Steptoe Live Stock Co. v. Gulley
| Decision Date | 04 February 1931 |
| Docket Number | 2895. |
| Citation | 295 P. 772,53 Nev. 163 |
| Parties | STEPTOE LIVE STOCK CO. v. GULLEY et al. |
| Court | Nevada Supreme Court |
Appeal from District Court, Elko County; E. P. Carville, Judge.
Suit by the Steptoe Live Stock Company, a corporation, against Robert F. Gulley and others. From an order denying a motion to dissolve an injunction pendente lite, defendants appeal.
Affirmed.
Morley Griswold, Milton J. Reinhart, and H. U. Castle, all of Elko for appellants..
Milton B. Badt and James Dysart, both of Elko, for respondent.
Brown & Belford, of Reno, and Chandler & Quayle and V. H. Vargas, all of Ely, amici curiæ.
This is an appeal from an order denying a motion to dissolve an injunction pendente lite.
The complaint, after alleging the corporate existence of the plaintiff, avers that for more than forty years last past it and its predecessors have been and now are the owners of the waters of Canyon creek, Stag Spring creek and Cottonwood creek, and of the forks and branches thereof, situated in Elko county, both for irrigation purposes and for the watering of live stock; that all of the waters of said creeks are necessary and for over forty years have been necessary for the watering of the live stock of plaintiff and its predecessors; that for more than forty years the plaintiff and its predecessors, by means of dams, ditches, and canals have diverted and used all of the waters of said creeks and water courses for the irrigation of their lands, and that the live stock so watered comprise more than 500 head of live stock; that plaintiff is now watering their live stock upon said water courses in sufficient number to utilize substantially all that portion of the public range accessible to live stock watering upon said streams; that in May, 1929 the defendants, in disregard of the rights of the plaintiff, and without its consent, watered approximately 2,000 head of sheep upon said creeks, upon the public domain, without the consent and against the wishes of the plaintiff, so as to deprive plaintiff of the grazing uses of said public domain, and substantially interfered with and impaired the value of such grazing use and of such water right; that defendants threaten to continue to commit and perform the acts complained of unless restrained. Upon the filing of the complaint the court entered a show cause order and an injunction pending a hearing thereupon.
In due time the defendants appeared and moved a dissolution of the temporary injunction. Upon the hearing testimony was taken, after which the order denying the motion was entered.
Incident to making the order granting an injunction pendente lite the court made specific findings of facts. It found, inter alia, that for more than forty years last past the plaintiff and its predecessors in interest have had and now have a subsisting right to water in excess of 500 head of live stock at and upon the water courses in question, and have watered their live stock in sufficient numbers to utilize substantially all that portion of the public range available to live stock watering at such places; that said watering places on said water courses are natural watering places formed by natural depressions and by the making of cattle trails into such particular watering places on said water courses; that said watering places on said water courses could not have been and could not be improved by the construction of dams, ditches, pipe lines, troughs, or other artificial means; that the use of said waters and range by such live stock of the plaintiff and its predecessors during said period was exclusive, except as to other live stock that would drift or stray in, and that said right on the part of the plaintiff to water their said live stock in sufficient numbers to utilize substantially all that portion of the public range readily available to live stock watering at said places was recognized by other owners of live stock whose stock drifted or strayed to such places.
The evidence taken upon the hearing of the motion to dissolve the temporary injunction failed to show that any dam, ditch, reservoir, or other artificial means was used by the plaintiff, or its predecessors in interest, by way of appropriation of the waters in question for the watering of stock.
Counsel for appellant state in their opening brief:
In support of this statement, which considerably narrows our labors, counsel assert that the case of Walsh v. Wallace, 26 Nev. 299, 67 P. 914, 99 Am. St. Rep. 692, is decisive of the point. During the oral argument one of the members of the court intimated that it was his opinion that no point was suggested in that case which throws any light upon the question before us. Counsel for appellant thereupon suggested that the point was urged in the petition for a rehearing. We have read the petition for rehearing in that case and find nothing in it justifying counsel's conclusion; however, if it were thus raised, we have consistently held in a long line of decisions that a point made for the first time on petition for a rehearing would not be considered. At any rate the point was not decided in the case.
Nevada is the sixth state in area in the Union, and, though some of our eastern sister states count their population by the millions, as does our sister state to the west, we have a mere handful, less than 100,000 inhabitants, notwithstanding the fact that our mines have produced fabulous wealth, and from time to time have been the Mecca of soldiers of fortune of the civilized world.
That such an immense territory supports only a mere handful of people would seem unbelievable to a stranger did he not know that this state, so far as rainfall is concerned, is arid instead of semiarid, as is sometimes said of it. When this condition is appreciated and that one may, in sections, travel for hours without seeing a stream of water, it can readily be understood why our population is so small. And when, in addition, it is known that the live stock industry is our second, if not first, most stable industry, it can be fully appreciated why the little water which we have is almost as priceless as rubies. In this situation it was but natural that the people, from the very earliest territorial period, should put the available water to some beneficial use. This they did for many years without statutory or constitutional direction as to the manner of so doing, and, though statutes were finally adopted specifying the manner whereby water might be appropriated, it was subsequent to the date of the alleged appropriation relied upon by the plaintiff, and...
To continue reading
Request your trial
-
United States v. Alpine Land & Reservoir Co.
...to a beneficial use had been recognized by the Nevada Supreme Court long prior to the 1969 statutory amendment (Steptoe Live Stock Co. v. Gulley, 53 Nev. 163, 295 P. 772 (1931)) we have no difficulty in recognizing recreation and fishing as beneficial uses of The Court takes judicial notice......
-
IN RE ADJUD. OF EXIST. RIGHTS TO USE WATER
...then "the drinking by cattle constitutes a diversion, [and] the necessary intent must be that of the cattle." Steptoe Live Stock Co. v. Gulley (1931), 53 Nev. 163, 295 P. 772, 775. ¶ 27 The non-recognition of instream uses prior to 1973 would likewise have been a shock to Montana's early lo......
-
R.T. Nahas Co. v. Hulet
...Colo. 533, 349 P.2d 370 (1960); Adams v. Portage Irrigation, etc. Co., 95 Utah 1, 72 P.2d 648, 655 (1937); and Steptoe Livestock Co. v. Gulley, 53 Nev. 163, 295 P. 772 (1931). In Genoa, Adams and Steptoe Livestock, appropriations of water to water livestock without a diversion were recogniz......
-
State v. US
...appropriation doctrine states. See, e.g., Town of Genoa v. Westfall, 141 Colo. 533, 349 P.2d 370, 378 (1960); Steptoe Live Stock Co. v. Gulley, 53 Nev. 163, 295 P. 772, 775 (1931). But cf. Adams v. Portage Irrigation, Reservoir & Power Co., 72 P.2d 648, 653-54 (Utah 1937) (holding that shee......