Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1902-02-28

SOl . III luCcTcSL appropriated and used
the waters of the river for irrigating
and flowing over and through said
lands, thereby raising crops OF grass,
nay and vegetables; that the appel
iants claim and assert rights 10 the
waters OF the river, which claims ami
assertions are alleged to be subordi-
nate and subject to the rights OF the.
respondents; that the diversions of
the water by appellants since 1897
have been wrongful and that appel
lants threaten to continue the same.
The answer denied the material a.
verments; set up prior right to all
the water of Reese River by appropri-
ation( and other matters not material
to the questions considered and de-
termined on this appeal
The findings and decision were for
the respondents; motion for a new
trial was interposed and denied, and
this appeal is taken from the order
denying the motion.
The court found, among other mat
tiers. that Reese River had from time
immemorial, and until the diversions
by appellants, flowed over, through
and across the lands of respondents;
that on the 18th day of March, 1863,
the respondents and their predeces-
sors in interest had appropriated and
used the waters of Reese River "in
sufficient quantity for irrigating and
flowing over part of their land The
court did not find the quantity of wat
er appropriated by any or all of the
respondents, or that respondents had
appropriated all the waters of the
river. The decision followed the find
ings,. and decree was entered per-
petually enjoining the appellants and
each OF them, their agents, etc, from
diverting any of the water of Reese
River and from in any way interior
ing with said water in such manner
as to prevent said water from flowing
on the lands Of respondents in suffi-
Gent quantity to irrigate the same
From large mass of matter con-
taihed in a vOluminOus record we
CLEAN the following established facts,
which appear not to be controverted,
and which must control the questions
wlich are clearly presented under a
part of the assignments considered
by the court.
Reese River has it's source in the
mountains of Nye county and flows
northerly into Lander county The
lands mentioned in this proceeding
lie along. upon or in the vicinity of
said river. The quantity of water
flowing in the river is variable, de-
pendent upon the amount of snow and
rain falling upon it's watershed at it's
head and along it's course, and the
watersheds of its tributaries during
the various seasons. The evidence
does not shoW the quantity of water
usually flowing In this stream further
than at some periods there was suffi.
cient for all the parties claimin
rights thereto in this proceeding, anu
at other times the quantity was in
sufficient to meet the claims of all.
Several miles above appellants lands
the river divides into two forks, So
called the East and West fork. The
appellants lands lie along or upon
the East and West forks of the riv-
lei. and the lands of the respondents
are several mics south and above the
lands Of appellants, and along the
channel of the river above and near
where it divides into two forks. The
appellants and their predecessors in
interest settled upon the lands men
toned in their complaint in 1862 and
1868. The predecessors in interest Of
some of the respondents settled or
lands along the river little later
but about the same time that the
lands Of appellants were settled. The
settlers upon the lands claimed b!
respondents had their several hold
ings surveyed, marked the boundar
les thereof and protected the same t.
some extent by making sO-callet
ditch fences The bitches thus made
were not for the purpose of irrigation
and were not so used for many year,
after and until other rights of boil
respondents and appellants had beel
acquired to the wtaers. The settler
upon respondents land found will
grasses growing thereon at the tim
of their settlement suitable 70
hay and grazing and cut AM
grazed the same for mum
Der of years. Up to 1869 what
ever hay and grass grew upon thes
lands was produced by the natura
overflow of the waters of Reese Riv
!, err. and waters flowing from spring
upon part of the holdings. No al
tempt was made to divert any of tn
waters of Reese River for the pul
: pose of irrigation until 1869, when tn
! ditch marked on respondents map b
the figures 1, 2 and 3, taken from tn
, so-called West Fork above the land
, now held by Ryan and Maestrett
: was commenced. This ditch was nc
: completed until many years after il
| commencement, and it appears frol
2 the evidence that no water has ru
e through a part of this ditch sine
a 1891.
|, AS to the Walsh lands. it appear
d from the testimony of the respOn
ent, Walsh, that no diversions wei
|, either made or attempted until 1877
) and that the diversions made for tt
l. purposes of irrigating his lands co
, er the period from 1870 to 1884.
n is shown by his testimony that I
e helped make the ditch marked e
S FL on respondents map, in 1870; Il
l. ditch marked y to K" o nthe san
S map. it appears was commenced al
;r made about the same time; the dit
d marked on the same map 81 to !
s was commenced in 1874 or 1875 al
S the ditch marked &c to H. was ma
G in 1884, and according to his sta1