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Bernard v. Metropolis L. Co.

December 31, 1916

ALPHONSE BERNARD, APPELLANT, V. METROPOLIS LAND COMPANY (A CORPORATION), RESPONDENT.


Appeal from Sixth Judicial District Court, Humboldt County; Edward A. Ducker, Judge.

A. L. Langwith, for Appellant.

Cheney, Downer, Price & Hawkins, for Respondent.

By the Court, McCarran, J.:

This is an appeal from an order overruling a demurrer to an affirmative answer, and from a judgment entered on the pleadings.

The record before us presents a complaint in which certain allegations essential to plaintiff's recovery were set forth. First, that he is an appropriator of water from the Humboldt River; that such appropriation was during the continuous period of thirty years; that Bishop Creek is and constitutes the headwaters of Humboldt River; that Bishop Creek and Humboldt River constitute one continuous natural watercourse; that the waters of Humboldt River as appropriated by plaintiff were essential to the successful cultivation of the lands of plaintiff and necessary for plaintiff's domestic uses; that the defendant had by artificial means diverted the waters from Bishop Creek; that this diversion was accomplished by the construction by defendant of a reservoir built

[40 Nev. 89, Page 93]

across the bed of Bishop Creek above the point on the Humboldt River where plaintiff was accustomed to divert water from the river; that defendant by means of its reservoirs, dams, and other water devices had diverted the water from the natural watercourse, and moreover had impounded by means of its reservoir all the water flowing or to flow in Bishop Creek; that defendant, by means of its reservoir, dams, ditches, canals, and other water devices in so diverting the water from Bishop Creek, had thereby prevented the water from flowing through said creek and through the Humboldt River, and had thereby prevented the water flowing through said stream system from flowing into the ditches of plaintiff, and hence had deprived plaintiff of the use of said water for the irrigation and cultivation of his lands on the Humboldt River.

The prayer of the complaint was for an injunction to prevent the defendant from so diverting the water or impounding the same, and for the establishment by judicial decree of the right of plaintiff to use the waters of Bishop Creek, and to have the same enter his ditches for the uses and purposes to which they had been applied.

The record before us presents a complaint in which certain allegations essential to plaintiff's recovery were set forth. An answer to this complaint was filed, in which, as we view it, each of the allegations of plaintiff's complaint essential to his recovery was specifically denied.

By way of affirmative and separate defense, defendant alleged:

“That for more than thirty-five years last past defendant and its predecessors have continiuously during each year appropriated, diverted, used, and consumed all of the waters flowing in said Bishop Creek, and have at all of said times claimed the right so to do, and that said claim of right and said diversion, appropriation, use, and consumption for the irrigation of said lands, of all the waters of said Bishop Creek have been by said defendants and the grantors and predecessors in interest of said defendants actual, visible, open, notorious, exclusive, and

[40 Nev. 89, Page 94]

uninterrupted for a period of more than thirty-five years prior to the institution of this action, and adverse to all the world, including plaintiff herein, during al of said time, and that any claim by the plaintiff to said or any of the waters of said Bishop Creek, as an individual stream or as a part or tributary of the Humboldt River, as against the defendant, is wrongful and without right, and constitutes a cloud upon the title of defendant herein.”

As a further and second affirmative and separate defense, defendant alleged:

“That all the water flowing in said Bishop Creek has for many years past been appropriated and used for beneficial purposes by defendant and by the grantors and predecessors in interest of defendant, as hereinbefore set forth and alleged, in the irrigation of the lands hereinabove described and for watering stock and for domestic purposes, that all of said waters are necessary, and that there is no other source of supply from which water may be obtained by defendant for said purposes.”

These allegations, together with other affirmative allegations, such as that pertaining to the open, notorious construction of reservoirs, diverting dams, canals, ditches, and works for storing, impounding and diverting, conveying and distributing the waters of Bishop Creek, the acquiring of lands under the Carey Act, the incurring of obligations, the laying out and construction on the lands of defendant of the town of Metropolis, the construction in said town and on said lands of expensive buildings, water-works, and lighting plant, the purchase and acquisition of other lands under the irrigation system of defendant and the settlement thereof by a number of persons, the improvement of such lands, the cultivation and irrigation of the same by the waters of Bishop Creek when the same had been stored by the reservoirs constructed, appear in respondent's answer filed by way of affirmative defense. Together with these affirmative allegations, respondent's affirmative answer sets forth the following:

“That on the 13th day of April, 1912, in the above

[40 Nev. 89, Page 95]

entitled court, Union Canal Ditch Company, a corporation, and a number of other corporations and individuals, as plaintiffs, instituted their certain action against said Pacific Reclamation Company an others, said action in said court being numbered 1899. That the scope and purpose of said action above mentioned was the same in character as the present action, in that the plaintiffs in said action mentioned sought to enjoin and restrain said Pacific Reclamation Company from storing and impounding in said reservoir the waters flowing in said Bishop Creek, and to restrain and enjoin said Pacific Reclamation Company from diverting and using the waters of said Bishop Creek so stored and impounded, and also to enjoin said Pacific Reclamation Company from diverting by means of its canals and other devices the waters flowing in Burnt and Trout Creeks, which were alleged to be, and which are, tributaries of said Bishop Creek, the point of junction between the said Burnt and Trout Creeks with said Bishop Creek being below the place or location of said reservoir and said diverting dam constructed in the bed and across the channel of said Bishop Creek. That the action, above mentioned, wherein Union Canal Ditch Company, a corporation, and others, were plaintiffs, and said Pacific Reclamation Company, a corporation, and others, were defendants, was, as alleged in said complaint, instituted for and on behalf of plaintiffs therein named and also for and on behalf of all other corporations, persons, and associations similarly situated to plaintiffs therein named and having a common and general interest in the subject-matter of the action with the plaintiffs. That plaintiff herein was, at the time of the institution of said ...


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