Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1906-03-07
plaintiffs. Although his fume was
erected many wears ago Innpahauun


and the decree properly enjoins him
from inter ece.i.r with that part of
the water OF Op'ir Creek ava rdad T.,
the plaintiff, because he ran Their
water in his fun past their djt.1
and into one owned by Winters. AMI
joined with the other defendants in
answering and resisting the rights Ct
plalntlffs. The decree does not prs
vent MIN from taking any water il
the creek in evcess CT the amount
awarded to plaintiffs. Nor does it in
any way Interfere with the water DC
longing to him coming from other
sources. Ihls he may turn in.o
Ophlr creek and take out lower dow
provided he does not diminish III,
| how 10 which plaintiffs are entitled
IN May 80, 1877, John Iwaddle the
iather and predecessor in interest OF
lhe plaintiffs, conveyed to NJ. C. Lake
one-thlrd of that certain water ditch
and fiume known as the Twaddla
ditch. leading from what is now
known as the Ophir C~eek 10 the Ian,
or said Twaddle. .sOutnprIy from sa,a
| creek through the lands OF c. F.
Wooten and M. G. Lake. with the
privilege of running water through
said fiume and ditch to what is known
as the Bowers NIansion CT grounds
the expense CT maintaining said
ditch and fiume to be paid by each IN
proportion to thei' interests in same. q.
1t Will be noted that this lansauca
does not Durpcrt to grant anv water
but rather the right to convey water
and that it amounts 10 sale of q
third interest in the ditch with ut
! least the privilege to thaL extent oil
running in it water which Lake had.
or might appropriate Later. the dc
fendant Theodore Winters. acquir : -!
the Bowers Mansion and grounds
| through cOnveyances which Gid not
mention any interest in this disch. i.
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 tt
stand that he did not claim all this
ditch and hat the plaintiffs owned
two thirds of it. Whether under tn IS
deed the one-third interest in TIE
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 alter the lapse o
twenty-five years without any use o.
contribution towards its repair th'
grantee OF Lake has thi" interes
as a co-owner in the ditch and tina
part of the fiume which has not be-.
Superseded by The new enc built b!
plaintiffs, are questions WI W
necd not determine, for they, and tha
part of the judgment CT t couf
which gives the plaintiffs the ''eXclu
sive use OF the upper Twaddle Dltc.
: and Flume," are not within the allie
cations of the p.elcilgs wAAch con
tain no reference TO the exclusive us
Ct. or third or any interest in tn
: ditch.
Under the assertion in the CON
, plant Of the appropriation Of waite
by means of certain cams. ditche
and a tiume' the court properly a.
creed to plaintiffs the right TO use TN
: water through either or both tn
- bitches running to their lands. the
, would have that right in the nppe
f ditch if their interest in 1t IS on
I an undivided tvSO-tnirds, as the cou
, has given them jointly with the d.
= PENDANTS in the lower ditch, bu
: whether the grantee CT Lake own
and can assert a right to an undlV
: ded one-third interest, is q Questo
+ as foreign as the ownership OF IN
: mansion. and one which ought no
v to be determined by the judgment j
: the absence of any Issue or aiiegat3o
= concerning it. The defendants Spe'
y dcally excepted to finding nGmpt
: twelve in this regard.
= Patents for defendants lands lynn
= along the banks of Uphir Creek We
/ issued TO their grantors before ~
O passage of the Act of Congress
t July %. 1866 an 1t IS Asserted thS
. for this reason a vested Commo
> Law riparian right to the flow OF IN
: waters of Opnlr Creek accrued y
. which hey could net be cenfF"a D
S that Act If this were rue defehaah
might as well be considered uAN-
Q the circumstances shown 10 nave loS
$ that rignt by acQuiescence In the c"
Il tinued diversion Ct tie water ny pa
s tits for a period many times iong'
! than that provided by The statute
limitations. but n this contentlo
= counsel is in e-rCr. We DO not W!-
! tn consider seriously or at lehal
> an argument by which it is scaSHt
: have us over-rule Wei reasoned u
n cisicns of long standing in this al
: other arid states, and IN the o"|I eH
: Court of the United States, sUch
;. Jones V. Adams, Reno Sampl'
II works V. Stevenson and Broder
Water Co. declaring mat TINS S'aIu
. was rather the voluntary recoSh'Ii
=, of pre-existing right to water &C
- stituting a valid claim 10 its con-
~ ned use. than the establishment OIL
,c- new one. As tine passes 1t hecoill
i more and more apparent that the ID
n of ownership of water by prior
ve nropriation for a beneficial purpose
,r- essential under our climatic coi,
FL tions to the general welfare anu " "
ve tha Common Law regarding tne IL
III of streams which may be unoo!ec.r
Nv able in such localities as the BTU
n. Isles and the coast of Oregon, Wa