Pincolini v. Steamboat Canal Co. , 41 Nev. 37 ( 1917 )

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. Candler, 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 determined by the trial court; and (3) we do not think the evidence is clear and strong enough to sustain the contention.

Upon the issue of damages, the questions were propounded to the witnesses based upon the theory that plaintiffs were entitled, as a matter of right, superior to certain others receiving water from the ditch, to water in the amount of 145 inches. The witness Pincolini was asked the question: "Now, how much would you have raised if you had water amounting to 145 inches?” All of the testimony relative to the amount of damages is based upon the theory that plaintiffs were entitled to 145 inches of water, and that the rights of plaintiffs to this water were prior in time to certain other later water users. The instructions given to the jury apparently allowed no discretion to determine the amount of water, if any, that plaintiffs were entitled to over other prior appropriators. For example, the following excerpt is taken from instruction No. 2:

"If the jury find * * * that the plaintiffs had for many years prior to the year 1909 received from said Steamboat Canal 145 inches of water for the irrigation of their said land and had applied the same to that purpose, * * * the jury will find the issues in favor of the plaintiffs. ”

A number of other instructions embodied this same feature. There is not in the entire record any proof whatever that this land in any one year had received from said ditch the amount of 145 inches of water. The Sturges ranch did not receive 45 inches until about the year 1905 or 1906. If 100 inches of water was ever used upon the Barney ranch, it must have been for a short time some twenty years earlier than the time when the Sturges ranch had increased the amount of its use to 45 inches. Under no theory of the case can it be said thát the Barney ranch, as a matter of right, is entitled to more than 80 inches of water. While it is conceded that the Sturges ranch received 45 inches of water one year, the use of such amount is of comparatively recent date with reference to other water users. While an attempt was made to prove that the appellant company had diverted water to later water users, so as to affect the rights with reference to the Barney ranch, little, if any, attempt was made to establish the fact that these later water users were subsequent in time when compared with the Sturges ranch.

Assuming that the evidence shows that the Barney ranch is entitled to 80 inches of water and the Sturges ranch to 45 inches, the way the questions relative to damages were propounded, it is impossible for this court to say what the amount of damages would have been unless we should resort to a matter of pure speculation or attempt to exercise the functions of the jury. There is no proof whatever that the Barney ranch ever took 100 inches of water, except that given by a witness who was a stranger to the title and who did not fix the time of use. In order to recover damages for the deprivation of water, and to obtain an injunction against further interference therewith, there must be established an appropriation prior in time to other water users, and a right to the continuous use thereof.

It is ordered that the judgment and order appealed from be reversed, and that a new trial be granted.