Volume 29 — Nevada Reports

Brown, Judge. Paul Lovelace was convicted of the crime of burglary, and he appeals. The facts sufficiently appear in the opinion. I. The indictment is not'good at common law.

Original proceeding. Petition by the State, on the relation of The Nevada Title Guaranty and Trust Company, for writ of mandamus to Puddy Grimes, County Recorder of the County of Nye., The facts sufficiently appear in the opinion. I. Moreover, it is well settled in law that, in the absence of a statute declaring the right of access and inspection, public records are no less subject to such inspection.

<p>Appeal from the District Court of the Second Judicial District, Washoe County; B. F. Curler, Judge.</p> <p>Action by Ebénezer Twaddle and others against Theodore Winters and others. From a decree in favor of plaintiffs, defendants appeal. Motion to dismiss appeal from judgment granted. Motion to dismiss appeal from order denying a new trial denied.</p> <p>The facts are sufficiently stated in the opinion.</p> <p>I. No injunction will lie where there is a complete and adequate remedy at law, and will issue only to prevent apprehended injury, and affords no remedy for wrongs already committed. {Champion v. Sessions, 1 Nev. 478; Conley v. Chedic, 6 Nev. 222; Sherman v. Clarh, 4 Nev. 138; Am. & Eng. Ency. Law, vol. 16, p. 360.) It is submitted that an appropriation of water by means of a ditch is not measured by the capacity of the ditch, but is limited to such quantity, not exceeding its capacity, as the appropriator may-put to beneficial use, and no matter how great in extent the original quantity may have been, nor no matter how much land said appropriator may intend to irrigate, any amount less than the whole amount which has not been devoted to a beneficial use at some time within five years is lost and forfeited as against a subsequent appropriator. {Smith v. Hawldns, 120 Cal. 86; Senior v. Anderson, 115 Cal. 496.) In the case at bar, Hawkins dug a ditch in 1857, and there is no testimony showing what quantity of water it carried, if any at all. In 1860 George Douglass saw a flume, and, be thinks, it was a twelve-inch flume. The court finds said flume- carried one hundred and eighty-four inches of water. In 1863 Sturtevant was irrigating only about twenty or twenty -five acres of land. Alex. Twaddle testified that when he saw the land in 1869 it was then being cultivated as now. In 1859 the Mike Gwinner ditch was constructed, and in 1864 the flume ditch, which is large enough to take the entire creek, was constructed. Under the foregoing authorities, plaintiffs having failed to put to beneficial use any more water than would irrigate twenty or twenty-five acres of land, it would make no difference how much was turned into the Hawkins ditch of 1857 or the Sturtevant flume of 1860; they would be limited in their prior rights to only sufficient water to irrigate twenty or twenty-five acres of land, Winters having initiated intervening rights that would be superior to any right plaintiffs might have to irrrigate lands that they brought under cultivation five years after their first diversion of water. It was absolutely necessary for plaintiffs to prove hów much water the Hawkins and all other ditches carried, and, under the foregoing rule cited in the California Reports, it was equally necessary to prove how much land plaintiffs irrigated prior to the initiation of any rights by Winters.</p> <p>II. A prior appropriator,who fails to use a part for some beneficial purpose, is only entitled to that part actually and necessarily applied to a beneficial use. (Becker v.'Marble Greek Irr. Oo., 15 Utah, 225, 49 Pac. 892, 89.3; LoMell v. Simpson, 2 Nev. 274; Water Oo. v. Powell, 34 Cal. 10.9; Gould on Waters, sec. 231; Kinney on Irr. secs. 175-6; Proctor v. Jennings, 6 Nev. 83.) The question before the court is: In 1859, when the Mike Gwinner ditch was constructed, how much water had the plaintiffs appropriated, and how much land had they in cultivation, and what amount was inclosed? They had about fifteen acres of land inclosed, and there is no proof that they had conducted any quantity of water upon it. The amount of water to which the first appropriator is entitled must be limited to the amount' actually applied to the purposes of irrigation. (Simpson v. Williams, 18 Nev. 432; Union M. & M. Go. v. Danglerg, 81 Fed. 94.)</p> <p>III. "The act of Congress of duly 26, 1866, is prospective in its operation, and does not in any manner qualify or limit the effect of a patent issued before its passage.” (Union M. & M. Go. v. Ferris, 2 Saw. 176.) It is well known that the statute of limitations does not run against the United States. Defendant Winters owns patent prior to the act of Congress of July 26, 1866. The law of appropriation only applies to streams in which no riparian rights have attached. (Baxter v. Gilbert, 124 Cal. 580; Hill v. Smith, 27 Cal. 476; Long on Irrigation, secs. 25, 26.)</p> <p>IY. There is no claim on the part of plaintiffs or decree of court showing or tending to show that any other ditch or flume, other than the upper Twaddle ditch or flume, had any prior right to the use of the waters of Ophir Creek, but the court did decree that plaintiff could use one hundred and eighty-four inches of the waters of Ophir Creek upon his lands, either through the lower or upper Twaddle ditches. The evidence conclusively shows that the lower Twaddle ditch, so called, never reached further than the north side line of the Bowers field, even as late as 1871. The evidence shows that this ditch has been extended across the Bowers Mansion field since 1871, and into and upon the Twaddle thirty-two acres of grain land, which said grain land cannot be irrigated by means of the upper Twaddle ditch, and that the right to irrigate the thirty-two acres of grain land, described in the pleadings and testimony, by means of said ditch would begin in 1871, and would be subsequent in time to all the rights initiated by defendants prior to said date.</p> <p>I. Our conclusion is that, no matter what view be taken of the case, the confessed admission of the appellants is to the effect that no water was ever taken from Ophir Creek for the irrigation of any lands then owned or now owned by Theodore Winters earlier than 1859, and that almost none of the waters taken by Winters from Ophir Creek or used upon the lands now owned by Winters was taken out until long after the lands described in the complaint in this action had passed into the possession of John Twaddle in 1869.