Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1898-10-25
oPINIoN-BY BONSIFIELD, j..

- ~ t-i@L -
The plaintiff brought this action in the
Justices Court of Reno Township in
WashOe County to recover OF the defen-
dant the sum OF $40. 1t is alleged by the
complaint, that the plaintiff is, and at all
of the times mentioned in this complaint
has been, in the exclusive ownership, pos
session. management and control of that
certain ditch situated in Washoe County,
Nevada. known as and called the Union
drain ditch.
That within fo,. r'}r- Immediately
preceding the commeu. - . Of this ac-
ton plaintiff has, at the -, distance
request and agreement OF dc.cu liant, fur
uished to defendant the Use of its said
Union drain ditch for the purpose of re-
! ceiving, conducting and carrying away
the waste and drainage waters from de
PENDANTS land situated in Washoe Coun-
ty, Nevada, and that during said time de
PENDANT used plaintiffs said Union drain
ditch for the said purpose and agreed md
contracted with plaintiff to pay to plaint-
if for the said use the sum OF $40, which
said sun of $40 remains due and I'M
paid from defendant to plaintiff"
For second cause of action the allega-
tons are the same as for the first cause,
except ii is alleged that the defendant
agreed to pay plaintiff what the said use
of said ditch was reasonably worth and
that said use was and is reasonably worth
the sum of 500, instead of alleging that
defendant agreed and contracted to pay
plaintiff for the said use the sum of $780,
as alleged in the first cause of action.
The defendant filed a verified answer
which put in issue every allegation of the
complaint and set up an affirmative de-
Tense. 1t appearing to the Justice by the
answer that title to real estate was neces-
sarily involved in the action, he certified
the pleadings to the District Court of said
County. The case was tried by that Court
without a jury. The Court found against
the plaintiff on each cause of action, and,
to-wit: THAT at no time mentioned in
plaintiffs complaint did the plaintiff at
the special instance or request of defend
ant furnish the defendant the use of its
said drain ditch for II purpose whatev-
er, or that the defendant ever had any
agreement with the plaintiff in regard to
Ills Sdlu drainage " dltE from Sdlu ldIlu OF
that defendant at any time agreed to or
promised to pay plaintiff $3.50 for the use
of its said drain ditch or for the use OF
any ditch, except, as hereinafter stated
And the court, "as hereinafter stated
found, tO-wit: That on or about seventy
days before the commencement of this
action the defendant promised and agreed
, to pay plaintiff the sum of Sl2O for the
use of it's said drain ditch for the veal
1894, 1895 and 1896, One-ha1f of said sun
to be paid in sixty days, in consideration
of n o suit being brought against him b,
plaintiff in that time, no part of said sun
was ever paid and no suit was brought b,
plaintiff as against defendant in said s.
days"
AS conclusions of law the Court fount
that the plaintiff was entitled to a judg
ment against the defendant for the sun
of Sl20, and costs of suit ,basing tn
, same on the said finding that defendan
promised to pay in consideration of sail
forbearance to bring suit. Judgment wa
entered accordingly. From this judg
, ment and order of court denying his mo
ton for new trial the defendant appeals
, Counsel for appellant contend that tn
District Cour had no jurisdiction of tn
subject matter of the cause of action o
which the judgment was given, it bein
only a money demand for a sum With