SUPREME COURT OF NEVADA. SIMPSON v. WILLIAMS. Filed November 28, 1884. 1. POSSESSION OF LAND AND USE OF WATER BY APPROPRIATION— - UNDISPUTED TESTIMONY-ESTOPPEL IN MOTION FOR NEW TRIAL. When the nature of defendant's possession of land is not disclosed by the record, but testimony proceeding upon the theory of a right of possession of the land and the use of the waters of the creek involved in the litigation has been offered without objection, the supreme court will disregard the question first raised upon motion for a new trial, which could have been obviated by amendment of the pleadings had objection been made at the proper time. 2. SAME AMOUNT OF WATER TO WHICH PARTY IS ENTITLED. The amount of water to which a party is entitled is limited to the amount actually applied to the purposes of irrigation. It is the peculiar province of the trial court to determine controverted questions of fact, and the supreme court cannot interfere with such determination when there is a substantial conflict in the evidence. Appeal from the Fifth judicial district court, Nye county. Curler & Bowler, for respondent. BELKNAP, J. This is an action to determine conflicting rights to the waters of Duckwater creek. The district court rendered a decree in favor of defendant, predicated upon the fact that his appropriation of the water was prior in time to that of the plaintiff. It is contended that this conclusion is unsupported by the evidence. It was shown at the trial that during the year 1866 J. D. Page had made claim to the land occupied by defendant, Williams, and diverted several hundred inches of the waters of the creek. Page made no use of the water, and his diversion of it appears to have been for a speculative purpose. But this is immaterial, under the facts of the case, because in the following year he sold his rights to Withington, and he, as early as the spring of 1868, commenced using the waters for the purpose of irrigation. The first appropriation of the waters by the predecessors in interest of the plaintiff was made in the fall of 1868. There is no conflict in the testimony upon these facts, and the court correctly determined the question of priority of appropriation in favor of defendant. The district court awarded defendant the prior right to use 200 inches of water. It is claimed that this allowance is unsupported by the evidence. The witnesses for the defendant generally testified that since the year 1870 about 100 acres of the lands occupied by the defendant had been cultivated for grain and vegetables, and about 50 acres had been kept as meadow land. They estimated the volume of water used for the purpose of irrigation at from 130 inches to 150 inches. Those who testified upon the point gave as their opinion that lands cultivated for grain or vegetables required an inch of water per acre, and that hay or grass lands required about half that amount. One witness, however, A. M. Self, testified that "100 acres of grass land requires 100 inches of water." And it was shown that during the years 1874 and 1875, 200 acres of the land-100 of which was cultivated and the remainder meadow-was irrigated. This was the maximum acreage irrigated. The amount of water to which defendant is entitled is limited to the amount actually applied to the purposes of irrigation. In determining this amount the court apparently disregarded the testimony of the witnesses who fixed it at from 130 inches to 150 inches, and, accepting the testimony of the witness Self, concluded that the amount of water actually used to irrigate the 200 acres of land must have been 200 inches. The finding is further sustained by the testimony of Withington, who said that from the spring of 1867 until the summer of 1878, 250 inches of water was used throughout the irrigating season of each year. The evidence was conflicting as to the quantity of water used. It is the peculiar province of the trial court to determine controverted questions of fact, and this court cannot interfere with such determination where there is a substantial conflict in the evidence. Appellant also contends that defendant has not such an interest in the land as enables him to maintain the affirmative defense of ownership pleaded by him. It appeared that the land was owned by Withington, between whom and defendant there existed a contract of purchase and sale. Defendant had been in possession of the premises for some time, but the nature of his possession is not disclosed by the record. No objection, however, was made to the introduction of testimony proceeding upon the theory of a right in Williams to the possession of the land, and the use of the waters of the creek. Under these circumstances we must disregard questions first made upon motion for new trial, and which could have been obviated by amendment of the pleadings had objections been seasonably taken, and consider whether the facts of defendant's (Williams') case constitute a defense to this action. The justice of the case requires that he should be treated, for the purposes of this appeal, as the lawful occupant of the premises. As such occupant he could