*1 REPORTS OF CASES DETERMINEDIN Supreme Court THE
OF STATEOENEVADA
JANUARY 1902. TERM,
[No. 1605.] WALSH, al., Respondents, P. et WALLACE, v. D. T. Appellants. al, et Irrigation—Appropriation — Stipulation op Ripa- Construction — Water — Rights Stipulation forty days appel- 1. that within rian —Decree. may apply findings, lants for additional file and serve notice of intention trial, to and file move new the statement serve on motion for trial, performance any limited, new allows of the acts within the time require filed, and does not the statement of motion for trial new to be provided Comp. Laws, 3292, days after within five the notice of intention. riparian prevail 2. The doctrine of does not in Nevada. appropriation water, 3. a To constitute valid there must be an actual it, apply use, intent diversion of with it to beneficial followed application an in a to such use reasonable time. appropriation by settling 1. There is not an of water on land on a river and having surveyed marking boundaries, cultivating its wild grass produced river, by grazing overflow of the the land. parties things necessary 5. all the done all the Where have for a valid appropriation water,, plaintiffs and it is not claimed that have appropriated water, decree, finding all the without definite only appropriated, plaintiffs appropriated amount but had enough irrigate portions land, enjoins certain which defend- diverting any interfering ants from from therewith prevent flowing plaintiffs’ the water so as to from onto lands in suf- quantity irrigate it, is too indefinite ficient to be sustained. v. Appellants. Appeal Court, from Third Judicial District Lander *2 Fitzgerald County; Judges. A. L. Jones, D.W. by against Suit Patrick Walsh and others D. T. Wallace plaintiffs. appeal. others. Decree for Defendants Reversed. sufficiently appear
The opinion. facts Jr., Bigelow Botvler, Dorsey, Appellants: P. M. & for watercourse, I. No either subterranean, surface or is estab- by lished the evidence. No connection between the waters by plaintiffs appropriated by claimed and those proofs. defendants shown It is well settled that a bed, watercourse consists of banks and water. It is not contended that the continuous, flow of water must be but it must have a well-defined and may substantial existence. dry year, at certain seasons of the but there must be a periodic natural and in a flow definite channel. theAs plaintiffs complained here of diversions the defendants injury, from a natural stream to their the burden of course upon establishing devolved them of the existence and con- tinuity plaintiffs’ rights of the stream at and from the time complained accrued the date of the diversions of. (Imx Saggin, England The decisions in and in country in the eastern states sustain the contention that acquired any flowing in no vested can be other underground streams, having than surface streams a dis- tinct and definite channel and a course known and defined. (Roach Driscoll, Conn. Ashury Ocean Grove v. Park, Eq. 450; Youmans, N. J. Delhi Barb. Burkhardt, 45 Pa. Kitts, Saldeman St. Cross v. Driscoll, 540;’ Roach v. 20 Conn. McCue, Sanson v. Tomlinson, Reg. Ballard v. Am. Law Broivn, 317, Judge Belknap, delivering In Strait approving opinion of the court cases of Chatfield v. Brúckhart, Wilson, 28 Vt. Saldeman v. 45 Pa. St. Caldwell, says: and Hosier "It has been con- clusively long established line of perco- decisions that existing lating governed in the earth is not mining that have been laws established for same streams. Appellants. for running No in distinction exists the law between waters running under the surface defined channels and those upon distinct channels surface. distinction is made running upon between all waters in distinct channels surface, subterranean, whether the surface or and those oozing percolating through varying quantities soil and uncertain directions.” uncertain,
II. The decree is indefinite and and therefore against plaintiffs law. The are that the and their predecessors had, 15, 1863, on March and until the commis- " grievances complained of, appropriated sion of the and used the water of the quаntity said Reese river in sufficient irrigating flowing through over and said lands watering cattle, stock, and for horses household *3 purposes.” perpetually enjoins domestic The decree diverting any river, defendants "from of the water of Reese any way interfering water, and from in with said in such prevent manner flowing as to said water from on the lands of plaintiffs irrigate quantity sufficient the same.” litigation III. To avoid future the court should have rights specifically determined the of the defendants ascertain- ing determining rights prior whether such were or subse- quent rights plaintiffs, asserted and not left the large. (People Go., matter at v. Gold Bun D. & M. 66 Cal. Quint 155; McMullen, 381, v. 103 Cal.
IV. appear complaint does not either from the or from quantity or from the decree whether the of water required by plaintiffs irrigation is the flow whole of river, only part Reese clear, course, of it. The law is of they only they are entitled to so much water can apply beneficially; surplus may appropriated and that the be (-National by some one else. Hancock, & M. Go.v. W. Hague 42; Nephi Cal. Go., v. Rep.'634, Irr. 67 Am. St. s. c. Utah, 421; (N. M.) Long, Rep. Milheiser Ill; v. 61 Pac. Mfield v. W., S. V. IF. ISO Cal. popular V. The meaning, given the one which have courts " ” irrigation, word employed, sense which the word is application
is defined to be the of water to land artificial (Long Irrigatiоn, 1; Kinney means. on Irrigation, sec. on 1.) A appropriation valid of water involves a diversion ’ Appellants. every diversion of from a stream is water things. artificial; disturbance the natural order of (Charnoch Higuerra, 473; Dictionary; Cal. Webster’s 523, Switzer, Rep. TooJcey 32; Power v. Mont. 55 Pac. infra.) 397, Campbell, Rep. cited, 60 Pae. cases Stillwell, said, VI. In 54 Pae. the court Church (i. priorities e., "In a suit to determine such right), plaintiff merely water it is sufficient for the allege complaint' right. priority that he has the legal specifically That is a conclusion. He must aver all of necessary facts the substantive which to constitute such (North priority.” Brewing Perrot, Rep. 403; v.Co. 60 Pac. High Southworth, Rep. Line Farmers Canal Co. v. 21 Pac. post.) and cases proof plaintiffs, upon VII. The burden of was all, they recover, upon action, any, if at must the cause of if complaint, set out in and not some other which may (Jones developed proofs. Prospect Mt. T. Watercourses, Co., Angelí 346; 413; on sees. Mondrauv. Qoux, 151; Bryan Torrney, 136; Cal. 84 Cal. Shenan- Morgan, Norton, doah M. & M. Co.v. 106 Cal. Feed v.. Osiega Corderro, 99 Cal. 88 Cal. Morenho-utv. Barren, 284; Gregory v. Nelson, 41 Cal. Green Covilland, Clarh, Mordoch v. People Fiver, Waters, v. Fill Gould secs. 263-4.) appropriators
VIII. The of a stream *4 things to be determined the condition time at the (Proctor appropriations Jennings, were made. v. Hague Nephi 86; Co., Rep. v. Irr. 52 Pac.
