Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1906-02-27

light of reason as applied to the or
binary rules of practice, and give due
weight to the later section ApDar-
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 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 - chambers and under
Section E573 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
the construction claimed, if adopted,
would, in every case where a district
judge dies, resigns or is succeeded,
invalidate the orders extending time
under; section 1877 made out of court
by his successor in office, although
they are Of that character ordinarily
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 entifl-
ed to the time granted for the pur-
pose of enabling them to secure from
the court reporter who had left the
State. a transcript Of the testimony
gwen on the trial, which would ena-
bic them to properly prepare the state
men;.
Under Section 1918 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 bust
ness for him, we conclude that he was
empowered to make the order at Cai
son City as he did, and as Judge Cur
Ter could have done. and that it wa
net necessary for him to make the trip
to Reno and undergo the formality OF
opening court to enter ex parte orders
simply extending time. such as are
usually made out of court.
The motion to dismiss the appeal
from the order overruling the motion
for a new trial and to strike out tn,
statement is denied
ON THE MEATS
This action was brought by AleXan
der Twaddle in his life time and bv
Ebenezer Twaddie, as co-owners, 70,
$50 miners inches running under 81,
inch pressure of the waters OF Ophi:
Creek alleged to have been apprOp
rated by their grantors in the yeal
1856 by means of dams bitches an
a flume" for the irrigation of their
ranch containing 203.92 acres L
Washoe county. The answer denies
the allegation Of the complaint SETS
up the ownership by the defcn.2nt5
Winters. OF tract of land obut on9
mile wide and two miles long, and al
leges appropia --ons by them or thel:
grantors aggregaung 600 inches flow
ing under a four inch pressure, by the
year 1861, which are stated to be prior
to any diversion of the water by the
plaintiffs, and asserts a claim for IL
PENDANT, Longabaugh, to $50 inches
fer fiuming wood lumber and ice fro"-
large tracts of timber lands owned b!
him. and for domestic use and ir-i
eating garden on forty acres at Ophir
Witnesses appeared to sustain, and
others to dispute plaintiffs right a:
initiated a half century ago. and the
same is true regarding the claims Of
these defendants. > The record affords
a glimpse of pioneer history at d per
iod previous TO tho Sdn7:e' on 0t |hi'
State into the Union, and portrays
the building and decay OF saw and
quartz mills and the rise and declina
of towns by the banks of the streali
| the waters of which are here in litiga
! ton One witness testified that the
Hawkins ditch, now known as the W
| per Twaddle ditch, was completed II
| 1857. and that he turned the water
| into it that year. Others stated that
water was running in the ditch and
fiume about that time, and that thes'
were APPARENTLY in the same place and
of about the same capacity as 1t
| present.
On behalf of the defendant other
! witnesses testified that they. were
over the ground and saw no ditch
and that none existed there during
those earlier years. 1t is unnecessary
for us to detail the conflicting portions
of the evidence. These We're careful
fully considered by the district court
and Tor the reasons stated in its deci
sion, enforced by statements in deed:
made many years before any controv
ersy arose, the finding that this ditcl
was constructed and a prior APPROX
ration of water made through it |!
1857 finds ample support At first o.
the Twaddle ranch land was plowe,
for only garden and small piece Q
| in hut