Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1906-02-28

OteCteQ udny years ago LOngdbaugl
old not show any prior appropriation
ana the decree properly enioins him
from 1nter, ereng with that part Gf
the water Of Ophir Creek awarded e,
the plaintiff. because ne ran tner
water in his fume past their ditch
ana INTO one owned by Winters AMI
joined with the other defendants ia
answering and resisting the rights Ct
pialhtlfs. The decree does not pr9-
vent nm from taking any water i,
me creek IN excess OF the amount
awarded to plaintiffs. Nor does if il,
any way Interfere with the water DO
lohSihS 10 him coming from other
sources. ms he may turn INFO
Opnir creek = AXE out lower dow,
a.. iueu ne 'C"s not diminish The
how 10 whici plaintiffs are entitled
IN May -. ~. John Iwad6Ie the
lather and Predecessor in interest ~
me piaintlfs. conveyed to NJ. c. Lake
one-thlrd OF that certain water ditch
anu hume known as the Twaddle
ul'ch' leaolng from what is now
! Known as the Ophir treek to the land
Vi sad Iwaddle, scutnerly from sata
creek through the lands OF G. r
Wooten and M. c. Lake, with the
oriVlleSe OF running water through
SAID Hume and ditch to what is know
as the Bowers rIansicn or grounds
the expense of maintaining said
oltch and fiume to be paid by each IN
proportion to their interests in same, =.
II VIII be noted that this langauga
does not purport tC grant anv water.
! but rather the right to convey water
and that 1t amounts to a sale of
third interest in the ditch with ut
! least the privilege to that extent OF
running in it water which I.a:le had.
or might appropriate. Later, the to-
PENDANT Theodore Winters. acquires
the Bowers Mansion and grounus
| through cOnveyances which ola ROT
mention any interest i'll this Gilch. 1t
does not appear that Lake or tts
grantors ever made any use Of tn
! ditch Or ever cOntribut ed towards its
repair.
I Alexander Twaddle stated ca IL
stand that he did not claim al this
ditch and hat 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 passed.
with the land without being mention
ed, and whether alter the lapse OF
twenty-five years without any use or
, contribution towards Its repair the
| grantee of Lake has a third interes
! as a cO-Owner in the ditch and that
part of the fume which has not beC.l
! superseded by the new one built by
plaintiffs, are questions which We
need 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 Ditch
and Flume,'' are not within the allie
cations OF the p,eadings Which con-
tain no reference D the exclusive use
of. or third CT any interest in the
ditch.
Under the assertion in the com
plant of the appropriation of water
by means of certain Dams, bitches
and a fume" the court properly de-
creed to plaintiffs the right to use the
water through either or both the
bitches running to their lands. Tney
would have that right in the upper
ditch if their interest in it is only
an undivided two-tnlrds, as the cou =
has given them Jointly with the de-
whether the grantee Of Lake owns
and can assert a right to an undivl-
ded onethird interest, is a question
as foreign as lne ownership Of the
mansion, and one which ought not
to be determined by the judgment n
the absence Of any issue or allegation
concerning it, The defer0aDts spe l.
dcally excepted to finding namDe:
= twelve in this regard
Patents for defendants lands lying
along the banks OF Ophir Creek were
issued to their grantors before the
y passage of the Act OF Congress 9t
Iulv % 1866 an, it is asser- ed that
for this reason vested common
) Law riparian right to the flow OF the
waters of Opnlr Creek accrued Vi
which they. couIG not be deprived 1N
that Act II this were rue de1ehdahts
srn,igbt as well be considered ua4er
; the circumstances shown 10 nave loS'
: that right by acQuiescence IN me Con
tinued diversion OF the water - pam
tffs for a period many unes lohSS!
: than that provided by the statute u
; limitations, but IN TINS cohteh'lo.'
counsel is in e-rCr- We &i 'Nl Wiz
J to consider seriously CT at leh.th
an argument by when II II S'H7-' ~
: have us OVer-rule Wei reasoned u1
l cisions of long standing in this an"
l. other arid states, ana n the S'PithA
Ccurt of the United States, such "a
). Zones V. Adams, Reno SampNh
Works V. Stevenson and Broder ',
Water Co, declaring that TINS STATUE
. was rather the voluntary recoShluio'
= Of a pre-existing right to water con
d, shutting a valid CAIN to Its con. "a
;, ned use. than the establishment. OF
= new one. As time passes 1t become
: more and more apparent that the iaN
l. Of ownership of water by prior az
o nropriation tor beneficial purpose i:
= essential under our climatic con
| tons to the general welfare, anu VIC
e the Common Law regarding tne nv
Il of streams which NAV be unoo!e'lio'
V able in such localities as the brlus
3 nrSr Tn-