IX. a channel, bed, For watercourse there must a a to merely depression stream not a low land or country over which water flows. It matters not what depth may be, implies width a a distinct watercourse channel, way kept open by running a cut and passage appearance adjacent whose is different from the land, every eye glance on a discloses mere casual the bed (Gibbs frequent Williams, constant or streams. v. 25 220, 218; Rep. 241; Sabron, Kan. 37 Am. Barnes v. 10 Cutís, 439, v. 50 9 Rep. 473; Chicago, Sweat N. H. Am. Kan. 303 v. Wallace. Appellants. tor Morroiv, Rep. 339, 413; <& B. B. v. 42 22 Kan. Pac. TT. Sim- (Or.) Winters, Rep. 7; Eng. Ency. 27 mons v. & Pac. Am. Edgar Law, 28, p. Stevenson, 944, notes; vol. v. 70 Oal. 286; Y.Varni, Ang. Bazzo 81 Los Los 289; Cal. Assn. v. G. Angeles, 464; Barkley Wilcox, 140, 103 Cal. v. N. Y. 86 40 Rep. 520; 268; 72 Garrota, Am. v. v. Green Cal. McGomber 219, Rep. Kinney Godfrey, 349; Irr., 108 11 Mass. Am. on 45; Long Irr., 32; Waters, secs. on 43 sec. Gould on secs. 41, 264, notes; Eng. 263, Arch., Wait's Law Cons. 172a.) sec. river, having
X. If the stream known as Reese its source mountains, flowed in a natural channel well-defined bed, banks, through with sides or to and the forks and then spread out, commingled soil, with and sank in the ceased, pass plain- channel and no water remained to 1866, 1863, 1864, 1867, 1868, 1865, 1869, tiffs' lands 1870 ceased, point sink, then it at the to be a water- (Walker plaintiff's course, and have no to it. v. New By. Go., 593; Mex. and 165 S. P. U. S. Broadbent v. Bаims- 602; botham, Harris, 243; 11 Exch. Buff am 5 R. I. v. McOom- Godfrey, Rep. 349; ber 219, reported v. 108 Mass. in 11 Am. Garrota, 75; 72 14 268; Picks, Green v. v. Gass Wash. 29; Barni, 295; Schmidt, Bazzo 64 Minn, v. 81 Cal. v. Giefilan Meyer 601; G., Rep. v. Tacoma Pac. L. 35 Benthall W. 77 Seifert, Ind. governing applicable
XI. The law surface streams is percolating having or to no subterranean water (Gould defined Eaton, known channel or current. 11 Oal. McHue, 64; 303; Kitts, Hanson v. 42 Cal. Gross v. 615; Wheatly
217; Bufour, Baugh, P. B. B. S. Go.v. 95 528; Angelí Watercourses, 4d; 25 Pa. St. sec. Gould on Bruckhart, Waters, 280; 514; 45 Pa. Haldaman v. St. Youmans, 316; Springfield, Delhi v. Elster 50 Barb. 82; Y.Illins, Driscoll, 533; Ohio St. Boach v. Conn. Brown Albany Peterson, Conn. New B. 14 Ind. B. Go. Spaulding, Davis v. Acton Blundell, Mass. Leading Weeks, Rights, Mees. Blanchard v. M. Case W. pp. Ky. Oil, 468; Taylor Kannard v. Standard Welsh, Haggin, Or. Lux v. Ohase- Bichards, Case, 359; more 7 H. Johnson, L. Biver Go. *5 Nev. 304 v. Appellants. ior Caldwell, 444-5; 363; Taylor & Hosier v. 7 L. E. Nev. v. Ticlcas, 161; Broten, 891; 64 Frazier v. 12 Ohio Buf- Ind. St. Harris, supra; Bloodgoocl Ayers, 400; v. fam v. 108 N. Y. Co., 143; Lyles’ Appeal, v. 131 Pa. Collins Chartras G. St. 634; Easements, 364; 106 Pa. Washburn on St. Gould on Irr., Waters, 263, 265, 282; Kinney 49; Long secs. on secs. Irr., Engineering 33; Wait, Arch., on Law Cons. secs. 251, 252, ownership right, states,
XII. The of a water the Pacific and, particularly Nevada, depend upon the State of does not possessory legal upon title or title to land simply possessory right, acquired stream. It is a diver b3r stream, application sion of the water of the consummated its purpose, prior to some benefiсial use or and that diver its (Citations by anyone supra-, Kinney sion and such use else. Irr., 240, 241; Waters, 227-9, secs. Gould on secs. 230-1 notes; 621; Co., Broderv. Natoma 50 Cal. Broder v. Water Co., 276; supra.) Sabron, 101 U. S. Barnes v.
XIII. apply Whoever was the first to take the good it in faith to some beneficial use has the first and best (Atchison to so much as was taken and v. used. Peter- son, 407; Beck, 541; 20 Wall. v. Sturr 133 U. S. Jennison v. Eirky, 453; Spring 398; Co., 98 U. S. Tarter v. Creek 5 Cal. Barrett, 39; Phillips, 143; v. 5 Stokes Irwin v. 5 Cal. Conger Weaver, 556; 46; v. 6 Stone, Hoffman v. 7 Cal. Sharpe Hoffman, 404; Haggin, 447; v. 79 Cal. Buxr. 69 Cal. Ruply Osgood Walch, 455; Fldorado, v. 23 Cal. v. 571; Vaughan, 143; Butte Canal Co. v. Hill Lon- v. Nichols, orand, Rep. 267; 16 551; Pac. Younker v. 1 Colo. Springs, 61; v. Emhart, Stickler Colo. 16 Colo. Brake v. 274; Idaho, 716; Simpson, Ophir Lobdell v. Nev. M. S. Co. Carpenter, 534; 4 Nev. Reno Red. Stevenson, Works 269; Co., 34; Nev. v. La Curtis 20 Or. Grande Grand Utah, Windsor, Ivie, 248; 673; Monroe v. 24 Pac. Barnes Sabron, Ophir 217; Carpenter, 393; Nev. 6 Nev. Brown, Caldwell, 167; Strait v. 16 Nev. Bick v. 14 Nev. Simpson Williams, 432-6; Bowker, 18 Nev. Balton v. Wicks, Nev. Hobart v. 15 Nev. Reno W. Co. v. Leete, Bavis, Nev. CJviatovichv. 17 Nev. Smith Logan, Sweeney, Schulz *6 (cid:127) 305 Walsh Wallace. v.
Argument Appellants. for Jennings, 80.) 83; Adams, Proctor v. 6 Nev. Jones v. 19 Nev. change XIV. Defendants had and have the place diversion, apply or to the water to different uses or purposes originally from that to it appropriated, which was long they injuriously rights so as did not and do not affect the (Kinney Irr., 154, 233, 234, others. on notes; secs. and Waters, notes; on Long Irr., Gould sec. 237 and on secs. notes; Eng. p. 50 Arch., and Wait on Law of Cons. and notes; Mill, sec. v. 209; Knowles Clear Creek 18 Colo. v, 154; 7 Frink, Bose, v. Colo. 524; Sieber Hammond 11 Colo. River, etc., 12; Gale, Fuller v. 12 Swan Colo. Davis v. 32 45; 26; Peralta, Cal. Santa Paula v. Laird, 113 Cal. Kidd v. 161; Springs, 15 61; Cal. Stickler v. Colo. 16 RamelliY. Colo. Irish, 214;-Hargrave Cooke, 96 72; Cal. v. 108 Cal. MaerisY.