</p> <p>II. Without entering into a discussion of the law at all, it is sufficient to say that since the decision of Jones v. Adams, the supreme court of this state has repeatedly declared that, because of the arid conditions'existing here, because of the necessities of the people, and because all progress, growth, and development in this state would be retarded by this application of the doctrine of riparian rights, it never has and does not now exist in this state. Counsel for appellants has cited a number of authorities from the State of California respecting the rights of riparian owners, and it is only necessary to call the court’s attention to the fact that in California a mongrel doctrine has developed which has unsettled the rights of users of water in that state, both as to the common-law right of riparian ownership and the doctrine of appropriation as it exists here. These eases can have no application at all to the facts in this case.</p> <p>III. Counsel further contends that, because Hawkins in 1857 did not have* the one hundred and sixty acres in his possession all irrigated by the waters of Ophir Creek, his appropriation is limited to the number of acres actually irrigated in that year. This, court and counsel well know, is not the rule of law prevailing in this state or in any other state as to the appropriation of waters for beneficial use. Where a person in good faith commences to take out a ditch, with a capacity sufficient to irrigate a certain tract of land, and prosecutes that enterprise with reasonable diligence, the courts have universally held as a matter of law that his appropriation related back, and was initiated to an amount of water sufficient to irrigate that tract of land, to the date when he commenced the construction of the ditch or actually diverted the water. In the case at bar it appears that the ditch was commenced in 1856, completed in 1857, and late in the season of 1857 the water was actually turned through the ditch to and upon the lands in possession of Hawkins, and crops were produced in that year by the use of its waters.</p> <p>I. An inspection of. the records in this case will show that the judgment of the District Court of the Second Judicial District, State of Nevada, was rendered on the 23d day of June, 1903, and that the notice of appeal was filed with the clerk of said district court on the 17th day of March, 1905, and served upon the respondents' attorneys on the same day, nearly nine months after the expiration of the year within which the notice of appeal was required by law to be filed and served.</p> <p>II. The last sentence of section 197 of the practice act provides: "The .several periods of time limited may be enlarged by the written agreement of the parties, or upon good cause shown, by the court or the judge before whom the cause was tried.” This sentence limits the power to enlarge the period of time limited in the section to the court or the judge trying the ease. The question of whether or not Judge Murphy might have made the order when sitting as the Court of the Second Judicial District at Reno, is immaterial. At the time the order was made he was not the court, for a recess of the court had been ordered; neither was he the judge before whom the case had been tried. It is a general rule "that such business as may be transacted out of court is exceptional, and must find express authority in statute.” (4 Ency. PI. & Pr. 337; Larco v. Gasa.neuava, 30 Cal. 561; Loomis v. Andrews, 49 Cal. 239; Ellis v. Karl, 7 Neb. 381.) "Jurisdiction at chambers is incidental to and grows out of the jurisdiction of the court itself; hence it follows that the jurisdiction of a judge at chambers cannot go beyond the jurisdiction of the court to which he belongs, or extend to matters with which his court has nothing to do.” (4 Ency. PI. & Pr. 338 ; 17 Am. & Eng. Ency. Law, 723.)</p> <p>III. In Golden Fleece Go. v. Gable Go., 15 Nev. 450, this court held to a strict construction of the statute, and decided that a statement filed in time, but served the day following, and one day after the time to file and serve had expired, was served too late and should be stricken from the records. This court further held in consonance with its former decisions, strictly construing section 197 of the practice act, that a statement baying been prepared exclusively as a statement on motion for a new trial could not be considered as a statement on appeal from the judgment. (Robinson v. Benson, 19 Nev. 331; Williams v. Rice, 13 Nev.' 234; Nesbitt v. Chisholm, 16 Nev. 39.) These eases, above cited, show the tendency of this court to strictly construe section 197 of the practice act, and we submit that the same rule of decision should apply to the rule in question. Where the rule requires a certain act to be done as a prerequisite to the granting of additional time to file the statement, the court should not nullify its operation to the extent of permitting a presumption in the mind of the judge to be substituted in place of the positive averment which the rule requires. It has been held by this court that when the time within which the statement is required to be filed has expired, the failure to file the statement operates as a waiver of the right, and the district court has no power to reinstate the right. (Rider v. Frevert, 18 Nev. 278, 282; Noppin v. Cheney, 24 Nev. 222.)</p> <p>I. The writ of certiorari will ordinarily be granted, where a party has been deprived of his»appeal by the improper conduct and unauthorized act of the court or judge, as where a party had been deprived of his appeal, without his fault, by the erroneous action of the judge in refuting the same; or where, without laches on the part of the petitioner, he has been deprived of his appeal by the procurement of the adverse party, or by the inattention, neglect or fault of an officer of the law. (4 Am. & Eng. Ency. PI. and Pr. 63, and authorities cited.)</p> <p>II. On the main question of water rights, appellants desire to call the attention of the court further to the following authorities: Black’s Pomeroy on Water Bights, sees. 33, 42, 44. Said authorities support the contention of appellants that, being the first owners of land through which Ophir Creek ran, no appropriation of the waters of Ophir Creek eould legally be made as against said riparian ownership, and that no right by virtue of appropriation could be superior to any riparian right until after 1866. Anything appearing in Jones v. Adams contrary to the foregoing is- purely obiter dicta, and not binding on this court in the case at bar.</p>

