Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1903-11-08
SupaEME cegRr DECISION.
~ 1l1E 3rPREae COURT OF The
S1NIE OF NEVADA

- 0VDSs0I COMMUNICATIVE OF the
EaG11e Of }. r. Ennor, deeeas-
Cd,
Plaintiff and Appellant.
RAlNE,
Defendant and Respondent I
= ~. EDorsey,
Attorney Tor Plaintiff and Appel
LIANT
= 3. Warrington and Thomas Wren,
Attorney for Defendant and Re- |
spondent.
aEe Stts1il the principal and control |
SSng facts stated in the pleadings be- |
cause they are necessary for the prop |
: Appellants contentious.
This action was brought by J. r. |
EsnHor some years before his decease.
In mrs complaint he alleged that dur
ing all the year 1896 he was the own
ST. in the possession, and entitled to
The possession of all that parcel of
zznd and appurtenances, situated in
Pine Valley, Eureka county, and
Known as EnnOr's ranch: that during
ali that year he owned and had con-
stT1cted upon this ranch various dams
and bitches by and through which he
sEsyued and accumulated the waters Of
Pine Greek, which during all that
si1ne flowed through and upon the
ranch that by means of these bitches
ae irrigated large portion of the
ranch during that time and cultivated
and induced the growth of large crops
II hay, that portions of the ranch re-
sFIire drainage; that there is no water
for the portions of the ranch which
require irrigation except that which
IA stored and accumulated by means
81 these dams; that in July, 1896, and
while Plaintiff was the owner and in
Sae possession of the ranch and the
ezanas and the bitches and appurtenan-
sees. the Defendant unlawfully and
1-ifh force and violence entered and
broke down and destroyed Plaintiffs
sSams. whereby the water which he
tad heretofore stored and accumula-
ed. .fUr the purpose of irrigating his
ranch was lost and wasted, and q pOr-
ion of his ranch was overlooked AMI
The crops Of hay thereon injured and
destroyed; that by reason Of this loss
81 water, Plaintiff was prevented from
rrigating and harvesting any crops
II hay upon certain other portions
zd his ranch; all to Plaintiffs damage
N the sum Of 100000, for which he
asked Judgment. In his amended ans.
aHer, the Defendant denied all these
allegations and by way of Affirmative
defense alleged that he and his grant
ITS had been the owners and in the
possession Of the premises known as
The Raine ranch in Pine Valley since
EsA&sE 1868; that Pine Creek is q natu
cAr ~ nh
i1bstructed, flows through his land
that ever since May 1868, except wher
smlawfully diverted. he and his grant
exs have used 700 miners inches o
he water of this creek in the bene
icial and necessary irrigation o
Tops growing On his ranch; that sucl
e1spropfiatio.. and use was long prio
sosany diversion by the Plaintiff; tina
IN the 18th day of July, 1896, Plaintiff
entered upon Pine Creek above tn
cIftches and dams of the Defendant
zznd by means Of the dams and ditche
mentioned in the complaint, WRONG
fU1ly Obstructed the natural flow {
the water and diverted the whole ther'
.of away from the Defendants land
and thereby deprived him of waite
for the irrigation of mis- hay, graf
and vegetables, which, for the wal
Il such irrigation were greatly injure
and about to become valueless; ths
1hereupon the Defendant entered upc
the Ennor ranch at the time state
in the complaint without any unnece
sary injury to the same, and only
the extent needful. in order to perm
such an amount of water to flow dow
to Defendants crops as were nece
sary for their irrigation. Then for
I cause Of action and as counti
eclaim," against the Plaintiff the ar
eended answer repeated its foregoir
allegations and averred further tn,
ON or about the 18th day Of Jul
1886. the Plaintiff entered upon Il
creek at points ABOVE the land
dams and bitches of the Defendar
and by means of certain dams n
bitches mentioned in the c0mplair
wrongfully diverted away from tt
crops and lands of the Defendant Z
The water Of the creek until the "a
siay of July. 1896; that by reason
ssaHL diversion Defendant did not ha
sufficient water to irrigate his croI
which were damaged thereby to t
extent of 100000, for which sum
demanded Judgment against the Pla
Tiff The Plaintiff objected to the fili
Of the amended answer, moved
strike out and demurred on
grounds, first: that the answer .
ken altogether is contradictory, q
.10es not state facts sufficient to q
sEagAe . defense to the cause Of q
aH set mp in the complaint, and q
~1nd. ON the ground that 1t IL ambil
s1us, uncertain, and unintelligible. I
trial took place in the District Coz
In September and October. 1896, q
a verdict was rendered and judgmt
<UAeEed in favor Of the Defendant
<%1N6sss damages and costs OF 8,
Ffom an order denying a new tn
Plaintiff has appealed to this cot
III win be perceived that no apr
sriation or use Of water on the Enl
Ia 9anch prior to the year 1896 Is
"a eyed In the complaint. 1t seems T
81 he nse was brought and tried by
Rllantiff on the theory that the Defe
II ant wa n tresspasSer when he "