Irwin v. Strait

• Decision Date: 28 November 1884
• Parties: IRWIN v. STRAIT and others.
• Court: Nevada Supreme Court

4 P. 1215

18 Nev. 436

IRWIN v. STRAIT and others.

Supreme Court of Nevada

November 28, 1884

Appeal from the Fifth judicial district court, Nye county.

D. S Truman, for appellants.

Curler & Bowler, for respondent.

BELKNAP J.

The original parties defendant in this cause were the same as in Simpson v. Williams, ante, 1213. The appeal in this case, as in tat, is directed against the decree rendered in favor of respondent, Williams. To each suit he defended as owner of the Page or Withington ranch, on Duckwatercreek. The questions presented upon appeal are the same in each case, except the question of prior appropriation of the water. The different plaintiffs acted independently of each other in diverting the stream, and their acts in this regard must be separately considered. Plaintiff Irwin first diverted the water upon the twenty-first day of August, 1867. For the purpose of this case we shall treat his right as commencing, by relation, at this time. The premises in the possession of Williams, and of which he must be considered owner upon this appeal, were purchased in the month of April 1867, by Withington from Page for farming purposes. During the year 1866, Page had diverted a portion of the waters of the stream. This diversion may have been for a speculative purpose, and we shall not consider it as the inception of a right. The testimony is not clear as to the use made of the water by Withington during the year 1867, save that it continued to flow as diverted by the dam and ditch constructed by Page. In the spring of 1868, and each succeeding year, Withington, and those claiming through him have employed the water for irrigating cultivated lands. Upon these facts, when did the right of respondent as successor in interest to Withington to the use of the water commence?

In determining the question of the time when a right to water by appropriation commences, the law does not restrict the appropriator to the date of his use of the water, but applying the doctrine of relation, fixes it as of the time when he begins his dam or ditch or flume, or other appliance by means of which the appropriation is effected, provided the enterprise is prosecuted with reasonable diligence. During the year 1867 Withington did no particular act manifesting an intention to appropriate the water, further than to maintain its flowage upon the land. It was unnecessary for him to do more. The diversion made by Page...