Authers v. Bryant

• Decision Date: 13 December 1894
• Docket Number: 1,413.
• Parties: AUTHERS v. BRYANT et al.
• Court: Nevada Supreme Court

38 P. 439

22 Nev. 242

AUTHERS v. BRYANT et al.

No. 1,413.

Supreme Court of Nevada

December 13, 1894

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

Action by James Authers against Elizabeth Bryant and others. There was a judgment for defendants, and plaintiff appeals. Reversed.

R. M Clark, for appellant.

William Woodburn and A. J. McGowan, for respondents.

MURPHY C.J.

This is an action to try the right to the use of the waters of Mill Station creek, and for an injunction to prevent the future diversion of the same. Judgment went for the defendants, from which plaintiff appeals.

The complaint alleges ownership of the water through an appropriation made by plaintiff's grantor in the year 1860 for the irrigation of certain lands. The answer denies the plaintiff's ownership and appropriation and alleges ownership in the defendants through an appropriation made by their grantors in the year 1860 for the irrigation of certain lands now belonging to them, and that ever since that date up to the time of the commencement of the action, they and their grantors have used the water so appropriated "continuously, notoriously, and without interruption and without hindrance or molestation from the said plaintiff and to the whole world." By this language it was evidently intended to set up a prescriptive title in the defendants, and, the cause having been tried without objection to its sufficiency, all objections to it have been waived.

The court found: "First, that the defendants, for a period of five years immediately preceding the commencement of this action, used, adversely to the plaintiff and all others, the water flowing from Mill Station creek through a flume or ditch to the house of the defendants, and thence across the road to the orchard of the defendants; second, that the answer of the defendants alleging a prescriptive title is sufficient, no objection having been made to the proof of prescription when offered by defendants." As a conclusion of law from these findings, the court found "that the defendants are entitled to the sole use of the water flowing from Mill Station creek to the house of defendants, Elizabeth Bryant and Euphemia Bryant, and thence across the road to the orchard of defendants," and a decree was entered accordingly.

We would first call attention to the fact that the decree nowhere fixes the amount of water awarded to the defendants nor whether it is all, or less than all, of it, but only that it is the amount flowing from the creek to the house of defendants, and thence across the road to the orchard. This is so indefinite that it would in all probability simply lead to future litigation. No subject is perhaps so prolific of controversies as the use of water by different claimants for irrigation purposes, and a decree concerning it should be as certain as the use of language can make it. After the rendition of the above judgment, the plaintiff's counsel requested additional findings, five of which were allowed and approved by the court, and which read as follows: "(1) On or about the year 1860 the grantor of plaintiff claimed and appropriated the water of said Mill Station creek, and the whole thereof, for the irrigation of the land of plaintiff described in the complaint, and said water, and the whole thereof, was necessary, and is now necessary, for the irrigation of plaintiff's land and the crops growing thereon. (2) That the grantors of plaintiff diverted the water of said stream, and the whole thereof, from the natural channel of said stream by means of a dam, and conducted the same to the lands of plaintiff, through and by means of ditches, for the irrigation of said land." "(4) That in the month of May in the year of 1892, while the defendants were using the water of said stream for the irrigation of said trees, plaintiff objected, and forbade them to use it, and claimed and demanded the water, which claim and...