Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1906-03-01
plaintiffs. Although hs lu1ae was
erected many years age Longabaugn

erected many years age Longabaugn
olG n Ow am J. -.1rc prfatiuo
and the decree pr ner' euiOins hir,
from ln,er ere;rg " J. mart ,r
the wafer Of Ophir Gre, ava dod r.,
the plaintiff, because 10 ran tha.r
water in his fupe rast tAajr dit.,
and INTO one owned by Winters. and
joined with the other defendants in
answering and resisting the rights 1f
pialntifs- The decree does not pre-
vent him from taking anv wafer j.,
the creek in excess CT tie amount
awarded to plaintiffs. Nor does If in
any way Interfere with the wafer 40
lohsihS TO him coming from other
sources. This he may turn INFO
Ophlr creek and take Out lower do,
proVlded he does not diminish ,ho
now TO which plaintiffs are entitled
On May 80, 1877, John 'wad1Ia tho
Lather and predecessor in interest ot
me plaintiffs. conveyed to NJ q I.ko
one-third of that certain water ditch
ana hume known as the Tvaddio
nltch, leading from what is now
Known as the Ophir C~eell to the LAND
CT said Twaddle southerlv from sa,a
cfee0 through the lands OF G. y
Wooten and NJ G. Lake. with the
privilege of running water throuo,
sad flume and ditch to what is know,
rs the Bowers Mansion or grounds
the expense OF maintaining said
cltch and fiume to be paid by each IN
proportion to their interests in same. .
1t VIII be noted that this language
Goes not purport to grant any water,
put rather the right to convey water
and that it amounts to a sale of a
third interest in the ditch with lt
least the privilege to that extent OF
running in it water which Lake had.
or might appropriate. Later. the DC
PENDANT Theodore Winters, ACQUIRES
the Bowers Mansion and grounds
through conveyances which did not
mention any interest in this di,ch. 1t
does not appear that Lake Or his
grantors ever made any use of the
ditch or ever contributed towards It's
repair.
Alexander Twaddle stated on ii
stand that he did not claim all this
ditch and hat the plaintiffs owned
two thirds of it. Whether under tn
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
twenty-five years without any use or
contribution towards its repair the
grantee of Lake has third intere5-
as a co-owner in the ditch and that
H. 1I, y no.
superseded by the new enc built by
plaintiffs, are questions w ch 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 Ditcn
and Flume,' are not within the allie
cations of the pleadings wLlch con
tain no reference to the exclusive uSs
Of. or a third or any interest in the
ditch.
Under the assertion in the con-
plant of the appropriation of water
by means of certain Dams, ditche:
| and a flume" the court properly de
creed to plaintiffs the right to use tins
water through either or both the
! bitches running to their lands. Tney
would have that right in the uppe!
ditch if their interest in it is oni!
! an undivided two-tnlrds, as the cou '
! has given them jointly with the de
PENDANTS in the lower ditch, buI
! whether the grantee OF Lake owns
and can assert a right to an undivl
ded one-third interest, is question
as foreign as the ownership OF th'
mansion, and one which ought no
to be determined by the Judgment IL
the absence of any issue or allegation
concerning it. The defenGants spell
tically excepted to finding nu-npe
twelve in this regard.
Patents for defendants lands lylns
along the banks of Ophir Creek wef
issued to their grantors before thF
passage of the Act of Congress o
JuN %. 1866 AM it is asserted tina
for this reason vested Common
Law riparian right to the flow OF IT,
waters of Opnlr Greek accrued y
which they could not be deprived D.
that Act : If this were trne defendant
might as well be considered unue'
the circumstances shown 10 have los
that right by acquiescence in the COZ
tlnuGQ CIV GTSlUu VI lAS "oeNi ~ P
tiffs for a period many times longe
than that provided by the statue .
limitations, but in this contentlo.
counsel is in error. We do not WIS.,
70 consider seriously or at lenglf
an argument by which it is sought u
4 have US over-rule well reasoned ue
cisions Of long standing in this am
other arid states. and IN the Suprem
Court of the United States, such
Jones V. Adams, Reno Samplh
Works V. Stevenson and Brooer
Water Co, declaring that thls sIa.u'
4 was rather the voluntary recoSmtlo
of a pre-existing right to water COZ
shutting valid claim to, its consls
ned use. than the establishment OF
new one. AS time passes it become
more and more apparent that tpe Id
of ownership of water by PRIOR al
preparation for beneficial purpose
essential under our cllmallc coa
tons to the general welfare, ana una
the Common Law regarding tne no
of streams which may be unop!ec.io'
obla in such localities as the BrltlS