Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1906-02-21

light of reason as applied to the Or
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-
gants.
The argument advanced comedies
that if Judge MrrThv had gone to
Reno and entered The order in open
court it would have been s1Cd, but I'M
der this contention if he had stepped
through the door inc the chambers
and made it, it would have been void.
Orders extending the time for filings
are business usually, or properly
transacted in chambers and under
Section 2573 can and ought to he
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 Cutler
during his vacation. hut by analogy
the construction claimed. If adopted,
would, in every case where district
Judge dies, resigns or is succeeded,
invalidate the orders extending time
under section 1877 made out of court
by his successor } office, although
they are Of that character Ordinari'y
granted in chambers. This would
mean a distinction and two rules for
filing orders of the same kind,
and that the judg5 who had tried the
cause as Judge Crrler 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 hive 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 entifl-
ed to the time granted for the pur-
, pose of enabling them to secure f1o1
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
ment.
Under Section 2573 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 tC ATTEND to all busl
ness for him, we conclude that he was
empowered to make the order at Car
j son City as he did, and as Judge Cur
! Ter could have done, and that it wa
] not necessary for him to make the t1ir
| to Reno and undergo the Formally q
opening court to enter ex pa1te orders
simply extending time. such as are
usually made out Of court.
The motion to dismiss the appea
| from the order overruling the molten
for a new trial and to strike out tn;
statement is denied.
ON THE MEATS .-
I This action was brought by Alexan
der Twaddle in his life time and BY
Ebenezer Twaddle, as co-Owners, TO
$50 miners inches running under 81,
inch pressure of the waters of Ophi
Creek, alleged to, have been approp
i rated by their grantors in the yea
| 1856 "by means of dams. bitches AM
a flume" for the irrigation Of theil
Washce county. The answer denle:
/ the allegation Of the complaint SET!
I'M the ownership by the defendants
Winters, of a tract OF land obut ont
mile wide and two miles long, and al
leges appropia Ions by them or the!'
graators, aggregaLing 600 inches flow
ing under four inch pressure, by thu
year 1861 which are stated to be prio
to any diversion of the water by thu
plaintiffs, and asserts a claim for de
PENDANT, Longabaugh, to 100 inche
for fuming wood, lumber and ice frs9
I large tracts Of timber lands owned b
him, and for domestic use and irc
! eating garden on forty acres at Ophil
: Witnesses appeared to sustain. an
others to dispute plaintiffs right a
initiated a half centuFy-agO,- and tn
same is true regarding the claims Q
d these defendants The record afford
a glimpse Of pioneer history at a pc
iod previous to the admission Of thi
. State into the Union, and portray
J the building and decay of saw, an
quartz mills and the rise and declin
Of towns by the banks of the strea1l
the waters Of which are here in litig'
ton. One witness testified that tn
Hawkins ditch, now known as the VI
per Twaddle ditch, was completed i
1857, and that he. turned the waite
: into 1t that year. Others stated tina
) water was running in the ditch an
iflume about that time. and that thes
were APPARENTLY in the same place an
: Of about the same capacity as
present. stn',e' titv r.. ia
). On behalf of the defendant othe
Y witnesses testified that they wer
over the ground and saw no ditto
r and that none existed ithere durin
r those earlier years. It is unnecessar
4 for us to detail the conflicting portion
}. of the evidence. These we're careful
o fully considered by, the district cour
, and Tor the reasons stated in its dec
q sion, enforced by statements in deef
:. made many years before any contro
;. ersy arose, the finding that this ditto
:. was constructed and a prior appro
. ration of water made through it I
: 1857 finds ample support, At first {
:. the Twaddle ranch land was plowe
> for only a garden and small piece
grain and but little hay was cut,