Rodgers v. Pitt

• Decision Date: 04 April 1904
• Docket Number: 658.
• Citation: 129 F. 932
• Parties: RODGERS v. PITT et al.
• Court: U.S. District Court — District of Nevada

129 F. 932

RODGERS v. PITT et al.

No. 658.

United States Circuit Court, D. Nevada.

April 4, 1904

Since the submission of this cause the original complainant, Arthur Rodgers, died, and the suit has been revived in favor of the executrix of his will, but the references will be made to the original parties to the suit.

There is no case made out against the defendant the Lovelock Mill Company, and it should be dismissed from the case.

The lands of the defendants are situated in the upper part of Lovelock Valley; the lands of complainant, Rodgers, and of Thies and Carpenter, are situated in the lower part of the valley.

There is a long history connected with the rights of the predecessors in interest of the complainant to the land and water obtained by them prior to the time when defendants acquired their rights to the waters of the Humboldt river. Hundreds of pages of typewritten testimony give the facts in relation thereto. It would serve no useful purpose to enter into any minute detail of the facts as shown by the undisputed testimony. Suffice it to say, that in 1875 P. N. Marker commenced purchasing land in Lovelock Valley. At this time there were several irrigating ditches in use on other lands owned by other parties. These lands and the water rights appurtenant thereto were acquired by the Markers, and all the lands described in the complainant's bill in this case were owned by them before the fall of 1888. In addition to the various ditches above mentioned, two new appropriations of water were made in 1875, viz., The Farmers' ditch and the Markers' ditch, claiming 15,000 inches of the water flowing in the Humboldt river, and the work on these ditches was prosecuted with reasonable diligence. When the Markers first acquired their rights to the land, most of the land was covered here and there with sloughs, with the natural water flowing in the Humboldt river. At the time the Markers went upon the land no grain or alfalfa was raised in Lovelock Valley. The irrigation was principally used upon wild land for pasturage and for hay that the natural grasses could be made to produce. There was no scarcity of water for irrigation on the Markers' lands prior to the time of defendants' appropriation of the surplus waters. The flume in the Marker ditch, upon which much testimony was given on both sides, would at that time carry all the water that the Marker ditch could bring to it, and the ditches below the flume were of sufficient size and capacity to carry all the water which the Marker ditch above the flume diverted from the river.

There is more or less conflict in the testimony of the witnesses and a decided controversy in the briefs of the respective counsel, as to the capacity of the Marker ditch and flume. L H. Taylor, a civil engineer, introduced by the defendants testified that the carrying capacity of the ditch in 1898 was a little less than 7,000 miner's inches, and that the capacity of the flume was established by him at that time to be 11,500 inches, and that the flume actually showed a high-water mark of 7,175 inches. In 1901 he estimated the capacity of the ditch, before the banks were raised, to be 5,310 inches. Thurtell, the expert on behalf of complainant, testified that 9,000 inches would be a conservative estimate of the capacity of the ditch, and that the capacity of the flume when filled to a depth of three feet, with a free discharge, is about 12,000 inches. In making their measurements Taylor and Thurtell used the same coefficient of friction, and each took into consideration, in his estimates of the capacity of the ditch, 'the willows growing along the ditch. ' The measurements of these experts were not based on the conditions existing at the time of trial. Thurtell, upon his cross-examination, said: 'The carrying capacity of that ditch is based, not upon the carrying capacity of the ditch at present, but as it was within its old banks before the levee was thrown up. * * * My estimate was based on what the ditch would carry before it was leveed up.'

There was as much land irrigated on the complainant's lands prior to 1888 as has been irrigated since, but not as much land cultivated for crops of grain and alfalfa; more land being used and cultivated in the earlier years for pasture and grass, and less for crops, than in the later years. At the time this suit was brought, in 1898, the amount of land cultivated in grain and alfalfa on complainant's land was 2,127 acres, on the Carpenter land 976 acres, and on the Thies land 544 acres, making a total of 3,647 acres.

