)
For the reasons given, the order denying the motion for a new trial will be reversed, and the cause remanded for further action in accordance herewith.
Lead Opinion
The facts sufficiently appear in the opinion. The preliminary motion to strike out the statement, interposed by respondents in the district court and renewed in this court, involves the construction of a stipulation between the parties entered into on the day the findings were filed and the judgment rendered.
The stipulation, inter alia, provides that all proceedings in the action shall be stayed until the 30th day of November, 1900, and that within forty days thereafter the appellants may make application for additional findings, file and serve notice of intention to move for a new trial, and file and serve the statement on motion for a new trial.
The notice of intention was filed and served on the 26th day of October, 1900, and the proposed statement on motion for new trial was filed and served on the 5th day of January, 1901. *321
It is claimed by the respondents that, while under the stipulation, the notice of intention may be filed at any time before the expiration of the forty days, the relative time for filing the statement on motion for a new trial provided by the civil practice act (Comp. Laws, 3292), after the filing of the notice of intention, was not changed by the stipulation, and therefore, the statement not having been filed within five days after filing and serving the notice of intention, it should be disregarded and stricken out.
It is a general rule that stipulations between parties should receive a fair and liberal construction, in harmony with the apparent intention of the parties and the spirit of justice, and in the furtherance of fair trials upon the merits, rather than a narrow and technical one, calculated to defeat the purposes of their execution, and, in all cases of doubt, that construction should be adopted which is favorable to the party in whose favor it is made. (O'Neale v. Cleaveland,
Under this rule it is clear to us that the construction contended for by respondents is too narrow and technical. The appellants were not bound to perform any one or all of the acts covered by the stipulation at any specified time. They could, we believe, under a liberal construction in the order named, perform any or all of the acts at any date within the time limited. To hold as contended by respondents would, it seems to us, necessitate the interpolation of language not found in the stipulation; and, if such had been the intention of the parties, it was useless and absurd to have included in the stipulation any matter relating to the time of filing and serving the statement on motion for a new trial. The intention of the parties, manifest from the language used, was that the stipulation should stand in lieu of the provisions of the statute regulating these matters.
The case of State v. Cheney,
The motion to strike out will therefore be denied.
The respondents brought this action against appellants for *322 the restitution of the waters of Reese river, and to restrain and enjoin them from diverting any of the waters thereof, and from preventing the usual natural flow of the waters thereof, or any portion thereof, from flowing to the lands of respondents. The complaint also contains a general prayer for equitable relief.
Omitting all formal parts of the complaint, the matters pertinent to the question considered on this appeal, as alleged, are that the respondent Walsh and his predecessors in interest were, and had been since the 15th day of March, 1863, the owners and in the possession of certain tracts of land containing 1,400 acres; that the respondent A. P. Maestretti and his predecessors in interest were, and had been since said date, the owners and in possession of certain tracts of land containing 480 acres; that the respondents James and Margaret Ryan and their predecessors in interest were, and had been since said date, the owners and in the possession of certain tracts of land containing 400 acres; that the respondent L. F. Maestretti and his predecessors in interest were, and had been since said date, the owners and in the possession of certain tracts of land containing 800 acres; that the respondent Mrs. Bircham and her predecessors in interest were, and had been since said date, the owners and in possession of certain tracts of land containing 400 acres — all of which lands are situated upon Reese river, Lander county, Nevada; that said lands have been used during all said times for agricultural purposes; that Reese river has from time immemorial, until the diversions by the appellants in 1897, flowed over, through, and across said lands; that from the 15th day of March, 1863, until the diversions made by appellants aforesaid, respondents and their predecessors in interest appropriated and used the waters of the river for irrigating and flowing over and through said lands, thereby raising crops of grass, hay, and vegetables; that the appellants claim and assert rights to the waters of the river, which claims and assertions are alleged to be subordinate and subject to the rights of the respondents; that the diversions of the water by appellants since 1897 have been wrongful; and that appellants threaten to continue the same.
The answer denied the material averments; set up prior *323 rights to all the water of Reese river by appropriation, and other matters not material to the questions considered and determined on this appeal. The findings and decisions were for the respondents. A motion for a new trial was interposed and denied, and this appeal is taken from the order denying the motion.
