Simpson v. Williams

• Decision Date: 28 November 1884
• Parties: SIMPSON v. WILLIAMS.
• Court: Nevada Supreme Court

4 P. 1213

18 Nev. 432

SIMPSON v. WILLIAMS.

Supreme Court of Nevada

November 28, 1884

Appeal from the Fifth judicial district court, Nye county.

D. S Truman, for appellant.

Curler & Bowler, for respondent.

BELKNAP J.

This is an action to determine conflicting rights to the waters of Duckwater creek. The district court rendered a decree in favor of defendant, predicated upon the fact that his appropriation of the water was prior in time to that of the plaintiff. It is contended that this conclusion is unsupported by the evidence. It was shown at the trial that during the year 1866 J. D. Page had made claim to the land occupied by defendant, Williams, and diverted several hundred inches of the waters of the creek. Page made no use of the water, and his diversion of it appears to have been for a speculative purpose. But this is immaterial, under the facts of the case, because in the following year he sold his rights to Withington, and he, as early as the spring of 1868 commenced using the waters for the purpose of irrigation. The first appropriation of the waters by the predecessors in interest of the plaintiff was made in the fall of 1868. There is no conflict in the testimony upon these facts, and the court correctly determined the question of priority of appropriation in favor of defendant. The district court awarded defendant the prior right to use 200 inches of water. It is claimed that this allowance is unsupported by the evidence.

The witnesses for the defendant generally testified that since the year 1870 about 100 acres of the lands occupied by the defendant had been cultivated for grain and vegetables, and about 50 acres had been kept as meadow land. They estimated the volume of water used for the purpose of irrigation at from 130 inches to 150 inches.

Those who testified upon the point gave as their opinion that lands cultivated for grain or vegetables required an inch of water per acre, and that hay or grass lands required about half that amount. One witness, however, A. M. Self, testified that "100 acres of grass land requires 100 inches of water." And it was shown that during the years 1874 and 1875, 200 acres of the land--100 of which was cultivated and the remainder meadow--was irrigated. This was the maximum acreage irrigated. The amount of water to which defendant is entitled is limited to the amount actually applied to the purposes of irrigation. In determining this amount the...