Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1906-02-22
plaintiffs. Although his flume

plaintiffs. Although his flume was
erected many years ago Longabaugn
did not show any prior appropriation
and the decree properly enjons him
from interfering with that part Of
the water OF Ophir Creek awarded to
the pialntlff, because he ran Their
water In his flume past ,ne.r G...a
and into one owned by Winters. AMI
joined with the other defendants in
answering and resisting the right =
plalnnffs. The decree does not nr9-
vent him from taking any wayor j.,
the creek in excess o. the amount
awarded to plaintiffs Nor does IL IL,
any way Interfere with the wafer 10
longing to him coming from Other
sources. This he may turn INFO
Ophlr Creek and take out lower dow,
provided he does not diminish n,
now to which plaintiffs are entitled
On May 30, 1877, John iwad6le the
rather and predecessor. interest q.
the plaintiffs. conveyed to NJ G. Ja,,n
"one-third of that certain wafer ditch
and fiume known as the Twadd,a
ditch. leading from what is nov
Known as the Ophir L~eek to the land
OF said Twaddle, soutnerly rom sa1a
creek through the lands or G =
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
1t will be noted that this Language
but rather the right to convey water
and that it amounts to a sale of n
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 dc
PENDANT Theodore Winters. ACQUIRE!
the Bowers Mansion and gr0un,ts
through conveyances which did not
mention any interest in this ditch. It
does not appear that Lake or his
sIantors ever made any use of tn
ditch or ever contributed towards its
repair.
Alexander Twaddle stated On Il;
stand that he did not claim al 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 mention
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 fiume which has not beCh
superseded by the new one built by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 Which con-
tain no reference to the exclusive uSe
CT. 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, dltches
and a flume' the court properly de
| creed to plaintiffs the right to use the
water through either or both the
! bitches running to their lands Tney
ditch if their interest In it is only
an undivided two-thirds, as the cou
has given them jointly with the de-
PENDANTS in the lower ditch. but
| whether the grantee of Lake owns
and can assert a right to an undlvl
ded onethird interest, is a question
| as foreign as toe ownership OF the
mansion, and one which ought not
to be determined by the Judgment IN
thu, absence of any issue or Allegation
concerning it. The defendants spell
tically excepted to finding numne
twelve in this regard- rs ...,..-
Patents for defendants lands lying
sIong the banks of Ophir Creek wer'
ftssued to their grantors before the
passage Of the Act of Congress o.
july 26, 1866 anu it is asserted ina
fbr this reason 4 vested Common
! Eaw rip9fian right to the how of th'
9xtsrs Of ..Opnr Creek accrued VI
which they could not be deprived .!
that Act If this were true defendant
might As we'll be considered unde
the circumstances shown to have los
that right by acauiescence IN the COZ
tinued diversion of the water by pan
tits for a period many times longe
than that provided by the statute o
limitations, but in this contentio.
counsel is in error. We do not WIS
J. tn consider seriously or at lengtl
: an argument by which it is sought
fhave rs oyer-rule well reasoned de
cisions of long standing in this an
other arid states. and in the Suprem
Court of the United States, such
Jones ". Adams, Reno Samphn
iWorks V. SteSsnson and Broder
fWater Co, declaring that this stata'
was rather the voluntary recognize
!; | of a pre-existing right to water co
!, | shutting a valid claim to its conti
ued use, than the, establishment OF
new one. AS time passes 1t becom'
more and more apparent that the la
OF ownership, of water by prior a
!, propriation for a beneficial purpose
essential under our climatic CON-
, tions, to the general welfare, and TN
. the COMMON Law regarding the no
i, Of streams which may be unoblectio
! able in such localities as the britiE