The Daily state register. [volume] (Carson City, Nev.) 1870-1872, 1871-12-09
VANSICELE VS.. HAINES.


sickle vs.. Haines was 0GJers@ tn the
interests OF tits State, and destructive
Of all rights Of property in water, as
heretofore understood by the people
and enforced by the courts. We
shall now see that for this very rea-
son the decision is contrarut to the COM
n5oe Tar.
The doctrine of riparian owner
snip is nowhere enacted either by
the Congress Of the United States,
or the Legislature os Nevada. 1t
therefore exists, if at all, as a rule Of
decision merely. But no rule OF de
cisior IS binding upon the court.
| Decided cases. no matter how nu-
merous. or well considered in the
light of their surrounding circum-
stances. are to have any influence on
the court except 50 fa' a Hey are
f0ua,ls.I in Justice AID s"EpyTTed bY
soa1,5 geasyls. That this IS true IS
abundantIy verified il the fact that
the RUE of decision IS different il
different States: and that in numer-
ous cases u own court has emphat-
icallv and unqualifedly established
a ruIe widely differing from that
elsewhere affirmed. But ere this
otherwise. the c0urtwouIj have been
as much bound by the rule OF Cali
fornia-from which State We borrow
our laws : the necessities and ext
gencias Of whose people in the use
ofwater being similar to u 0wn-as
by the rule of England where water
lis aeitdsr pseI for mining H,r' Ur.iqa-
, ton and the necessities Of whose
7 people are therefore wholly unlike
= our own.
& 1t cannot be questioned that Gus
= tom ottan1mes make. the law, and
especially when grown to be a rule
o of property. Nor that from the
+ Iearliest presence of civilized man il
. this State it has been the universe
: custom to acquire a usufruct II
water by appropriation and use
This was the custom and the law 4
Il enacted by the Legislature OF ttal
}, in full force and operation at tn
II time Vansickle made his claim
e 1887. This nao been the UNIVERSAL
5 settled rule of property in Nevad
/ since 1861, forming the basis Of a
l. values. and the controlling elemeI
a of all transactions in land.
1t is the settled policy of the la
81 to discourage innovations ; to pre-
+ serve the existing status of property
Hence the doctrine-sta'e decess
10 When then the custom OF the coul
II trr.hv the silence Of the Legislatul
and sanction Of the courts has grow
untoa rule of property, as Is col
H. fessedly the case with respect to Il
y appropriation and use OF water
~ Nevada. that custom is not to
J. overthrow except for the grave
all and most indubitable- reasons. Is
arAeu that caSt0m, strengthened
~ orercheloaiag necessity has lis .foond
IT, ton IN reason, to disturb ii is scarce
nj less than criminal.
- The law has its originl IN necesslt
and its foundation in reason. Al
rule contrary to the one, or unsu
sar ported by the other, must inevltab
IN fall. Ithas grownto be amaxim I'll
i'll - Reason is tie S0ul Of the c0DimOn Il
and arLen tie reason # any Partic~I
lar ceases, so does tie laac ITSELF" b
- what reason is there in a rule viii
=. suddenly as with a blow destroys t
principal Interest ofthe State? Wi
necessity can impe1 the court
os- overthrow, as with an rpheaval,
IN existing rights of property in wat
ats and remit the people to a soull
rule having its origin in a count
and in circumstances wholly unll
o,r orn2 Can II he DOSsible III