Weekly independent. [volume] (Elko, Nev.) 1887-1914, 1904-04-22
Volume 3S.
Imp"rtaur Water Iprci.iou.

B"low will he found copiuus extract,
from the decision rendered Tuesday T.,
Judge Brown ~ the water suit %. Mrrk.
ley and louug against Gilbert Henry
fh" decision ~ 81 interest to ranchcr4
and others owning water rights
Tho impor,aut facts are as follows:
Tho plaintiffs ar" the owners Of the
Mcrklcy and iuuIg ranch III Mound
Valley. y lnrge part u! their cultivated
land lies on the bench above Smith
Creek and Al irrigated partly by water
which the plaintiffs and their prcdrccs.
surs have diverted from smith Greet,
and carried upon the Ocuch 10y ditchcs
and partly from vast" water from the
SanguiTct ranch which tlr piniutiiTs
collect III ia, ir bitches and conduct To
tier irrigated land, Ia" defendant III
Ebl took up homestead on the west
sac Of the plaintiff ranch. From the
plaitiTr' land several ~ alec, or draw :
run through the defendants homestead
down which, Tor ten years or 80. prior To
IJul thr waste waters from the irrigation
81 plaintiff land had been permitted Ia
tinw. ln 1872 the plaintiffs constructed
ncV dIich which carried these waste
waters pHst aud away from the defend.
ants hom, stead on To other Land ~ the
p,h!ntIIs whcr" some 81 the water Irri.
gated u rwal" whIch ran out-idc the de.
f"ndan,'s land, some WIS allowed To flow
down the swnlc I" Cottonwood Creek,
and some WAS allowed Ia run out ON tO
sagrbrmsh land. rriOr Ia the commence
mcnt of 'ic new ditch oi plaintiff. de
i"nhant 10y draws and pipw furrOws di-
vcTtcd the waste water flowing through
the swnlc,' Oh his hOmcHtrad and irri.
gated HE lands thereby In the sprIur
Of 1908, when the ucw ditch 81 plaintiffs
prevented any 81 the waste water from
Towing down through the dcfcuduut's
land, the defendant entered the plnu.
titl-' ranch and repeatedly broke his
dams and bitches and diverted tire waste
water dpHn To- hi home stead The
plaintiff hen commenced this suit
against him for damages and an ml.
junction In his answer defendant set
w ~ N''iH' ''I Nl'll' NlIs.N ny IlS tllNtI=lpD
aud usr of the wiIstc waters on his land,
he hat become the owner 10y "Hpuro.
prIatIuu- 81 10 miners inches ~ the waste
waters from the M"rklry and Young
ranch and had b"rO'nc cnti'icI tO have
ia" plaintiffs restrained from preventing
tin, nuouut of the waste water from
their irrigated lnuda from flowing down
to the drtcn,I n,Innt'- homestead.
The Plaintiffs denied that the wustc
waters wcr" the Subject Of appropriation
or that they coulI bc compelled to
maintain Ia" ilow ~ the waste waters
HcrcsS their lands and DOWN the swalcs
Tor dcfcmdnnt's b"nctit The impurinnt
legal qucatIuu IA the case WAS ns to
whether or not rIGh, to the continued
How and usr ut such wnstc waters could
be acquired by appropriation.
Judge Brown. following tho distinc.
tions made 10y the Supreme Court Of this
state in Cardclli ~. Comstock Funnel
20. 20 New. 2SI. first considers whether
-strcams oi the waste waters" are natur.
al or artificial aud Temporary atrcamr
After quoting dciiu'ious ~ a natural
stream fr0m law books and reported
cas"T ilr judge euys: rho water
which flowed across dcicndnnts' home.
stead ~ the swnlcs or dcprcssiong were
from two distinct sour"rs; First, sur.
face watcrg from the heavy rains or
melting SHOWS 0f curly spring, and sec.
unh, the wnRt" wnicra from the irrigated
lands Of the plaintiffs During the irri.
gating acnson thcso natural holluws dc.
pfcRInus or swnlCs nnh tho channels cut
by the bret early spring flow Of surface
Waters, carried only water from the
second source. II is this water which
III the su6jcct "f controversy. rho water
which flows ~ wnstc watCr from tho
cultivated lands uf plainiilTg was
brought Ia thIa land by means of tho nr.
tilicial ditchca nf the plaintiffs, and the
uwncrg of the Snnguinct ranch. Tho
source then, uf these strcama VIVA nfti.
iicnl not natural. AIthough thcec
EwalCs, dcprCss1nR or sluugha aa they
Hr" usually called ara natural water
courecr IN tho sense TINT they were or.
iginHlly formed by the action II natural
pntfncO waters, ilr want, wHtcrs which
flowed in th0m did not. therefore, bo.
come natural water courses in the lcgnl
ucrcpiatioh ~ the term. On the con.
trary they mus: bc considered na nrli.
iiCinl and temporary ptrcame dependent
Tor their supply upon the ucis nnd viii
nf mnn IN divcrtmg the wntcr by nrti.
iicinl mrnns from the natural channel oi
Smith Crrck."
Tho puca;ion ~ Ia which waters arc
euhjcCt Ia appropriation wns then die.
cusard and it was shown 10y n review of
the Nnvnda cnsoa nnG the cascs decided