Original proceeding for contempt against Alfred Chartz. Defendant found guilty. The facts sufficiently appear in the opinion. I. I hope that I feel the duties of my office as an attorney-at-law, and at all times obey the orders and decrees of the court, and act gentlemanly and respectfully, and that my personality will never be considered in my contentions, but that the courts will at all times see only the rights and wrongs of the cases before them. II.

A. Murphy, Judge. Action by C. F. Fox against Mrs. Harriet Bernard, as executrix of William Bernard, deceased, and individually, and others. From a judgment for plaintiff, defendants appeal. Petition for rehearing. The facts sufficiently appear in the opinion. I. The plaintiff must prove the contract alleged in his complaint, or he is not entitled to recover. This is not a mere arbitrary rule, but is founded on good sense as well as good law. (22 Ency. PL & Pr. 527; Greenl.

Petition for rehearing. Motion to set aside or modify the decision and order of the Supreme Court made on petition for rehearing. The facts sufficiently appear in the opinion.

<p>Original proceeding. Mandamus by the State, on relation of George Bacbelder, against tbe First Judicial District Court; M. A. Murphy, District Judge.</p> <p>The facts sufficiently appear in the opinion.</p>

Original proceeding. Certiorari by Martin Lutz to review an order made by Hon. M. A. Murphy, District Judge of the First Judicial District of the State of Nevada, Ormsby County, committing petitioner to jail until he complied with an order requiring him to make certain payments of alimony and suit money to his wife for the prosecution of a divorce case. The facts sufficiently appear in the opinion.

