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

ported Dy the evidence and the law,
such findings are not sufficient to
base decision and a decree of the
court. This is an equitable action to
4esermine conflicting claims of right |
o the use OF the water by appropria-
,lon. The respondents did not claim |
by their complaint that they had ap- |
propriated all the waters of the river, |
and the court did not find expressly !
or implicitly that they had. 1t did find I!
that they had appropriated sufficient |
water to irrigate certain portions of
their land-much less than they claim
ed in their complaint. The appellants
assered by their answer rights to the
water by appropriation, and denied
the rights OF the respondents. If 1e-
spondents' rights were prior. what
ever surplus water flowing in the
stream after they had taken the guam
tity to which they were entitled be-
came subject to appropriation under
the decisions of this court
1t is cOnclsively shown, and not de-
MED, that for many years, appellants
and their predecessors in interest
have done all those things necess Try
under the law to constituts a valid ap-
preparation of whatever surplus might
remain after respondents had taken
the amount to which they were enti-
tied. All the parties under the plead
ings and proof were claiming and as
sorting rights to the use of the water
of Reese River by appropriation, and
all had acquired rights therein, and
were asking that those rights be de-
termined. The court by it's findings
and decision determined but one is
sue. 1t did not determine all the
rights of either of the respondents or
any of the rights of the appellants. 1t
left undetermined the quantity of wa
ter sufficient to irrigate respondents
LAM 5, and to that extent it left unde-
ternlined respondents rights, and the
reby all the rights of the appellants.
1t cannot be ascertained from the find
ings or the decision when the respon-
dents have taken the quantity of wa
ter sufficient to irrigate their land, or
whether respondents can take subor
dinate to appellants rights at any
,, time any of the waters by virtue of
their appropriation. So far as the
. findings, express of implied, are con
: cerned, based upon the pleadings and
the evidence, the quantity appropri
ated is left to mere conjecture, is left
to be determined by future litigation
between the parties. The parties have
no right to determine what is suf1i
cient or what is not sufficient to iIri
: gate their land. The Judgment anG
: decree in this respect should be Ger
. tain and definite and unless the de
!, cree is certain and definite in this re
= spect, it cannot be upheld except un
:. der the circumstances of the case, the
:: indefinite and uncertain quantity Civ
: en- by the decree is capable of ascer
= | tainme1t
In Re Huntaey, IS Fed SS9;
:, Dougherty v. Haggsn, Sc Cal. 522
= Bafrows v. Fox, SO Cal. So;
Lakeside Co. Crane, 80 Cal. 1S1
= Riverside Co. v. Sergeant, 112 Ca
23O;
Wallace v. The Ditch Co. $50 Cal
SIS;
! Drake " Earhart, Idaho, ZIG
= johnson v. Bielmberg, IA Mont
!. Sc;
= Smith v. Phillips, Utah, 37S:
;. Holman v. Pleasant Grove City
1 Utah, IS;
o Irrigation Co. " jenkins. Utah
369;
!. Irrigation Co. " Vickers, Is Utah
II 374;
6 Authors " Bryant, % New. PAS.
g A decree should he based upon dc
4 finite findings, and the findings can
a no more defnie or certain than tn
a | evidence justifes; and where, as i
3 the case at bar, an equitable action
h determine conflicting claims of RICH
= to the use of water with the partie
! before the court, there is nothin
# whatever in the record upon which t
4 base findings or decisions of thos
A. rights either expressly or implied.
A. and the findings ana decision leave
s material part of the controversy undo
h termined, or BE dete rmined ly piece
. meal by future litigation. the actio
20 of the court in leaving undermine
essential rights of all parties canne
IT be upheld and is contrary to law.
~; Watson v. Sutro Sc Cal 500;
o People v. Gold Run Co. 6s Ca
- 1f5;
~ ~ oufnt v. McMullin, 1os Cal. ss1
n Frey Y. Lowden, 20 Cal. $50,
% Feeney v. Chester, SO Pac. idaho
- 1872
ts For the reasons given, the order d,
n. nying the motion for a new trial wi
r. be reversed and the cause remande
r. for further action in accordance herr
q. with.
- l concur: BELKNAP .
II Fitzgerald. j., being disqualified, di
ID not participate in the above decision
v Filed February rs, 1902.
70 Eugene Howell,
m Secretary of State and ex-offici
70 Clerk of the Supreme Court
It. Filed with printer for publicatio
,e February 26, 1902.
OF Eugene Howell.
II -.