Roeder v. Stein

• Decision Date: 19 December 1895
• Docket Number: 1,446
• Citation: 42 P. 867,23 Nev. 92
• Parties: ROEDER v. STEIN.
• Court: Nevada Supreme Court

42 P. 867

23 Nev. 92

ROEDER v. STEIN.

No. 1,446

Supreme Court of Nevada

December 19, 1895

Syllabus by Bigelow, C.J.

1. In an action to restrain the wrongful diversion of water, and for damages for past diversion, where the complaint alleges plaintiff's prior appropriation, defendant's diversion, and the amount of damages thereby occasioned, and the answer consists simply of denials and an allegation of appropriation by defendant, a finding that plaintiff's manner of using the water has been wasteful, and that all or a part of his damage has been occasioned thereby, is within the issues.

2. In such a case, where it appears that the plaintiff made the first appropriation, by means of a certain ditch, of enough water to irrigate 125 acres of land, and that, subject thereto, the defendant has made an appropriation, the court has the power to direct that the plaintiff must use the water through that ditch, or by other means that will not waste more than an ordinary ditch.

3. The first appropriator is only entitled to the water to the extent that he has use for it when economically and reasonably used. When he has that he cannot prevent others from making use of the surplus.

4. After others have acquired rights to the use of the water of a stream, the first appropriator for irrigating purposes cannot, to their detriment, change the method by which he conveys it to his land, so as to increase the waste that naturally occurs in such conveyance.

5. Findings of fact and conclusions of law should cover the issues in the case, and be made separate from the opinion of the judge.

6. A verified answer should not deny facts unquestionably true. Parties doing so lay themselves liable to the penalties of the criminal law.

Appeal from district court, Lincoln county; G. F. Talbot, Judge.

Action by John Roeder against Charles Stein. Findings for defendant and from an order refusing a new trial, plaintiff appeals. Affirmed.

George S. Sawyer, for appellant.

T. J Osborne, for respondent.

BIGELOW C.J.

The complaint alleges prior appropriation of the water of a certain stream for irrigation purposes, defendant's diversion of it, and that plaintiff has been damaged thereby in the sum of $500. The answer denies the appropriation or damage, and alleges that defendant has appropriated and is entitled to use enough of the water to irrigate 40 acres of land. The court found that the plaintiff had, through the Ferguson ditch, made the first appropriation to the extent of irrigating 125 acres; that subsequent thereto, and in 1890 the defendant had appropriated enough to irrigate 40 acres that since 1890, and during the time the defendant has been using the water, the plaintiff has allowed a larger amount than that diverted by defendant to run to waste, by running it into a large pond or lake, from which he used it, instead of running it directly through the ditch to his land. As conclusions of law--apparently, for the conclusions of fact, of law, and the court's opinion are all thrown together, so that it is difficult, if not impossible, to separate one from the other--the court found that the plaintiff had the first right to enough of the water to irrigate 125 acres, "said water to be conveyed to the plaintiff's land through the Ferguson ditch, or by other ditches or means that will not waste more than an ordinary ditch." It also found that "plaintiff, having failed to keep his ditch in repair, or to prevent the water from spreading over defendant's meadow and running into the lake, is not entitled to any damages," and that, subject to plaintiff's rights, the defendant is entitled to enough water to irrigate 40 acres. No decree has been entered, and the appeal is from an order refusing the plaintiff a new trial.

The appellant claims that the findings are not within the issues made by the pleadings; but as there has been no oral argument, and in his brief he has not specified the particular finding or findings to which he objects, it is not easy to determine to just what he refers, but probably it is to the finding that he has wasted the water, and to the direction that he must thereafter use it in a particular manner, as there can be no possible question of the pertinency of the other findings. But although there is nothing said in the pleadings upon this matter, it seems to us that the question as to the waste of the water, both past and future, was clearly in the case. In the first place, the complaint alleges $500 damages, and the plaintiff testified to more than that amount of loss to his crops caused by the want of water. But if he had permitted a portion of the water that did come to him to run to waste, he could not hold defendant responsible for the damage thereby occasioned. The defendant is only responsible for the damage occasioned by his own acts. The defendant denied that his acts had caused the plaintiff any damage whatever, and in support of that denial it was proper for him to show, if he could, that a portion or all of the plaintiff's loss was the result of his own uneconomical use of the water, and consequently it was proper for the court to find whether such was the case. The learned trial judge seems to have been of the opinion that, if the plaintiff wasted as much...