Appeal from Second Judicial District Court, Washoe County; John S. Orr, Judge.
Harwood & Springmeyer, for Appellant.
Summerfield & Richards, for Respondent.
By the Court, Norcross, C. J.:
Respondent brought suit against defendant praying for a judgment and decree to the effect that the respondent is the owner and entitled to the usufructuary right to three-eighths of the natural flow of the water of Steamboat Creek; that respondent have a perpetual injunction against appellant restraining him from diverting three-eighths, or any portion thereof, of the waters of said creek away from the lands of respondent or in any manner interfering with the respondent's use thereof and, also, from causing, permitting, or suffering the waste waters from certain lands of appellant flowing upon certain lands of respondent; for damages in the sum of $2,200, and for costs. Judgment was awarded respondent in accordance with the prayer of the complaint, excepting that nominal damages only were allowed.
While the record filed in this court discloses that a motion for a new trial was interposed and denied in the court below, the appeal appears to be from the judgment only, and hence will limit the consideration of the points raised to the one main question.
It is the contention of appellant that the judgment is void for uncertainty, in that it fails to fix with requisite definiteness the amount of water to which either of the parties is entitled, and fails to determine priorities; that, under such circumstances, injunctive relief is improper.
So much of the judgment as is involved in the question presented reads as follows:
And it is further adjudged and decreed that the plaintiff was at the time of the commencement of this action, and now is, the owner and entitled to the usufructuary right for irrigation, stock, and domestic purposes during the irrigating season of each year of three-eighths of the natural flow of the waters of Steamboat Creek, and his ownership and title thereto is hereby established and declared. And it is further adjudged and decreed that the defendant, Nick Sorgi, his servants, agents, attorneys, and employees, and all other persons acting under the control and authority and direction of defendant, be and they are hereby perpetually enjoined and restrained from diverting said three-eighths, or any part thereof, of the natural flow of the waters of Steamboat Creek from the said creek and away from the lands of said plaintiff during the irrigating season of each year or from in any manner interfering with the plaintiff's use thereof.
It is alleged in the complaint that, in the year 1860, B. G. Clow, appellant's predecessor, W. P. Sturtevant, respondent's predecessor, together with T. G. Smith, acquired a possessory right in common to certain unsurveyed lands in Washoe County and appropriated water from Steamboat Creek for the irrigation thereof, such appropriation purporting to include all the waters of Steamboat Creek for irrigation and other purposes; that in the year 1864, after the land had been surveyed, the said tenants in common executed and delivered a deed
in partition of the land and water rights, the said deed purporting to convey to said Clow and Sturtevant, respectively, three-eighths of the waters of Steamboat Creek and to said Smith the remaining one-fourth.
A demurrer was interposed to the complaint for uncertainty in not alleging the amount of water necessary and the amount actually appropriated, and for defect of parties defendant, in that other persons are interested as users of water from said creek between appellant's and respondent's lands. The demurrer being overruled, defendant, appellant herein, filed answer denying certain of the allegations of the complaint, setting up title in himself to certain of the waters of Steamboat Creek, and praying that title to so much of the waters of the creek as may be necessary to irrigate his lands be established and quieted in defendant as against the plaintiff and all persons interested; that certain other water users on said creek be made parties for a full determination of the case.
We come now to a consideration of the contention that the judgment is void for uncertainty.
In Authors v. Bryant, 22 Nev. 242, 38 Pac. 439, this court said:
No subject is, perhaps, so prolific of controversies as the use of water by different claimants for irrigation purposes, and a decree concerning it should be as certain as the use of language can make it.
In Walsh v. Wallace, 26 Nev. 299, 76 Pac. 914, 99 Am. St. Rep. 692, this court, considering the findings in the case and a decree enjoining appellants 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, said:
The court, by its findings and decision, determined but one issue. It did not determine all the rights of either of the respondents, or any of the rights of the appellants. It left undetermined the quantity of water ...