Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1906-03-06

DlalntlflS. I HIcu Il J. nune was
Erected many years age Eongabaugl
MT T. ~ any 2ric , r. pr atipt
and the decree properly enjoins hin
~ inter eTe.Hg vi : thNt part t..
The "a er e Op'ir L. e., IVA dod T.
the plaintiff because ep IAN Inc
water IN his flu q lost ae:r ditcl
and into one ownol b. Winters. AMI
Joined with the other defendants il
ansWerirG and re@ist'ng the rights Ct
plaintiffs, The decree does not nre.
vent him from tang any water il
the creek in evcn0S c TIE amount
awarded to plaintiffs. Nor does it in
any way Interfere with the wafer 90
longing to him coming from. other
sources. This he may turn INFO
oph'r Cr0o'- al take cut lower dow,
IroVlded he does not diminish III
now to which plaintiffs are entitled
On May 80, 1877. john twaudle. the
rather and predecessor in interest ~
the plaintiffs. conveved to NJ. G. Lake
one-lhlrd OF that certain watnr ditch
ana hume known as the TwaJdie
dltch, leading from what is now
known as the Ophir C~ael to the an
OF said Twaddle, soutnerlv rom sala
creek through the lands OF G. +
Wooten and ii. c. Lake with the
privilege OF running water through
said flume and ditch to what is lsnowo
AS the Bowers mansion OF ground
the expense OF maintaining said
ditch and ftume to be paid by each IN
PROPORTION 90 thei- in ,erests in same. =
II viii be noted that this lang7u.a
does not DurpCrt to grant arv watar..
but rather the right to cCnyev waro~
ana that ii amounts to a sale OF a
third interest III the ditch with 1t
least the privilege to Hat extent III
running in it wates which Lake hai,
or might appropriate Later tho d..
PENDANT Theodore Winters, acuut~, :
the Bowers Mansion and eroun,ts
through conVeyalces winch did not
mention any interest in this discA. 4
does not appear that Lake or u
grantors ever mace any use CT tn
! ditch or ever cCntrihuted towards its
! repair.
Alexander Twaddle stated On
stand that he did not claim all this
ditch and hat the plaintiffs owne5i
two thirds Of it. Whether under til s
/ deed the one-third interest in tne
ditch became appurtcnant 10 tn
Bowers land when it was never Uso.l
for its irrigation and late~ Dassa
with the land without being mention
ed, and whether after the lapse %
twenty-five years without any use or
contribution towards its repair The
grantee Of Lake has a thi 4 inter6'-
as a cO-owner in the ditch and that
Of 10 i,l, 1o1 h.nf ,
| superseded by the new one built by
plaintiffs, are questions which VIC
necd not determine, for they. and that
part of the judgment OF TIE court
which gives the plaintiffs the 'eXclu-
sive use of the upper Twaddle Ditcn
and Flume,' are not within the ale
cations of the p.eldings wL-ch con
! tain no reference TO the exclusive US :
/ of. or a third or any interest in tn"
ditch.
| Under the assertion in the com
plant of the Appropriation Of water
by means Of certain cams, bitches
| and a fiume' the court properly de
creed to plaintiffs the right to use the
water through either or both the
bitches running to their lands. They
/ would have that right in the uppe.
/ ditch if their interest in it is only
an undivided two-thirds. as the cOu =
! has given them Jointly with the do
! PENDANTS in the lower ditch, bur
whether the grantee OF Lake owns
and can assert a right 70 an undivl
ded one-third interest, is a question
as foreign as TIE owner MP 81 us
mansion. and one which ought no'
l,-t hn hEay, son n
the absence of any issue : alligator
concerning it: The defenaarts Spe +
fically excepted to findin1 nthpe'
twelve in this regard.
Patents for defendants lands lying
| along the banks Of Ophir =, reek were
issued to their grantors before the
passage Of the Act of Congress 81
july %. 1866 am ii is asserted tha'
for this reason d vested common
Law riparian right to the flow OF the
waters of ODnlr Creek accrued VI
| which hey could not he depr'E@H oA
that Act If this were rue defenGaht'
might as well be cOnsldere@ un4
the circumstances shown 20 have !oS'
that right by acquiescenoe IN lhe c|i'
tinued diversion OF the water %! pam
tiffs for period many times lonSe!
than that provided by the statute ~
limitations. but in this contention
counsel is in e ror. We DC not WIS.,
70 consider seriously or al length
an argument by which it IS sought e
have us Oyer-rule Wei reasoned DC
cisions Of long standing in this ah'
other arid states. and in the SIpref
Court of the United States, such a
ZONES V. Adams, Reno Samph'
Works V. SteNers0n and Broder !
! Water Co.. declaring tEat ms s'aIuV
was rather the voluntary recaShl'lo
of a pre-existing right 10 water. cor
shutting valid claim to Is Gil
ued use. than the eStahilS.hlAeht ol
new one. As time passes 1t hecohlH
more and more apparent that me LAY
of ownership Of water by prior al
nropriation tor beneficial purpose 4
essential under our climatic con u
TONS TO the general welfare. ana ""