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

erected many years ago Longabaugn
ala not show any prior appropriation
and the decree properly enjoins him
from interfering with that part Of
the water of Ophir Creek awarded to
the plaintiff, because he r2n the :
water in his flume past their ditch
and INTO one owned by Winters AMI
joined with the other defendants in
answering and resisting the rights 81
plaintiffs. The decree does mot mr..
vent him from taking any warer. i,
the creek in excess OF the amoun.
awarded to plaintiffs. Nor does if in
any way Interfere with the wster 10
longing to him coming from Other
sources. This he NAV turn in+o
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
| iather and predecessor in interest ~.
| the plaintiffs. conveyed to NJ G. Lake
"one-thlrd of that certain water ditch
ana Hume known as the TwadIla
dltch, leading from what is now
| KNOWN as the Ophir creek to the land
vi SAID lWaddle, soutnerly from sald
| creek through the lands OF G. +
Wooten and NJ. G. Lake. with the
privilege OF running water tbrounn
SAID fume and ditch to what is know,
as the Bowers Mansion or grounds
! the expense OF maintaining said
| ditch and fiume to be maid nv zach ~
! proportion to their interests in same e.
1t VIII be noted that this language
ooes not purport to grant any water.
t put rather the right to convey water
ana that IL amounts TO a sale of 4
third interest in the ditch with 1T
least the privilege to that extent Of
running in it water which Lake had,
or might appropriate. Later. the de-
PENDANT Theodore Winters, acquiret
| the Bowers Mansion and grounds
through conveyances which did not
mention any interest in this ditch. 1t
does not appear that Lake or his
| grantOrs ever maze any use of the
| ditch or ever contributed towards its
repair
| Alexander Twaddle stated on til
| 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 passed
with the land without being mentiCn
| ed, and whether after 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 flume which has not beCl
superseded by the new one built by
| plaintiffs, are questions which We
need not determine, for they, and that
part of the judgment OF the court
which gives the plaintiffs the ''exclu-
sive use of the upper Twaddle Ditch
and Flume," are not within the allie
cations of the pleadings wi,ch con-
! tain no reference to the exclusive use
of. or a third or any interest in the
ditch.
Under the assertion in the com
plant of the Appropriation of water
"by means of certain cams, bitches
and a fiume" the court properly de
creed to plaintiffs the right to use the
water through either or both the
bitches running to their lands. They
would have that right in the upper
ditch if their interest IN 1t is only
an undivided two-thirds, as the cou I
has given them jointly with the de-
PENDANTS in the lower ditch, but
I whether the grantee Of Lake owns
and can assert a right to an undlvl
ded one-third interest, is question
as foreign as the ownership of the
mansion. and one which ought not
to be determined by the judgment in
the absence of any issue or allegation
ha Snfnndants . j.
fcally excepted to finding numDeI
twelve in this regard.
Patents for defendants lands lying
along the banks of Ophir Creek were
issued to their grantors before the
passage of the Act OF Congress OF
July %, 1866 anu 1t is asserted tha'
for this reason a vested Common
Law riparian right to the flow OF the
waters of .Opnlr Creek. accrued Ut
which they could not be deprived oy
that Act If this were true defendants
might as we'll be considered under
the circumstances shown to have lost
that right by acQuiescence IN the con
timed diversion of the water by plain
tiffs for a period many times longer
than that provided by the statute OF
limitations, but in this contention
counsel is in error. We do not wish
to consider seriously or at length
an argument by which it is sought &C
have us over-rule well reasoned ue
cisions of long standing in this and
4 other arid states. and in the Supreme
Court of the United States, such as
Jones' v. Adams. Reno Samplln;
Works v. Stevenson and Broder '
Water Co., declaring that this statu't
was rather the voluntary recognltloi
of a. pre-existing right to water con
stituting a valid claim to- its contln
ued use, than the establishment OF
new one. :. As time passes it5become'
more and more apparent that the Law
of ownership of water by prior ap
appropriation for a beneficial purpose e,, !;
, ! tions to the general welfare, and tina
) the Common Law regarding the nov
, Of streams which may be unooJectloc
, able in such localities as the brltls