Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1906-03-02

&c ri many years "a ..ongabaugn /,
81 RI. 'DprHpriatiun
and tie -deoree pr peril enjoins him
aie - It part Of
r Up r re ava dod r., |
I'M, t"0 Sc ran the + |
n 5 - ~szt TIER dit.l
md ito re r rel b Winters AMI
joined with the her defendants IN
nd 70 'n~ he rights ,t
7'ai~ IS. The Dc rec ices NOT nr,.
vent him from tarfng anv warer j,
the creek II @ roes g fha on,o,,,- !
awarded to PLAINTIFFS. Nor does II in
any way Interfere with the wafer no
longing to him coming from othnr
sources. This he may tuxn into
op''f Creek ard -nto out lower dow,
provided he does not diminish .ha
How to which plaintiffs are entitled
On NAV 80, 1877. Tim Iwaddle tho
lather and prede. eeenr in in+erac+ ~
the plaintiffs, covered to NJ G Lake
one-thlrd OF that certain water ditch
ana hume known as the Twaddln
u'tch, le"dlng from what is nov
known as the ODhir t~eel< to the lana
OF said Twaddle. southerlv rom SAFE
creek through the lands OF c. +
Wooten and M. C. Lake. with the
privilege Of running water throue3
sid flume and ditch to what is known
aS the Bowers Mansion c. grounds
the expense OF maintaining said
ditch and fiume to be paid by each in
proportion to their interests in same.
u VIII be noted that this lan-au-a
aces not pul port tC grant any water.
but rather the right to convey water
and that it amounts to a sale of a
thlrd interest in the ditch with 1T
least the privilege to that extent o.
running IL it wate~ which Lake hal
or might appropriate. Later. the dc
fendant Theodore Winters, ACQUIRE!
the Bowers Mansion and GROUNDS
through conveyances which did not
mention any interest in this ii,ch. 1t
does not appear that Lake or his
grantors ever made any use OF the
ditch or ever contributed towards its
repair
Alexander Twaddle stated on H.
stand that he did not claim all this
ditch and hat the plaintiffs owned
two thirds OF it. Whether under this
deed the one-third interest in the
ditch became appuEtenant to the
for its irrigation. and later passed.
with the land without being mention
ed, and whether AFTER the lapse "a
twenty five years without ahy use OF
contribution towards lis repair the
grantee CT Lake has third in-ere>-
as a cO-oWner in the ditch and that
part Of the fume which has not belA
Superseded by the new enc built by
plaintiffs, are questions which W"
need not determine, for they. and that
part of the judgment Of IL court
which gives the plaintiffs the "eXclu-
sive use of the upper Twaddle Often
and Flume," are not within the allie
cations OF the p,e2dings Witch con-
tain no reference to the exclusive use
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 iume'' 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 uppeH
ditch if their interest in il is only
an undivided tWo-thirds, as the cOu =
has given them Jointly with the de-
PENDANTS in the lower ditch, but
whether the grantee Ct Lake owns
and can assert a right TO an undlNl-
ded one-tnird interest, is & question
as foreign as the owner MP o! tl4t
mansion, and one which oNgh1 nor
to be determined by the judgment N
the absence CT any issue ~ allegation
concerning it. The defencants spe~i-
fcally excepted to finding n0n"ei
twelve in this regard,
Patents for defendants lands lying
along the banks Of Ophir creek wee
issued to their grantors 'eipTe ne
passage Of the Act Of Congress. of
Julv %. 1866 8nu il 5 assert3r tha'
fer this reason vested Common
Law riparian right to the flow Of tho
waters of Opnlr Creek accrued Of
which .hey could not De Cen-!v"G o>
thar Act If this were rue detenaanl'
MIGHT as well he considered uA-"r
the circumstances shown 10 nave loS'
.,-that right by acQuiescence III me c!h
tDueG diversion OF the water ~ pam
tiffs for a period many tunes lohGS'
than that provided by the statute ~
limitations. but II TINS c3A'eh io-
counsel IS in error. We dc not WIS.
To consider seriously or at lenGth
an argument by which il is sought g
have us over-rule we.l reaso.Aeu ne
cisfons Of long standing in this an'
other arid states. ana IN the SNPf2m
Court of the United States, such d
ZONES Y. Adams, Reno SampnN
Works V. Steveason end Broder
Water Co, declaring mat th's s'%lu'
was rather the voluntary recognize
Of a pre-existing right to water COZ
shutting a valid claim to aus col'.iA
ned use. than the establishment "
- new one. As time passes II becoli''
more and more apparent that thE /"
of ownership Of water by prior al
nropr;ation for beneficial purpose
: essential under our climatic con
| lions to the general welfare, ane t I
: the Common Law regarding lne "a"
, of streams which nav be uhopJeclio'
ab1a in such localities as the Bfl'Is