Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1906-03-09

plaintiffs. Although his fume was
erected many years ago Long baugn
did not show any prior aporopriatio,S
and the decree properly enjoins him
from inter creing with that part IF
the wa.e Of Cphir Creek awarded tc,
the plaintiff, because he ran tn-.r
water in his flume past their ditoa
and into one owned hy Winters an
Joined with the other defenGarts n
answering and resisting the rights Ct
pialntlffs. The decree does not nra-
vent him from taking any water II
the creek in excess CT the amount
awarded to plaintiffs Nor does il in
any way Interfere with the wafer no
longing to him coming from o+har
sources. This he may turn INFO
Ophlr Creek and take cut lower dow
provided he does not diminish III
flow to which plaintiffs are entitled
On May 80, 1877, John 'iwaadle. the
father aud predecessor in interest -
me plalntffs, convened to NJ. c. Lake
'one-third of that certain water ditch
and fiume known as the TwaddIo
ditch, leading from what is now
known as the OrEir t~eeE to the land
OF said Twaddle, soutnor,v from SAID
creek through the lands OF G. f.
Wocten and NJ. C. Lake. with the
privilege of running water tfroug7
said flume and ditch to what is kncwn
as the Bowers Mansion or grounds
the expense OF maintaining sai4
ditch and fiume to be paid by each IN
proportion to their interests in same. q
It will be noted that this la"c2n-r
does not purDort to grant any water,
but rather the right to cCnvev wato~
and that il amounts to a sale Of n
third interest in the ditch with 1T
least the privilege 10 Tat extent ii
running in ii water which Lake had.
or might appropriate. Later. the D.
PENDANT Theodore Winters. acqulr !
the Bowers Mansion and grounds
. through cQnYeyalces which Q!d not
! mention any interest IN this ditch. i
does not appear th&t Lake or "
gTantors ever made any Use Of tn >
! ditch. or ever cOncrihu. ed towards its
repair
! Alexander Twaddle stated On p:
stand that he did not claim all this
ditch and hat the plaintiffs owned
/ two thirds of it. Whether under tn 5
/ deed the one-third interest in the
ditch became appurtenant to tue
: Bowers land when il was neVe. ueel
for its irrigation. and late" nesse !
/ with the land without being mentlol-
ed, and whether after the lapse oi
/ twenty-five years without ans use OF
contribution towards It's repair th7
grantee OF Lake has thi int 9
{ as a co-owner il the ditch ana that
! part of the fiume which has not beLA
/ Superseded by the new one built by
plaintiffs, are questions which W
need not determine, Cor th@", G"d RAJ
part Of the judgment Of the court
which gives the plainrffs the "eXclu
sive use of the upper IWadule DlJcI
and Flume," are not within the ale
cations OF the p.eEClngs WLlch con
tain no reference 10 the exclusive US
Of. or third or any interest in th'
ditch.
Under the assertion II Inc CO il
plant Of the appropriation Of water
by means of certain cams, Gitchef
| and 4 fiune" tie court properly de
| creed to plaintiffs the rl@ht to use tAf
water through either or both the
bitches running to their Iaa9s. Tney
would have that right in taa gppo'
ditch if their interest IN ii is on,}
an undivided tWO-thirdS. as the cOu =
has given them Jointly with the de
PENDANTS in the lower ditch, oar
whether the granree Of Lake owns
and can assert right TO an unclYi
ded One-third interest, IS a question
as foreign as the owner hip u me
mansion, and one which uHg"t NoF
to be determined by the judgment \
the absence OF any Issue 7 G.HLa l-oi
concerning it. The deferDant@ @pe j.
ficaIlv excepted to ti.d!rs "lmDe'
twelve in this regard.
Patents for defendants lands lying
along he banks Of Ophlr creek ""
issued TO their grantOrs lefolo ne
passage Of the Act of Congress "'
July %. 1855 an. Il : As Cr' 4 t52
for this reason a vested Common
Law riparian right to the flow o. tl'
waters OF Opnlr Creek %ocTued u
when hoy couin NO "e 1flE -
that Act II this were ~ Defendant
might as well he cGrs.G.tt'. -'...- u
he circumstances shown 10 nave INH'
thai rlght by aCquie1cenCe III '-.h Il
tinled diversion Of tie Wa'er - ...--'-'
tits for 6 period many times lonS2
than that provided by the ST. I" 81
limitations. but n this cont iu:
,ounsel IS in ror. W. &c "7t v -
to consider seriously or III leagl
an armament by wh'eh il IS =~v=-, #
nave Us overrt,ie ~1.t rHos..-''', a1
cjsions Of lcng standing in this aA'
other aria states. and +" t.0 5... ia
Court Of the United States. such a
Jones Y. Adams, Reno S2orI'
Works '. ste>e~son and RrcIer
Water Co. declaring mat Jn5s STATUE
vas rather the voluntary r~oa~h'Jl~
Of = pre-existing right 10 water cor
shutting a valid o-aHH 10 us ",'..--
ned use. than TIE establishment Of
new one. As time passes ii E'.'..A2"
more END more aP"arent tn, h' III
Of ownership q water by p".T II
, oronriation tor beneficial rrT|.5" 4
essential under oar climatic c"a q
~ ntf1TH ava ma