Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1902-05-30
The MORNING APPEAL
Carson City. Nevada.
SUPREME COURT DECISION.

SUPREME COURT DECISION.
In the Supreme Court OF the State
of Nevada. No. 1921.
John Gotelli, ct al, Respondents,
Orlando cardelIi ct al, Appellants.
Aooeal from the District Court OF the
State of Nevada, in and for Lyon
County,. Hon. c. {. Mack, Judge.
w. e F. Deal,
John Lothrop,
For Respondents.
Torreyson & SunmerteId,
For Appellants.
Opinion by Eeiknap, J.
This is an action for damages ior
the diversion OF water. Respondents
are the owners of lands upon the
Carson river and have the prior rlsht
to divert SO much Of the waters there
OF flowing through described often
situated upon defendants lands
higher I'D the river as are necessary
to irrigate 142 acres of land. jury
assessed the damages at $175.Ue.
/. The first assignment OF error IS
the admission i'll evidence OF the
Judgment roll in q former action pc
tween the same parties. The purpose
OF this evidence, as shown by al II
struction Of the court, was TO eStab-
lish respondents right to MAINTAIN
certain dam and ditc. over appellants
lands Afterwards it was admitted
that respondents were the owners Oh
the dam and ditch with the prior rignt
to the use Of so much OF the water as
was necessary to irrigate the guam
tity of lana as the proof should es-
tablish Appellants having admitted
the facts which this evidence tended
to prove its admission was not pre-
judicial.
ii. The findings OF fact in the for
mer case were also Introduced IN ev
idence. but were withdrawn by res
pOndents and the court Instructed tins
Jury not to consider them. A SIM
lar motion and instruction were made
and given touching evidence OF dam
ages accruing since the commence
ment of the suit.
ILL., Respondents instruction No. D
as modified read as follows: If yol
DeneVo 1TOIn tue ef1ueACt THAT IL Wos
necessary that plaintiffs should have
sufficient OF the waters of the Carson
river to fill their ditch to its full ca
pacity during the irrigating season
of 1895 and 1889, or either OF sait
years, in order to have irrigated thei
crops properly on the lands irrigated
Tor crops for five years prior to tn
commencement OF this action, the
your verdict should find that the plaiI
tiffs are entitled to sufficient OF tn
waters OF Carson river to fill thel
ditch to it's capacity during the irr
eating season, and in determining
the matter it is your duty to compar
your knowledge and experience vii
the evidence in the case and deter
mine what the fact is
1t was shown that the amount {
land under cultivation in the year
1898 and 1899 was l42 acres I'll
carrying capacity OF the ditch vas
= bout 1900 miners inches. Some
plaintiffs witnesses testified that
full ditch OF water was necessary
irrigate the growing crops. This il
eral allowance may not be Eecessai
in seasons CT more humidity, or
years when the cultivated area is les
The law is that an appropriation is o
~ entitled 10 So HUGH Ndttl. GU
omicallv used. within his appropri
ton, as is necessary TO irrigate n
land. The necessary amount OF va
CT varies with the seasons. The d
cree as entered in effect allows re
pOEdent all the water their ditch W
carry during the irr;gating season
each year irrespective Oh lis nece
sity. and enjcins appellants int
ference Herewith. Lii this respe
the decree is erroneous and must
modified by eliminating therefrcm {
directions touching any fixed qua
tity or volume of water TO be taken
plaintiffs ditch. The error il the
str'!ction does net affect the verdi
returned by the jury and will not ne
essitate a reversal of the case.
The cause is remanded to the D.
trict Court with directions tC modi
and amend its decree in complain
with these views. and when sc amen
ed the Judgment ard decree will
affirmed. Each party TO pay his ov
costs in this court.
We concur.
Massey. c. J.
n Fitzgerald, j.
Filed May 30. 1902.
Eugene Howell