Roeder v. Stein , 23 Nev. 92 ( 1895 )

The facts sufficiently appear in the opinion. The complaint alleges prior appropriation of the water of a certain stream for irrigation purposes, defendant's diversion of it, and that plaintiff has been damaged thereby in the sum of $500. The answer denies the appropriation or damage, and alleges that defendant has appropriated, and is entitled to use, enough of the water to irrigate forty acres of land.

The court found that the plaintiff had, through the Ferguson ditch, made the first appropriation to the extent of irrigating one hundred and twenty-five acres; that subsequent thereto, and in 1890, the defendant had appropriated enough to irrigate forty acres; that since 1890, and during the time the defendant has been using the water, the plaintiff has allowed a larger amount than that diverted by defendant to run to waste, by running it into a large pond or lake, from which he used it, instead of running it directly through the ditch to his land. As conclusion of law (apparently, for the conclusion of fact, of law, and the court's opinion are all thrown together, so that it is difficult, if not impossible, to separate one from the other) the court found that the plaintiff had the first right to enough of the water to irrigate one hundred and twenty-five acres, "said water to be conveyed to the plaintiff's land through the Ferguson ditch, or by other ditches or means that will not waste more than an ordinary ditch." It also found that "plaintiff having failed to keep his ditch in repair, or to prevent the water from spreading over defendant's meadow and running into the lake, is not entitled to any damages," and that subject to plaintiff's rights, the defendant is entitled to enough water to irrigate forty acres.

No decree has been entered, and the appeal is from an order refusing the plaintiff a new trial.

The appellant claims that the findings are not within the issues made by the pleadings, but as there has been no oral argument, and in his brief he has not specified the particular finding or findings to which he objects, it is not easy to determine to just what he refers; but probably it is to the finding that he has wasted the water, and to the direction that he must thereafter use it in a particular manner, as there can be no possible question of the pertinency of the other findings.

But, although there is nothing said in the pleadings upon this matter, it seems to us that the question as to the waste of the water, both past and future, was clearly in the case. In the first place, the complaint alleges $500 damages, and the plaintiff testified to more than that amount of loss to his crops caused by the want of water. But if he had permitted a portion of the water that did come to him to run to waste, he could not hold the defendant responsible for the damage thereby occasioned. The defendant is only responsible for the damage occasioned by his own acts. The defendant denied that his acts had caused the plaintiff any damage whatever, and in support of that denial it was proper for him to show, if he could, that a portion or all of the plaintiff's loss was the result of his own uneconomical use of the water, and consequently it was proper for the court to find whether such was the case.

The learned trial judge seems to have been of the opinion that if the plaintiff wasted as much water as the defendant had diverted, that that would be a complete answer to the plaintiff's claim for damages. While we cannot agree with that view and are of the opinion that if defendant's acts had caused the plaintiff damage in addition to that occasioned by his own negligence, the defendant would be responsible for that part, still the finding, as far as it goes, is within the issues. It covers at least the loss upon forty acres of the plaintiff's land, as the finding is that defendant irrigated that amount, and that plaintiff wasted more than the amount of water used by defendant, and it may have been intended to cover all of plaintiff's loss.

Possibly the appellant's counsel is of the belief that the plaintiff, having made the first appropriation, is entitled to have the water come down to him to the extent of his appropriation, whether he has use for it or not. If so, he is mistaken. Water is too precious in this arid climate to permit its being unnecessarily wasted. The findings do not show how much water there is in the stream altogether, or whether there is more than enough to irrigate the plaintiff's one hundred and twenty-five acres. If there is not, then when he is irrigating that amount he is entitled to the use of it all. The same is the case when he is irrigating less than one hundred and twenty-five acres, if he needs it all for what he does irrigate. But whatever he may be irrigating he is only entitled to the amount he needs, economically and reasonably used, and when he has that, he cannot prevent others from using the surplus. (Barrows v. Fox, 98 Cal. 63;Natoma Water M. Co. v. Hancock, 101 Cal. 32.)

Nor do we think that there was any error in requiring the plaintiff to use the water in any particular manner hereafter. The evidence shows that the original method of the plaintiff's use during the irrigation season was through the Ferguson ditch, and that this is the most direct and economical method of conveying it to the land during that time. (During the winter time the plaintiff runs the water into the lake, which he uses as a reservoir. This use is not in question here.) Running it through the ditch continued to be the principal method of using it up to 1890, when defendant made his appropriation. Since then the system has been changed so that the principal method is first to turn it into the lake and then use it from thence, and this is what the court finds has caused the unnecessary waste. As already remarked, water is too precious to permit it being wasted. Conveying it through a ditch even will always cause some loss, and if the distance is great, or the soil loose or porous, the loss will be considerable. This, within any reasonable expense, is generally unavoidable. But, however this may be, if the appropriation had been made before others acquired rights in the stream, after that no change can be made to their detriment. The first appropriator must continue to use it in at least as economical a manner as before, and cannot change the method of use so as to materially increase the waste. Such a change may be forbidden, and parties "may be compelled to keep their flumes and ditches in good repair, so as to prevent any unnecessary waste." (Barrows v. Fox,supra.) This is all that has been done here.

There are two matters of practice involved in this case to which we desire to call the attention of the district courts and of the profession. The first is a failure to make distinct findings of fact and conclusions of law, separate from the opinion of the judge as to what the decision should be upon those facts. The writer of this opinion confesses that such was very largely his own custom when upon the district bench, and that he then saw no objection' to it, but experience in the appellate court has demonstrated that serious objections do exist. It not only adds considerably to the labor of examining cases upon appeal, which may be deemed a minor consideration, but it increases the liability that the facts will not be correctly understood, and hence result in a miscarriage of justice.

The trial judge usually decides upon some one point which he considers controlling, and this point is the only one that will generally be fully covered in an opinion. Then if the appellate court takes a different view of that point, as to the other facts the court is left entirely in the dark, or it must pick them out from the evidence, which can never be as well understood as when heard in court, as given and illustrated by the witnesses. The findings should cover all the issues in the case, and should be quite separate from the opinion. We do not say this to discourage the writing of opinions, as we often find them of great assistance, and it is always satisfactory to know just what view was taken of the case by the trial court.

The other is a feature that we think deserves particular censure from the courts — the broad and unqualified denials in the answer that the plaintiff and his grantors had been the owners or in possession of the lands described in the complaint, or had appropriated any part of the water in controversy. It seems to have been admitted upon the trial that he did own the land, and had been in the possession thereof for many years, and it was proven beyond question that he had appropriated a large portion, if not all the water. The fact that the answer was made upon information and belief does not help the matter any, for the evidence shows that the defendant must have known all about it, and could have had no such information or belief. If the attorney knew of the facts, he is even more culpable than the client, for drawing and permitting him to swear to such an answer. The reason for providing for verified pleadings is that facts that are true shall be admitted, and thereby the parties saved the expense of proving them, and the court and all connected with the case the loss of time occasioned by it being done. Such practice as this, although unfortunately too common, is utterly subversive of the principles of the reformed procedure, and really subjects the parties to the penalties of the criminal law. The defense here could have been as well made under a truthful answer, as under one so largely false.

The order appealed from is affirmed.