The court found, among other matters, that Reese river had from time immemorial, and until the diversions by appellants, flowed over, through, and across the lands of respondents; that on the 15th day of March, 1863, the respondents and their predecessors in interest had appropriated and used the waters of Reese river "in sufficient quantity" for irrigating and flowing over part of their land. The court did not find the quantity of water appropriated by any or all of the respondents, or that respondents had appropriated all the waters of the river. The decision followed the findings, and a decree was entered perpetually enjoining the appellants, and each of them, their agents, etc., "from diverting any of the water of Reese river, and from in any way interfering with said water in such manner as to prevent said water from flowing on the lands of respondents in sufficient quantity to irrigate the same."
From a large mass of matter contained in a voluminous record we glean the following established facts, which appear not to be controverted, and which must control the questions which are (dearly presented under a part of the assignments considered by the court:
Reese river has its source in the mountains of Nye county, and flows northerly into Lander county. The lands mentioned in this proceeding lie along, upon, or in the vicinity of said river. The quantity of water flowing in the river is variable, dependent upon the amount of snow and rain falling upon its watershed at its head and along its course, and the watersheds of its tributaries, during the various seasons.
The evidence does not show the quantity of water usually flowing in this stream, further than at some periods there was sufficient for all the parties claiming rights thereto in this proceeding, and at other times the quantity was insufficient to meet the claims of all.
Several miles above respondents' lands the river divides *324 into two forks, called the East and West Forks. The respondents' lands lie along or upon the East and West Forks of the river, and the lands of the appellants are several miles south and above the lands of respondents, and along the channel of the river above and near where it divides into two forks.
The appellants and their predecessors in interest settled upon the lands mentioned in their complaint in 1862 and 1863. The predecessors in interest of some of the respondents settled on lands along the river a little later, but about the same time that the lands of appellants were settled. The settlers upon the lands claimed by respondents had their several holdings surveyed, marked the boundaries thereof, and protected the same to some extent by making so-called ditch fences.
The ditches thus made were not for the purpose of irrigation, and were not so used for many years after and until other rights of both respondents and appellants had been acquired to the waters. The settlers upon respondents' land found wild grasses growing thereon at the time of their settlement, suitable for hay and grazing, and cut and grazed the same for a number of years. Up to 1869 whatever hay and grass grew upon these lands was produced by the natural overflow of the waters of Reese river, and waters flowing from springs upon part of the holdings.
No attempt was made to divert any of the waters of Reese river for the purpose of irrigation until 1869, when the ditch marked on respondents' map by the figures 1, 2, and 3, taken from the so-called West Fork, above the lands now held by Ryan and Maestretti, was commenced. This ditch was not completed until many years after its commencement, and it appears from the evidence that no water has run through a part of this ditch since 1891.
As to the Walsh lands, it appears from the testimony of the respondent, Walsh, that no diversions were either made or attempted until 1870, and that the diversions made for the purposes of irrigating his lands cover the period from 1870 to 1884. It is shown by his testimony that he helped make the ditch marked "E to F" on respondents' map in 1870; the ditch marked "J to K" on the same map, it appears, was *325 commenced and made about the same time; the ditch marked on the same map "L to N" was commenced in 1874 or 1875; and the ditch marked "G to H" was made in 1884; and, according to his statement, the last named ditch was made principally for the purpose of drainage, and used afterwards for the purpose of drainage and irrigation.
It nowhere appears in the testimony what the size of any one of these ditches was, or what is or was the carrying capacity of any one.
As to diversions of water for the purpose of irrigating the Ryan and Maestretti land, other than the attempted diversion by the ditch marked "1, 2, and 3," above referred to, it appears that a dam at a point marked "7" on the map was constructed in 1869, and a ditch taken from the dam to a point marked "8" thereafter.
It also appears that some dams were also placed in what is called the "Sampson Slough," running through these lands. It also appears that in the 70's one part of the ditch made to mark the boundary of the west line of the Ryan place was used to irrigate part of the land.
The facts regarding the first diversion of water for the purpose of irrigating the Maestretti land, formerly held by Bircham and Wallace, is of the most meager character.
It appears that S. B. Wallace, the former owner of this tract, after he and Bircham had divided their holdings, in 1869, constructed two dams and turned water onto his meadow land, but it is uncertain whether this water had its source in the river or in certain springs. The date of the first diversion upon the Bircham land is left by the evidence to be conjectured.
Some time between 1863 and 1869 it appears that a dam was constructed in the so-called West Fork of Reese river, above the Bircham house.
Whether the diversion so made was continued or abandoned is a matter, also, of doubt, as it appears from the testimony of the witness Campbell that, for a period of twenty years or more before the trial of this action, water to irrigate the Bircham land was diverted by a dam in the river about twelve miles above the Bircham ranch.