In 1896 over 1,200 acres were cultivated in grain and alfalfa upon complainant's land, and 800 acres additional were plowed, but not sown on account of lack of water. In 1897 about 1,600 acres were in grain and alfalfa, in addition to 250 acres of plowed ground. In 1898, the year in which the present suit was commenced, there were 2,100 acres in cultivation, and there were also 1,250 acres of plowed land, part of which was sown, but on which no crops were produced, again because of the want of water.

Thies, Carpenter, and Rodgers own separate tracts of land in Lovelock Valley. Long prior to 1883 the owners of these separate tracts of land had acquired separate rights in various ditches and sloughs, for the purpose of conveying water to irrigate such portions of their lands as could be cultivated, etc. In 1833 they united together for the purpose of obtaining the water necessary to irrigate their respective lands from a common source. To this end they constructed the Marker dam, flume, and ditch, and by means thereof diverted the waters of the Humboldt river to and upon their lands for irrigating purposes. The interests of the owners of these respective tracts of land in the ditch and water flowing therein were, by agreement of the parties, divided as follows: Thies is entitled to 3/24, Carpenter to 7/24, and Rodgers to 14/24. Rodgers brought this suit to enjoin defendants, who are subsequent appropriators of the water from the river, from diverting any of the water which Rodgers, Thies, and Carpenter are entitled to have flow through the Marker ditch for the purpose of irrigating their respective lands.

Complainant is the owner of the lands described in his bill, and of all the water rights of the Markers connected with said lands. About 10,000 acres of said land is so situated that it is capable of being irrigated by the water flowing through the Marker ditch. According to the testimony offered by defendants, more than 4,000 acres of the complainant's land which were covered by sloughs, tules, and swamps in 1875 had ceased to be such in 1888, when the defendants commenced work to divert the waters of the river. There was a small portion of the land that was overflowed during a period of unusual high water in the year 1890. There is a great diversity of opinion in the testimony as to the actual number of acres that were irrigated prior to 1888. P. N. Marker placed it at 4,000 acres, other much less, and some of the defendants' witnesses placed it at about 1,000 acres. Carpenter irrigated about 1,200 acres, and Thies about 700 acres.

In the fall of 1888 the defendants Pitt and Hauskins commenced work under their appropriation of water, to be conveyed under the Old Channel ditch, for the purpose of irrigating their lands, and completed the same in 1889. They then had between two and three thousand acres of land. In 1898 there was a freshet which washed away their dam. It was rebuilt, and in 1891 and 1892 about 1,200 acres lying under the ditch were put in crops. Thereafter the acreage of land irrigated was gradually increased. The largest increase was made in 1893 and 1895, and the defendants have now under irrigation about 4,000 acres of land.

In 1892 the Markers and Thies commenced an action in the state court against Pitt, Hauskins, and Downs to restrain the defendants therein from diverting 404 cubic feet per second of the waters of the river.

The various contentions of counsel for defendants, as states in the brief, are as follows:

'Under the testimony, and the law of appropriation, we shall, under various headings, contend:

'(1) That Rodgers, Carpenter, and Thies are not, and never were, tenants in common of the water flowing through the Marker ditch, and that, even if they were, a co-tenant can only sue to protect his own interest in the water.

'(2) The holding of the court that they were tenants in common was not intended to preclude further investigation and final determination. The principle of res judicata does not apply. The whole of the subject matter is sub judice.

'(3) For the same reason it is immaterial that the court adopted the system of irrigation in use in Lovelock Valley for the purposes of the hearing upon the temporary restraining order. The right to water is usufructuary and not proprietary, and is subject to the control and regulation of the court.

'(4) That the maximum capacity of the Marker ditch, determined at the point of its least carrying capacity, was never greater than 5,310 inches, until enlarged somewhat in 1901. The discharge capacity of the flume is reduced to about 5,000 inches by obstructions below.

'(5) That what is now the Marker ditch was the main channel of the river in 1875. It was a succession of sloughs, connected in order to drain the small 'Farmers" ditch. The great necessity then was to drain and keep the water away from the land. When Pitt and Hauskins appropriated, the Marker ranch had only a thousand acres under cultivation. The remainder was: 6,000 acres of swamp, tule, and cane; 3,000 acres of sagebrush, greasewood, etc.; and about 2,000 acres of barren land above the ditch.

'(6) To establish an appropriation of water, the proof must show: (1) All intent

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