Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1906-03-04

erected many years ago Longabaugn
did not show any prior appropriation
and the decree properly enioins him
from interfering with that Dart Of
the water of Ophir Creek ava rdnd to
the plaintiff, because he ran the
water in his fiume past their ditca
and into one owned by Winters. AMI
Joined with the other defendants in
answering and resisting the rights If
plaintiffs. The decree does not pra-
vent him from taking any water i,
the creek in excess OF the amount
awarded to plaintiffs. Nor does il in
any way Interfere with the wafer no
/ longing to him coming from other
sources. This he may turn INFO
Ophlr Creek and take out lower dow,
provided he does not diminish ;ba
now to which plaintiffs are entitled
On May 80, 1877, John Iwaddle the
father and predecessor in interest NJ
the plaintiffs, conveyed to M G. Lake
'one-third of that certain water ditch
and fume known as the Twaddja
| dltch, leading from what is now
known as the Ophir creek to the land
OF said Twaddle. soutneriv from sale
creek through the lands OF G. F.
WcGten and M. C. Lake. with the
privilege of running water through
! sald Hume and ditch to what is knOw1
! as the Bowers Mansion or grounds
! me expense OF maintaining said
| ditch and fiume to be paid by each IN
! proportion to their interests in same
| 1t will be noted that this Language
! does not purport to grant any water
| but rather the right to convey wafer
and that it amounts to sale of a
third interest in the ditch with 1T
least the privilege TO lnat extent of
running in it water which Lake hal.
or might appropriate. Later. the de-
| PENDANT Theodore Winters, acquira !
j the Bowers Mansion and grounds
through conveyances which did not
mention any interest in this ditch 1t
does not appear that Lake OF his
gTantors ever made any use OF tn :
ditch or ever cOntribu; ed towards ITS
repair.
Alexander Twaddle stated on Il,
stand that he did not claim all this
ditch and that the plaintiffs owned
two thirds of it. Whether under this
deed the One-third interest in the
ditch became appurtenant to the
! Bowers land when it was never used
for its irrigation, and later passet
with the land without being mention-
ed and whether after the lapse ol
twenty-five years without any use or
contribution towards its repair the
grantee of Lake has a third interea'
as a co-owner in the ditch and that
part of the fiume which has not bee,
superseded by the new one built by
/ laI i'm
need not determine, for they, and thai
part of the judgment of the court
which gives the plaintiffs the eXclu
sive use of the upper Twaddie Dltc,
!. and Flume," are not within the allie
cations of the pIeadings winch con
tain no reference to the exclusive US
of. or third or any interest in tn
: ditch
Under the assertion in the com
, plant of the Appropriation Of water
''by means of certain dams. dltche
, and a fume" the court properly de
creed to plaintiffs the right to use tn
water through either or both thu
: bitches running to their lands. The.
, would have that right in the uppe
r ditch if their interest in it is oni
! an undivided two-thirds, as the cou
, has given them jointly with the DC
: PENDANTS in the lower ditch, bu
f whether the grantee of Lake own
J. and can assert right to an undlV
: ded One-third interest, is QueStlo
l., as foreign as the ownership OF IN
< mansion, and one which ought no
y to be determined by the judgment il
: the absence of any issue or aileSatlo
r concerning it. The defendants spe-
v fcaIly excepted to finding numoe
: twelve in this regard.
J. Patents for defendants lands lyin
y along the banks of Ophir Creek wei
y issued to their grantors before IN
@ passage of the Act of Congress c
# .July 26. 1856 anu it is asserted tht
e for this. reason vested Commo
=, Law riparian right to the flow OF IN
II waters of Opnlr Creek accrued
q which they could not be deprived
IS that Act If this were rue delehodn
might as well be considered unut
e the circumstances shown 10 nave io'
IS that right by acquiescence I'D lhe GU
d tinued diversion of the water ps pia'
IS tiffs for a period many tunes long
y than that provided by the statute
IL limitations, but in this contenuo
er counsel is in error. We do not WIS
Il tn consider seriously or at leng'
IL an argument by which it is sought
y have us oyer-rule well reasoned q
N cisions of long standing in this al
$. other arid states, and in the Snprei
= Court If the United States, such
s. Iones v. Adams, Reno Samph
1T Works V. Stevenson and Broder
Water Co, declaring that thls s'a|.
IT was rather the voluntary recOghiIi
-, Of a pre-existing right to water G.
- stituting a valid claim to It's con-
W. ned use. than the establishment VI
,o- new one. AS time passes II eecoli
/. J. more and more apparent that the
n of ownership of water by prior
We nropriation for "a beneficial purpose
err essential under our ciimauc COZ,
al tons to the general welfare ana u
We the Common Law regarding the II
il, of streams which may be unopJec.i
nv able in such localities as the BTU
I.I>a op1 tho coaSt Of Oregon wa