maintain an action for any interference with his rights injurious to his possession. The rule is thus stated in Dicey, Parties, 333: "The person to sue for any interference with the immediate enjoyment or possession of land, or other real property, is the person who has possession of it, and no one can sue merely for such an interference who has not possession." As the result of this principle, the author states, at page 340, "that when land is in the hands of a tenant, the person to sue for a trespass is the tenant, and not the landlord." The judgment and order of the district court are affirmed. IRWIN v. STRAIT and others. Filed November 28, 1884. RIGHT TO WATER BY APPROPRIATION-WHEN RIGHT BEGINS. In determining the question of the time when the right to water by appropriation commences, the law does not restrict the appropriator to the date of his use of the water, but, applying the doctrine of relation, fixes it as of the time when he begins his dam or ditch or flume or other appliance, by means of which the appropriation is effected, provided the enterprise is prosecuted with reasonable diligence. Appeal from the Fifth judicial district court, Nye county. D. S. Truman, for appellants. Curler & Bowler, for respondent. BELKNAP, J. The original parties defendant in this cause were the same as in Simpson v. Williams, ante, 1213. The appeal in this case, as in that, is directed against the decree rendered in favor of respond. ent, Williams. To each suit he defended as owner of the Page or Withington ranch, on Duckwater creek. The questions presented upon appeal are the same in each case, except the question of prior appropriation of the water. The different plaintiffs acted independently of each other in diverting the stream, and their acts in this regard must be separately considered. Plaintiff Irwin first diverted the water upon the twenty-first day of August, 1867. For the purpose of this case we shall treat his right as commencing, by relation, at this time. The premises in the possession of Williams, and of which he must be considered owner upon this appeal, were purchased in the month of April, 1867, by Withington from Page for farming purposes. During the year 1866, Page had diverted a portion of the waters of the stream. This diversion may have been for a speculative purpose, and we shall not consider it as the inception of a right. The testimony is not clear as to the use made of the water by Withington during the year 1867, save that it continued to flow as diverted by the dam and ditch constructed by Page. In the spring of 1868, and each succeeding year, Withington, and those claiming through him, have employed the water for irrigating cultivated lands. Upon these facts, when did the right of respondent as successor in interest to Withington to the use of the water commence? In determining the question of the time when a right to water by appropriation commences, the law does not restrict the appropriator to the date of his use of the water, but, applying the doctrine of relation, fixes it as of the time when he begins his dam or ditch or flume, or other appliance by means of which the appropriation is effected, provided the enterprise is prosecuted with reasonable diligence. During the year 1867 Withington did no particular act manifesting an intention to appropriate the water, further than to maintain its flowage upon the land. It was unnecessary for him to do more. The diversion made by Page was suitable to his contemplated appropriation, and a different diversion would not have strengthened his claim. We do not think that, in exercising reasonable diligence to appropri ate the water, Withington was bound to use it for irrigation during the year 1867. It may have been impracticable by reason of the season, or the difficulties incident to an unsettled country, to have applied the water to irrigation the same spring in which he made his purchase. Under the facts, we think his appropriation should date by relation to the time he acquired the property, in April, 1867. The remaining exceptions will not be particularly considered. They were determined adversely to appellant in Simpson v. Williams, ante, 1213, and the same ruling will be made in this case. The judgment and order of the district court are affirmed. EAD OF VOLUME 4. INDEX. ABANDONMENT. See HOMESTEAD, 4. ABATEMENT. See NUISANCE, 3, 5, 7. ACCOMPLICE. See MURDER, 2. ACCOUNT. See ESTATES OF DECEDENTS, 19, 20; PARTNERSHIP, 9. ACKNOWLEDGMENT. See CHATTEL MORTGAGE, 6; DEED, 1. ACTIONS. 1. GAMBLING-FRAUD.-Action to recover money lost at cards while under influ- 2. FRAUD-RETAINING NOTE.-A complaint which states that a defendant received 3. CONTRACT-CONSIDERATION.-A non-negotiable written promise to pay money, 4. ACTION FOR BREACH OF CONTRACT- PLEADING.-In an action for breach of 5. SAME-DAMAGES-EVIDENCE-Evidence of the expense of digging a ditch in a 6. SAME-PERFORMANCE-NOTICE.-Where plaintiff swore to an offer to commence 7. SAME QUESTION FOR JURY.-It is a question for the jury whether a notice to de- 9. RES ADJUDICATA-JUDGMENT ON CLAIM REJECTED BY BOARD OF SUPERVIS- |