Smith v. Logan

• Decision Date: 14 November 1883
• Citation: 1 P. 678,18 Nev. 149
• Parties: GEORGE SMITH v. MICHAEL LOGAN and Others.
• Court: Nevada Supreme Court

1 P. 678

18 Nev. 149

GEORGE SMITH v. MICHAEL LOGAN and Others.

Supreme Court of Nevada

November 14, 1883

Where a party has a contract for the purchase of land adjoining a river upon conditions not yet fulfilled by him, he has not acquired the fee, and the doctrine of riparian rights cannot be invoked in his favor.

The issue of ownership raised by the pleadings is met by the plaintiff showing legal title in himself, and the objection that the plaintiff is not the real party in interest, by reason of an understanding that he will reconvey the lands to his grantors at the end of this suit, cannot be entertained.

A party may acquire a prescriptive right to the waters of a stream by adverse user, and an acquiesence in such user may cause the grantee of adjoining lands to lose the right of appropriation previously acquired by his grantors.

A. C Ellis, for appellant.

Clarke & King, for respondents.

BELKNAP J.

This suit is brought for the purpose of determining the relative rights of the parties hereto the waters of Steamboat creek. Their rights, whatever they may be, are based upon appropriations made by themselves and their predecessors in interest. No claim of riparian proprietorship is made, save as to the 20 acres of land owned in fee by the Central Pacific Railroad Company, and which the company have contracted to sell defendant Logan. The contract is unexecuted, and the conveyance depends upon the performance by Logan of the obligations imposed upon him. Since he has not acquired the fee it is evident that the doctrine of riparian proprietorship cannot be invoked in his behalf.

The joint answer of the defendants sets forth that a corporation known as the Eldorado Wood & Flume Company, is a necessary party defendant to the action, by reason of the fact that it was and theretofore had been, under claim of right, diverting permanently away from the natural channel all of the waters of the creek. The corporation was made a party defendant, and answered the joint answer. At the trial of the cause, and after the introduction of testimony touching the issues raised by the pleadings of the defendants and the corporation, the court dismissed it as a party defendant.

It was shown that the flume company diverted a portion of the waters of the stream at a point several miles above the lands owned by plaintiff or defendants. The lands of defendants are situated below the point of diversion and above the lands of the plaintiff. The waters diverted by the flume company were returned to the channel of the creek at a point below the lands of the defendants and above those of the plaintiff. Testimony was introduced in behalf of the plaintiff and the flume company tending to show that "the water was not diminished by the flume company's diversion and use, and that as much water was returned to the plaintiff's land by the flume company as would have reached said land if none were diverted by the flume company." Defendants introduced testimony in contradiction of this. There is no express finding upon this issue, but as the judgment was for the plaintiff, it is our duty to adopt the theory of facts which will support the ruling of the district court, and we must, therefore, assume that no water was lost to the plaintiff by the flume company's diversion. If this be so, why should the flume company have been a party to the litigation? This suit was brought upon the hypothesis that defendants had interrupted plaintiff's enjoyment of the waters of the creek. The object in making the flume company a party to the suit was to show that the grievances complained of were produced by its instead of defendant's, diversion of the waters. But, as the diversion by the flume company did not diminish the volume of water at plaintiff's land, his failure to receive water could not have been attributable to its acts. It was not, therefore, a necessary party to the suit.

Defendants conceded upon the trial that plaintiff was the owner, in his own right, of a portion of the land described in the complaint. Other tracts of land were conveyed to him immediately prior to the commencement of this suit by grantors claiming to have acquired rights, by appropriation to the waters of the creek, in connection with their ownership of the land. There was an oral agreement between grantors and grantee that upon the termination of the litigation the lands should be reconveyed to the grantors respectively. Upon these facts appellant contends that plaintiff, as to the lands so conveyed, and the water rights appurtenant thereto, is not the real party in interest. The objection is founded upon the provision of the civil practice act, (section 1067, Comp. Laws,) which requires that "every action shall be prosecuted in the name of the real party in interest. ***" If the transactions between the plaintiff and his grantors created any trust, it was an express trust, and the...