Prosole v. Steamboat Canal Co.
| Decision Date | 04 May 1914 |
| Docket Number | 2104. |
| Citation | 140 P. 720,37 Nev. 154 |
| Parties | PROSOLE ET AL. v. STEAMBOAT CANAL CO. |
| Court | Nevada Supreme Court |
Appeal from District Court, Washoe County; Cole L. Harwood, Judge.
Action by Palmira Prosole and another against the Steamboat Canal Company. From a judgment for plaintiffs, defendant appeals. Affirmed.
Summerfield & Richards, of Reno, for appellant.
Mack Green & Heer, of Reno, for respondents.
The appellant company, being the owner of the Steamboat Canal has for many years been engaged in the business of diverting water from the Truckee river and delivering the same to and upon the lands under that canal for a valuable consideration. It is admitted that for many years last past and until the year 1909 the defendant by means of its canal conveyed to and upon the lands of the respondents, and delivered to respondents, 50 inches of water for a valuable consideration to wit, the sum of $6 per annum for each inch of water so conveyed and delivered. It is admitted that in the year 1910 the appellant company refused to deliver to the respondents the usual 50 inches of water, notwithstanding the fact that respondents offered to pay the customary charge for said water. The appellant company in that year delivered to the respondents a much smaller quantity of water and one which was alleged and found by the lower court to be insufficient for irrigation of the lands of the respondents. The case was commenced in the lower court and judgment in that court rendered upon the theory that an annual purchaser of water at a stipulated price, from a corporation engaged solely in the business of diverting water from a natural stream and conveying the same through its own canal and at its own cost, to purchasers thereof, the latter, taking the same from the canal where it is discharged, acquires a prior right to purchase and compel the delivery of such water as he has been accustomed to receive, as against any other purchaser of water flowing in such canal whose initial purchase thereof commenced at a later date than did that of such claimant. The trial court held this to be true as a principle of law and issued an injunction against the appellant company in favor of respondents restraining the appellant from failing to permit 50 inches of water to flow through and from the Steamboat Canal upon the lands of plaintiffs so long as there shall be diverted from the Truckee river and flowing in such canal sufficient water to supply the plaintiffs the said 50 inches of water, and also to supply those who are older in point of time than the plaintiffs as consumers of water from said canal the amount they customarily received therefrom, and also from diverting or permitting the diversion of other waters from said canal so that the said 50 inches of water shall not flow to and upon the lands of plaintiffs so long as plaintiffs will comply with a reasonable regulation of the defendant with regard to said Steamboat Canal and shall pay the defendant any reasonable charge made by it for the transmission and delivery of said 50 inches of water. The appeal in this case is from the judgment only, on the judgment roll alone, and incidentally the question as to whether or not the complaint states facts sufficient to constitute a cause of action is raised.
In reviewing this case we are confronted with somewhat different conditions from those under which and in the light of which other courts have in recent years passed upon this all-important subject. There is nothing in the Constitution of Nevada applicable to this subject from which we may derive any light whatever. In the year 1907 (Laws 1907, c. 18) our Legislature passed an act to provide for the appropriation and distribution and use of the water by which it is declared that all natural water courses and natural lakes and the waters thereof, which are not held in private ownership, belong to the state and are subject to appropriation for beneficial uses. Section 2 of the act is as follows: "All existing rights to the use of water, whether acquired by appropriation, or otherwise, shall be respected and preserved, and nothing in this act shall be construed as enlarging, abridging or restricting such rights." Section 3 prescribes: Revised Laws of Nevada, §§ 4673, 4674.
The Legislature of Nevada in the year 1913 passed an act to provide a water law for the state of Nevada, and section 4 of this act provides: "All water used in this state for beneficial purposes shall remain appurtenant to the place of use; provided, that if for any reason it should at any time become impracticable to beneficially or economically use water at the place to which it is appurtenant, said right may be severed from such place of use and simultaneously transferred and become appurtenant to other place or places of use, in the manner provided in this act, and not otherwise, without losing priority of right heretofore established; and provided, that the provisions of this section shall not apply in cases of ditch or canal companies which have appropriated water for diversion and transmission to the lands of private persons at an annual charge." Statutes of Nevada 1913, p. 192.
It is our judgment that whatever rights were acquired by respondents in this case, they were not affected by the act of 1913, inasmuch as it is admitted that the respondents received from appellant the amount of water claimed and applied the same to beneficial use at all times between the years 1890 and 1909, or thereabouts. Hence, if the respondents had acquired any rights by the application of this water to a beneficial use, the acquisition of that right was prior to the year 1913, and we are not inclined to view the latter act as being retrospective in so far as cases of this character are concerned. Moreover, in our judgment, it is unnecessary to either construe the act of 1913 as applicable to the facts in this case, or to apply that act to the facts here presented.
In determining the case at hand no principal proposition is to be determined, i. e., under the facts as presented here, what constitutes appropriation of public waters, and who is the actual appropriator as between the ditch company, by and through whose canal and instrumentalities the public waters are in the first instance diverted, and the owner and reclaimer of lands upon which and over which the waters thus diverted from the public stream are conveyed?
A secondary proposition presents itself, and which in a sense is concurrent in importance to the first or major proposition, i. e., does a perpetual right to the use of water from an irrigating canal, acquired or reserved under contract either expressed or implied, constitute a right in the nature of an easement in the canal which the owner of the canal has no power to cut off so long as the party in whose favor the easement has accrued meets the reasonable demands of the canal owner in the way of charges or recompense for services in the delivery of the water by and through the means of his canal?
This court formerly decided, and the several legislative acts have declared, that there is no absolute property in the waters of any natural water course or natural lake in the state. A canal company, which owns and operates an artificial waterway and diverts water from a natural stream solely for the purpose of gain through the sale and distribution of that water to others who, after receiving the water, actually apply it to the soil for the reclamation and irrigation thereof, can acquire no right to such waters, excepting the right to dispose of its use, and for this latter right they are entitled to reasonable monetary benefit. When water is once disposed of by the original diverting agent--the canal company--to one who, being the owner of irrigable lands applies the same to those lands, the power of control of the agent ceases, because his only power of control at all was based upon the obligation imposed upon him by law to dispose of the water to those who would actually apply it to the land. The right of a company of this character to divert public waters carries with it a corresponding duty, i. e., to dispose of its use for beneficial purposes. The one cannot exist without the performance of the other. In other words, there is no right created by the mere diversion of water from a public water course. This act of itself carries with it no right; but, when the act of diversion is coupled with the act of application to beneficial purpose, the...
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Prosole v. Steamboat Canal Co.
...ET AL. v. STEAMBOAT CANAL CO. No. 2104.Supreme Court of NevadaDecember 12, 1914 On petition for rehearing. Denied. For former opinion, see 140 P. 720. J. Since we rendered the decision in this case, the Supreme Court of the United States has rendered the decision in the case of San Joaquin ......