Original proceeding. Certiorari by Abraham Chapman to review bis conviction of a misdemeanor before the Justice Court of Tonopab Township, Nye County, State of Nevada. Petition for rehearing. The facts sufficiently appear in the opinion. I. The writ of certiorari is not the proper remedy in this cause, for the reason that petitioner has a plain, complete, speedy, and adequate remedy by an appeal to the District Court in and for Nye County.

<p>ORIGINAL proceeding. Certiorari by B. Gerber to review his conviction of a misdemeanor before the Justice Court of Tonopah Township, Nye County, State of Nevada.</p>

F. Curler, Judge. • Action by Richard H. Stretch against the Montezuma Mining Company. From an order denying defendant’s application to open a default and permit defendant to answer, defendant appeals. The facts sufficiently appear in the opinion.

A. Murphy, Judge. Action by Samuel Fox, and others, against A. D. Meyers, and others. From a judgment in favor of defendants, plaintiffs appeal. The facts sufficiently appear in the opinion. Held: it protects tbe locator or locators in the possession of tbe same during tbe ninety days prescribed by tbe statutes of Nevada to be a reasonable time within which to do tbe work. (See authorities heretofore cited in appellants' opening brief.) II.

Original proceeding. Certiorari by the State, on the relation of Juan Launiza, against the Justice Court of Carson Township, Ormsby County, State of Nevada. Petition for rehearing. The facts sufficiently appear in the opinion. I. The docket of the justice of the peace in the case at issue shows that plaintiff filed his verified complaint, and that the defendant interposed an oral answer denying each and every allegation of the complaint.

Brown, Judge. Johnny, an Indian, and Joe Ibapah, an Indian, were convicted of murder in the firs.t degree, from which they appeal. The facts sufficiently appear in the opinion. I. The court erred in denying defendant’s challenge to the panel of the jury. Our statute provides that the board of county commissioners shall select the trial jurors that shall be required for attendance on the district court. (Comp..

Petition by R. W. Patterson for a writ of habeas corpus against C. P. Ferrell, Sheriff of Washoe County, State of Nevada. The facts sufficiently appear in the opinion. I. Justice’s jurisdiction. (Comp. Laws, 2531.) Judgment to pay fine. (Comp. Laws, 4413, 4414,4417,4418, 4578, 4579,4588,4590,4646.) II. Compare section 5155 and section 4919, Revised Laws Utah, 1898. Case read: Roberts v. Sowells, 62 Pac. 892.

F. Curler, Judge. Action by A. E. Hershiser and others against B. W. Ward and others. From a judgment in favor of defendants, plaintiffs appeal. The facts are sufficiently stated in the opinion. I. That the liability of an abstracter for negligently making an abstract of title, whereby a purchaser is led into purchasing a worthless title, is secondary to a supposed remedy against the purchaser’s grantor, is, we believe, without authority of law or reason.

APPLICATION by The State of Nevada, on relation of the Equitable Gold Mining Company, a corporation, for a writ of mandate to M. A. Murphy, District Judge of the First Judicial District of the State of Nevada, Storey County. Statement of Facts.

On rehearing. I. No question of constructive service or of the default is presented. The court had jurisdiction of the subject-matter, to wit, the right of Martin Gulling to have his mortgage foreclosed, and it also had jurisdiction of the persons, to wit, the Washoe County Bank and of Martin Gulling. They both had appeared in the action. There was no direct proof showing whether the bank’s answer, had or had not been served upon Gulling.

Application of C. C. Turner for a writ of prohibition directed to F. P. Langan, District Judge of the First Judicial District of the State of Nevada, and I. H. Strosnider. The fact sufficiently appear in the opinion. I. A writ of prohibition never issues to review what has already been done, nor to prevent the doing of an act which is not threatened to be done.

F. Curler, Judge. Action by John Hart against George S. Spencer and his wife. From a judgment dismissing the cause of action, plaintiff appeals. The facts sufficiently appear in the opinion.

