The Daily state register. [volume] (Carson City, Nev.) 1870-1872, 1871-12-17
VANSICKLE VS.. HAINEs.
VeriIas.

SICKLE vs.. I1dllleS tue ACT VI
was imperative in this State, for if
the act did not ''protect' Vansickle
in his rights of appropriation" it
could not, for the reasons which de-
feated him, protect anyone else.
Granting the act to be prospective
and to warrant the adoption of a
different rule as to all patents issued
after July %, 1866, We shall now see
tint mt a ranchman in Carson Valley
is larfaHy entitled to dirert and use a
drupg rater. TOR tie irrigation ghis
land.
The Merrimac Mill Company, a
riparian owner, acquired patent for
part of its land September Is, 1864.
This title antedat.lg the act of
Congress cuts off according to the
decision) all rights by "priority of
possession" and puts the mill own
ers on the footing of riparian pro-
prietors. entitled. as we have seen,
to the unobstructed and undimin-
ishei flow of the waterin the natural
channel OF the stream. Whoever d.
verts the water to the injury of the
mill company is a trespasser, may
be sued as such. mulct IN damages,
and perpetually enioned.
Furthermore : Only such ranch
men as acquired title between July
20, 1866, aud August u, 1866, could
successfully plead Limitation be-
cause as to all who obtained patent
prior to July 26. 1866, the rule of
Vansickle VS.. Haines would prevail
and all who acquired patent since
August p. 1856, wouldflil upon the
theory that five years the period OF
limi;ationl had not elapsed between
the date of patent andthe commence
ment of suit Aug. n, 1871. OF
all the ranchmen in the State, there
is perhaps not three who acquired
title between the dates mentioned
and Of these perhaps not one who
diverted water during that twenty
five days of time.
But nothing is more crude anG
silly than what is said by "Veritas'
about the statute of Limitations tc
water rights in this State. In the
first place We may note for his in
struction, that an usufruct in water
is an incorporeal hereditament, anG
that the statute of limitations does
not extend - incorporeal rights
There is not a student atthelaw, mol
a Justice of the Peace, nor a THIRD
rate pedagogue in any agricultural
county. who does not know better
than THAT five years uninterrupted
enjoyment bars all right of recovery
for the diversion of water" Th,
statute of limitations has not a thin9
to do with this question except by
analogy in fixing the period of pre-
scYiption-the length of time during
which there must be an adrerSs en-
ioyment to raise the presumption o.
grant. Undoubtedly rights may BE-
acquired to the use of water by pre-
scription, but the uninterrupted
diversion of water for five years i
but one of several indispensable pre-
requisites to the existence of tn
right. The use must have been al
~rerse, peaceable. conhnuous, open, an
der claim g right, and N ~j~,i0"s tt
the person against whom the pre-
scription is claimed. Nothing /
better settled than that all thes
things must concur 1t is so every
where expressed in the elementar,
books anddecided cases and, until b,
Veritas, has never been QUESTION:,
before since the days of Bracton.
Says Washburn in his late excel
lent work on Easements and Servi
tudes: "To constitute prescription
the enjoyment must have been ad