Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1906-02-24

binary rules of practice, and give due
weight to the later section. Appar-
emily the object of this legislation was
to prevent the granting of extensions
and the meddling of judges in cases
which they had not tried or which
were not properly under their control,
and yet in the case OF the absence or
inability of the judge who tried the
action, to grant relief, or allow ex-
tensions to be made to deserving liti-
giants.
The argument advanced comedies
that if Judge Murphy had gone to
Reno and entered the order in open
court it would have been good, but I'M
der this contention if he had stepped
through the door into the chambers
and made it, it would have been void
Orders extending the time for filings
are business usually, or properly
transacted in chambers ana under
Section 1913 can and ought to be
made as effectually in any part of the
State by the Judge having the case in
charge, as if made by him in cham
bers or in open court. Judge Murphy
was merely acting for Judge Curler
during his vacation, but by analogy
would, in every case where a district
judge dies. resigns or is succeeded,
invalidate the orders extending time
unier section 1877 made out of court
by his successor in office: although
they are of that character ordinarilv
granted in CHAMBERS. This would
mean a distinction and two rules for
filing orders of the same kind
and that the Judge who had tried the
cause as Judge Curler had done in
this instance, could make the order in
chambers. while his successor could
so make it only in the cases tried by
him, and would have to be in court
to make these simple orders extend
ing time in actions which had been
previously tried by another Judge.
Appellants desired and were entiil-
ed to the time granted for the pu:-
pose of enabling them to secure from
the court reporter who had left the
State, a transcript of the testimony
given on the trial. which would ena-
BILE them to properly prepare the state,
meni.
/ Under Section 1878 Judge Curler
could have made an order granting
them the extension at any place in
the State, and as during his absence
Judge Murphy was requested by the
Court minutes to attend to all buSl
ness for him, we conclude that he was
empowered to make the order at Car
son City as he did, and as Judge Cur
Ter could have done and that it wa
not necessary for him to make the trip
| to Reno and undergo the fOrmality Of
opening court to enter ex parte orders
t simply extending time, such as are
usually made out of court.
! The motion to dismiss the appeal
j from the order overruling the motion
| for new trial and to strike out tn,
: statement is denied.
I ON THE MEniTS
This action was brought by Alexan
| der Twaddle in his life time and by
! Ebenezer Twaddle as cC-owners, 70,
! $50 miners inches running under 81,
inch pressure of the waters of OphiI
! Creek, alleged to have been approp
rated by their grantors in the veal
! 1856 ''by means of dams. bitches an
a fume" for the irrigation Of theil
ranch containing 2O392 acres II
Washoe county The answer denies
the allegation of the complaint SETS
up the ownership by the defendant
Winters, of a tract of land obut one
mile wide and two miles long. and al
leges appropia .ons by them OF the!
gran1ors aggregaJing 600 inches flow
ing under a four inch pressure. by thu
year 1867, which are stated to be priCl
| to any diversion Of the water by the
plaintiffs, and asserts a claim for 1a
PENDANT, Longabaugh, to $50 inche:
for fluming wood. lumber and ice fro1
large tracts of timber lands owned b.
him, and for domestic use and irri
eating garden on forty acres at Ophlr
I Witnesses appeared to sustain, ant
others to dispute plaintiffs. right a
initiated a half century ago, and the
same is true regarding the claims q
these defendants. The record affords
a glimpse of pioneer history at pei
jod previous to tho adm1ee'or Of thi
:. State into the Union, and portray:
the building and decay OF saw am
!. quartz mills and the rise and declin;
of towns by the banks of the strea1f
the waters of which are here in litiga
i ton. One witness, testified that tn
Hawkins ditch, now known as the W.
per, Twaddle ditch, was completed Ii
1857, and that he turned the wate
!, into it that year Others stated tina
water was running in the ditch an'
flume about that time, and that thes
were APPARENTLY in the same place AM
of about the same capacity as I
present.
. On, behalf of the defendant othe
, witnesses testified that they wer
over the ground and saw no ditto
and that none existed there durin;
those earlier years. It is unnecessar
, for us to detail the conflicting portion
of the evidence: These were careful
, fully considered by the district court
] and for the reasons stated in it's dec
1 sion, enforced by statements in deed
made many years before any controy
ersy arose, the finding that this ditto
EwAs constructed and prior approx
!. EriatiOn of water made through it j
: 1857 finds ample support At first o
the Twaddle ranch land was plowe
for only garden and small piece {