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Sheehan v. Kasper

December 31, 1917

J. SHEEHAN AND JOHN G. TAYLOR, CO-PARTNERS, DOING BUSINESS UNDER THE NAME AND STYLE OF TAYLOR & SHEEHAN, RESPONDENTS, V. S. B. KASPER, APPELLANT.


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

Salter & Robins, for Appellant.

Callahan & Brandon, for Respondents.

By the Court, Coleman, J.:

Plaintiffs brought suit to restrain the defendant from destroying a certain canal, ditch, and power line. From a judgment and decree as prayed, and from an order denying a motion for a new trial, an appeal is taken.

Plaintiffs contend that they were, and at the time the suit was instituted, and for about fifty years prior thereto they and their predecessors in interest had been, the owners of land in possession of a large tract of land known as the Taylor & Sheehan Ranch, and a certain canal commonly known and called “the Humboldt Canal,” together with a strip of land 100 feet in width, extending 50 feet on each side of the center line of said canal, all situated in Humboldt County, Nevada, during which time they had paid all taxes assessed thereon; that the Glasgow Exploration Company was, in the year 1910, the owner of a tract of land consisting of about 179 acres, which it acquired as a mill site, and through which “the Humboldt Canal” flowed, and that plaintiffs acquired from said exploration company an irrevocable license to construct, maintain, and operate a certain branch ditch and power line over, upon, and across said mill site, which they constructed at a cost of about $45,000. That said Humboldt Canal, ditch, and power line were being used to divert certain waters of the Humboldt River that had been appropriated by plaintiffs

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with which to irrigate the growing crops on the land so owned by them, of the alleged value of $30,000; that thereafter, and in 1915, and while plaintiffs were in the possession of all the property mentioned, the defendant purchased said mill site and took a quitclaim deed thereto; that defendant threatened to fill in and destroy said canal and ditch and tear down and destroy said power line, and if not restrained would fill in and destroy the same, to the damage of plaintiffs; that defendant is insolvent and unable to respond to plaintiffs in damages. They also contend that they had the right to use “the Humboldt Canal” through which to divert the waters of the Humboldt River for irrigation purposes.

Defendant contests every contention of the plaintiffs, except the existence of their partnership, their ownership of the Taylor & Sheehan ranch, and their right to a portion of the waters of the Humboldt River for the irrigation of their lands.

1. To enable the trial court to render judgment in favor of plaintiffs as prayed, it was necessary that it find, in addition to the admitted allegations of the complaint, that “the Humboldt Canal” had a valid existence, and that it was owned by the plaintiffs; that the plaintiffs acquired a license to construct, maintain, and operate the branch ditch and power line; that the same was not revocable at the will of defendant; and that the defendant was threatening to fill in and destroy said ditch and power line.

The learned judge before whom the case was tried in the district court filed a written opinion in the case, in which he says that evidence was received to the effect that the Humboldt Canal was started somewhere about the year 1862; that a right of way, as claimed by plaintiffs, was granted by the government to the Humboldt Canal Company for irrigation, and possibly other purposes, and makes his finding accordingly. As we read the record, the witness who testified concerning the grant intended to convey the idea that there was a

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special act of Congress granting the canal company a right of way, but no such act was offered in evidence or called to the attention of this or the trial court.

The evidence clearly sustains the findings and conclusions of the court; in fact, we do not think this finding is seriously questioned. However, the probability is that there never was a special act of Congress granting to any one the canal in question. It is more likely that the right of way over the public domain for the canal was confirmed in the owners thereof under the act of Congress approved July 26, 1866, which provides that:

“Whenever, by priority of possession, rights to the use of water for mining, agriculture, manufacturing, or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decision of courts, the possessors and owners of such vested rights shall be maintained and ...


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