Bicknell, 262; 7 Morgan, 609; Cal. Butte Mt. v. 19 Co. Cal. Bergin, 221; River, v. 13 Jenkins Cal. McDonald Bear v. 13 221; FLwnnewell, 519; Cal. v. Kirman Cal. v. Woolmar Gariberger, 535; Dangberg, 1 Mont. Union M. A M. Go.v. Rep. 115; Wicks, v. 418; 81 Fed. Hobart Jacob v. Lawrence, 332; garra, 473; 98 Cal. wick v. Hi Char Corbett, 587; Estrada, 116 Cal. L. v. Smith San V. Co. Gallagher Montecito, 168,183; 245; 101 Cal. Pom. W. 69; R., Hague Kephi Co., Rep. Irr. sec. Pac. one, When a stream is a there
XV. natural can no part that all waters which flow into it doubt become a it, subject to the same natural rest (Goddard Easem.,p. 51; v.Wand, water. on Exeli. Wood Angelí 274; Watercourses, on Washburn Easem. on Eddy Simpson, Stone, Hoffman v. 7 Cal. Vaughn, Sweeney, 47; Butte Con. Schulz Rep. Campbell, Irr. Nev. Malad Co. 18 Pac. Springs, Rep. Shaffer, Stickler Colo. Pac. Low v. Rep. 33 Pac. sustaining objection plaintiffs’ in
XVI. The court erred striking to, from the record as evidence the case as against Walsh, against they offered, P. whom docu- were mentary plea support adjudica- evidence of former judgment estoppel, tion in the case of wit: The roll O’Toole n , Aiders, al.,Y. Thomas, al., et B. J. P. et also the proceedings judgment contempt roll and and remittitur VOL. XXVI-20 v. Appellants. supreme proceedings on from the court certiorari necessarily affirming exist- judgment
State. A or decree privy upon parties ence fact is conclusive again there- in issue of that fact is whenever the existence after them. between bar, proceeding judgment contempt in the
XVII. The upon Walsh, against plaintiff, P. conclusive, evidence action, upon which questions involved might liti- depended, matters have been all which *7 not. gated proceedings whether decided and decided (Van supra-, p. 418, supra-, Citations, Adj., Fleet’s Former Leonard, 436; Kellogg, 60 Barb. Bissell v. Groudsonv. 4 Cr. Neiva-rk, 545; 617; Campbell, 47 Cal. Newark v. Merritt v. 268; Bank 292; Gammon, 22 v. 12 Mass. State Mich. Thatcher Whiting, 446; 11 Bates Nude, 143; v. Mass. v. 23 Kan. Smith Thomas, 489; Petersine v. 28 Ohio St. Spooner, v. 45 Ind. Fng. M. Failing, 152; Baxter v. 596; Barrett v. 8 Or. New 278; Nainsburg, 325; 43 Bruner Go., I. 6 Mass. v. Md. State 82; 560; City West, v. 7 Wall. Nainsburg, v. 43 Aurora Md. Doty Brown, Spencer Dearth, Vt. 71; 4 Y. et al. v. 43 v. N. Nodgers Higgins, Shepardson Gary, 57 104; 34; v. 29 Wis. v. Thompson Gardner, Myrich, 244; 306; 111. v. 43 Cal. v. Phelan Chicago Iowa, 602; 4; Go., 24 Betto N. Minn. v. & S. 43 198; Lewis, Kernocken, v. Leivis Smith et al. How. v. Goodrich, 556; v. 309; Howell 69 111. Blackinton Mass. v. Blackinton, 231; Strasberger, 303; Kern 71 111. v. Mass. Preston, 113; Oouper, v. 2 Del. Gates v. 41 N. Y. Gochran 664; Ferguson, 27; Plant, Oh. 4 Otto U. v. Gimnv. S. Willis Bigelow 36, 39, 496; Estop., pp. 35, 43; Freeman Tex. on 256.) Judg., 246-7, seq. 250, 254, 255, on to secs. et purpose appropriates for a XVIII. One who useful he to cannot be defeated in his not able because apply the of those at once. whole amount water to uses Sabron, infra; Greiser, v. v. Mont. {Barnes Kleinsmith 484; Nieor, Anderson, Low v. v. 115 Cal. 25 Or. Senior Winters, Logan, v. 21 Or. v. 24 Or. Simmons Oole siipra.) Brown, v. Strait Prescription grant presumption
XIX.
ais
of
which arises
against
owner
favor
claimants
the true
reason
(1)
pre-
following:
Lapse
time;
the conditions
the time
Appellants.
by tbe
scribed
statute in
brought
which an action
be
must
possession
(Angelí
recover the
Watercourses,
lands.
on
203-4.)
(2)
right during
secs.
Adverse usé under claim of
period
(Brace
prescribed,
years!
wit:
Yale,
five
James,
Allen, 44;
XX. necessary There four under elements the law possession make out an adverse sufficient to constitute (a) prescription: possession defense of open, must be notorious, (Angelí Watercourses, p. clandestine. on 215.) (b) plaintiffs’ be title, sec. must hostile to an inva- right. (c) (Angelí Watercourses, sion on It must held right, under a claim of exclusive other (Garrison right, your own. McGlusk/y, 38 Cal. Frost, 471; Thompson Pioche, supra;
Lowell v. 2.19c.) Angelí (d) Watercourses, secs. It must be uninterrupted period years-,prior continuous for a of five (San Folde, to the commencement of the action. Francisco period San Trimball, Josév. This *8 years preceding five need of not be next the commencement 535.) Stockman, {Gannon action. v. 36 Cal. light may acquired XXI. A to the use of water -be prescription; lapse prescribed by only time statute plaintiffs rights, perfect bars but vests a title in (Gannon Stockman, supra; Angelí the adverse holder. v. Qrandall Watercourses, Wood, 208; sees. v. Bradford, 360; 36; Cal. American v. 27 v. Go. Cal. Authors Boynton Bryant, 246; Longley, 76; 22 Nev. v.' Union 35; Grary, 509; Gale, Go. v. 25 Cal. Davis v. 32 Cal. W. Boss, 439; Kill, 409; Fvans v. 65 Cal. v. 93 Cal. Ghauvet Bernett, Kawkins, Diving 126; v. 110 Cal. v. 11 Pet. Smith Sharpe Brown, 41; Blankenship, 288; v. v. Cal. Johnson 391; Arnington Liscon, 381; Langford v. v. 63 Cal. Oal. Poppe, 73; Unger Boper, 39; v. P. v. 56 Cal. Cal. M. Go. Owens, Toivn, 135,136; 326; 15 Cal. Irwin v. Talbott Oal. Singleton, Wozencraft, 42 Oal. Cal. Willis v. McGilten, Webster, Lawrence Dorlin 44 Cal. v. Respondents.
Argument lor 98; McLeran v. Ben- Chester, 55 Cal. 485; Bakersfield v. Clark, 74 Cal. Silvern ton, 73 Cal. Webber Sillsby, 82 Cal. Gal- Hanson, 77 Cal. McCormack Monteoito, lagher v. Respondents: Egan,
Henry Mayenbaum and J. B. import stipulation so as to The cannot be construed I. say, and what could never have been it does not into it what parties contemplation and what would be senseless appears stipu- utterly Nothing the kind in the futile. l)e apperentibus, e.t non еxistentilms eadam est non lation. Tearney, says 102 U. 421. ratio, court in Daniels S. thing. requires regards presumes or a vain never The law (Clark import into a Cram, 57 We cannot readily might stipulation reservations, qualifications, which parties. If it intention of was the have been inserted may filed after parties stipulating that the statement filing trial, days of the notice of new the time five from the they easily required by statute, have could said so having stipulated, requiring stipulation. Not so statute days filing to be filed within five from the statement Having be followed. failed to file the state- notice must by law, nugatory, required ment in the time the statement is jurisdiction had and the court no to consider or settle the True, the of motion for trial same. notice new was served having But, it need to have been. earlier than filed the statutory notice, the must be filed time statement of five days. Court, Evoy, 352, says: Chase v. "It immaterial is likewise whether notice of the motion for a new trial was earlier than it need served to have been. No served, time, other notice was within which the code requires made, service of the statement to be commences to notice, run from the date of the service of such notwithstand- ing could have been notice filed afterwards.” Hayne, Appeal,
II. in his excellent work on New Trial and *9 22, says: party "If a give sec. elects to notice of intention expires, by (Cooney before his time he is bound his election.” Furlong, Campbell Jones, 66 Cal. Burn- Baldwin, 32; Boy Bassette, heimer v. Le rights under III. limitations the statute v. Respondents. clearly expressed in Cheney, the ease of The State says: rights 222-7. party The Court "Where the of either statute, to an action supra, time, under this are -limited in that the either failure of to exercise such within the limited, preserved by time unless same is some authorized act, operates same, attempted as waiver of the rights upon determination of proper such the merits over objection authority.” {a) is without Thus we see: That the notice of intention for new trial filed and was served (5) 26,1900. October court, That the request at of defend- ants, sixty days extended time to file statement from the 1st (c) November, 1900. expired That said extension Decem- (d) every plaintiffs ber 1900. they That at act of saved objection to the statement that the statement not was time, (e) stipulation filed in That the does not extend the by time to file required statute; statement after the time that January statement was filed 1901. Reason and author- ity combine that conclusion the statement be struck appeal out and going dismissed without into the exami- unduly objec- nation of this cumbersome case of innumerable tions.
