Appeal from the Seventh Judicial District Court, Esmeralda County; Peter J. Somers, Judge.
Thompson, Morehouse & Thompson, for Appellant.
Potter, West & Potter, W. H. Bryant, and Henry M. Hoyt, for Respondent.
By the Court, Norcross, J.:
This is an action to quiet title to a certain spring, known as Hyde spring, and the waters therein and flowing therefrom, and for a permanent injunction restraining respondent from interfering therewith.
Plaintiff, appellant herein, in his complaint asserted title to the spring in question, and the waters flowing therefrom, by virtue of ownership of a certain unpatented mining claim known as the Capricorn in the Lida mining district, county of Esmeralda, which he
alleged embraced said spring, and that he and his grantors and predecessors in interest had been in the exclusive possession and occupation of said mining claim, including said spring for more than four years prior to the commencement of the action. The complaint further alleged: That said spring of water and the flow therefrom is a part and parcel of said lands hereinbefore described, and has not been appropriated or diverted by any person or persons.
Defendant, respondent herein, in its answer denied specifically the allegations in the complaint, and set up ownership in itself of the land embracing said spring by virtue of a certain mining location known as the December South, made on the 29th day of December, 2904, by the grantors and predecessors in interest of respondent, and by virtue of a relocation of said ground as a mining claim, known as the Spider No. 1, made on the 1st day of January, 1907, by certain others of respondent's grantors and predecessors in interest.
For a further answer and defense, respondent set up ownership of the spring and the waters flowing therefrom by virtue of an actual appropriation of the waters flowing from said spring and the application thereof to a beneficial use by its grantors and predecessors in interest, and, also, an appropriation regularly granted to the grantors and predecessors in interest of respondent, by the office of the state engineer of the State of Nevada, made on June 22, 1908, under and by virtue of that certain act of the legislature, relative to the appropriation of waters, approved February 16, 1903, as amended March 1, 1905.
Defendant prayed for judgment that plaintiff take nothing by this action, and that defendant be decreed to be the owner of the spring in controversy and the waters flowing therefrom.
The court below found as facts that the plaintiff was the owner of the Capricorn claim (located January 1, 1908); that the spring in controversy was within the
boundaries of defendant's Spider No. 1 claim. That on December 29, 1904, W. H. Hyde, C. L. Hyde, and K. P. Allred located the said December South claim, and thereafter perfected such location, and that the said claim included the said spring, and that said Hydes and Allred continued in the occupancy thereof until the 1st day of January, 1907. That at the time of the location of said December South claim the said spring thereon and the waters flowing therefrom were public waters of the State of Nevada. That in the month of December, 1905, the said Hydes and Allred applied all the waters flowing from said spring to a beneficial use by using the same for mining and domestic purposes and the irrigation of certain lands. That on the 20th day of December, 1905, the said Hydes and Allred made application to the state engineer to appropriate said waters for a beneficial use, and thereafter on the 22d day of June, 1908, the said state engineer issued his certificate of appropriation to the defendant as the assignee and grantee of the said Hydes and Allred, which said certificate contains the following provisions:
Amount of appropriation, 1 cu. ft. per sec.; amount of prior appropriations, 0 acre-feet per year; date of appropriation, Dec. 20, 1905; description of land to be irrigated, and for which this appropriation is determined, 3 acres during 1906-07-08 in S. W. ...