Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1903-11-08

natural channel and through ditcheo
constructed prior to the time. that
other rights attached TO the land ira
versed by these water courses. All
lOcatOrs, pateuteee, owners and claim
ants whose rights are Unlisted after
the appropriation ct the water, hold
subject to this easement
Hobart v. Ford, s New, ~.
Shoemaker v. Hatch, Is Ner..261. |
The Defendant being the prior ap-
proprietor and owner Of the water ~ |
was properly alleged rs Z deeenSe IN |
the answer and as appears to have |
been found by the jury, he was as !
much entitled to have it dow through |
the Ennor ranch in the natural chan |
mel and in bitches used by him or |
his granLors prior to the location Of |
that place, as through his own lands, |
and had as much right to remove dams |
and distractions on the Ennor ranch |
to the extent necessary to allow his
water to flow for the proper irriga-
ton Of his crops as he had to re-
move dams on his own ranch or OBJ
structions in his own lane or door
way, provided he did so peaceably It
is apparent that he entered the Plain
lifts ranch along the channels in
which he was entitled to have the
water flow, and cut the dams with
the intention of recovering the water
which under the verdict of the jury
belonged to him, and not for the pur-
pose of committing an injury or tres
pass against his neighbOr. Except for
the water which he sought and evident
~ had the right to recover, it is not
to be supposed that he would have
gone there. Inc Defendants instruc-
lions given by the court proclaim the
correct rule in this regard and those
offered by the Plaintiff were properly
refused
Counsel for Appellant contend most
forcibly that the alleged counterclaim
! set up in the amended answer is not
cause of action arising out of the
transaction set forth in the complaint
as the foundation of the Plaintiffs
claim, and is not such an one as De-
! PENDANT is permitted to make under
| Section Al of our Civil Practice Act
No objection on this ground was made
~ demurrer motion, against the ad-
mission of testimony, specification If
error in the statement on motion for
new trial or otherwise in the Dis
trict Court. On behalf of Respondent
it is claimed that .nis objection is
!. waived and also that it is without
merit, while Appellant insists that
it goes to the jurisdiction of the court
and cannot be waived. and cites many
authorities holding That the objection
to the jurisdiction q
the court may be raised at any time
: The principal of law covered by these
cases is well established and must be
conceded, and if the alleged counter
: claim would have been bad on demur
rer, which we think unnecessary Il
decide, it became important to deter
mine whether it comes within thu
: rule and relates to q matter vital Il
: the Jurisdiction Of the court, or whe
Their it is a mere irreguhrity which
Plaintiff waived by failing to maxi
objection in the lower court. Much o
the argument was directed to thi
. branch of the case, but it is only i'm
I portant to the extent Of $4,000 an
the lprincipde involved. for as tn
T jury returned verdict for that sun
Z the judgment could be modified to tina
extent and allowed to stand for cost
e as suggested by counsel for Respont
{, ent. Wrig.. v. Culleys, 2 Tex. APP
s Civ. Cases, Isl. The assertion in tn
:. opinion In McDougal '. Mcguire, 2
L CAL. $50, cited and relied upon b
= counsel for Appellant, that such obje
IS ton can be made at any time may
n considered rs dictum for the obje
n zion was raised there on the trial j
II the lower court, and not for the fIr,
q time ON appeal as here. The allege
counter claim AYERS facts on whic
!. Raine would have been entitled to r
cover from sEnnor in a separate actiO
It states a demand lor 100000 daI
:. ages and facts, which, IL prove
:. would warrant the recovery Of tn
n sum. Under the constitution and st
tute, the District Court, in which Il
answer was filed and the case trie
- had Jurisdiction Of the subject ms
y ter. It was asserted in q civil acti<
Is as distinguished from criminal OF
:. and from a probate or special pr
- ceeding in which it coulI not ha'
been properly considered. Wheth
20 damage occasioned Raine by the ste
!, page of the water above by Enn
- - from July IL to July "a is closely en-
=. ugh allied with the retaking of Il
=, | water and the ending by Raine of t
=. diversion on the latter day, which
~ reality is the-basis Of the complain
% to sustain counterclaim in the ia
W Of a demurrer, we need not decide,
- we believe that it was q mere irret
u larity that could be, and was waiv
.e by failing to make the objection.
N New 26O, rs New. BIZ. II it be CT
ns ceded that the counterclaim wot
have been bad on demurrer, still
ne the District Court had jurisdiction
"a the subject matter. we see no reas
nu why it could not be properly tried a
~ determined by the consent or acq
CT escense Of the parties, under the sal
&c rule that holds that the right to
gu ject to Q misjoinder Of causes OF q
ne ion is waived by failure to dem
Ut. and that the trial Of cases between
NO same and different parties may
snt consolidated. The Practice Act has
Lor this extent modified the Common L
III rule that one tort cannot be set
AL against another, and this, and the
III cepdon created by the Act Of G
no gress before mentioned. to the the
nor that the mere entry uDOn the Dromi