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

Macs trelti, and his predecessors in .
interest, were and had been since
said date the owners and in posses ,
sion OF certain tracts of land contain
ing 4S0 acres; that the respondents
James and Margaret Ryan, and their
predecessors in interest, were and
had been since sal. u'lta, The o~Eers
and in the possession OF certain tracts
of land containing 400 acres; the res
pOndent, L. F. MaeStretti, and his pre-
deceSSOrS in interest, were and had
been since said date the owners and
in the possession ut certain tracts cf (
land containing 500 acres, the les
pOndent, Mrs. Birchim, and her pre-
decessOrs in interest were and he'd
been since said date the owners and
in possession OF certain tracts Of land
containing 400 acres, all of which
lands are situated upon Reese River,
Lander county, Nevada; that said
lands have been used during all said
times for agricultural purposes: that
Reese River has from time immenior
ial, until the diversions by the appel
lants in 1897, flowed over, through
and across said lands; that from the
18th day of March, 1868, until the di-
versions made by appellants afore
said, respondents and their predeces-
sors in interest appropriated and used
the waters of the river for irrigating
and flowing over and through said
lands, thereby raising crops Of grass,
hay and vegetables; that the appel
lants claim and assert rights to the
waters of the river, which claims and
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; a 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
ters, 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, 1868
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 an6
each of them, their agents, etc, "fron
, diverting any Of the water of Reese
River and from in any way interfer
: ing with said water in such manner
/ as to prevent said water from fiowins
on the lands of respondents in sufi
cient quantity to irrigate the same"
From a large mass of matter con
tanned ir voluminoUs record We
CLEAN the following established facts
e which appear not to be controverted
4 and which must control the questions
4 which are clearly presented under
q part of the assignments considereC
e by the court.
4 Reese River has its source in tn
L mountains of Nye county and flow
!. northerly into Lander county. TIL
= lands mentioned in this proceeding
lie along, upon or in the vicinity o
}. said river. The quantity of waite
4 flowing in the river is variable, de
lpendent upon the amount of snow an
7. rain falling upon it's watershed at it
head and along it's course, and tn
watersheds of its tributaries durin
It the various seasons. The evidenc
y does not show the quantity of wate
L usually flowing in this stream furthe
1t than at some periods there was sufl
If cient for all the parties claimin
n rights thereto in this proceeding, an
4, at other times the quantity was il
c. sufficient to meet the claims of al
~ Several miles above appellants LAND
in the river divides into two forks, S
n called the East and West fork. Tt
it appellants lands lie along or upo
o. the East and West forks of the ri
le er, and the lands of the responder
1e are several miles south and above IL
e lands of appellants, and along tt
in channel of the river above and ne;
lg where it divides into two forks. II
ne appellants and their predecessors
al. interest settled upon the lands me
st toned in their complaint in 1862 al
at 1868. The predecessors in interest
eu some of the respondents settled
re. lands along the river a little late
OF but about the same time that t
~. lands Of appellants were settled. T
OF settlers upon the lands claimed
nd respondents had their several no
Sc ings surveyed, marked the bounds
1,e he les thereof and protected the same
he he some extent by making social
oo ditch fences. The bitches thus ma
were not for the purpose Of irrigatit
ac- and were not SO used for many yea
stl- after and until other rights of be
Ter respondents and appellants had be
om acquired to the wtaers. The settle
OF, upon respondents land found W
at grasses growing thereon at the ii,
my of their settlement suitable
ng hay and grazing and cut a
he graZed the same for a nU
raj ber of years. Up to 1869 wh
ing ever hay and grass grew upon tht
the lands was produced by the natu
ion overflow of the waters of Reese r
ed, Ter and waters flowing from sprir