It is not necessary to fully state the facts as to the diversions *326 made by the various appellants, but only such facts as illustrate the question discussed and decided need be stated. The appellant Daniel T. Wallace purchased the so-called McQuitty place, above respondents' lands, in 1870, and by means of dams and ditches diverted water for irrigation. Whether these dams and ditches had been made and so used before his purchase of the land is uncertain.
In 1873 Wallace located another ranch higher up on the river, and started to construct a ditch for the purpose of irrigating this ranch. In 1877 he transferred his diversion of water, under the advice of counsel, from the McQuitty place to his upper ranch, as it appears that the amount of water used on the McQuitty ranch would irrigate much more land upon the upper ranch.
Fred Ahlers, whose administrator is one of the appellants, settled upon Reese river in 1864, and commenced farming that year. He made diversions of the water of the river for the purpose of irrigation, but the dates of such diversions and the amounts of water so diverted are not shown by the testimony. The appellants Charles Ahlers and Hess claim rights through Fred Ahlers, deceased. McMahon started farming on Reese river in 1864, and that year put under cultivation eight acres, but the dates and amounts of diversions made by him are not shown by the testimony.
The above facts are sufficient, as above stated, to illustrate the question considered and determined by this court, and furnish a sufficient basis for its conclusion, It is well to note here that the record does not disclose the quantity of water diverted at any time, by any means, by any one or all of the parties to this action. Neither does it show the quantity sufficient or necessary to irrigate the lands, or any part of the lands, of respondents, as found by the court. Neither is there any showing in the record from which these facts, or any one of these facts, could be ascertained by any known process.
Counsel, under the many assignments made, have discussed in their briefs nearly the entire subject-matter of the law of irrigation prevailing in the arid and semiarid states; but, as we view the matter, it is necessary to consider only such questions as are plainly and sharply made under the assignment *327 that the findings and decision of the court are contrary to, and not supported by, the evidence, and contrary to law. The other questions, for various reasons appearing in the record, the presentation of which would unnecessarily lengthen this opinion, have been considered, but will not be determined.
It is evident from the facts recited that the finding of the court fixing the date of the appropriation of respondents on the 15th day of March, 1863, is contrary to both the law and the evidence.
This conclusion involves directly the question as to what constitutes an appropriation of water, as used in the decisions of this court and the laws of this state as they have existed and now exist.
Under two rules of the law may rights to use of water flowing in a natural stream be acquired — under the rule of riparian rights and under the rule of appropriation.
It is conceded by counsel in this action, and it has been held by this court, that the doctrine of riparian rights is so unsuited to the conditions existing in the State of Nevada, and is so repugnant in its operation to the doctrine of appropriation, that it is not a part of the law, and does not prevail here.
In order, therefore, to constitute a valid appropriation of water, within the meaning of that term as understood by the decisions of this court and the laws of the state, and, as we believe, by the decisions of the courts and laws of other states in the arid region, there must be an actual diversion of the same, with intent to apply it to a beneficial use, followed by an application to such use within a reasonable time. (McDonald v. Bear RiverMining Co.,
While this court has never been required in its decisions to thus formally state the rule, yet an examination of the various cases which have been before it, and the large number of legislative acts, state and territorial, shows an actual diversion *328 of water to be one of the essential elements of an appropriation, within the meaning of that term.
Under the rule announced above, the rights of the respondents to the use of the waters of Reese river did not have their inception on the 15th day of March, 1863. Their rights were not initiated by settlement upon the land, by having the same surveyed, or by marking the boundaries thereof. No actual diversion was made on that date, or attempted on that date, and for a period of several years after, as appears from the facts stated. Cutting wild grass produced by the overflow of the river, or, as expressed by the witnesses, by the water of Reese river coming down and spreading over the land, was not an appropriation of that water, within the meaning of that term.
Neither was the grazing of the land an appropriation of the water, under the facts. The established facts as to the use of the waters of the river by respondents from 1863 to 1869, under the averments of paragraphs 14 and 15, as to the flowing of Reese river, and its appropriation and use, is the mere assertion and proof of riparian rights, if anything; and all parties concede that that rule does not prevail in Nevada.
If these facts should be held to constitute a valid appropriation of water, within the meaning of that term, then, under the contention of counsel that Reese river is a well-defined stream, with banks, bed, and channel, flowing over, through and upon respondents' land, would the channel have to run full of water before respondents could obtain the quantity of their appropriation, and before subsequent appropriators could acquire rights thereto, thus entailing a wasteful use of that which is so essential and necessary to the welfare and development of the state.
