Ryan v. Gallio

• Citation: 286 P. 963,52 Nev. 330
• Decision Date: 25 April 1930
• Docket Number: 2853.
• Parties: RYAN v. GALLIO.
• Court: Nevada Supreme Court

286 P. 963

52 Nev. 330

RYAN v. GALLIO.

No. 2853.

Supreme Court of Nevada

April 25, 1930

Appeal from District Court, Pershing County; L. O. Hawkins, Judge.

Action by G. Gallio against Margaret Ryan, in which defendant filed a cross-complaint, and the Nevada Sheba Silver Mining Company, a corporation, was ordered to be made party to the action. Judgment by default was rendered against the defendant Nevada Sheba Silver Mining Company, and, from an order denying her motion for new trial, defendant Margaret Ryan appeals.

Judgment and decree set aside, and case remanded for a new trial.

DUCKER C.J., dissenting.

Thatcher & Woodburn, of Reno, for appellant.

Powell & Brown, of Winnemucca, for respondent.

SANDERS J.

In April, 1924, the plaintiff and respondent, G. Gallio, filed a complaint in the court below against the defendant and appellant, Margaret Ryan. The complaint alleges in substance that plaintiff is the owner, and in the years 1922 and 1923 was the owner and in possession of the following described agricul tural land situate in Pershing county, Nevada:

The north one-half of section 10, in township 30 north, range 35 east; that said lands, without irrigation, will not produce crops of any value; that under date of February 8, 1922 plaintiff received from the state engineer of Nevada a permit based upon his legal application to appropriate waters of Star Canyon creek to be used in irrigating crops upon the premises described; that by said permit plaintiff was granted the right to appropriate and use from the waters of Star Canyon creek, a natural spring and stream in said Pershing county, Nev., .4905 cubic feet of water per second; that plaintiff has in all things complied with the provisions of said permit and has used all waters obtained by him for beneficial purposes and for stock watering and domestic purposes, and that there is no water for irrigation of plaintiff's lands available from sources other than said Star Canyon creek. The complaint alleged that there has never been any adjudication of the rights of plaintiff and the other appropriators of Star Canyon creek, and that the only other appropriator is the defendant; that the defendant is the owner of real estate situate in sections 16 and 28 in township 31 north, range 35 east, and is also an appropriator of the water of Star Canyon creek; that in normal years there is sufficient water in said creek to irrigate all of the cultivated lands of both plaintiff and defendant. The complaint alleged that, in the years of 1922 and 1923, there was available from the flow of said Star Canyon creek sufficient water to irrigate all cultivated lands of plaintiff and defendant, and sufficient water to supply the amounts designated in the plaintiff's certificate of appropriation and the appropriation of the defendant, but that during said years, in the irrigating seasons thereof, the defendant and her agents and servants willfully and with intent to deprive plaintiff of water with which to irrigate the portions of his lands which he had planted to valuable crops at great expense, did divert the waters of Star Canyon creek, which belonged to plaintiff and to the use of which plaintiff was entitled from the plaintiff and from the plaintiff's lands by causing the same to escape from the ditches and flow upon uncultivated sage brush lands in enormous quantities, thereby preventing plaintiff from receiving his legal share of the water of said stream, and thereby preventing plaintiff from irrigating his lands and crops; that, by reason of the wrongful acts of the defendant, plaintiff was not only damaged by the loss of the seed he had sown and the labor of planting said lands but by loss of the valuable crops which would have otherwise accrued to him, the value of which cannot be computed and that the injury inflicted thereby was and is irreparable; that the defendant threatens to continue so to divert from the plaintiff the waters of Star Canyon creek, to which he is entitled, and to deprive plaintiff of water to irrigate his lands, and that, unless restrained by an order of court, the defendant will continue to deprive plaintiff of his share of the waters of said creek and will continue to use and waste the waters to which plaintiff is entitled and that plaintiff will lose his valuable crops and that the crops growing thereon will perish and die, thereby causing plaintiff further irreparable injury; that the lands of the defendant are so situated that it is possible for the defendant to divert the water from plaintiff and to prevent the same from reaching plaintiff's lands; that plaintiff has no plain, speedy or adequate remedy in the ordinary course of law. Wherefore, plaintiff prayed judgment for the sum of $2,000, as damages and that the defendant and her agents and servants be, during the pendency of this action, enjoined from taking the waters of Star Canyon creek to which plaintiff is entitled, or from causing or permitting the same or any part thereof to flow upon uncultivated or sage brush lands, and to require the defendant to cease wasting waters of said creek and to keep her ditches in a good state of repair so that the waters of said creek will not be wasted and allowed to flow upon waste lands during the irrigation season, to the damage of the plaintiff; that upon final hearing, said injunction be made perpetual and that upon the trial the court determine the rights and relative rights of the plaintiff and defendant to the use of the waters of said creek, fixing and establishing by decree the date of priority, quantity, duty, name, and place of use, and such other matters as may be material for a complete determination of the relative rights of the parties to the use of the waters of said creek, and that the defendant be restrained from in anywise interfering with the plaintiff's enjoyment and use of his rights as determined by such adjudication and decree.

