Walsh v. Wallace

• Decision Date: 25 February 1902
• Citation: 67 P. 914,26 Nev. 299
• Parties: WALSH et al. v. WALLACE et al.
• Court: Nevada Supreme Court

67 P. 914

26 Nev. 299

WALSH et al. v. WALLACE et al.

Supreme Court of Nevada

February 25, 1902

Appeal from district court, Lander county; A. L. Fitzgerald and W D. Jones, Judges.

Suit by Patrick Walsh and others against D. T. Wallace and others. Decree for plaintiffs. Defendants appeal. Reversed.

P. M Bowler, Jr., and Bigelow & Dorsey for appellants.

Henry Mayenbaum and James B. Egan, for respondents.

MASSEY C.J.

The preliminary motion to strike out the statement, interposed by respondents in the district court and renewed in this court involves the construction of a stipulation between the parties entered into on the day the findings were filed and the judgment rendered. The stipulation, inter alia, provides that all proceedings in the action shall be stayed until the 30th day of November, 1900, and that within 40 days thereafter the appellants may make application for additional findings, file and serve notice of intention to move for a new trial, and file and serve the statement on motion for a new trial. The notice of intention was filed and served on the 26th day of October, 1900, and the proposed statement on motion for a new trial was filed and served on the 5th day of January, 1901. It is claimed by the respondents that, while under the stipulation, the notice of intention may be filed at any time before the expiration of the 40 days, the relative time for filing the statement on motion for a new trial provided by the civil practice act (Comp. Laws, § 3292), after the filing of the notice of intention, was not changed by the stipulation, and therefore, the statement not having been filed within 5 days after filing and serving the notice of intention, it should be disregarded and stricken out. It is a general rule that stipulations between parties should receive a fair and liberal construction, in harmony with the apparent intention of the parties and the spirit of justice, and in the furtherance of fair trials upon the merits, rather than a narrow and technical one, calculated to defeat the purposes of their execution, and, in all cases of doubt, that construction should be adopted which is favorable to the party in whose favor it is made. O'Neil v Cleaveland, 3 Nev. 485; Insurance Co. v. Harris, 97 U.S. 331, 24 L.Ed. 959; Sweeney v. Railway Co., 11 Mont. 523, 29 P. 15; 20 Enc. Pl. & Prac. 657 et seq. Under this rule it is clear to us that the construction contended for by respondents is too narrow and technical. The appellants were not bound to perform any one or all of the acts covered by the stipulation at any specified time. They could, we believe, under a liberal construction in the order named, perform any or all of the acts at any date within the time limited. To hold as contended by respondents would, it seems to us, necessitate the interpolation of language not found in the stipulation; and, if such had been the intention of the parties it was useless and absurd to have included in the stipulation any matter relating to the time of filing and serving the statement on motion for a new trial. The intention of the parties, manifest from the language used, was that the stipulation should stand in lieu of the provisions of the statute regulating these matters. The case of State v. Cheney, 24 Nev. 222, 52 P. 12, cited by respondents in support of their contention, is not in point, and the reading of the facts of that case is sufficient to distinguish it from the case at bar, without discussion. The motion to strike out will therefore be denied.

