Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1906-02-23
plaintiffs. Although his flume

from interfering with that mart az
the water CT Ophir Creek awarded II,
the plaintiff, because he ran the
water in his flume FAST their difal
and into one owned by Winters AMI
joined with the other defendants y
answering ana resisting the lerte ff
plalntlms. The decree does nnf nrs.
vent him from taking anv wafer i,
the creek in excess o. the a77-ouot
awarded to plaintiffs. Nor does i, in
any way Interfere with the wafer M.
longing to him coming from ctbar
sources. This he may turn in:o
Ophlr creek and take out lower dow
provided he does not diminish ;bo
HOW 10 winch plaintiffs are entitled
On May so, 1877, John rwaddle The
rather and predecessor in interest ~
the plaintiffs, conveyed to NJ G. Jako
'one-third of that certain wafer ditch
and f1ume known as the Tv,ddIo
ditch, leading from what is now
tlio"h as The Ophlr creek to the land
VI SAID lWaddle, soutnerly from SAID
creek through the lands OF c. F.
Wooten and M. c. Lake. with the
privilege Of running water through
SAID f1ume and ditch to what is know,
as the Bowers Mansion CT grounds
the expense OF maintaining said
ditch and f1ume to be paid by each IN
proportion to their interests in same"
It Will be noted that this Language
does not purDOrt to grant anv water.
but rather the right to convey water
and that il amounts to a sale of n
thlrd 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 10
PENDANT Theodore Winters. ACQUIRED
the Bowers Mansion and grounds
through conveyances which did not
mention any interest in this ditch. 1t
does not appear that Lake or his
Srantors ever made any use of the
ditch or ever contributed towards its
repair.
Alexander Twaddle stated On Ii
stand that he did not claim all this
ditch and that the plaintiffs owned
two thirds OF IT, Whether under this
deed the ona-third interest in the
ditch became appurtenaut 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 intere.-
as a co-owner in the ditch and that
part of the f1ume 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superseded by the new one built by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 Ditcn
and Flume,' are not within the allie
cations of the pleadings Which con-
tain no reference to the exclusive use
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 cams. bitches
and flume" the court properly de-
creed to plaintiffs the right to use the
water through either or both the
bitches running to their lands. They
would have that right in the upper
ditch if their interest in 1t is only
an undivided two-thirds, as the cou Z
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 one-third interest, is a question
as foreign as the ownership of the
mansion, and one which ought not
to be determined by the judgment IN
the absence Of any issue or allegation
concerning it, The defendants spell
tically excepted to findinS numoe'
twelve in this regard.
Patents for defendants lands lying
along the banks Of Ophir Creek were
issued to their grantors before the
passage of the Act of Congress OF
July IS. 1866 anu it is asserted thai
for this reason a. vested Common
Law riparian right to the flow of the
waters of Opnlr Greek accrued Of
| which they could. not be deprived os
that Act If this were true defendants
might as we'll be considered under
the circumstances shown to have lost
| that right by acquiescence in the con
tinued diversion of the water by pain
tiffs for a period many times lonse!
than that provided by the statute o'
limitations, but in this contention
| counsel Is IN cTTOI we Wv AZ. "A'N'
to consider seriously or at length
an argument by which it is sought &c
have us over-rule we'll reasoned de-
cisions of long standing in this and
other arid states. and in the Supreme
Court of the United States, such a.
Jones v. Adams, Reno samplln
| Works, v. Stevenson and Broder '
! Water Co, declaring; that this statute
was rather the voluntary recognition
of pre-existing right to water con
shutting valid ciaimrto its contln
ueh use. than the establishment OF
new one. AS time passes it. becomes
more and more apparent that the Law
of ownership of water by prior up
preparation for beneficial purpose Is
essential under our climatic coni'
lions to the general welfare, and tina
the Common Law regarding the nov
of streams which may be unobJectioc
able in such localities as the brltls
Isles and the coast of Oregon, Wash
ington and northern California wher
rains are frequent and fogs and wind