IV. The defendants contend that the waters of Reese plaintiffs’ land, river do not extend to because there are no natural extending plaintiffs’ channels lands. It is not necessary counsel, to combat this contention of because the part plaintiffs only evidence on the show, tends to by great overwhelming but preponderance show, does does, did, plaintiffs’ Reese river and ever extend to by lands in channels well defined. The cases cited counsel in point. are not was held those cases that water of by drainage, extraordinary mere surface courses, occasioned heavy rains, may such as defendant, unusual be turned prevent overflowing lands, so as to it from his and he is not damages, though liable for the water his act overflowed damaged neighbors’ land. "If a channel formed running presents eye glance at a casual running frequent unmistakable evidence of the action of (Gould Waters, then it is a watercourse.” on sec. 264.) Kinney Irrigation, counsel, says: cited periods regions, "At year, certain the arid *10 Walsh Wallace.
Argument Respondents. course, water flows on the a surface well-defined underground at all flow. there is times what is known as underground greater in probably much These streams surface, in some the volume cases than water are, аppropriation riparian rights are as far as or concerned, portion but a valuable of a surface well-defined Kinney Irrigation, by counsel, stream.” on sec. cited says: many a "In near the mountains have streams bed, originally rocky cañón, a which was but has been up. large In portion filled a of all this debris the water sight reappear rocky sinks from when some reef crosses the channel and the water to mov- forces the surface. The ing through porous owing gravel, of this water to the decliv- ity stream, quite rapid, and a is often considerable may pass sight. volume thus down the channel hidden from Watercourses are into divided two classes—those whose defined, channels are known to be those unknown undefined. word 'defined' contracted and means channel, though may bounded course of stream be by knowledge, undefined human and the 'known’ word refers knowledge by of the course stream reasonable infer- (Black Ballymera Gomrs., ence.” 17 L. K. Ir. Roach Driscoll, Illins, 20 Conn. Brown 25 Conn. v. Burkhardt, Kitts, Haldeman 45 Pa. In St. Gross v. n by counsel, says: cited the Court "Under- ground may acquired by of a stream appropriation water appropriator by wrong- and the cannot be of it divested Kinney Irrigation, says: ful act of another.” on 478-81, by point percolating way "If water reaсhes either its through channels, the soil or subterranean and at that point appropriated, appropriator is property has the he of which cannot be divested the owners of the soil through which water courses.” Ency. 994, says: Law,
V. 28
test of
appro-
"The
application
priation
water is
thereof
the beneficial
designed,
diverting
carrying
use
method of
out
design making
application
such
immaterial,”
such
is
cit-
ing
Guirancl,
Ency.
Thomas
Colo.
Law,
533. 28
994:
necessary
appropriator
"It is
that the
shall
an
construct
possession
may
actual ditch
order to take
of water. He
Respondents.
economy
Long
Irriga-
avail himself of
nature.”
productive
says:
tion,
"If land
rendered
thereon,
the aid of
overflow of
without
natural
whatever,
means'of
appliances
the cultivation of
land
*11
appro-
naturally moistening it constitutes a valid
so
water,” citing
Guirand,
Thomasv.
6 Colo.530.
priation of such
injurious
no
to three of the
VI.
decree involves
error
working injuriously
it
error
appellants.
If
involves
they
appellants,
should have severed in
of the other
assignment
Assignments
jointly by
of it.
of error made
appellants
available,
all,
if at
as to matters which are
all the
(Kimbrell
disregarded.
only,
of them
must be
v.
to some
189).
Rudolph Brewer,
Rodgers,
339;
v.
96 Ala.
A
90 Ala.
granted
assignment
joint
in a
of error
cannot be
reversal
joining
appellants
the error affects all
thereon.
unless
(Ind.)
(Bolt
(1901); Raskins,
re.,
Ward,
v.
VII. When inadmissible appeal alone, presumed that the court it will be the court (Bowman making findings. it v. not did consider (Iowa) Kiper, 591; Bk. v. 60 Neb. Sedgwick, N. W. Omaha 82 (Utah) 1; Davis, 34; Jones, 58 O. v. 62 Pac. Ross v. S. Wells Bridge 827; Mrmenich, Gage Co.,58 Neb. v. 3; v. Grumme Go. JSlrod, Immney Iowa, 269; Ala. v. 505; v. 127 110 Smith 313; McGormack, 619; v. 101 Wis. Heeley, Merriman 56 Neb. 366; Mining Houston, App. C. 55 Fed. Go. v. v. C. Miller 37; Utah, Kelsey Croiuther, 519; 7 v. Taylor, U. S. 100 341; 427; White, v. Cal. Ohicago Turner, 42 Kan. 82 v. White Scarborough Borders, 499; 118 Reigelman, 74 v. Wis. Frisk y. 481.) Rapier, 41 W. V. 399; Frank v. Ala. support evidence to there is sufficient VIII. Where admission, incompetent objection, evi- findings, over (Phillips Haddock, 201; v. 163 Mass. dence, is harmless. 503.) Tabor, Ky. Ry. Palmer, 46; v. v. Ohio Galvin against defense to decide was bound IX. The court v. Respondents. (Robinson Imperial, 78; the statute of limitations. Elliott, 96; Johnson, Missouri v. 102 Fed. Daniels 415; Stone, 540; Marks, 186 111. Podolski Martin v. 549; Sedgwick, Iowa, Ind. Bowman v. 82 N. W. court, objection In illegal
X. causes tried plainly apparent evidence tenable unless is that the (Mitchell court rested its decision on Beckman, it. 117, 123; Sawyer Campbell, 186; McCullough 111. Phoenix, Toumsend, 606; Bilby 113 Mo. 29 Neb. Rodrigues Hayes, Mammoth, 76 Tex. Lake v. Salt Utah, 315; Stoteman, 398; Duffy Eureka v. Hickey, 69Wis. v . Reigelman, Wis. Frisk v. 75 Wis. Hooker v. Yil- liage Brandon, 75 Wis. Farr v. Semple, 81 Wis. Har- Estate, Fagan, dison’s 145 Pa. Simon v. 87 N. W. Neb. proceedings XI. Defendants contend that the In a con- against tempt estoppel case Walsh is an In this case. ease at bar Walsh Toole, does not claim under the deed from dereigns title, but Toole, original not from but from the *12 prior appropriators of the land and seventeen miles said privy below creek. No man in is estate with another dereigns he only privy unless his title from that other. lie is acquired party as to the title from the that was sued. As to parties title derived from others not to suit, the former he privy. cannot Walsh derived title to the Cottonwood Toole, ranch party from suit; to the therefore he was adjudged guilty contempt. But the suit at bar he original prior derived his title from appropriators of land and water seventeen miles ranch, below the Cottonwood which was not and question investigated could not be in in the con- tempt proceeding. title, A person prior derived to the suit, privy, cannot be that-title, party toas to a of the suit. (Freeman Judgments, p. 453; 4th Sac., ed. v. Cromwell Co. 94 351; Delaney, U. S. Thrift v. 188; Bryan 69 Cal. v. Hallа- 241.) day, 93 Cal. McNamara,
XII.
In
Shea v.
says:
54 Cal.
the Court
judgment
only
"A
estoppel
is an
parties
privies,
as to
only
privies
those
are
subject
whose
interest
matter of
originated
the suit
subsequently
commencement,”
citing
its
Freeman on Judgments,
162; Campbell
sec.
Hall,
v'.
16 N. Y.
575;
825.)
2
Leading
p.
Smith
cases,
judgment
"A
is an
313
v.
Respondents.
estoppel only
parties
privies,
only
as to
and those
privies
subject
origi-
whose interest
matter of the suit
subsequently
(Free-
nated
to the commencement of the suit.”
Judgments,
162; Bigelow, Estop.
man on
74-81; Herman,
sec.
