Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1906-02-21

from interfering with that part Of
the water of Ophir Creek awarded to
the plaintiff, because he ran Their
water in his fume past their ditcn
and into one owned by Winters, AMI
joined with the ether defendants in
answering ard resisting the rights of
PLANTING. The decree does not Ore
vent him from taking any water in
the creek in excess OF the amount
awarded to plaintiffs Nor does it in
any way Interfere with the water BE-
longing to him coming from other
sources. This he may turn into
ophlr Creek and take out lower down
provided he does not diminish The
now to which plaintiffs are entitled
On May 80, 1877, John IwaddIe. the
father and predecessor in interest OF
me plalntlffs, conveyed to M. c. Lake
one-tnlrd OF that certain water ditch
ana hume known as the Twaddla
ditch, leading from what is now
known as the Ophir creek to the land
OF said Twaddle. southerly from SAID
creek through the lands or G. F.
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 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 a sale of a
third interest in the ditch with ut
least the privilege to that extent ot
running in it water which Lake had
or might appropriate. Later, the de-
| PENDANT Theodore Winters. acquir4t
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 tn =
ditch or ever contributed towards it's
! repair
! Alexander Twaddle stated on til
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 passe i
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 f1ume which has not beoL
superseded by the new one built by
plaintiffs, are questions which We
need not determine for they, and thai
| >f% 81 ind of
which gives the plaintiffs the ''eXclu
sive use OF the upper Twaddle Ditcf
and Flume,'' are not within the allie
cations of the pieadings winch con
tain no reference to the exclusive u.s.
of. or a third or any interest in tn
ditch. -
Under the assertion in the com
plant CT the Appropriation of wate'
by means of certain cams, ditche
and a flume'' the court properly de
creed to plaintiffs the right to use tn
water through either or both the
bitches running to their lands. Tnel
would have that right in the uppe
ditch if their interest in it is. oni.
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 owns
and can assert right to- an undlv
ded one-third interest, is a question
: as foreign as the ownership OF III
mansion, and one which ought no
to be determined by the Judgment IL
, / the absence of any issue or allegatio
. concerning it. :, The defendants specl
, tically excepted to finding numoe
> twelve in this regard.
Patents for defendants lands llyin'
along the banks of .Ophir Creek wer
-.tfssued to- their .grantors before tn
, passage of the Act Of Congress o
4 1uly 26S71S66, an~sit, is ,asSeTed ina
Fl fora thiS yreasen a. vested common
u law riparian right tothe flow of tn
!. visitors .5.af;, iQpmrs Greek accrued
which they could not be deprived D
5 that Act If this were true defendanl
might as we'll be considered unde
e the circumstances shown to have los
) that right by acquiescence In the COZ
l tinued diversion of the water by piall
5 tiffs for a period many times longs
: than that provided by the statute G
? limitations, but in this contentlo
r counsel is in error. We do not WIS
t to consider seriously or at lengt
, an argument by which it is sought
: Ehave us over-rule we'll reasoned a
Il eisions of long fstanding in this an
j. other arid states, and in the Supren
: Court of the United States, such
I Jones v. Adams, Reno Sampllr
~ Works v. Stevenson and Broder
tWater Co., declaring that this statu
! was rather this voluntary recognize
:, Of a pre-existirg right to water co
= stituting a valid claim to its cont
!. ued use, than the establishment OF
new one AS time passes 1t becom
more and more apparent that the Ia
! of ownership, of water, by prior
. propriation for a beneficial purpose
essential under our climatic con
!, tions to the general welfare, and tn
q the Common Law regarding the III
u of streams which may he! nnobJectlo
' able in such localities as the brltl
q. Isles and the coast of Oregon. Was
% ington and northern California whe
it rains are frequent and fogs, and win
le laden with mist from the ,acean p1
" vail and moisten the soil. is unsu