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

claim of priority as between them SO
far as this record shows could not
be maintained by either. The facts
as to the appropriation of waters
made by other respondents and ap-
pellants are not the same in many
respects as those recited in reference
to the appropriations made by Walsh
and Wallace, but the above sufficient
ly illustrates the conclusion that the
findings of the court as to the prior
ity of rights and it's decision there
the evidence.
Again, conceding for the purpose of
the argument, that the findings and
decision of the court as to the priority
of right of the respondents are sup
ported by the evidence and the law,
such findings are not sufficient to
base decision and decree of the
court. This is an equitable action to
determine conflicting claims of right
to the use of the water by appropria-
tiOn. 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
| Vi AupllCuly CAdC CAOy Aou. IL ulu Huu
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 le-
spondents' rights were prior, what
ever surplus water flowing in the
cfr Of hoI %oI- t1o
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 necessary
under the law to constitute 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
serting 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 OF
!. any of the rights of the appellants. II
4 left undetermined the quantity of wa
; ter sufficient to irrigate respondents
: lands, and to that extent it left unde
, termined respondents rights, and the
reby all tie 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, OF
, whether respondents can take subor
, dinate to appellants rights at any
: time any of the waters by virtue o
their appropriation. So far as tn,
t findings, express of implied, are con
cerned, based upon the pleadings ant
J, the evidence, the quantity appropri
: ated is left to mere conjecture, is lef
Y to be determined by future litigation
: between the parties. The parties hav
= no right to determine what is suffi
l cient or what is not sufficient to ilri
S gate their land. The Judgment an,
r decree in this respect should be eel
{. tain and definite and unless the dc
L cree is certain and definite in this re
+ spect. it cannot be upheld except un
S der the circumstances Of the case, tn
r indefinite and uncertain quantity civ
l. zen by the decree is capable of ascel
4 ,tainment
e In Re Iiuntley, S5 Fed. $50;
e Dougherty V. Haggin, Sc Cal. 522
/ Barrows V. Fox, SO Cal. 63;
IL Lakeside Co. V Crane, 80 Cal. 1S1
S Riverside Co. V. Sergeant, 112 Ca
S 23O;
d Wallace V. The Ditch Co. 130 Ca
e 57S;
e Drake V. Earhart, 2 Idaho, 716
! Johnson V. Bielenberg, IA Mon
b Sc:
+, Smith V. Phillips, Utah, 376;
!, Holman V. Pleasant Grove Cit,
u Utah, rs;
q Irrigation Co. V. Jenkins, Utal
a. Irrigation Co. v Vickers, Is Utal
is 374
n Authors V. Bryant, % New. 245
le A decree should be based upon d
le finite findings, and the findings can
no more definite or certain than Il
nt evidence justifes; and where, as
n the case at bar. an equitable action
le determine conflicting claims of rig
III to the use Of water with the parti
~ before the court, there is nothil
" whatever in the record upon which
as base findings or decisions of tho
II rights, either expressly or implied
Us and the findings and decision leave
Lp- material part Of the controversy un(
VI termined, or be determined by piet
7r- meal by future litigation, the acti
re- of the court in leaving undetermin
81 essential rights of all parties cam
III be upheld and is contrary to law.
hu Watson V. Sutro, sc Cal. SOC;
W. poonIo " Cold p,n 70 &c =
set 155.
IN Or;n+ ~ Nro,r,l1;n 100 90, oc