Estop,
46;
189; Campbell
1
Hall,
Greenleaf’s Ev.
v.
16
Jones,
203;
N. Y.
Horn v.
Missouri,
28 Cal.
Keokuk v.
(14 Sup.
597);
ment. Wells, XIY. The defendants could not hide themselves behind limitations, plaintiffs the statute of for the never were deprived years, of their water for five successive nor were uninterrupted possession the defendants ever in of the water years. Bryant, for five successive Authors v.
says: right by prescription "In order to establish a by another, of water claimed use use must have been uninterrupted, right, adverse and under a claim of and with knowledge possession owner.” Adverse must be *13 (Alta uninterrupted years. continuous and for five Han- 269.) cock, 219; Wood, Limitations, Cal. Statute sec. only
XY. "It is when the water river becomes supply appropriators to all the insufficient that the use of belonging to another is adverse. water We find in nowhere evidence that the defendant Estrada the had been in the unin- against terrupted adverse use of the water right as years.” plaintiff (Egan for five consecutive v. Estrada,, 721.) Ariz. v. Appellants. ior Appellants is void uncer-
XVI. contend that decree for distributing inches, tainty, because, the water instead irrigate by quantity necessary a acres. ’it basis to takes 163.) (Dick (JDick Bird, Judgment 14 Nev. affirmed. 167.) always judg- OaMtvell, court 14 Nev. This sustained quantity irrigate num- for of water sufficient to certain ments Thus, Stein, acres. in Boeder v. the court bers enough plaintiff had the first to found that the twenty-five Judgment irrigate one hundred and acres. affirmed. that the decree have deter- Counsel contend should
XVII. water to which each of the defendants the measure of mined objection made, was and none is There no such entitled. record, specification. But, and there is no such appears in plaintiffs; "they matter, it no concern of the are not is no settling priorities in the relative between concerned junior plaintiffs’. a defendants, That is whose settle the defendants must between themselves.” matter which Irrig. Go., Bitch v. Lauder Pac. Latham Co. -{Loiver Jr., Bigelow Dorsey, Appellants, Bolder, & M. P. reply: in subterranean, watercourse, or is No surface established
I. evidence, points from of diversion the defend- plaintiffs. over, through and There ants, across lands identity appropriated by of the water is no connection plaintiffs. that claimed defendants proving moving that burden of waters II. The flowing watercourse, in natural or in a ground are defined a part stream, plaintiff channel, of a is or are they presumption part are not The this action. flowing watercourse, nor in a definite channel. stream Angeles Hag gin, 225-418; Pomeroy, Los {Lux Kinney Irrig., Cue, Hansen v. Me infra-, Rep. Tampa Cline, Co. Am. St. Ocean W. W. Park, Eq. Asbury 40 N. J. Grove Dorsey Bowler, Jr., Appellants, and M. Bigelow & P. closing: objections respondents statement on I. *14 (cid:127) Walsh Wallace. Appellants. ior disregard and trial, motion for a new their motion and ground strike out the same on that it was not filed on foundation, time, are without and should оverruled. be page and served in At statement was filed time. 8 counsel " respondents say: stipulation There was a filed on 1900, stayed March, proceedings 12th that all until day November, 1900, that, forty days 30th within thereafter, application make defendant additional fact, prepare, file and notice serve of inten- trial, prepare, tion to move for a file and serve new support in statement of motion for trial.” new Within the of, by, stipulation terms and the time limited referred to quotation, in above the statement on motion for a new quote trial was filed and time. In line we served from (Stats. Cutting’s Compiled Nevada, Laws of sec.
p. 6, 10), attorney "An follows: counselor shall authority: any have bind First —To his client of the steps proceeding, agreement of an action or filed with clerk, or court, entered minutes of the and not may party A otherwise.” waive a rule statute, of law or a provision even a constitutional enacted for his benefit or protection, exclusively private where it is right, matter public policy and no involved; considerations of or morals are and, having so, he subsequently once done cannot invoke its protection. Ladew, {Sentenis 140 N. Y. s. c. 35 N. E. 650; Bloniberg Stewart, 455-7-8; R. Wis. s. c. 30 N. E. 617-8; Com., Ilun, 234; R. Bartv. Smith, Oneida Smithv. Eney. 311-13; 119 N. C. 25 S. E. s. c. R. PL & Pr. 607, and note In Cleaveland, cases cited in O’Neаle construing stipulation regard taking Nev. with 497): testimony, (page stipulations said Court "Such always fair and construction, should receive a liberal so as to carry apparent parties promote out the intentions of the merits, narrow, fair trials on the rather than a contracted, interpretation parties by calculated surprise technical to take justice.” nothing defeat the ends of There in stipulation compelling perform the defendants to all stipulation, only one acts mentioned within forty days period therein fixed—within after November 1900.
Argument for Petitioner. *15 practice to II. The amendment Section 182 of the act (Stats. 116), 6, 1893, p. by necessary the act of March (Stats. implication repealed 11, 1865, the act of March p. 394), implied findings permissible that no so are now express findings The court must make state. now pleadings. fact all material issues raised imperatively required upon III. If of fact are every pleadings, material issue it raised follows that a upon any which, against issue, failure to find one if found prevailing against party, law, render the decision will and losing party when, trial, entitle the to a new notice intention, designates ground he as a of motion a new against {Knight trial, Boche, that the decision is law. 15, 18, 25, p. 17; Brison, 323, 338; Cal. see Brison v. 90 Cal. Haight Spotts Try on, 4, 6; Henlеy, Helving, Adams v. Rehearing.
On Petition eor Henry Mayenbanm JSgan, and J. B. for Petitioner: spring long prior I. In the fall of and and any to claim of defendants to of the waters of Reese plaintiffs river, river, located their lands on Reese and made fences around the lands. The water of Reese river since, naturally then, overspread ever and overflowed on so, immemorial, land, and had done from time said made meadow, grass pasture only the land land. The value of always overflowing said land is and was the water so it. utterly valueless, grass the land is Without said water and no anything grow very else could thereon. The water is the plaintiffs had in substance of the estate said land. The great plaintiffs was and is of value. The land so overflowed improvements great expensive They made thereon. Now, had their homes there ever their families since. it is plaintiffs that, because did not divert the contended water they right by ditches, had no which therefore the law would right despoil respect, plain- the defendants had the they right property possessed forty tiffs of they They years. are told effect must abandon their defendants, ranches and homes because after all these years, diverted the water ditches. Petitioner. tor land, appurtenant to the and it can no
II. The water is necessary It is away than the soil itself. more be taken subsequent appropriator, productive. No the soil to make it away it nay, riparian can take divert not even proprietor, by necessary prior right, it on it, against acquired use of as (2 Kinney Prop. 368-9; Washburn, pp. the land. Real Rapalje Irrigation, Benton, see. Grooker "Appurtenant.”) Law & Lawrence Die. land, possession appurtenant
III. The with necessary through soil, and permeating all away land, despoiling and which cannot be taken without unproductive, main- is alone sufficient to meadow and make possession all against others who tain their such *16 especially the seek to divert and those who base subsequent appropriation so on or diversion. to do (Reno Scorpion Leete, M. Go. 203-208; 17 Nev. Go.v. S. Water Sabron, 10 Marsano, 10 Nev. Barnes v. Nev. apparent by respondents
IY. the "their The intent of is holding acts, by taking possession land and and the of the thereon, raising valuable spread and means thereof water many cattle, etc., great for a crops, pasturing and their horses "Appro- 150, says: years.” Kinney Irrigation, on As sec. Appropriation of waters priation of water is thus defined. physical open of the intent to take some demonstration is of the and valuable use. The intent the intent for some resрondents by everyday physical apparent was demonstra- taking holding forty years, by intent, tion of their and spread possession of the land and the water thereon of it, harvesting permeating through thereof means horses, crops, pasturing valuable their cattle and etc.” al.,6 Giraud, Court, Y. The in Thomas v. et Colo. says: productive by over- land rendered the natural "If be any appliances thereon, the of flow of the water without aid land, whatever, of means the water the cultivation such of moistening same, appropriation naturally the is a so sufficient appropriation true of water is the of such water. The test of application use, and the successful thereof beneficial making carrying diverting method or such same application is immaterial.” person land,
YI. A off the who marks boundaries [26th. for Petitioner. pasturage, the same for uses excludes others from the adopted pasturage, possession is in land as much actual (Sheldon though Mull, land as he had enclosed it. 301; Oourtney Turner, Kinney on Irrigation, 152, says: "The sec. true test as to whether the not, can held or whether water be the same lias or is been applied purpose, about be some beneficial but method making application is not such material.” Long Irrigation, says: VII. "The mode diverting conducting wholly immaterial, the water is may irrigator employ any means best suited to the existing physical conditions, and all the of the circumstances case.” opinion
VIII.
