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Gault v. Grose

January 1916


Appeal from Second Judicial District Court, Washoe County; Cole L. Harwood, Judge.

L. B. Fowler and James D. Finch, for Appellant.

Summerfield & Richards, for Respondent.

By the Court, Coleman, J.:

Respondent obtained a judgment in the district court restraining appellant from using a certain ditch through which to conduct water upon his ranch, and from said judgment this appeal was taken.

The lands owned by both parties consist of three 40-acre tracts, and originally belonged to one Bryant, who sold the southernmost tract to a man named Vance, which was finally acquired by appellant. The other two 40's lying north of the tract owned by appellant were sold by Bryant to one Matthews, and from him passed through several others to respondent. Both appellant and respondent are stockholders in the Orr Extension Ditch Company, which owned a ditch that was operated along the northerly line of respondent's northernmost tract, and, as such stockholder, are entitled to a certain amount of water from said ditch company for irrigation and domestic purposes. Since appellant's land is separated from the

[39 Nev. 274, Page 276]

ditch owned by the Orr Extension Ditch Company by two 40-acre tracts, the question of conducting the water from said Orr ditch to appellant's land is one which demanded solution by appellant and his predecessors in interest from the time the land was acquired by Vance. The ditch in question is on the west line of the respondent's ranch, running in a southerly direction.

To the complaint of respondent appellant filed an answer pleading several defenses, but only one of them is relied upon in this court, viz, an irrevocable license to use the ditch in question.

This may be said to be a most unusual case, in that there is no dispute as to the rule of law relied upon by appellant; and, although the testimony consists of about 6,000 words, both parties assert that the evidence is singularly free from conflict; each claiming, however, that the testimony should be construed so as to sustain his contention. It will thus be seen that the only way to arrive at a conclusion as to the disposition which should be made of the case on this appeal is by reading every word of the testimony. This we have done.

Mr. Bryant, the original owner of the land now owned by both parties to this action, prior to selling any of the land, constructed a ditch on the westerly line of the land so owned by him to a point within a short distance of the 40-acre tract now owned by appellant, which he used for the irrigation of the two 40-acre tracts now owned by respondent. Vance having sold the 40-acre tract to one Wills, the latter negotiated with and obtained from Bryant a deed granting a right of way parallel to said ditch for a pipe line to conduct water from the Orr Extension ditch to the land then owned by him, and now owned by appellant.

The chief testimony in behalf of appellant to sustain his contention is as follows:

“Examination of appellant: Q. Well, you did what with the ditch? A. Did what with the ditch?

“Q. Yes. A. Went and cleaned it out for a while, a year or so. The ditch was there, and I went to Mr.

[39 Nev. 274, Page 277]

Matthews and I said: ‘Mr. Matthews, I want to clean that ditch and get water through that ditch.' I think it is twelve years ago this coming July he told me I could clean the ditch, and I have been cleaning and keep of it in repair from that day to this.

“The Court—Who is Mr. Matthews? A. He is the man that bought the ranch from Mr. Bryant.

“The Court—He owned the ranch at that time? A. He did at that time; yes, sir.

“Mr. Fowler—Q. Mr. Matthews was in possession and was the owner of the land now held by Charles J. Gault; is that correct? A. Yes.

“Q. How long was he the owner and in possession of that land, if you know? A. I think it must be fourteen years ago since he took possession of that.

“Q. How long was he there? A. He was there, I think it is six or seven years.

“Q. And who succeeded him as the owner of the property, if you know? A. Mr. Avansino bought Mr. Matthews out.

“Q. And then who succeeded Mr. Avansino? A. Mr. Capurro.

“Q. Who succeeded Mr. Capurro? A. Mr. Victor.

“Q. Who succeeded Mr. Victor? A. Mr. Gault.

“Q. How long ago did Mr. Avansino enter upon that property? A. Two years ago last February I think was the first I hear of him; two years ago last February since he came on the property. I was in peace and quietness up to that time. We worked together; cleaned the ditch together. Mr. Victor dared me to go in the ditch, and I wanted to know the reason I couldn't go in and do as I had been doing for years previous to that. I says: ‘I have been getting water through this ditch, been cleaning it and keeping it up every year for ten years.' I had been doing that before Mr. Victor or any one interfered with me in regard to cleaning the ditch or getting water from it.

“Q. What has been the nature of your use of the disputed ditch in regard to the quantity of water? A.

[39 Nev. 274, Page 278]

Why I couldn't irrigate some parts of my land without that ditch.

“Q. Have you used that ditch every year during the time you have been on your property in practically the same way? A. I ...

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