Alexander v. Winters

• Decision Date: 19 June 1897
• Docket Number: 1,496
• Citation: 49 P. 116,23 Nev. 475
• Parties: ALEXANDER v. WINTERS et al.
• Court: Nevada Supreme Court

49 P. 116

23 Nev. 475

ALEXANDER v. WINTERS et al.

No. 1,496

Supreme Court of Nevada

June 19, 1897

Appeal from district court, Washoe county; A. E. Cheney, Judge.

Action by E. L. Alexander against Theodore Winters and others. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

Trenmor Coffin and Curler & Curler, for appellant.

Robt. M. Clarke and William Webster, for respondents.

MASSEY J.

The appellant brought this action to recover a judgment for damages against the respondents, caused by flooding water. From the judgment in favor of the respondents, and from an order denying appellant's motion for a new trial, this appeal has been taken.

The complaint charges that in May, 1896, the respondents opened the gates of the dam used for storing water in Washoe Lake and discharged large quantities of water therefrom in excess of what was necessary to irrigate lands, thereby increasing the flow in Steamboat creek, and causing the creek to overflow its banks, and to flood the appellant's land and to wash sand and gravel on the said land, and to wash out the head gates and irrigating boxes, and to fill up her irrigating ditches, making it impossible for her to save her hay crop. It is further charged in said complaint that on the 12th day of July, 1896, respondents again opened the gates of said dam and discharged into said Steamboat creek large quantities of water in excess of what was necessary to irrigate the land lying below said lake, thereby causing said creek to overflow its banks, and to wash sand and gravel upon the appellant's meadows, making it impossible for the appellant to cut and save her crops of hay. The respondents filed separate answers denying the averments of the complaint, and by way of new matter alleged in substance, that the Washoe Lake Reservoir & Galena Ditch Company had constructed a dam at the outlet of Washoe Lake for the purpose of holding back the waters to irrigate lands and that the appellant was a member of said corporation, and as such assisted in the construction and maintenance of said dam, and used the waters thereby restrained to irrigate her lands and the crops growing thereon. The facts disclosed by the record, in brief, are: That in the summer of 1896, and before that time, the appellant owned and occupied certain lands in the lower end of Steamboat valley, which were irrigated by the waters of Steamboat creek. She and her grantors have claimed and owned said land since about 1860, and have raised and harvested crops of hay thereon since that date. Steamboat creek is a natural water course, with its principal source in Washoe Lake, flowing over and through the lands of the appellant. Brown's creek and Galena creek are tributaries of Steamboat creek, the waters thereof flowing into Steamboat creek above the appellant's land. Huffaker's creek is also tributary to Steamboat creek, and flows therein on the appellant's lands. Many gulches and ravines discharge their waters into Washoe Lake and Steamboat creek and its tributaries above appellant's lands during the spring season and times of freshet. The volume of water flowing into Steamboat creek is variable, at times being very large, and at other times not sufficient to irrigate the lands of the farmers residing thereon, and exercising the right to use the waters for that purpose. Ordinarily, three or four thousand inches of water flow naturally out of Washoe Lake into Steamboat creek, and in flood times that creek carries about 10,000 inches. The lands of the appellant are in the lowest portion of Steamboat valley, and during the times of high water are flooded. In 1860 the parties claiming to own these lands, and certain other parties, constructed a ditch from a point in Steamboat creek about one mile above the appellant's said land, and over a part thereof, to Huffaker's creek. This ditch was constructed for the purpose of turning the waters of Steamboat creek out of its natural channel below the head of said ditch, thereby drying and making available for hay and grazing the lands adjacent to the said channel, and for the further purpose of irrigating the lands of the parties constructing said ditch. This ditch was constructed upon grounds higher than those through which the natural channel passed. The action of the water flowing through this ditch had gradually deepened and widened the same from the point where it connected with the creek to and partially across the appellant's land. This ditch for a considerable distance above Huffaker's creek is shallow and narrow. Since the waters of Steamboat creek were turned into this ditch in 1860, the old channel has filled with sediment, and become nearly obliterated. The appellant and her immediate grantor, for whom the appellant was agent, had constructed and maintained dams in this ditch above appellant's lands, thereby retarding the flow and holding back the waters so that the same overflowed the banks thereof, spread over said lands, and irrigated the same. These dams caused a sediment to settle in the ditch, and fill the same, and in 1895 the appellant caused to be constructed upon her own land in said ditch a dam for this purpose. She also caused ditches to be constructed at right angles with the channel from this dam, and caused bulkheads to be put in each. These ditches have less fall than the channel which was obstructed, and were not sufficient in size to carry the water in times of high water, and thereby caused the channels both below and above to fill up with sediment, in consequence where of the water overflowed appellant's land. The waters of Steamboat creek being insufficient to irrigate the lands thereon during seasons of scarcity, it was determined by the farmers residing thereon to build a dam at the outlet of Washoe Lake for the purpose of storing the waters therein during the winter and spring months, and at times when there was more water than was needed for irrigation. In pursuance of this purpose notice was posted by a portion of the farmers claiming the surplus water of Galena creek, and an easement or ditch to conduct the same into Little Washoe Lake, and the right to construct and maintain a dam at the outlet of Little Washoe Lake, for the purpose of storing the waters therein. The respondent Winters owned the land where the dam was to be built, and the land on the border of the lake, which would be flooded by the building of the dam, and he objected to the construction of the dam unless upon condition and subject to his control. These conditions were accepted by the ranchers, and were contained in a written agreement between the parties, whereby Winters granted to the farmers the right to make a dam of solid masonry across the outlet of Washoe Lake of such dimensions in height as the farmers may deem proper for the purposes of flowing water back upon said lake for storage purposes. He also granted the right to make and construct a ditch over his land for the purpose of carrying the waters from Galena creek into said lake to be stored for use in irrigation. It was further provided that the dam should not...