It
is said
not
decree is
cer-
that
definite,
tain and
determine,
that
must
decree
terms,
any
measure water
defendants had to
plaintiffs
Reese river
that
got
water
remained after the
what
specifies.
appear
any
the decree
that
does
there was
remaining
plaintiffs
supplied.
after the
were
Nor does
appear
that,
remaining,
it
if
water were
how much it
opinion
was. None of
eases cited
hold
court must find
determine the
of the defendants as
may remain, except perhaps
states,
water that
in those
requires
where
statute
must
done. But it
is no
and,
plaintiffs,
concern of the
as the
said in Loicer
Court
Irrig.
Latham Ditch
Go.,
Go. Lauden
X. A to the contention that the apportioned remaining court have should water to defend- ants, entirely that that would be for the benefit.of defendants, and, by asking done, they be waived may party any right whatever, it. A thus waive even a statutory, aye, right. (Sedgwick, even a constitutional Stat. Laws, Cooley’s 111; 181; Constitutional Const. Lim. Bidivell, Robinson certainly
XI. The decree did determine plaintiffs. right -Tt they determined that had the to sufficient irrigate enjoined water to acres, a certain number diverting defendants from the same. So,
XII. in Stein, Boeder v. 23 Nev. the "decree was plaintiff enough that the had the first irri- water to gate acres, quantity of water awarded was measured by the number of acres. This court affirmed the order refus- ing Many a Reports new trial.” cases are the Nevada which water was measured acres. In Ho lemánv. Pleas- Go., ant Utah, 78, opinion, says: Grove cited the court plaintiff enough "The decree irrigate аllowed water to sixty may acres of land. be difficult to determine how required irrigate much water is acre, an but it can sufficiently approximated.” Decree affirmed. supreme having long
XIII. The state, court of this for so period fully measuring of time determined that a decree enlightened proper, number of acres is judges question open of this court will not now consider this discussion, but will adhere to those decisions quieta wholesome maxim of stare decisis et non movere. When principle recognized property, has once become as a rule of changed except by legislature. (Lemp should not be Hastings, Iowa, 449; Grignon’s Astor, 4 Greene Lessee v. 343; Sydner U. Gascoigne, 455; Living Plow. S. Tex. Living, Ownby, 24 Ind. Reed v. 44 Mo. Fisher v. Go., Iron Constantine, 10 Wis. Van 10 N. Winlde T. Miller, Leavenworth Job, 7 Kan. Lvans v. Oon., Barstow v. F. Banh O. Union
320 Nev. v. "Walsh Massey,
Opinion of the C. J. Court — Quillen,'11 necessity v. The of this doctrine of recognize. stare decisis all I courts cite a few from cases Supreme great- the decisions of the Court, United States powerful est and most of all the Pat- courts world: Eaton, 476; ten v. 1 Powell, Wheat. Thatcher v. 6 Wheat. 119; Taylor, Elmendorf v. 10 152; Shelby Guy, Wheat. v. 361; Chew, 11 v. 153; Wheat. Jackson 12 Wheat. Ross v. Borland, 655; Gollins, 58; 1 Pet. 2 Gardner v. Pet. Bank v. Dudley, 492; 2 Ilarmon, 241; McOluny Pet. v. 2 Powell Pet. Silliman, Morrison, v. 277; 3 124; Pet. S. v. 4 Pet. Hen- U. Neil, 291; derson Griffin, 151; v. 5 Pet. v. Green 6 Pet. Mas- singil Downs, 767; v. 7 Sheldon, How. JNesrmthv. 7 How. 812; Borden, 1; Kernochan, Luther v. 7 How. Smith 198; Hunter, How. 738; Smith How. Van Renseler v. 297; Kirney, Cooper, 503; How. 14 How. Webster Jeffer- Skelly, 436; son Bank v. Hicks, 2 Black. Black. Sumner v. 533; Leffingwell Warren, 2 599; Black. Lane v.Co. Ore- gon, 71; Pridgeon, 7 Wall. Christie v. 4 Wall. Nicholls Jjevy, Smith, Wall. Richmond v. 15 Wall. Comrs., Tioga Walker Harbor Wall. R. R. Co. v. Wall, Blossburg R., Cases, R. R. R. Tax U. State Perkins, S. South 94 U. Town of Ottoica S. Seipio Wright, 101 ü. 665. S.
By Court, Massey, J.:C. preliminary statement,
The out motion strike inter- posed by respondents in the district court and renewed court, stipulation involves the construction between parties day entered into on were filed judgment rendered. stipulation, alia, provides proceedings inter that all stayed day November, shall be until action the 30th forty days appellants and that within thereafter may application findings, make for additional file and serve trial, notice of intention move a new and file and serve on motion statement for new trial. The notice of intention was filed and served on 26th day October, 1900, proposed statement on motion day January, trial filed and served -on the new was 5th 1901. *19 Walsh Wallace.
Opinion Massey, oí the C. J. Court— It respondents is claimed the that, while under the stipulation, the may notice of any intention be filed at time expiration before forty days, the of the the relative time for filing the statement provided on motion a for new trial practice (Comp. Laws, the civil 3292), act filing after the of intention, changed of notice was not stipulation, therefore, having the statement not been filed within five days filing serving after intention, the notice of it should disregarded and stricken out. general stipulations is a rule that parties between should construction, receive a fair and harmony liberal with the apparent parties intention spirit of and the justice, of and in the of furtherance fair trials merits, rather than a one, narrow and technical calculated to defeat the purposes execution, of and, their in all doubt, cases of that adopted construction should be which is favorable to the (O’Neale party in whose favor it is Cleaveland, made. Harris, Nev. 485; Insurance 97 U. Sweeney Co. S. Co., Railway 11 Mont. Pl. & seq.) Enc. Prac. et Under this rule it is clear to that the us construction con- by respondents tended for is too -narrow and technical. The appellants perform any were not bound to one or all of the stipulation any specified They acts covered at time. could, believé, we under a liberal construction the order named, any perform all of the at acts date within the by respondents would, time limited. To hold as contended us, interpolation language it seems necessitate stipulation; and, had found in if such been intentiоn parties, it of the was useless and absurd to have included in stipulation any relating filing matter the time of serving the statement on motion for new trial. The inten- used, parties, language tion of the manifest from the was that stipulation provisions should stand in lieu of the regulating statute these matters. Cheney, by respond cited
The case State v. support contention, point, is not in ents distinguish reading facts of case is sufficient to bar, at from the case without discussion. out be denied.