This leads up to another important question presented by the assignments, involving the award of the injunction under the findings and facts.
It appears that the inception of the rights of the respondents to the waters of the Reese river was not of the same date, but at different dates.
It appears that the rights of the respondent Walsh and the appellant Wallace were initiated at or about the same time. The first diversion by Walsh was made by his predecessor, *329 Crowley, in 1870. Other diversions made by himself and Crowley after his purchase of Crowley's rights, if he purchased those rights, were made at intervals from 1870 to 1884.
As early as 1870 the appellant D. T. Wallace appropriated water from Reese river on the McQuitty place, if McQuitty had not made the appropriation before Wallace became his vendee.
In 1873 Wallace made a further appropriation on his upper place, and at a subsequent date transferred his diversion from the McQuitty ranch to the upper ranch.
Under the settled rule of the law, it is not claimed by respondents that this transfer by Wallace was not authorized and proper.
Without further reference to the facts of the case, it will be seen that in part, and to some extent, the rights of the respondent Walsh and the appellant Wallace were initiated at the same time, and that the claim of priority as between them, so far as this record shows, could not be maintained by either.
The facts as to the appropriation of waters made by other respondents and appellants are not the same, in many respects, as those recited in reference to the appropriations made by Walsh and Wallace; but the above sufficiently illustrates the conclusion that the findings of the court as to the priority of rights, and its decision thereon, are contrary to both the law and the evidence.
Again, conceding, for the purpose of the argument, that the findings and decision of the court as to the priority of right of the respondents are supported by the evidence and the law, such findings are not sufficient to base a decision and decree of the court.
This is an equitable action to determine conflicting claims of right to the use of water by appropriation.
The respondents did not claim by their complaint that they had appropriated all the waters of the river, and the court did not find, expressly or impliedly, that they had.
It did find that they had appropriated sufficient water to irrigate certain portions of their land — much less than they claimed in their complaint. *330
The appellants asserted by their answer rights to the water by appropriation, and denied the rights of the respondents. If respondents' rights were prior, whatever surplus water flowed in the stream after they had taken the quantity to which they were entitled became subject to appropriation, under the decisions of this court.
It is conclusively shown, and not denied, that for many years appellants and their predecessors in interest have done all those things necessary under the law to constitute a valid appropriation of whatever surplus might remain after respondents had taken the amount to which they were entitled.
All the parties, under the pleadings and proof, were claiming and asserting rights to the use of the water of Reese river by appropriation; and all had acquired rights therein, and were asking that those rights be determined.
The court, by its findings and decision, determined but one issue. It did not determine all the rights of either of the respondents, or any of the rights of the appellants. It left undetermined the quantity of water sufficient to irrigate respondents' lands, and to that extent it left undetermined respondents' rights, and thereby all the rights of the appellants. It cannot be ascertained from the findings or the decision when the respondents have taken the quantity of water sufficient to irrigate their land, or whether respondents can take subordinate to appellants' rights at any time any of the waters by virtue of their appropriation.
So far as the findings, express or implied, are concerned, based upon the pleadings and the evidence, the quantity appropriated is left to mere conjecture — is left to be determined by future litigation between the parties.
The parties have no right to determine what is sufficient or what is not sufficient to irrigate their land.
The judgment and decree in this respect should be certain and definite, and, unless the decree is certain and definite in this respect, it cannot be upheld, except, under the circumstances of the case, the indefinite and uncertain quantity given by the decree is capable of ascertainment. (In re Huntley, 29 C.C.A. 468; 85 Fed. 889; Dougherty v. Haggin,
A decree should be based upon definite findings, and the findings can be no more definite or certain than the evidence justifies; and where, as in the case at bar (an equitable action to determine conflicting claims of right to the use of water, with the parties before the court), there is nothing whatever in the record upon which to base findings or decision of those rights, either expressly or impliedly, and the findings and decision leave a material part of the controversy undetermined, or to be determined by piecemeal by future litigation, the action of the court in leaving undetermined essential rights of all the parties cannot be upheld, and is contrary to law. (Watson v. Sutro,
For the reasons given, the order denying the motion for a new trial will be reversed, and the cause remanded for further action in accordance herewith.
BELKNAP, J: I concur.
*332FITZGERALD, J., being disqualified, did not participate.
Concurrence Opinion
I concur.
