Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1906-02-20

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did not show any prior appropriation
and the decree properly enioins him
from interfering with that part Of
/ the water OF Ophir Creek awarded tc,
the plaintiff, because he ran the.
water in his fiume mast their dit,
and INTO one owned by Winters AMI
Joihed with the other defendants in
answering and resisting the rights Of
pidih'lHs- The decree does not pre-
vent MIN from taking any water in
Tue creek IN excess OF the amount
awarded to plaintiffs. Nor does it in
any way Interfere with the water bn-
longing to him coming from other
souices Ihls he may turn inro
Ophlr creek and take out lower dow,
oviueo ne does not diminish the
low 70 which plaintiffs are entitled
On May 81, 1877, John Iwaddle the
,ather and predecessor in interest ut
the plaintiffs, conveyed to M. Lake
one-thlrd of that certain water ditch
ana Hume known as the Twaddle
dltch, leading from what is now
known as the Ophir creek to the land
OF said Twaddle, soutnerly from SAID
creek through the lands or g y
Wooten and M. C. Lake with tho
privilege of running water through
SAID 1ume and ditch to what is known
as the Bowers Mansion or grounds
tne expense of maintaining said
oltch and fume to be paid by each in
proportion to their interests in same"
1t Will. be noted that this language
uoes not purport to grant any water.
Dut rather the right to convey water
dnd that 1t amounts to sale of q
thlrd interest in the ditch with ut
least the privilege to that extent Of
running in it water which Lake hal
or might appropriate. Later. the de-
PENDANT Theodore Winters, acquires
the Bowers Mansion and grounds
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 it's
repair
Alexander Twaddle stated on tr
stand that he did not claim all 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 third interes-
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superseded by the new one built by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 Ditch
and Flume," are not within the allie
cations of the pieadings winch con-
tain no reference to the exclusive uss
of. or a third or any interest in tbs
ditch.
Under the assertion in the com
plant of the Appropriation of water
by means of certain dams, dltche3
and a f!ume" 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 it is only
an undivided two-thirds. as the cou 4
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 undivl
ded one-third interest, is a question
as foreign as the ownership OF thu
mansion, and one which ought moi
to be determined by the judgment II
the absence of any issue or allegation
concerning it, The defendants spe"l
6cally excepted to finding numoe
twelve in this regard.
Patents for defendants lands lying
along the banks of Ophir Creek wer
issued to their grantors before the
. passage OF the Act of Congress O
July 26, 1866 anu it is asserted ina
|. forf this reason vested common
) law riparian right to the flow Of tn
waters Of sOpnif Creek accrued y
which they could not be- deprived o.
; that~Hcr If this5were tftIe defendant
might as we'll be considered unde
, the circumstances shown to have los
, that right by acquiescence in the cor
| tinued diversion of the water by pair
tiffs for a period many times ionge
than that provided by the statute
} limitations, but in this contentlo!
| counsel is III 0EIOl we w Aoe " ~
to consider seriously or at lenstl
an argument by which it is sought I
: have us over-rule we'll reasoned de
cisions of long standing in this an
: other arid states, and in the Suprem
Court of the United States. such
Jones v. Adams, Reno Samplin
: Works v. Stevenson and Broder
| Water Co, declaring that this statut
was rather the voluntary recognitio
!; | Of a pre-existing right to water col
stituting a valid claim to its contil
ued use, than the establishment OF
s new one. AS time passes IT, become
! more and more apparent That the la
! az ownership Of water by prior al
: preparation for beneficial purpose
:. essential unders our, climatic cont
! lions to the general welfare. and tina
. the Common Law regarding me no
!, of streams which may be unohJectlo'
' able in such localities as the britls
| r.,.z ocd oaoct of nropO1 WaSl