Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1898-10-21
APPELLANT
Curler < Curier, for appellant.
OPISION-BN ROSNIFIELD,

The plaintiff brought this action in the
Justices Court Of 40 Township in
Nashoe County to recover of the dtfen-
dant the sum of $500. 1t is alleged by the
complaint, "thatthe plaintiff is, and at all
of IT, times mentioned in this complaint
hiss been. in The exclusive ownership, pos
session. management and control Of that
certain d.Icn Situated in Wasnoe County,
Nevada, known as and called the Union
drain ditch.
THAT within -four -rS Immediately
preceding the r .'an' Of this ac-
ton plaintiff has, at the ~pv-:'' :3stance
request and agreement of dviyl!tnt, fur
niShed to defendant the use Of is 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-
fen1@nt used plaintiffs said Union drain
ditch for the said purpose and agreed and
contracted with plaintiff to pay to plaint-
if for the said use the sum of $3.50, which
said sum of $3.50 remain 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 it 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
plainti.f 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: "Tha at no time mentioned il
PLAINTIFFS complaint did the plaintiff al
the special instance or request of defend,
ant furnish the defendant the use of its
said drain ditch for any purpose whatev
er, or hat the defendant ever had any
agreement with the plaintiff in regard t.
Ills Saul uIdl1idSS wafer lIOIl SdlU ldIlu u
that defendant at any time agreed to o
promised to pay plaintiff 800 for the us
of its said drain ditch or for the use o
any ditch, except, as hereinafter stated
And the court, "as hereinafter stated
found, tO-Wit: "Tha on or about sevent,
, days before the commencement of thi
action the defendant promised and agreed
e to pay plaintiff the sum of Sl20 for tn
+ use of its said drain ditch for the yea
1894, 1895 and 1896, one-half of said sun
to be paid in sixty days, in considerable
of no suit being brought against him b
plaintiff in that time, 10 part of said sur
= was ever paid and no suit was brought b
plaintiff as against defendant in said {
days.
As conclusions of law the Court foun
that the plaintiff was "entitled to a iuds
ment against the defendant for the SUI
of Sl2O, ..and costs of suit ,basing til
same on the said finding that defendal
promised to pay in consideration of sal
forbearance to bring suit. Judgment w
entered accordingly. From this jud!
" ment and order of court denying his nj
: ton for new trial the defendant appeal
i Counsel for appellant contend that tt
District Cour had no jurisdiction of tt
subject matter of the cause of action c
which the judgment was given. it beir
only a money demand for a sum with