Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1906-03-03

plaintiffs. Although his fume was
erected many years age Longabaugn
t show any prior appropriation
and the decree properly enjoins him
inter erelng with TIT part uf
ne a er Ct Ophir Creek ava ded to
tee plaintiff, because he ran the
water in his fuDe past rNo'r dit.1
and into one owned BIZ Winters AMI
joined with the other defendants in
answering and resisting the rights If
plainuffs. The decree does not pro
vent him from taking any water i,
the creek in excess CT the amount
awarded to plaintiffs Nor does it in
any way Interfere with the wafer 90
longing to him coming from other
sources. This he may turn in.o
Ophlr Creek and take out lower dow,
provided he does not diminish tn,
now to which plaintiffs are entitled
, On May 80, 1877, John Iwaddle the
rather and predecessor in Interest o+
the plaintiffs, conveyed to M. c. Lake
one-third of that certain water ditch
and f1ume known as the Twaddle
ditch. leading from what is now
known as the Ophir creek to the land
OF said Twaddle, soutnerIy from SAID
creek through the lands Oh G. F..
Wooten and M. c. Lake, with the
privilege of running water throucn
SAID hume and ditch to what is known
as the Bowers Mansion CT grounds
tne expense OF maintaining said
ditch and fiume to be paid by each IN
proportion to their interests in same :
1t will be noted that this Language
does not purport to grant any water.
but rather the right to convey water
and that it amounts to sale of a
third interest in the ditch with ut
least the privilege to that extent If
running in it water which Lake had.
or might appropriate Later. the do
PENDANT Theodore Winters, acquirat !
the Bowers Mansion and groun,ts
through conveyances which did not
mention any interest in this ditch. 1t
does not appear that Lake or his
grantors ever made any use of tn =
ditch or ever contributed towards its
repair
Alexander Twaddle stated on til
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 nev"r used
for it's irrigation, and later ,,ssat
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 interes'
aS a cO-Owner in the ditch ana that
part OF the fiume which has not beCl
superseded by the new one built by
plaintiffs, are questions which W
need not determine, for they. and tina
part of the judgment of the court
which gives the plaintiffs the 'eXclu
sive use of the upper Twaddle Ditci
and Flume," are not within the allie
cations OF the pieadings Winch con
tain no reference to the exclusive us
of. or a third or any interest in tn
+ ditch.
Under the assertion in the CON
plant Of the appropriation of water
by means of certain dams. ditche
> and a fiune'' the court properly dc
. creed to plaintiffs the right 10 use tn
. water through either or both The
: bitches running to their lands. the
would have that right in the uppe
f ditch if their interest in 1t IS Onl.
/ an undivided two-thirds, as the cou.'
, has given them Jointly with the de
: PENDANTS in the lower ditch, bu
: whether the grantee of Lake own:
and can assert a right to an undlVl
G ded one-third interest, IS QueSuo!
l. as foreign as tne ownership OF IN
< mansion, and one which ought no
p to be determined by the judgment II
: the absence of any issue Or ailegatlo
r concerning it. The defeno2Rts spell
y tically excepted to findin3 Eumoe
: twelve in this regard.
y Patents for defendants lands lyins
y along the banks Of Ophlr Greek "er
= issued to their grantOrs before tn
o passage Of the Act of Congress 0
# July ID, 1866 anu it is asserted ma
e FOR this reason a vested common
, Law riparian right to the flow OF tn
# waters of Opnlr Creek accrued .
4 whicn tney could not be deprived D
s that Act If this were rue defendant
might as we'll be considered unde
e the circumstances shown TO have los
: that right by acquiescenCe iii The col
4 tinuea diversion Of the water b! al
IS tiffs fer a period many times lonSe
y than that provided by. the statute G
= limitations, but in this contenuo
r counsel is in error. We do not Wis
= to consider seriously or at lenGl
> an argument by which it Is sought
; have us over-rule wei reasoned al
n cisions Of long standing in this an
;. other arid states. and in the Supfeh
: Court of the United States. such
;, Jones V. Adams, Reno Sampill
u Works V. Stevenson and broder
Water Co, declaring mat THIS stalu
It was rather the voluntary recoShiu'
"a of a pre-existing right to water co
=. stituting valid calm to It's cent
. ned use. than the establishment OF
o. new one. AS time passes 1t becofh
l. more and more apparent that lhe Id
n of ownership Of water by pfioi
,e nropriation tor beneficial purpose
r. essential under our cllmatlc con
I, | tions to the general welfare, ana IN
,e the Common Law regarding the ho
in of streams which NAV be unobJec,lO