Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1902-02-28
THE MO h NINE APPEAL
Carson City, Nevada.
Continued irem ID pa.e.

water as used in the decision of this
court and the laws OF TINS STATE as
they have existed and now exist.
Under two rules OF the law may rightS |
to the use of water flowing in nat
ural stream be acquired-under the
rule of riparian rights and under TIE
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 repu<nant
in it's operation to the doctrine of ap-
preparation that it is not 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 i'll the arid
region, there must he an actual diver
sion of the same with intent to apply
it to a beneficial use followed by an
application to such use within a reas-
enable time.
Mcdonald v. The Bear River Co.
10 Cal 220;
Larimer Co. Co v. The People, 3
Colo. GA;
Fort Morgan Land CO V So;-th
Platte DE- Co, Is Cello. !.
Lowe " Hizor, 70 Or. JJ1;
Nevada Dit II Go. v. Bennett, 80
Ore. SO
Offield v. ish q Wash. 81;
Farmers. etc. V. Southwor:h, Il
Pac. 1880;
Simmons Winters. 81 Fac. ::
IL - 81
.73;
While this court has never been re
Quirei in it's decisions to thus formal
ly state the rule, yet an examination
OF the various cases which have been
before it. and the large number of
legislative acts, State and Territor>
ial, show that an actual diversion OF
water to be one of the essential ele-
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 REESE River did not
have their incpetiOn on the 18th day
Of March, 1868 Their rights were
not initiated by settlement upon the
land by having the same surveyed, or
by marking the boundaries thereof.
No actual diversion was made on that
dates, and for a period ofseveral years
after, as appears from the facts stat
ed. Cutting wild grass produced by
the overflow of the river, or as ex-
pressed by the witnesses. by the
water of Reese, River coming down
and spreading over the land, was
not an appropriation of that water
within the meaning of that term.
Neither was the grazing of the land
an appropriation of the water under
the facts. The. established facts as
to the use of the waters of the river
by respondents from 1863 to 1869, un-
der the averments of paragraphs Ia
and IS, as to the flowing of Reese
River and it's appropriation and use
is the mer assertion and proof of ri
parian rights, if anything, and all
parties concede that that rule does
not prevail in Nevada. If these facts
should be held to constitute valid
approximation of water within the
meaning of that term. then under the
contention of counsel that Reese Riv
es is a we'll defined stream with
banks, bed and channel, flowing over
through and upon respondents land
would the channel have to run full o.
water before respondents, could
obtain the quantity of their ,appropria
ton and before subsequent apprOpria
tors could acquire rights thereto, thu:
entailing wasteful use of. that which
is so essential and necessary to tht
welfare and development of thu
State
This leads up to another importan
question presented by the assign
ments, involving the award of thu
Injunction under the findings. ant
facts. 1t appears that the inception
of the rights of the respondents II
the waters of the Reese river wa
not of the same date. but at differ
ent dates. 1t appears that the right
of the respondent, Walsh, and the ar
pellant. Wallace, were initiated at o
about the same time. The first diver
decessor Crowley, in 1870. Cthe
crowley after his purchase shrdll
diversions made by himself AM
Crowley after his purchase of Grow
ley's rights, if he purchased thOs
rights, were made at intervals from
1870 to 1884. AS early as 1870, tn
appellant, D. T. Wallace, appropriat
ed water from Reese River on tn
McQuitty place. if McQuitty had nc
made the appropriation before Wa
lace became his vendee.
In 1873 Wallace made further az
preparation On his upper place, an
at a subsequent date transferred hi
diversion from the McQuitty ranc
to the upper ranch. Under the SCI
tied rule of the law it is not elaine
by appellants that this transfer b
Wallace was not authorized and Drt
per. Without further reference t
the facts of the case it will be see
that in part and to some extent tn
rights of the respondent, Walsh, an
the appellant, Wallace, were initia
ed at the same time, and that tn
claim of priority as between them s
far as this period shows, couli nc
be maintained by either. The fact
as to the appropriation of water
made by other respondents and al
pellants are not the same in man
respects as those recited in referenc
to the appropriations made by Walls