Original proceeding. Application by Ralph E. Waterman for a writ of habeas corpus for his discharge from custody under a warrant issued by the Governor of the State on the requisition of the Governor of Iowa. The facts sufficiently appear in the opinion.

A. Murphy, Judge. Action by Eliza Young, Administratrix of the Estate of Frank Singleton, deceased, against F. C. Updike, Administrator of the Estate of F. X. Lambert, deceased. From a judgment for plaintiff, defendant appeals. Heard on motion of plaintiff to dismiss appeals taken by defendant from the judgment, and from an order striking out the statement on motion for a new trial. Motion to dismiss appeal from judgment. Motion to dismiss appeal from order.

<p>1. Injunction — Restraining Erection oe Building — Dissolving Temporary Order. Where it is alleged by the complaint and admitted by the answer that defendant is erecting a building of a substantial, permanent character, and by the allegations of the complaint the title, possession, and right of possession of the land are in plaintiff, and by those of the answer they are in defendant, a temporary injunction against the completion of the building is proper, and will not be dissolved pending final determination of the action; but the defendant will not be prohibited from entering.</p>

Appeal irom the District Court of the Third Judicial District of the State of Nevada, Nye County; Peter Breen, Judge. John H. Hennessy was convicted of manslaughter, and from the judgment and an order denying a new trial, he appeals. The facts sufficiently appear in the opinion. I. The prosecution has wholly failed to show that Ganahl believed that he was in great danger, or that he entertained any fear that he would die, or that he had abandoned all hope of recovery.

Langan, Judge. Action by I. A. Strosnider against C. C. Turner relative to the position of County Commissioner of Lyon County, Nevada. .From a judgment for plaintiff, defendant appeals. The facts are sufficiently stated in the opinion.

F. Hedden. Tbe facts sufficiently appear in the opinion. I. Contempt proceedings cannot be used for the purpose of adjudicating title or right of possession to property. (Fairell’s Crim.

Orr, Judge. Action by Porteous Decorative Company, Incorporated, against Dr. George Fee. From a judgment for defendant, and from an order denying motion for a new trial, plaintiff appeals. The facts sufficiently appear in the opinion. I. The right to liens given to mechanics and laborers is introduced into the statutory law of the states by positive statutes.

APPLICATION by S. Tani for a writ of habeas corpus against the Warden of the State Prison. The facts sufficiently appear in the opinion. I. We contend in this case that the court exceeded its jurisdiction in imprisoning the petitioner in the state prison for five hundred days, and that there is no provision of law authorizing the court to imprison the petitioner in the state prison, for five hundred days, or any other number of days. The court had, under Comp.

A. Murphy, Judge. Albert T. Jackman, indicted under tbe name .of John Thompson, was convicted of murder in tbe first degree, and from tbe judgment and order denying motion for a new trial, defendant appeals. Tbe facts sufficiently appear in tbe opinion.

<p>1. Appeal — Record—Sufficiency. In the absence of a waiver of objection, appellant’s affidavit setting out the proceedings of the trial court would be an insufficient transcript, since the methods of taking appeals are matters of purely statutory regulation, and only bills of exception properly settled and signed by the judge and records complying with the statute will be considered.</p> <p>2. Same — Waives of Objection — Beief. Under Supreme Court Rule 11, requiring respondent to file and serve his brief within fifteen days after the service of appellant’s brief, and making a failure by either party to file his brief within the time provided a waiver of the right to orally argue the case, or to recover certain costs, and under rule 8, providing that exceptions or objections to the statement or transcript must be taken at the first term after the transcript is filed, and must be noted in the written or printed points of respondent and filed at least one day before the argument, or they will not be regarded, where appellant filed his brief February 26th, and on April 1st, without making any reservation respondent obtained an order allowing it ten days to file its brief, and it failed to file a brief, or to make any motion to dismiss the appeal within fifteen days after the filing of appellant’s brief, it waived its rights to object to an irregularity in the manner or form of certification of the order appealed from.</p> <p>3. Same — Statutes Construed. Section 332 of the practice act (Comp. Laws, 3427) provides that when a party, who has a right of appeal, desires a statement of the case to be annexed to the record of the judgment or order, he should prepare and file such statement and serve a copy thereof on the adverse party, who may file proposed amendments thereto, which may be settled and certified by the judge. Section 337 (Comp. Laws, 3432) provides that the five preceding sections "shall not apply to appeals taken from an order made upon affidavit filed, but such affidavit shall be annexed to the order in the place of the statement mentioned in those sections.” Meld, that the language quoted was not intended to authorize the filing of records on appeal set out and supported by an affidavit made after the order of the lower court and filed in the supreme court for the purpose of showing its proceedings, but rather to allow a simple method for taking to the supreme court for review orders of the district court made on affidavits filed therein previous to the making of such orders, by filing as the record on appeal copies of such orders attached to the affidavit on which they were based, supported by the proper certificate of the clerk.</p> <p>4. Pleadins — Demurrers Sustained for Misjoinder — Right to Amend. under section 68 of the praciice act (Comp. Laws, 3163), providing that the court may in furtherance of justice amend any pleading or proceeding by adding or striking out the name of any party, and section 71, providing that the court shall in every stage of an action disregard any error in the pleadings or proceedings not affecting substantial rights, where plaintiff and others, several owners of different lots, sued for the diversion of waters therefrom and a demurrer for misjoinder of parties and causes of action was sustained, it was improper to strike out plaintiff’s amended complaint in which he sued alone; the allegations of the amended complaint relating alone to property, acts, and matters set out in the original complaint, and both demanding damages and general relief.</p> <p>Noecboss, J., dissenting.</p>

