Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1902-03-01

and contrary to law. The other
questions, for various reasons appear
ing in the record, the presentation of
which would unnecessarily lengthen
this opinion, have been considered,
but will not be determined.
1t is evident from the facts recited
that the findings of the court fixing
the date of the appropriation of res
pondents on the 18th day of March, |
1863, is contrary to both the law and
the evidence. This conclusion in
wolves directly the question as to
what constitutes an appropriation of |
water as used in the decision of this |
court and the laws Of this state as |
they have existed and now exist. |
Under two rules of the law may yrights |
to the use of water flowing in a nat |
ural stream be acQuired-under the |
rule of riparian rights and under the |
rule of appropriation. Ii is conceded |
| by counsel in this action, and it has
been held by this court, that the doc
trine of riparian rights is so insult
ed to the conditions existing in the
State of Nevada and is so repuenant
in its operation to the doctrine of ap-
preparation that it is not a part of
the law and does not prevail here.
In order therefore, to constitute a
valid appropriation of water within
the meaning of that term as under
stood by the decisions Of this court,
and the laws of the state and as we
believe by the decisions Of the courts
and laws of other states in the arid
region, there must be an actual diver
sion of the same with intent to apply
it to beneficial use followed by an
application to such use within a reas-
enable time.
Mcdonald v. The Bear River Co.
Is Cal. 22O;
Larmer Co. Co. " The People, 8
Colo. GA;
Fort Morgan Land CO. So"th
Platte Di."l Co, is Colo. l:
Lowe v Riaor. 25 Or. 551:
Nevada Dit u Co. v. Bennett, 30
Ore. SO
Ofield V. Ish 21 Wash. 277;
Farmers. etc. v Southworth, Il
Pac. 1880;
Simmons V. Winters. q Pac. I:
Chanock V. Nigu ezra. III Cal.
: >73;
= While This court has never been re
P cuircd in its decisions to thus formal
ty state the rule, yet an examination
: OF the various cases which have been
r before it. and the large number Of
- LEGISLATIVE acts, State and TerritOr-
Q ial, show that an actual diversion of
/ water to be one Of the essential ele-
G ments of an appropriation within the
meaning OF that term.
! Under the rule announced above, the
. rights OF the respondents to the use
. OF the waters of Resse River did not
= have their incpetion on the 18th day
n Of March, 1868. Their rights were
: not initiated by settlement upon the
J. land by having the same surveyed, or
= by marking the boundaries thereof
n No actual diversion was made on that
: dates, or attempted on that date and
+ TOR a period of several years after
a as appears from the facts stat
p ed. Cutting wild grass produced by
j. the overflow of the river, or as eX
> pressed by the witnesses, by the
+ water Of Reese River coming down
q and spreading over the land, was
y not an appropriation Of that water
h within the meaning of that term
: Neither was the grazing Of the land
Gn appropriation of the water under
\ the facts. The established facts as
V to the use Of the waters of the river
n by respondents from 1863 to 1860, I'm
+ der the averments of paragraphs l.
, and Is, as to the lowing Of Reese
n ! ltIh tt anu itS uoS
;s is the mere assertion and proof of ri
n parfan rights, if anything, and al
h parties cOncede that that rule doe:
% not prevail in Nevada. If these fact:
,f should be held to constitute a vali(
n appropriation of water within th'
7r meaning of that term, then under thu
o- contention OF counsel that Reese Riv
II eS is a we'll defined stream witt
G banks bed and channel, flowing over
Il through and upon respondents land
or would the channel have to run full O
water before respondents coul
-, obtain the quantity of their apprOpris
- ton and before subsequent appropris
= tors could acquire rights thereto, thu
IL entailing a wasteful use of that whic
~ ~ is SO essential and necessary to tn
~ welfare and development of tn
" State.
a a This leads up to another importar
~ question presented by the assigl
81 ments, involving the award Of th
-, - injunction under the findings an
- facts. 1t appears that the inceptio
oe of the rights of the respondents I
III III the waters of the Reese river We
tlo no not of the same date, but at diffe
ti III; ent dates. 1t appears that the righ
'N of the respondent, Walsh, and the a
as about the same time. The first dive
es- sion by Walsh was made by his pr
by decessor Crowley, in 1870. 9th
INT Crowley after his purchase shrd
ell diversions made by himself al
lot Crowley after his purchase Of Gro
9rt- ley's rights, if he purchased tho
my rights, were made at intervals fro
ac- 1870 to 1884. AS early as 1870, t
ntl- appellant d. T. Wallace, appropri;
ate ed water from Reese River on t
Oh McQuitty place, if McQuitty had n
lrt' made the appropriation before w
the lace became his yendee.
my In 1873 Wallace made a further G
'el preparation on his upper place, a
at subsequent date transferred
gn- diversion from the McQuitty ran
leir to the upper ranch. Under the S
lat- tied rule of the law it is not claim
ing by respondents that this transfer
but Wallace was not authorized and D