Ennor v. Raine

• Decision Date: 02 November 1903
• Parties: ENNOR v. RAINE.
• Court: Nevada Supreme Court

74 P. 1

27 Nev. 178

ENNOR v. RAINE.

Supreme Court of Nevada

November 2, 1903

Appeal from District Court, Eureka County.

Action by J. C. Ennor, revived after his death in the name of Sarah P. Ennor as special administratrix, against J. P. Raine. From a judgment in favor of defendant on a counterclaim, plaintiff appeals. Affirmed.

J. W Dorsey, for appellant.

E.S Farington and Thomas Wren, for respondent.

TALBOT J.

We detail the principal and controlling facts stated in the pleadings because they are necessary for the proper understanding and explanation of appellant's contentions.

This action was brought by J. C. Ennor some years before his decease. In his complaint he alleged that during all the year 1896 he was the owner, in the possession, and entitled to the possession of all that parcel of land and appurtenances situated in Pine Valley, Eureka county, and known as "Ennor's Ranch"; that during all that year he owned and had constructed upon this ranch various dams and ditches, by and through which he stored and accumulated the waters of Pine Creek, which during all that time flowed through and upon the ranch; that by means of these ditches he irrigated a large portion of the ranch during that time, and cultivated and induced the growth of large crops of hay; that portions of the ranch require drainage; that there is no water for the portions of the ranch which require irrigation except that which is stored and accumulated by means of these dams; that in July, 1896, and while plaintiff was the owner and in the possession of the ranch and the dams and ditches and appurtenances, the defendant unlawfully and with force and violence entered and broke down and destroyed plaintiff's dams, whereby the water which he had theretofore stored and accumulated for the purpose of irrigating his ranch was lost and wasted, and a portion of his ranch was overflowed, and the crops of hay thereon injured and destroyed; that by reason of this loss of water plaintiff was prevented from irrigating and harvesting any crops of hay upon certain other portions of his ranch-all to plaintiff's damage in the sum of $3,000, for which he asked judgment. In his amended answer the defendant denied all these allegations, and by way of affirmative defense alleged that he and his grantors had been the owners and in the possession of the premises known as the "Raine Ranch," in Pine Valley, since May, 1868; that Pine creek is a natural surface stream of water, which, when unobstructed, flows through his land; that ever since May 1868, except when unlawfully diverted, he and his grantors have used 700 miners' inches of the water of this creek in the beneficial and necessary irrigation of crops growing on his ranch; that such appropriation and use was long prior to any diversion by the plaintiff; that on the 11th day of July, 1896, plaintiff entered upon Pine creek above the ditches and dams of the defendant, and by means of the dams and ditches mentioned in the complaint wrongfully obstructed the natural flow of the water and diverted the whole thereof away from the defendant's lands, and thereby deprived him of water for the irrigation of his hay, grain, and vegetables, which, for the want of such irrigation, were greatly injured, and about to become valueless; that thereupon the defendant entered upon the Ennor ranch at the time stated in the complaint, without any unnecessary injury to the same, and only to the extent needful, in order to permit such an amount of water to flow down to defendant's crops as was necessary for their irrigation. Then "for a cause of action and as a counterclaim" against the plaintiff the amended answer repeated its foregoing allegations, and averred further that on or about the 11th day of July, 1896, the plaintiff entered upon the creek at points above the lands, dams, and ditches of the defendant, and by means of certain dams and ditches mentioned in the complaint wrongfully diverted away from the crops and lands of the defendant all the water of the creek until the 24th day of July, 1896; that by reason of such diversion defendant did not have sufficient water to irrigate his crops, which were damaged thereby to the extent of $3,000, for which sum he demanded judgment against the plaintiff. The plaintiff objected to the filing of the amended answer, moved to strike out, and demurred on the grounds, first, that the answer, "taken altogether, is contradictory, and does not state facts sufficient to constitute a defense to the cause of action set up in the complaint; and, second, on the ground that it is ambiguous, uncertain, and unintelligible." The trial took place in the district court in September and October, 1896, and a verdict was rendered and judgment entered in favor of the defendant for $100 damages and costs of suit. From an order denying a new trial, plaintiff has appealed to this court.