Patrick Dwyer was convicted of murder, and appeals. The facts sufficiently appear in the opinion. I. The court erred in denying appellant’s motion for a change of venue. It appears from the record that on the 31st day of July, 1906, about 8 o’clock p. m., Patrick Dwyer shot and killed A. C. Williams and wounded his companion, Henry Dyer, on the main street of the Town of Austin.

A. Murphy, Judge. Action by T. Berry, et al., against The Equitable Gold Mining Company. From a judgment in favor of plaintiffs, and from an order overruling defendant’s motion to set it aside, defendant appeals. Motion .to dismiss appeal. Judgment set aside. The facts sufficiently appear in the opinion.

Mandamus by the State, on the relation of Charles H. Botsford, against Frank P. Langan, District Judge of the District Court of the First Judicial District of the State of Nevada, Esmeralda County. The facts sufficiently appear in the opinion. I. The order entered June 29th annulling the default entered June 12th is not appealable.

Langan, Judge. Action by L. C. Van Riper and Joseph H. Hutchinson against Charles H. Botsford, and Frank P. Langan, District Judge.. From an order- setting aside a default, plaintiffs appeal. The facts sufficiently appear in the opinion.

Original proceeding. Petition for mandamus by The State of Nevada, on the relation of Sam P. Davis, against J. Eggers, State Controller of the State of Nevada. On demurrer to the petition. The facts sufficiently appear in the opinion.

Langan, Judge. Action for disputed taxes by The State of Nevada against The Carson and Colorado Railway Company, a corporation, and others. From a judgment for plaintiff and an order denying a new trial, defendants appeal. The facts sufficiently appear in the opinion.

A. Murphy, Judge. Action by S. H. Harris against The Helena .Gold Mining Company. From a judgment sustaining a special demurrer to the complaint, plaintiff appeals The facts sufficiently appear in the opinion.

Brown, Judge. Action by Carlton H. Hand, et al., against John R. Cook, et al., to recover possession of certain mining lands and damages for ore… Held: This clause in the contract does not in any manner affect the ease. It does not constitute Foster (the contractor) any more the immediate agent or servant of the defendant than if the provision were not inserted in his contract.” (Pack v. Mayor of New York, 8 N. Y. 222; Kelley v. Mayor of New York, 11 N. Y. 432.) VI.

F. Curler, Judge. Action for damages by George Christensen, administrator of the estate of George Jorgensen, deceased, against The Floriston Pulp and Paper Company. From a judgment for plaintiff, and an order denying a new trial, defendant appeals. The facts sufficiently appear in the opinion.

' Action ,by James G. Ford', et al., against William Campbell, et al. From a judgment in favor of plaintiffs, and from an order denying defendants’ motion for a new trial, defendants appeal. The facts sufficiently appear in the opinion. I. Popularly the term relocation is applied indiscriminately to amendments in the ordinary sense and relocations in the strict sense.