Reno Smelting, Milling & Reduction Works v. Stevenson

• Decision Date: 09 April 1889
• Docket Number: 1,289.
• Citation: 21 P. 317,20 Nev. 269
• Parties: RENO SMELTING, MILLING & REDUCTION WORKS v. STEVENSON et al.
• Court: Nevada Supreme Court

21 P. 317

20 Nev. 269

RENO SMELTING, MILLING & REDUCTION WORKS v. STEVENSON et al.

No. 1,289.

Supreme Court of Nevada

April 9, 1889

Appeal from district court, Washoe county; R. R. BIGELOW, Judge.

Action by the Reno Smelting, Milling & Reduction Works against Stevenson and others, to restrain the diversion of water. From a judgment for plaintiff, defendants appeal.

The Attorney General, R. H. Lindsay, and T. H. Wells, for appellants.

R. S Mesick, for respondent.

BELKNAP J.

This action is brought for the purpose of determining rights to the use of water upon the following facts: The plaintiff is a corporation engaged in the reduction of ores. It is the owner in fee of 10 acres of land on the Truckee river, upon which its reduction works are situated. Long prior to the commission of the grievances alleged in the complaint it built a dam in the river at a point above its own land, but with the consent of those whose lands were affected thereby. The water is used to furnish power to operate machinery at the works, and is conveyed from the dam by means of a ditch and flume. The height of the dam is such that the waters of the river flow over it about 10 inches above its crest, and unless the water is maintained at this height, sufficient cannot be diverted to fill the ditch and flume. The state of Nevada is the owner in fee of the land next below that of the plaintiff on the river. The insane asylum of the state is situated thereon, and the defendants, by virtue of their offices of governor, comptroller, and treasurer of the state respectively, are commissioners for the care of the insane, and, as such, control the affairs of the asylum. In their capacity as commissioners they have caused the pond of water made by the dam of the plaintiff to be tapped by a flume, and thereby carried a portion of the waters to the asylum grounds for motive power. The district court enjoined this diversion of the waters. Plaintiff upon this appeal neither claims nor disclaims a right by virtue of a prior appropriation, but urges an affirmance of the judgment upon the sole ground that it is a riparian proprietor. and, as such, is entitled to the natural flow of the water through its land.

