Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1906-02-25

ala not snow any prior approximation
ana the decree properly enjoins him
from interfering with that part Of
the water OF Ophir Creek awarded to
the plaintiff, because lie ran thl,
water in his fiume past their ditch
and INTO one owned bv Winters AMI
joined with the other defendants in
answering and resisting the rights ct
plalntltfS. The decree does not nr7-
vent HIM from taking any water il
the creek in excess CT the amount
awarded to plaintiffs. Nor does if in
any way Interfere with the water DO
longing to him coming from other
sources. This he may turn INFO
oph1r Creek and take out lower dow,
provided he does not diminish fha
HOW to which plaintiffs are entitled
On May 80, 1877, John lwaddle the
1ather end predecessor in interest NJ
the plaintiffs. conveyed to M. G. Lake
one-thlrd of that certain water ditch
fiu hume Known as the Twaddla
ilch, leading from what is now
~, Wn as the Ophir creek to the Land
said IWaddle, sOutnerly from SAID
Geek through the lands CT G.. F.
Wooten and NJ. c. Lake. with the
privilege OF running water through
SAID hume and ditch to what is known
as the Bowers Mansion or grounds
the expense Of maintaining said
ditch and f1ume to be paid by each IN
proportion to their interests in same d.
1t will be noted that this Language
does not purpOrt to grant anv water.
but rather the right to convey water
and that it amounts to a sale of a
thlrd interest in Io
least the privilege to that extent Of
running in it water which Lake HAD.
or might appropriate Later. the he
PENDANT Theodore Winters. acuuirat
the Bowers Mansion and grounds
through conveyances which did not
mention any interest in this ditch. It
does not appear that Lake or his
grantOrs ever made any use OF tn =
ditch or ever contributed towards It's
repair.
Alexander Twaddle stated on 4
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 appurtenant to the
Bowers land when it was never used
for its irrigation, and later passed
with the land without being mention
ed, and whether after the lapse OF
c twenty-five years without any use or
contribution towards its repair the
grantee of Lake has a third intereo-
as a cO-owner in the ditch and that
part of the flume which has not beCA
superseded by the new one built by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 Ditcf
= and Flume," are not within the allie
cations of the p!eadings Which con
| tain no reference TO the exclusive U.s.
of. or a third or any interest in the
: ditch,
Under the assertion in the couh
! plant Of the appropriation of water
by means of certain cams. ditche:
| and a fiune" the court properly de
: creed to plaintiffs the right to use tht
j., water through either or both the
/ bitches running to their lands. Tne5
= would have that right in the uppe
{ ditch if their interest IN 1t is oni!
! an undivided twO-thirds, as the cou
: has given them Jointly with the de
= PENDANTS in the lower ditch, bul
: whether the grantee OF Lake owns
and can assert q right to an undivi
: ded one-thlrd interest, Is question
= as foreign as the ownership o. th'
. mansion. and one which ought nj
y to be determined by the julem2Et II
: the absence of any issue or allegation
' concerning it, The defeHuanjs spe /
y fically excepted - fnd.nE hum9e
: twelve in this regard,
J. Patents for defendants lands lyins
= along the banks Of Ophlr creek "e.'
l. issued to their grantors before inc
q passage of the Act OF Congress d
f july 26. 1866 anu it is as erred ma
a for this reason a vested CONNER
= Law riparian right TO the now OF th'
i waters of Opnlr Creek accrued %
y which they could not De Ie.fHHl -
s that Act If this were rue dcleNddn~
might as we'll be considered dlid9
o the circumstances shown TO nave los
: that right by acquiescenCe IN the con
4 tinued diversion OF the water d! t.dH
$ tiffs for a period many times iohS1
= than that provided by the statute =
2 limitations but in this cOntentlo;
II counsel is in error. We 90 noL Wlsi
It tn consider seriously or at lenGti
? an argument by which it is scoSnt t
= have rs over-rule vel reasoned dc
n cisions of long standing in this an
;. o1her arid states, and in the supp EN-
= Court of the United States, such d
5, Jones v Adams. Reno Samplln
~ Works v Stevenson and Broder
Water Co.. declaring that THIS sta'u'
u was rather the voluntary recognize
4 of a pre-existing right to water co,
- st;tutine valid claim to its ccnIll
~ ned use, than the establishment OF
.. new one. AS time passes it become
l. more and more apparent that the Id
n of ownership of water by prior a
Re preparation for a benencial pulpoan n,,
r. essential under our climatic conf'
Il lions TO the general welfare, and thi
re the Common Law regarding the no
IN Of streams which may be unobJectio
" able in such localities as the brl'iS
n, Isles and the coast of Oregon. Was