Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1902-02-28
Opinion by Massey, c. J.


For Appellants
Opinion by Massey, c. J.
The preliminary motion to strike
out the statement, interposed by res
pOndents in the District Court and
renewed in this court, involves the
construction of a stipulation between
the parties entered into on the day
the findings were filed and the judg-
ment rendered. The stipulation inter
ala provides that all proceedings in
the action shall be stayed until the
3Oth day of November, 1900, and that
within forty days thereafter the ap-
pellantS may make application for
additional findings, file and serve not
ice of intention to move for new
trial. and file and serve the state
ment on motion for new trial. The
notice of intention was filed and serv-
ed on the 26th day of October. 1900,
and the proposed statement on mo-
ton for new trial was filed and serv-
ed on the 9Th day of January, 1901.
1t is claimed by the respondents that
while under the stipulation the no.
tice of intention may be filed at any
time before the expiration of the
forty days, the relative time for filing
the statement on motion for a new
trial provided by the Civil Practice
Act, Comp. Laws, Sec. 3292) after
the fling OF the notice of intention,
was not changed by the stipulation,
and therefore the statement not hav-
ing been filed within five days after
the filing and serving the notice OF
intention, it should be dlsregarded
and stricken out.
. It is a general rule that stipuiattOns
between parties should receive taAI
and liberal construction in harmony
with the apparent intention OF the
parties and the spirit of justice, ana
in the furtherance of fair trials upon
the merits, rather than a narrow and
technical one calculated to defeat the
all cases of doubt that construction
should be adopted which is favora-
BILE to the party in whose favor it
is made.
O'Neil v. Cleveland. 8 New. 4S5,
ms. Co. v. Harris, 81 .. S. 331, "a
Law. Ed. $50.
Sweeney v. The G. F. & c. Ry.
Co., II Mont. 523.
20 Ency. Pl. & Pr. 657, ct seq
Under this rule it isc lear to us that
the consideration contended for ty
respondents is too narrow and tech
meal The appellants were not
bound to perform any one or all of
the acts covered by the stipulation
at any specified time. They could,
we believe, under a liberal cOnstruc-
ton in the order named. perform any
or all of the acts at any date within
the time limited To hold as conten-
ded by the respondents would, 1t
seems to us. necessitate the interpo-
lation of language not found in the
stipulation, and if such had been the
intention OF the parties it was use
less and absurd to have included in
the stipulation any matter relating
to the time of filing and serving the
statement on motion for new trial
The intention of the parties manifest
from the language used, was that
the stipulation should stand in lieu
of the provisions of the statute re
gulating these matters. The case OF
The State v Cheney, "a New. 222
cited by respondents in support Of
their contention, is not in point, anC
the reading of the facts Of that case
is sufficient to distinguish it from the
cause at bar without discussion. The
motion to strike out will therefore be
denied.
The respondents brought this &C
ton against appellants for the resti
tuition of the waters Of Reese Rive
and to restrain and enjoin them from
diverting any of the waters thereof
and preventing the usual natural fOv
of the waters thereof or an
portion thereof, from howin
to the lands OF respondents. TIL
complaint also contains a genera
prayer for equitable relief. Omittin
all formal parts of the complaint. tn
matters pertinent to the questio
considered on this appeal, as alleged
are that the respondent Walsh, an
his predecessors in interest were an
had been since the 18th day OF March
1869. the owners and in the posses
sion of certain tracts of land contain
ing 400 acres; the respondent, A.
Maestretti, and his predecessors
interest, were and had been sine
said date the owners and in posse
sion of certain tracts of land contain
ing $50 acres; that the respondent
jams and Margaret Ryan, and the
predecessors in interest, were an
had been since said dIte. tie o"Ee
and n the possession Of certain tTac
of land containing 400 acres; the re
pondent, /. T. Maestretti, AMI his pr
decessOrs in interest, were and ne
been since said date the owners al
in the possession Co certain tracts
land containing 500 acres, the le
pondent. Mrs Birch!m, and her pl
deceasors in lit crest Mere an! III
bee nsince said date the owners al
in possession Of certain tracts o. Ial
containing 400 acres. all of whk
lands are situated ,lpon Reese Riv|
Lander county. Nevada; that sa
lands have been used during all 81
times for agricultural purposes: tn
Reese River has from time imlEeni'
ial until the diversions by the app
lants in 1897, flowed over throu
and across said lands; that from t
18th day of March, 1863. until the
,,ors;onS made bv appellants afO