Jones v. Adams

Decision Date01 April 1885
Citation6 P. 442,19 Nev. 78
PartiesJONES v. ADAMS.
CourtNevada Supreme Court

Appeal from a judgment of the Second judicial district court Douglas county, entered in favor of the defendant.

R. M Clarke, for appellant.

A. C Ellis, for respondent.

HAWLEY C.J.

A rehearing was granted in this case for the purpose of considering the specifications of error relied upon by appellant. The only question that can be determined under the specification is "whether the court erred in rendering the judgment it did upon the findings." Jones v. Adams, 17 Nev. 85. The court declared by its judgment and decree, that appellant was entitled to seven-tenths of the water of Sierra creek, and that respondent was entitled to three-tenths, and gave to the respective parties the right to divert the amount of water awarded to them out of and away from the stream on their respective lands for the purpose of irrigation, and for their stock and domestic purposes. The evidence upon which the findings were made cannot be reviewed. Every material fact, not found, must be presumed in favor of the judgment. The third and fifth findings are as follows:

"(3) That the plaintiff, Joseph Jones, is the owner of a usufruct in the waters of said stream, and that he and his grantors first appropriated and used, and that he is the owner, by rights of appropriation and use, of seven-tenths part of all the water customarily flowing in said stream; that the plaintiff, Joseph Jones, is entitled to use, as the first appropriator, upon his said land, upon each and every part thereof, seven-tenths of all the water customarily flowing in said Sierra creek, and is entitled to divert the said water from the said stream upon his said land by means of flumes, ditches, or otherwise, and to use the same upon his said land for the irrigation thereof; and to use so much of the said seven-tenths of said stream as is necessary for his stock and domestic purposes."
"(5) That the defendant, John Q. Adams, is the owner of a usufruct in the waters of said stream, and that he and his grantors, in the year 1860, appropriated and used, and that he is the owner, by right of appropriation and use, of three-tenths part of all the water customarily flowing in said stream; and that said defendant is entitled to use, as the first appropriator, upon his said land, and upon each and every part thereof, three-tenths of all the water customarily flowing in said Sierra creek; and is entitled to divert the said water from the said stream upon said land, by means of flumes, ditches, or otherwise, and to use the same upon his said land for the irrigation thereof; and to use so much of the said three-tenths part of said stream as is necessary for his stock and domestic purposes."

These findings support the judgment and decree. But it is argued by appellant that the judgment should have been rendered upon other findings which show that appellant, in 1865, acquired the title in fee to 320 acres of his land, and that said land is situate upon Sierra creek, and upon both sides thereof; that respondent is the owner in fee of the land described in his answer, which is situate upon the same creek, and that he is a riparian proprietor; that upon these facts the case should have been determined by the principles of the common law in relation to the rights of riparian proprietors, instead of upon the principle of prior appropriation; that the doctrine of appropriation and use of the waters of a stream has no application to a case where the parties, or either of them, have procured the title in fee to their lands from the government of the United States prior to the act of congress of July 26, 1866, (Rev. St. U. S.2339.) It does not appear from the findings when respondent acquired the fee to his land, and if it should be necessary, in order to support the judgment, that it should have been acquired prior to the act of congress, we are bound, in the absence of any finding to the contrary, to presume it was before that time. If that fact was important, appellant should have asked for a definite finding upon that point. Warren v. Quill, 8 Nev. 218.

If the theory contended for by appellant, that this case should have been decided upon the principles pertaining to riparian rights, should prevail, it would not follow, as claimed by him, that as a lower proprietor he would be entitled to all the water of the stream. This is not the law. We had occasion in Warren v. Quill, supra, to state that the inference must not be drawn "that, in any case, a riparian proprietor may take all the water of a stream for the purpose of irrigation, to the detriment of adjoining proprietors; for this is not the rule."

In Vansickle v. Haines, which is relied upon by appellant, the court use this language:

"The common law does not, as seems to be claimed, deprive all of the right to use, but, on the contrary, allows all riparian proprietors to use it in any manner not incompatible with the rights of others. When it is said that a proprietor has the right to have a stream continue through his land, it is not intended to be said that he has the right to all the water, for that would render the stream, which belongs to all the proprietors, of no use to any. What is meant is that no one can absolutely divert the whole stream, but must use it in such manner as not to injure those below him." 7 Nev. 286.

In Union M. & M. Co. v. Ferris, where both parties obtained the title in fee to their lands prior to the act of congress, the question as to the rights of riparian proprietors on a stream was elaborately discussed. The defendant claimed that in a hot and arid climate like Nevada the use of water for irrigation was a natural want; that the upper proprietor on the stream might consume all the water for the purpose of irrigating his land; and that such use would be reasonable. The court, in considering this question, said:

"To lay down the arbitrary rule contended for by the defendant, and say that one proprietor on the stream has so unlimited a right to the use of the water for irrigation, seems to us an unnecessary destruction of the rights of other proprietors on the steam, who have an equal need and an equal right." 2 Sawy. 195.

But the right to use water for the purpose of irrigation was expressly recognized.

"Irrigation must be held in this climate to be a proper mode of using water by a riparian proprietor; the lawful extent of the use depending upon the circumstances of each case. With reference to these circumstances, the use must be reasonable, and the right must be exercised so as to do the least possible injury to others. There must be no unreasonable detention or consumption of the water. That there may be some detention and some diminution, follows necessarily from any use whatever. How long it may be detained, or how much it may be diminished, can never be stated as an arbitrary or abstract rule." 2 Sawy. 197.

Under the rules of the common law the riparian proprietors would all have the right to a reasonable use of the waters of a stream running through their respective lands for the purpose of irrigation. It is declared in all of the authorities upon this subject that it is impossible to lay down any precise rule which will be applicable to all cases. The question must be determined in each case with reference to the size of the stream, the velocity of the water, the character of the soil, the number of proprietors, the amount of water needed to irrigate the lands per acre, and a variety of other circumstances and conditions surrounding each particular case; the true test in all cases being whether the use is of such a character as to materially affect the equally beneficial use of the waters of the stream by the other proprietors. In Vansickle v. Haines the court quoted, with approval, the doctrine announced by SHAW, C.J., in Elliot v. Fitchburg R. Co. 10 Cush. 194:

"That a portion of the water of a stream may be used for the purpose of irrigating land we think is well established as one of the rights of the proprietors of the soil along and through which it passes. Yet a proprietor cannot, under color of that right, or for the actual purpose of irrigating his own land, wholly obstruct or divert the water-course, or take such an unreasonable quantity of water, or make such unreasonable use of it, as to deprive other proprietors of the substantial benefits which they might derive from it, if not diverted or used unreasonably."

Numerous authorities were cited in support of this doctrine. Vansickle v. Haines, 7 Nev. 287; Farrell v. Richards, 30 N. J. Eq. 515.

When it is said that such use must be made of the water as not to affect the material rights of other proprietors, it is not meant that there cannot be any diminution or decrease of the flow of water; for if this should be the rule, then no one could have any valuable use of the water for irrigation, which must necessarily, in order to be beneficial, be so used as to absorb more or less of the water diverted for this purpose. The truth is that under the principles of the common law in relation to riparian rights, if applicable to our circumstances and condition, there must be allowed to all, of that which is common, a reasonable use.

If the judgment had been based upon the findings in relation to riparian rights, it would, therefore, have been at least as favorable to respondent as it now is. The court would not have...

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