Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1906-02-27

plaintiffs. Although his f1ume was
erected many years ago LOngabaugn
did not show any prior appropriation
and the decree properly enjoins him
from interfering with that part Of
the water of Ophir Creek awarded to
The plaintiff, because he ran the +
water IN his hume past their ditch
and into one owned by Winters. AMI
joined with the other defendants in
answering and resisting the rights Of
plalntitfs. The decree does not nr7-
vent him from taking any water j.,
the creek in excess Of the amount
awarded to plaintiffs. Nor does if in
any way Interfere with the water DO
longing to him coming from other
sources. This he may turn INFO
Ophlr creek and take out lower dow,
provided he does not diminish ,ha
now to which plaintiffs are entitled
, On May 30, 1877, John Iwaddle the
rather and predecessor in interest o+
the plaintiffs, conveyed to NJ. C. Lake
one-thIrd of that certain water ditch
ana fume known as the Twaddla
ditch, leading from what is now
known as the Ophir creek to the lana
vi SAID 1Waddle, soutnerlv iron, SAID
creek through the lands Oh G. F.
Wooten and NJ c. Lake, with the
privilege OF running water through
SAID hume and ditch to what is know,
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. E.
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 at
least the privilege to that extent Of
running in it water which Lake had.
or might appropriate Later. the Ge-
PENDANT Theodore Winters, acquire >:
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 its
repair.
Alexander Twaddle stated on Z
stand that he did not claim all this
| ditch and that the plaintiffs owned
two thirds Of il. 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 interea.
as a co-Owner in the ditch and that
part of the fiume which has not bee.
| S1Inarnpn6n6 hu he hlli1t nv
plaintiffs, are questions which We
need not determine, for they, and thai
part of the judgment of the court
which gives the plaintiffs the ''eXclu
sive use of the upper Twaddie Ditc,
: and Flume," are not within the allie
cations of the pleadings Winch con
tain no reference TO the exclusive u.s.
OF. or a third or any interest in thu
+ ditch.
Under the assertion in the com
, plant of the appropriation Of water
by means of certain dams, ditche5
and a fume" 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 uppe!
F 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, but
: whether the grantee of Lake owns
and can assert a right to an undivl
: ded one-thlrd interest, is a question
: as foreign as lne ownership OF tht
: mansion. and one which ought mol
r to be determined by the judgment III
: the absence of any issue or allegation
= concerning it, The defendants spe"l
! fcally excepted to finding numoe
: twelve in this regard.
: Patents for defendants lands lying
: along the banks of Ophir Creek were
: issued to their grantors before the
2 passage of the, Act of Congress OF
+ July IS, 1866 anu it is Asserted ina
; for this reason vested Common
: Law riparian right to the How OF IN.
/ waters of Opnr Creek accrued ol
I which they could not be deprly ed D
$ that Act If this were rue defendant
might as we'll be considered under
? the circumstances shown to nave los
5 that right by acquiescence IN the con
| | timed diversion of the water by pam
5 tiffs for a period many times lonSei
: than that provided by the statute o.
? limitations, but in THIS conteh'ioi
r counsel is in error. We do not WISH
I to consider seriously or at length
: an argument by which it is sought u
: have us over-rule well reasoned de
I cisions of long standing in this anc
:. other arid states. and in the Supreme
: Court of the United States, such a
!. ZONES V. Adams, Reno Samphh
Works V. Stevenson and Broder
. Water Co., declaring that this statuo
: was rather the voluntary recognize
! Of a pre-existing right ito water cor
: shutting a valid claim to Its cohtil
: ued use, than the establishment OF
: new one. AS time passes 1t become
/ more and more apparent that the iaN
l. of ownership of water by PRIOR al
e preparation for beneficial purpose !;
: essential under our climatic conn
| tions to the general welfare, and ina
g the Common Law regarding thF ilo'
u of streams which may be unoD1ectlol
:, h1o !, .ucb localities as the BrllS