The respondents brought this action against appellants for the restitution of the waters of Reese river, and to restrain and enjoin them from diverting any of the waters thereof, and from preventing the usual natural flow of the waters thereof, or any portion thereof, from flowing to the lands of respondents. The complaint also contains a general prayer for equitable relief. Omitting all formal parts of the complaint, the matters pertinent to the question considered on this appeal, as alleged, are that the respondent Walsh and his predecessors in interest were and had been since the 15th day of March, 1863, the owners and in the possession of certain tracts of land containing 1,400 acres; that the respondent A. P. Maestretti and his predecessors in interest were, and had been since said date, the owners and in possession of certain tracts of land containing 480 acres; that the respondents James and Margaret Ryan and their predecessors in interest were, and had been since said date, the owners and in the possession of certain tracts of land containing 400 acres; that the respondent L. F. Maestretti and his predecessors in interest were, and had been since said date, the owners and in the possession of certain tracts of land containing 800 acres; that the respondent Mrs. Bircham and her predecessors in interest were, and had been since said date, the owners and in possession of certain tracts of land containing 400 acres,--all of which lands are situated upon Reese river, Lander county, Nevada; that said lands have been used during all said times for agricultural purposes; that Reese river has from time immemorial, until the diversions by the appellants in 1897, flowed over, through, and across said lands; that from the 15th day of March, 1863, until the diversions made by appellants aforesaid, respondents and their predecessors in interest appropriated and used the waters of the river for irrigating and flowing over and through said lands, thereby raising crops or grass, hay and vegetables; that the appellants claim and assert rights to the waters of the river, which claims and assertions are alleged to be subordinate and subject to the rights of the respondents; that the diversions of the water by appellants since 1897 have been wrongful; and that appellants threaten to continue the same. The answer denied the material averments; set up prior rights to all the water of Reese river by appropriation, and other matters not material to the questions considered and determined on this appeal. The findings and decision were for the respondents. A motion for a new trial was interposed and denied, and this appeal is taken from the order denying the motion.

The court found, among other matters, that Reese river had from time immemorial, and until the diversions by appellants, flowed over, through, and across the lands of respondents; that on the 15th day of March, 1863, the respondents and their predecessors in interest had appropriated and used the waters of Reese river "in sufficient quantity" for irrigating and flowing over part of their land. The court did not find the quantity of water appropriated by any or all of the respondents, or that respondents had appropriated all the waters of the river. The decision followed the findings, and a decree was entered perpetually enjoining the appellants, and each of them, their agents, etc., "from diverting any of the water of Reese river, and from in any way interfering with said water in such manner as to prevent said water from flowing on the lands of respondents in sufficient quantity to irrigate the same."

From a large mass of matter contained in a voluminous record we glean the following established facts, which appear not to be controverted, and which must control the questions which are clearly presented under a part of the assignments considered by the court: Reese river has its source in the mountains of Nye county, and flows northerly into Lander county. The lands mentioned in this proceeding lie along, upon, or in the vicinity of said river. The quantity of water flowing in the river is variable, dependent upon the amount of snow and rain falling upon its watershed at its head and along its course and the watersheds of its tributaries, during the various seasons. The evidence does not show the quantity of water usually flowing in this stream, further than at some periods there was sufficient for all the parties claiming rights thereto in this proceeding, and at other times the quantity was insufficient to meet the claims of all. Several miles above respondents' lands the river divides into two forks called the East and West Forks. The respondents lands lie along or upon the East and West Forks of the river, and the lands of the appellants are several miles south and above the lands of respondents, and along the channel of the river above and near where it divides into two forks. The appellants and their predecessors in interest settled upon the lands mentioned in their complaint in 1862 and 1863. The predecessors in interest of some of the respondents settled on lands along the river a little later, but about the same time that the lands of appellants were settled. The settlers upon the lands claimed by respondents had their several holdings surveyed, marked the boundaries thereof, and protected the same to some extent by making so-called ditch fences. The ditches thus made were not for the purpose of irrigation, and were not so used for many years after and until other rights of both respondents and appellants had been acquired to the waters. The settlers upon respondents land found wild grasses growing thereon at the time of their settlement, suitable for hay and grazing, and cut and grazed the same for a number of years. Up to 1869 whatever hay and grass grew upon these lands was produced by the natural overflow of the waters of Reese river, and waters flowing from springs upon part of the holdings. No attempt was made to divert any of the waters of Reese river for the purpose of irrigation until 1869, when the ditch marked on respondents map by the figures 1, 2, and 3, taken from the so-called West Fork, above the lands now held by Ryan Maestretti, was commenced. This ditch was not completed until many years...