Appeal from Second Judicial District Court, Washoe County; R. C. Stoddard, Judge.
Summerfield & Richards, for Appellant.
Mack & Green and A. A. Heer, for Respondents.
By the Court, Coleman, J.:
Defendant, being dissatisfied with the judgment of the trial court and the order denying its motion for a new trial, has appealed.
This was a suit for damages for partial loss of growing crops in the years 1909 to 1912, inclusive, alleged to have been occasioned to respondents by appellant because of its refusal to deliver to respondents the amount of water to which they alleged they were entitled with which to irrigate their lands. Damages were alleged in the sum of $5,870, and awarded in the sum of $4,500.
It is alleged in the complaint that the amount of water which plaintiffs received from the ditch of appellant each year in the complaint mentioned, except as hereinafter stated, was a flow of 145 inches. The complaint further alleges that for many years prior to the year 1909 defendant, appellant herein, had conveyed to and upon the land of respondents and their grantors, and there delivered for a valuable consideration, a flow of 145 inches of water. This case was apparently tried upon the theory that the plaintiffs had the same rights to water transported in the ditch owned by appellant, by reason of prior appropriation in themselves and their predecessors in interest, as would be the case were they appropriators direct from a natural stream. Assuming for the purposes of the case, hereinafter discussed, that this theory is applicable, the question of the time and the amount of appropriation becomes of prime importance. The respondents are the owners of a tract of land which formerly comprised two ranches, one known as the Sturges ranch and the other as the Barney ranch. It is their contention that they are entitled to receive from the appellant company 45 inches of water for the Sturges ranch and 100 inches of water for the Barney ranch.
It appears from the evidence that the ditch known as the Steamboat Canal was first constructed by a number
of farmers who desired to take water therefrom, among whom was one Ephraim Barney, the original proprietor of the Barney ranch. The witness A. M. Lamb testified that the ditch in its original form was completed in the year 1881, and that for two years thereafter he had charge of it; that during the first year he was in charge thereof the Barney ranch took 40 inches and the next year 60 inches of water; that he did not know the amount of water thereafter taken by this ranch. It appears that about this time litigation was instituted on account of the ditch and the ownership passed to one Hampton, and that from that time up to the present the water users were not owners of the ditch itself, but paid to the ditch owner a certain sum annually for each inch of water used.
L. Prosole, a witness for the respondents, testified that Barney was at one time using 100 inches of water from the ditch in question. How long a time this continued does not appear. In the year 1890 the ranch was acquired by one Nick Sorgi, who thereafter held it until the year 1904. He testified that he took 80 inches of water for the period that he held the ranch, excepting the last year, when he took no water. He also testified that he secured the ranch from Mrs. Barney, and that she informed him at that time that she was taking 80 inches of water. This witness further testified that he had paid $400 a year for the use of the water, at the rate of $5 per inch. S. H. Wheeler, manager of the appellant company, testified that this was the amount of water taken by Sorgi, excepting the year that he took no water for the ranch, and the books of the company show that $400 was the amount annually paid by Sorgi for 80 inches of water. There is also testimony to the effect that Sorgi's measuring box was fixed so as to apportion 80 inches to the ranch.
The witness A. G. Pincolini, who purchased the Barney ranch for $2,750, in the year 1904, testified that before purchasing the ranch he had heard that it was short of water, and that he went to see S. H. Wheeler relative to the matter of water, and that he [Wheeler] said at first the Barney ranch used to have the right to 100 inches.
And then he says when Mr. Sorgi came, he said he got 80 inches all the time. He says now it went down to about 40, I think 40, that year. The witness Sorgi testified that in the year 1903 he told Mr. Wheeler to give the water to anybody who wanted it; I don't want any more water for that ranch, and that the following year he took no water for the ranch. Sorgi further testified that the next year he sold the ranch to Mrs. Chandler, and that at the time he sold the same to her he told her, Don't have no more water; they have to go see Mr. Sam Wheeler if he wants to get any more water or not.
The Sturges ranch first received 15 inches of water. That was about the year 1894 or 1895. It was not until the year 1905 or 1906 that the Sturges ranch was receiving a total of 45 inches of water. There is no definite finding as to when the water rights for the Sturges and Barney ranches, respectively, were initiated, but it is clear that 30 of the 45 inches claimed to belong to the Sturges ranch did not date back more than about ten years prior to the trial of the case.
1. The undisputed evidence shows that if the Barney ranch was ever entitled to more than 80 inches of water, the right to such excess was abandoned prior to the acquisition of the ranch by Sorgi, and continued so abandoned up to the time of the purchase by respondents. It is also urged by respondents that conceding that abandonment is shown, appellant is estopped from urging it. As to this contention we may say: (1) Estoppel is not pleaded; (2) that issue was not ...