The motion to strike will therefore appellants brought respondents against this action XXVI —21 VOL. [26tli v. Massey,
Opinion C. J. Court — river, and to restrain of Reese of the waters the restitution thereof, diverting any enjoin of the waters them from natural flow of the waters preventing the usual' from flowing the lands of any portion thereof, from thereof, or general prayer complaint also contains respondents. The equitable relief. per complaint, parts the matters Omitting formal all alleged, appeal, as question considered on this tinent *20 in interest respondent predecessors and Walsh his are that day March, 18C3, the were, the 15th of and had been since possession tracts of land con and in the of certain owners 1,400 taining acres; respondent A. Maestretti and P. that.the were, said predecessоrs in and had been since interest possession in certain tracts of land date, the owners and of respondents containing acres; that the James and Mar Ryan predecessors were, garet and their in interest and had date, possession and in the of been since said owners containing respond acres; of land that the certain tracts predecessors were, in L. F. Maestretti and his interest ent date, posses in had been since said the owners and and acres; containing of certain tracts of land that the sion predecessors respondent Mrs. Bircham and her in interest posses were, date, and had and in been since said owners containing sion of certain tracts of land 400 acres—all of Lander, river, county, which lands situated Reese Nevada; during that "saidlands have been used all said times agricultural purposes; that time for Reese river has from appellants immemorial, until the diversions over, through, lands; flowed and across said that from the day March, 1863, appel until 15th of the diversions made b5r. aforesaid, respondents predecessors lants and their in interest appropriated irrigating and used the the river for waters of flowing through thereby raising lands, and over and said crops grass, hay, appellants and vegetables; that the claim rights аnd river, assert waters of which claims alleged subject and assertions are to be and subordinate rights of the respondents; that the diversions of the by appellants water wrongful; since 1897 have been appellants threaten to continue same. up material-averments; prior The answer denied the set v. Wallace. Opinion Massey, C. J. -Court — all the appropriation, water of Reese river questions other matters not material to the considered and appeal. on determined and decisions were respondents. A motion for a new trial was inter posed denied, appeal and this is taken from the order denying the motion. among found, matters,
The court other that Reese river immemorial, appel- had from time and until the diversions pf lants, over, through, respond- flowed and across the lands ; day respondents March, 1863, ents that the 15th appropriated their in interest had used the imedecessors " ” quantity irrigating waters of Reese river in sufficient flowing part over of their land. The court did not find the quantity by any respond- appropriated of water or all ents, respondents appropriated or that had all the waters of the findings, river. The decision followed the and decree was enjoining perpetually appellants, entered and each them, etc., diverting any agents, "from the water river, any way interfering Reese and from in with said water flowing prevent sueli manner as to said from on the irrigate respondents quantity lands of sufficient *21 same.” large
From a of in a mass matter contained voluminous glean following facts, appear record we the established which questions not controverted, to be and must control the which clearly assignments presented part which are under a of the by considered the court: Nye county,
Reese river has mountains of its source the northerly county. and flows into Lander The lands men- proceeding vicinity along, upon, tioned in this lie flowing the river quantity of said river. The of water variable, dependent upon the of rain fall- amount snow and ing course, upon along its at its head and its and watershed during tributaries, the of watersheds its the various seasons. usually quantity The evidence does not show of water the flowing stream, periods in this at there further than some parties claiming rights was sufficient for all thereto in the proceeding, quantity this other the was insuf- and at times ficient to meet the of claims all. respondents’ miles above lands the river divides
Several Massey,
Opinion the C. J. of Court — forks, Forks. The the East and West two called into along upon the East and West respondents’ lie lands appellants lands are sev- river, of the Forks of respondents, and south and above lands of eral miles near it divides along the river above and where the channel of into two forks. predecessors in interest appellants and their settled
The complaint in 1862 and upon lands mentioned respond- predecessors in interest of the The of some 186J3. ents settled along later, but on lands the river a little about appellants The time that the lands of were settled. the same upon respondents had their the lands claimed sev- settlers holdings surveyed, thereof, and marked the boundaries eral by making protected the some extent so-called ditch same to fences. purpose irriga- of ditches made
The thus were many years after and until tion, and were not so used respondents appellants had been of and other both respondents’ upon land acquired to settlers waters. grasses growing thereon at the time of their set- found wild hay grazed tlement, grazing, suitable for cut Up hay years. to 1869 whatever same for number grew produced was grass these lands natural flowing river, of the of Reese and waters overflow waters upon part holdings. springs from attempt to divert No made waters Reese was irrigation purpose until when the ditch river for respondents’ map figures 1, 2, marked on takеn Fork, now the so-called West above the lands held from Ryan Maestretti, was commenced. This ditch was not years commencement, completed many until after its and it appears through that no run from the evidence water has part 1891. ditch since lands, appears testimony
As to Walsh from respondent, Walsh, that no were either diversions made *22 attempted 1870, and that made or until the diversions for the period purposes irrigating of his lands the from cover by testimony helped to 1884. It is his that he make shown map respondents’ "E F” on in the ditch marked to map, appears, "J K” on the it ditch same was the marked to -y. Massey, Opinion C. J. Court — time; about the same the ditch marked commenced made map "L to N” commenced in or on the same was and, H” in the to made ditch marked "G- was made according1 statement, the named ditch was to last drainage, principally purpose of and used afterwards the irrigation. purpose drainage and for the of any testimony appears in the what the size of It nowhere carrying the was, of or what is was one these ditches capacity of one. irrigating the purpose
As to of water for the of diversions attempted Ryan land, diver- and Maestretti other than to, it "1, 2, 3,” ditch marked above referred sion " ” map point a аt a on the was appears that dam marked a 1869, and to in a ditch taken from dam constructed " ” point 8 thereafter. marked appears placed also in is It that some dams what also were through Slough,” running lands. "Sainpson these called part made appears the ditch It also that the 70’s one Ryan boundary place was of the west line of the to mark the irrigate part land. used regarding for the
The the first diversion of water facts formerly land, irrigating the held purpose of Maestretti meager Wallace, is character. Bircham and of the most Wallace, appears B. former owner of It that S. holdings, in tract, he had divided their afteí and Bircham meadow and turned water onto his constructed two dams land, had its but it is this water source uncertain whether springs. date diver- the river or certain first left to be the Bircham land is evidence sion con- jectured. appears it a dam
Some time between 1863 and 1869 river, West Fork of Reese was constructed so-called above the Bircham house. or abandoned
Whether the made continued diversion so was testimony matter, also, doubt, appears from twenty years that, period Campbell witness irrigate action, more the trial of this before about twelve a dam in river Bircham land was diverted miles аbove Bircham ranch. diver- necessary fully the facts as is not state *23 126th. Walsh -w.Wallace.
Opinion Massey, O. J. Court — by appellants, only sions made the various but such facts as question illustrate the discussed and decided need be stated. appellant The purchased Daniel T. Wallace the so-called MeQuitty place, respondents’ above lands, by means dams and irrigation. ditches diverted water Whether these dams ditches had been made and so used purchase before his of the land is uncertain.
In 1873 Wallace higher up located another ranch on the river, and started to construct a purpose ditch for the of irri- gating this ranch. In 1877 he transferred his diversion of water, under the counsel, MeQuitty advice of place from the upper ranch, appears as it that the amount of water MeQuitty used on the irrigate, ranch would much more land upon upper ranch. Ahlers,
Fred whose appellants, administrator is one of the settled Reese river in farming and commenced year. He made diversions of the water of the river for purpose irrigation, but the dates of diversions s.uch and the amounts of by water so diverted are not shown testimony. appellants The Charles Ahlers Hess claim through Fred Ahlers, deceased. McMahon started farming year Reese river in put and that undеr cul- eight acres, tivation but the dates and amounts of diversions by made him are testimony. not shown sufficient, above facts are stated, as above to illustrate question considered and court, determined furnish sufficient basis for its conclusion. It is well to note here that the record quantity does not disclose the of water any time, by any diverted at means, by any one or all of the parties to this action. Neither quantity does it show the „to necessary irrigate sufficient or lands, any part lands, respondents, as found the court. Neither is any showing there in the record from facts, which these any facts, one of these could be ascertained known process.
Counsel, many assignments under the made, have discussed nearly subject-matter briefs the entire of the law of irrigation prevailing in the arid and states; but, semi-arid matter, we view the necessary only to consider such questions plainly as are sharply assign- made under v.