It will be perceived that no appropriation or use of the water on the Ennor ranch prior to the year 1896 is alleged in the complaint. It seems that the case was brought and tried by the plaintiff on the theory that the defendant was a trespasser when he went upon Ennor's premises, tore out the dams, and let the water flow to his crops, regardless of whether he was the prior appropriator and owner of the water, and, if it were diverted, that, instead of going after it, he ought to have applied directly to the court. On this appeal it is still urged that when defendant entered the Ennor ranch he became liable for at least nominal damages. We do not so interpret the law. Since the passage of the act of Congress of July 26, 1866, c. 262, 14 Stat. 251 [U. S. Comp. St. 1901, p. 1437], the prior appropriator is entitled to a right of way for conveying his water along its natural channel, and through ditches constructed prior to the time that other rights attached to the land traversed by these water courses. All locators, patentees, owners, and claimants whose rights are initiated after the appropriation of the water hold subject to this easement. Hobart v. Ford, 6 Nev. 77; Shoemaker v. Hatch, 13 Nev. 261. The defendant being the prior appropriator and owner of the water, as was properly alleged as a defense in the answer, and as appears to have been found by the jury, he was as much entitled to have it flow through the Ennor ranch in the natural channel, and in the ditches used by him or his grantors prior to the location of that place, as through his own lands, and had as much right to remove dams and obstructions on the Ennor ranch to the extent necessary to allow his water to flow for the proper irrigation of his crops as he had to remove dams on his own ranch of obstructions in his own lane or doorway, provided he did so peaceably. It is apparent that he entered the plaintiff's ranch along the channels in which he was entitled to have the water flow, and cut the dams, with the intention of recovering the water which, under the verdict of the jury, belonged to him, and not for the purpose of committing an injury or trespass against his neighbor. Except for the water which he sought, and evidently had the right to recover, it is not to be supposed that he would have gone there. The defendant's instructions given by the court proclaim the correct rule in this regard, and those offered by the plaintiff were properly refused.

Counsel for appellant contend most forcibly that the alleged counterclaim setup in the amended answer is not a cause of action arising out of the transaction set forth in the complaint as the foundation of the plaintiff's claim, and is not such a one as defendant is permitted to make under section 47 of our civil practice act (Comp. Laws, § 3142). No objection on this ground was made by demurrer, motion against the admission of testimony, specification of error, in the statement on motion for a new trial or otherwise in the district court. On behalf of respondent it is claimed that this objection is waived, and also that it is without merit while appellant insists that it goes to the jurisdiction of the court, and cannot be waived, and cites many authorities holding that the objection to the jurisdiction of the court may be raised at any time. The principle of law covered by these cases is well established, and must be conceded; and, if the alleged counterclaim would have been bad on demurrer-which we think unnecessary to decide-it becomes important to determine whether it comes within the rule, and relates to a matter vital to the jurisdiction of the court, or whether it is a mere irregularity, which plaintiff waived by failing to make objection in the lower court. Much of the argument was directed to this branch of the case, but it is only important to the extent of $100, and the principle involved, for, as the jury returned a verdict for that sum, the judgment could be modified to that extent, and allowed to stand for costs, as suggested by counsel for respondent. Wright v. Cullers, 2 Willson, Civ. Cas. Ct. App. §751. The assertion in the opinion in Macdougall v. Maguire, 35 Cal. 280, 95 Am. Dec. 98, cited and relied upon by counsel for appellant, that such objection can be made at any time, may be considered as dictum, for the objection was raised there on the trial in the lower court, and not for the first time on appeal, as here. The alleged counterclaim avers facts on which Raine would have been entitled to recover from Ennor in a seperate action. It states a demand for $3,000 damages, and facts, which, if proven, would warrant the recovery of that sum. Under the Constitution and statute the district court, in which the answer was filed and the case tried, had jurisdiction of the subject-matter. It was asserted in a civil action, as distinguished from a criminal one and from a probate or special...