The defendant interposed a demurrer to the complaint which was overruled. Thereafter, the defendant filed her answer in which she denied, upon information and belief, the allegations of the complaint with respect to the plaintiff's appropriative right to the use of 0.4905 cubic feet per second of the water of Star Canyon creek, and specifically denied that the plaintiff was legally entitled to the use of any of the waters of said creek. She denied that the only other appropriators of the waters of said creek were the plaintiff and the defendant, and in this connection alleged that the Nevada Sheba Silver Mining Company, a corporation, is an appropriator of waters of said creek, the exact nature and extent of which was unknown. She admitted her ownership of the lands described in the complaint and her appropriation of the waters thereof, and denied that in the years 1922 and 1923 there was available from the flow of said creek sufficient waters to irrigate all the cultivated lands of the parties, and denied that in said years the defendant willfully, and with intent to deprive plaintiff of the waters of said creek with which to irrigate his crops, diverted and wasted the waters thereof which belonged to the plaintiff. She admitted that she did divert the waters of said creek, under and by virtue of her prior appropriation and claim to all the waters of said creek, through her ditches to, in, and upon her lands for the irrigation thereof. For further answer and by way of cross-complaint the defendant alleged in substance that she and her predecessors in interest, since the year 1862, have been, and that the defendant now is, the owner and in possession and entitled to the possession of about 720 acres, more or less, situate, lying and being in sections 10, 16, and 28, in township 31 north, range 35 east, in the county of Pershing, state of Nevada, and that for many years last past and long prior to any right or claim of the plaintiff, the defendant, by and through her predecessors in interest, was, and is now, in possession and entitled to the possession of certain portions of section 15, township 31 north, range 35 east, as the lessee thereof. She alleged that these lands are arid in character and can be made productive only by means of irrigation, and that ever since on or about the year 1862, the defendant and her predecessors in interest have, during the irrigating season of each year, diverted from said Star Canyon creek all of the waters flowing therein, and have conducted the same by means of ditches and canals to, in, and upon parts and portions of her lands described, and that she used the same for the irrigation of about 300 acres thereof. She alleged that said lands had been cultivated by the application of said waters thereon and that there has been grown thereon during said times valuable crops of hay, grain, and other produce; that the defendant is the owner and in possession and entitled to the possession, as an appropriator thereof, of all the waters flowing or to flow in said Star Canyon creek. She alleged that plaintiff claims some right, title, claim, or interest of, in, and to the waters of said Star Canyon creek adverse to the defendant and cross-complainant; that each and every right, claim, and demand of said plaintiff of, in, and to the waters of said Star Canyon creek was and is pretended and fictitious and subordinate to the rights and claims of the defendant and cross-complainant, and that the same constitutes a cloud upon the title of the defendant, of, in, and to the waters of said Star Canyon creek and the right of the defendant to use the same. Wherefore, defendant demanded judgment and decree that plaintiff take nothing by his complaint and that the same be dismissed; that the title of the defendant in and to the waters of said Star Canyon creek be quieted and be confirmed in ...