Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1905-05-04
SUPREME COURT DECISION

No. 1865.
In the Supreme Court Of the state Of
Nevada.
Mrs. c. {. Gambler and William ~,
Gambler, her husband, Respondents,
Washoe Lake Resovoir ard Gleana
Creek Ditch Company, a corporation,
Appellant. :H
Mack and harrington, Attorneys TO:
Appellant. = -e 3, ~v -+- ..-..
Cheney Massey and Smith. Attorneys
for Respondents.
Appeal from Second judicial District
Court, Washoe County. NJ A Murphy
District Judge. presiding.
Opinion by Noreross, J.
This action was brought by the re-
spondents against appellant for dam
ages in the sum of two thousand
dollars for breach of the conditions
upon the part of appellant of written
contract to supply respondents with
fifty inches of water for irrigation,
which breach resulted in the loss of
respondents wheat and pasture crops
for the year CT 1902, and the de-
structiCn OF considerable part Of 4
stand of alfalfa and timothy, upon the
lands Of respondent situated in Sec
tiOns IA and 23, T Is N, r. 20 E., in
Washoe County.
Appellant denied libility for. and.
also the amount Of the alleged damage
, The case was tried before the Court
without jury. and respondents were
awarded judgme nt against appellant
for the sum of $675.13
A motion for a new trial was made
by appellant in the lower Court, ard
upon the hearing Of the motion, the
Court determined that it had enron
damages, the sum of $4,000 an
amount which represented the wages
paid an irrIgator. Respondents con
sented to reduction of the judy
ment by striking out therefrom the
said sum of $4,000 and the judgment
being so modified the Court Overruled
the motion for new trial From
the Judgment and from the order de
nying the motion for a new trial,
defendant has appealed
Counsel for respondents have moved
to dismiss the appeal from the judg-
ment upon the ground that the appeal
| was not taken within one year after
the judgment was entered as required
by Compiled Laws Sec. 1925, Final
| judgment in this case was pronounced
by the trial Court on the 29th day
! Of June, 1908, and entered by the
Clerk in said cause on the 7th day of
July following. The appeal was taken
! on the 18th day of September, 1904.
The appeal from the judgment not
having been taken within one year
from the time it was rendered by the
trial Court. is dismissed Sullivan VS.
Fuller Is New. 276; kehoe VS. Belethen
10 New 453; Compiled Laws Sec. 3425.
! The motion for q new trial was mad ?
upon several grounds, only one Of
which has been urged upon this APP
peal, to wit: 'Insuficiency of the evil
dence to justify the findings and de-
cision Of the Court and tina. the de-
| cisiOn is against law The
assignments of error do not III
clude any general assignment to the
| effect that 1.-The deision or judgment
of the court, is not supported by the
| evidence, or is contrary to the evil
| dence,' as provided for may be done
in Compiled Laws Sec. 1922, but nurl
Der of particulars are specified in
! which it is alleged 'Athe evidence is
insufficient to sustain the findings and
decision of the Court" This Court 5
| consideration Of the evidence, there
fore. will be limited to such portions
only as refer to the particulars speci-
! fed, in which il is claimed the evil
dence is insufficient.
] The material part of the contract
between the parties to this action.
| in SO for as It affects questions pre-
scented on this appeal, is as follows:
This agreement, made and entered
into this 4th, day of January. A D.
1899. between the Washoe Lake Res
pany. a corporation. X the party
of the first part. and w. NJ. Gambler
Xxx X the party of the second par;
Witnesseth: that the said party q!
the first part, for and in co. lsideratiOn
i of the covenants on the part of the
said party of the second part. herein
after contained, hereby covenants
with the said part yof the second part
that the said party of the first part
will furnish the said party Of the sec
ond part, his heirs or assigns. ons
hundred inches of water on section
twenty-five, Township 1s, N r. 20 E
in Washoe County Nevada, to be des
ignated by the party of the SECOND
) part on the line of that certain ditcl
known as the Gambler Ditch, dufins
] the irrigating season of each year TO
the period of three years; and fift,
inches of water from and after the ex
! piration of the said three years deliv
cred on Section IA near the line o
Section 23 at point to be designate,
ON the line of the Gambler Ditch dur
ing the irrigation season of each year
X
ii And the said party of the secon
part. in consideration of the covenant
on the part of the first party herein
before contained. agrees to and wit
the said party of the first part. tha
! the said party of the second part vi
1 pay to the said party Of the irst par
or it's order, the sum of two dollar