The rights of riparian proprietors are thus stated by Chancellor Kent: "Every proprietor of lands on the banks of a river has naturally an equal right to the use of the water which flows in the stream adjacent to his lands as it was wont to run, (currere solebat,) without diminution or alteration. No proprietor has a right to use the water, to the prejudice of other proprietors above or below him, unless he has a prior right to divert it, or a title to some exclusive enjoyment. He has no property in the water itself, but a simple usufruct while it passes along. Aqua currit et debet currere ut currere solebat, is the language of the law. Though he may use the water while it runs over his land as an incident to the land, he cannot unreasonably detain it, or give it another direction, and he must return it to its ordinary channel when it leaves his estate. Without the consent of the adjoining proprietors, he cannot divert or diminish the quantity of water which would otherwise descend to the proprietors below, nor throw the water back upon the proprietor above, without a grant, or an uninterrupted enjoyment of twenty years, which is evidence of it." 3 Kent, Comm. 439. "It is wholly immaterial," says Judge STORY in Tyler v. Wilkinson, 4 Mason, 400, "whether the party be a proprietor above or below, in the course of the river. The right being common to all the proprietors on the river, no one has a right to diminish the quantity which will, according to the natural current flow to a proprietor below, or to throw it back upon a proprietor above. This is the necessary result of the perfect equality of right among all the proprietors of that which is common to all." But the rule of the common law has never been applied by the courts of this state, except as hereinafter mentioned. The condition of settlers upon the public lands of the state necessitated a diversion of running waters from their natural channels for agricultural purposes, and our courts have, with the exception stated, protected the first appropriator to the extent of his appropriation to any beneficial use, and no obligation has been imposed upon him to return the water to its natural channel. The history of this subject is clearly stated by Mr. Justice FIELD in Atchison v. Peterson, 20 Wall. 510, as follows: "By the custom which has obtained among miners in the Pacific states and territories, where mining for the precious metals is had on the public lands of the United States, the first appropriator of mines, whether in places, veins, or lodes, or of waters in the streams on such lands for mining purposes, is held to have a better right than others to work the mines or use the waters. The first appropriator who subjects the property to use, or takes the necessary steps for that purposes, is regarded, except as against the government, as the source of title in all controversies relating to the property. As respects the use of water for mining purposes, the doctrines of the common law, declaratory of the rights of riparian owners, were, at an early day, after the discovery of gold, found to be inapplicable, or applicable only in in a very limited extent, to the necessities of miners, and inadequate to their protection." Referring to the rule as above stated, and which accords to the different riparian proprietors an equal right to the use of the waters of the stream, the opinion proceeds: "This equality of right among all the proprietors on the same stream would have been incompatible with any extended diversion of the water by one proprietor, and its conveyance for mining purposes to points from which it could not be restored to the stream. But the government being the sole proprietor of all the public lands, whether bordering on streams or otherwise, there was no occasion for the application of the common-law doctrine of riparian proprietorship with respect to the waters of those streams. The government, by its silent acquiescence, assented to the general occupation of the public lands formining, and, to encourage their free and unlimited use for that purpose, reserved such lands as were mineral from sale, and the acquisition of title by settlement. And he who first connects his own labor with property thus situated and open to general exploration does, in natural justice, acquire a better right to its use and enjoyment than others who have not given such labor. So the miners on the public lands throughout the Pacific states and territories by their customs, usages, and regulations everywhere recognized the inherent justice of this principle, and the principle itself was at an early period recognized by legislation, and enforced by the courts in those states and territories." And in Basey v. Gallagher, Id. 670, after referring to the views above quoted, the court say: "The views there expressed and the rulings made, are equally applicable to the use of water on the public lands for purposes of irrigation. No distinction is made in those states and territories by the custom of miners or settlers, or by the courts, in the rights of the first appropriator from the use made of the water, if the use be a beneficial one." In the case of Vansickle v. Haines, 7 Nev. 249, it was held that the patentee of the government succeeded to all of its rights, and among these was the right to have the water of a stream theretofore diverted returned to its natural channel. In that case the patent of the government had been issued prior to the passage of the act of congress of July 26, 1866. The court considered the statute prospective in its nature, and that it did not apply to that patent. Subsequently, in the case of Broder v. Water Co., 101 U.S. 274, the supreme court of the United States declared that the statute was rather a voluntary recognition of a pre-existing right of possession, constituting a valid claim to its continued use, than the establishment of a new one; and, following this view, the construction given to the statute in Vansickle v. Haines was overruled in Jones v. Adams, 19 Nev. 78, 6 P. 442. Again, in Vansickle v. Haines, the court considered that the language of the statute adopting the common law precluded a consideration of the question of its applicability. The statute is as follows: "The common law of England, so far as it is not repugnant to or in conflict with the constitution and laws of the United States, or the constitution and laws of this state, shall be the rule of decision in all the courts of this state." Gen. St. 3021. This was substantially the statute when Vansickle v. Haines was decided. The statute is silent upon the subject of the applicability of the common law, but we think the term "common law of England" was employed in the sense in which it is generally understood in this country, and that the intention of the legislature was to adopt only so much of it as was applicable to our condition. An examination of the authorities will render this apparent.

In Court. Comm. § 16, the author says: " *** It is to be observed that the common law of England was adopted by the founders of the American colonies to a limited extent only. The emigrants from England brought with them the general principles of the common law of that country, and adopted and put them in practice so far as they were applicable to their situation; and, as the people of each colony acted independently of the rest in this respect, it has resulted that the common law of each of the states differs in some particulars from that of the others, and that in none of them is it wholly identical with the common law of...