Opinion Massey, C. J. Court — contrary that the and decision of the court ment contrary supported by, evidence, and to law. to, and not appearing questions, The other for various reasons unnecessarily lengthen record, presentation of which would *24 considered, opinion, but not be determined. this have been will finding recited that the of the It is evident from the fаcts fixing appropriation respondents on court the of the of date day contrary the March, the 15th of is to both law evidence. directly question as to This conclusion involves what appropriation water, in the deci- an of as used constitutes they as have of this court and the laws of this state sions and now exist. existed may rights of
Under two of the law to use rules flowing acquired the rule of in a natural stream —under appropriation. riparian rights and under the rule of by action, in this has been
It is conceded counsel riparian rights by court, that the of is so held doctrine existing Nevada, in the State of unsuited to the conditions appro- operation of repugnant in its doctrine and is so part law, pre- priation, that it not a of the does here. vail appropriation order, therefore, to a valid of
In constitute by meaning that term as understood water, within the of state, and, the laws of the as we of this court and decisions by the courts and laws of other believe, the decisions of region, arid there must be an actual diversion states apply use, same, intent to it to a beneficial of the with by application to use within reasonable followed an such (McDonald Mining Co., 13 Cal. v. Bear River time. Morgan People, 614; Port Land
Larimer R. 8 Colo. Co. Cо. Co., Ditch 18 Colo. Lowe v. Platte & Canal Co. South Bennett, Ditch 30 Or. Rizor, Co. 25 Or. Nevada Southworth, Ish, Reservoir Co. v. field v. Of Wash. (Or.) Winters, (Colo.) 27 Pac. 21 Pac. Simmons guerra, rnock v. Hi Cha required in its decisions to never been
While this court has yet formally rule, an examination of various thus state large leg- it, number of have been before cases which territorial, an actual diversion acts, shows islative state
Opinion Massey, of the C. J. Court — appropria- of water to be one the essential an of elements of tion, meaning within the that of term. rights above, respond-
Under the rule of announced ents to the use waters of Reese river did not have their inception day March, on the 15th of 1863. Their were land, by not initiated having settlement the same surveyed, by marking the boundaries No thereof. actual date, attempted date, diversion was made on that period years after, appears as several from the Cutting grass produced facts stated. wild overflow river, or, expressed witnesses, the water coming spreading land, Reese river down over the was appropriation not an water, meaning of that within the that term.
Neither grazing appropriation was the an the land under the facts. The established as to the facts rise of the by respondents waters of the river from 1863 *25 1869, under the рaragraphs averments of as to the and flowing river, appropriation use, of Reese and and its is the proof riparian mere rights, anything; assertion and of and if parties’ prevail all concede that that rule not in Nevada. does
If appro- these facts should a be held to constitute valid priation term, then, of meaning within the of that under the contention of counsel that river Reese is well- stream, banks, channel, flowing over, defined bed, with and through upon respondents’ and land, channel would the respondents have to run full of water before could obtain the quantity appropriation, appro- of their subsequent and before priators acquire rights thereto, entailing could thus waste- necessary ful use of that which is to so essential and the development welfare and of the state. up by important presented
This leads question another assignments, involving injunction the award of findings under the and facts.
It appears inception rights respond- that the of of the ents to the waters the Reese river was not of the same date, but at different dates. appears rights respondent that the of the Walsh and appellant Wallace were initiated at about the same by
time. by prede- The first diversion Walsh was made his v. Walsh Massey, Opinion C. ol J. the Court— by himself diversions made Crowley, in 1870. Otlier cessor, Crowley’s rights, if he Crowley purchase after his rights, at from 1870 to purchased made intervals those were 1884. appropriated early appellant D. T. Wallace as 1870 the
As McQuitty McQuitty place, if Reese river on the water from his appropriation had made the before Wallace became vendee. appropriation on
In Wallace made a further upper diver- place, subsequent and at a date transferred his upper McQuitty to the ranch. sion from the ranch by law, it is not claimed Under the settled rule of authorized respondents that this Wallace was not transfer proper. case, further to the facts it will Without reference part, extent, of the be seen that and to some appellant respondent Wallace initiated were time, priority at and that the claim of as between the same shows, could not be maintained them, far as record so by either. appropriation of made as to the waters other
The facts appellants same, many respondents are not respects, appropriations recited in reference as those sufficiently the above Wallace; but illus- made Walsh findings of the conclusion that the the court as to trates contrary priority rights, thereon, are its decision both the law evidence. conceding, purpose argument,
Again, for the priority court as and decision of the respondents supported the evidence- and *26 findings to law, are not sufficient base a decision and such the court. decree of
- conflicting equitable to determine is an action claims This by appropriation. right to the use water by complaint they respondents did claim their that The not river, all of the and appropriated had the waters the court expressly impliedly, they that find, did or had. they appropriated had find that sufficient water to
It did portions they irrigate of their land—much than certain less complaint. in their claimed Walsi-i Opinion Massey, of the C. J. Court — appellants by rights
The asserted their to answer the water by appropriation, rights and respondents. denied the of the respondents’ rights surplus prior, If were whatever they quantity after had flowed taken the to stream they subject appropriation, which were entitled became to under the decisions of this court. conclusively denied, shown, many
It is and not that for years appellants predecessors and their in interest have done things necessary all under those the law to a valid constitute appropriation surplus might respond- of whatever remain after they had taken the amount to ents which were entitled. parties, pleadings proof, All the under the were claim- ing asserting rights to the use of the water of Reese by appropriation; acquired rights therein, river and all had asking rights and were that those be determined. court, findings decision,
The its determined but one rights did not issue. determine all the of either of the any respondents, rights appellants. of the of the It left quantity irrigate undetermined the of water sufficient to lands, respondents’ extent it left undetermined respondents’ rights, thereby appel- all the lants. It cannot be ascertained from the or the respondents quantity decision when have taken the irrigate land, respondents water sufficient or whether appellants’ rights any can take subordinate to at time appropriation. virtue of their the waters findings, express implied, far concerned, So pleadings evidence, quantity based conjecture appropriated left mere is left to be deter- —is litigation parties. mined future between the parties The have no to determine what is sufficient or irrigate what is not sufficient to their land. judgment respect and decree in this should be certain definite, and,- unless the decree is certain and definite in respect, upheld, except, it cannot be under the circum case, quantity
stances of the indefinite and uncertain capable (In given decree of ascertainment. re. Huntley, Dougherty Hag 29 C. C. A. 85 Fed. gin, Fox, Crane, Barrows v. 98 Cal. Ditch Co.v. Sargent, Riverside Water Co. *27 331 v. Opinion Massey, of the C. J. Court— Co., Ditch Earhart, Wallace v. 1.30 Cal. Drake v. Idaho, 716; Bielenberg,.14 Johnson Mont. Smith Phillips, Utah, 376; City, Holman v. Pleasant Grove Utah, 78; Irrigation Jenkins, Utah, 369; Irrigation Co. v. Vickers, Utah, 374; Co.v. Authors Bryant, upon findings, A decree should be based definite and the finding’s can be no definite or more certain than the evidence justifies; (an where, equitable the case at bar conflicting action to determine claims of use parties court), nothing with the before the there is whatever in the record to base which or deci rights, expressly sion of impliedly, those either and the findings and part controversy decision leave a material undetermined, piecemeal, or to determined future litigation, the action of the in leaving court undetermined parties upheld, essential all the cannot be and is (Watson contrary to law. Sutro, 500; People Mining Co., Run 155; Quint McMullin, Gold Frey Lowden, Feeney Chester, (Idaho) 63 Pac. given, denying
For reasons the order the motion for a reversed, trial bewill new cause remanded for further action accordance herewith. J: I concur.
Belknap, J., being disqualified, participate. did not Fitzgerald,