Brown v. Ashley

16 Nev. 311

• Court: Nevada Supreme Court
• Decided: October 15, 1881
• Docket: No. 1,059
• Status: Published

Opinions

By the Court,

Hawley, J.:

In 1876 the plaintiff obtained a judgment against defendant for damages and costs, and a decree “that plaintiff is the owner pf the lands, tenements, and hereditaments mentioned in plaintiff’s complaint, and that he is a riparian owner and proprietor in respect to said lands and Coyote creek, the stream mentioned in plaintiff’s complaint, and that he-is entitled to have all the waters of said stream come down unobstructed to and upon said lands, except that defendant may use such portion of said waters as may be necessary for domestic purposes and not for irrigation.”

In the present action, the complaint, among other things, alleges, and the court finds, that defendant, during the years 1877, 1878, and 1879, wrongfully and unlawfully turned out from the channel the waters of said Coyote creek and used the same for irrigating his land, and thereby prevented said waters from flowing down upon the lands of plaintiff, as they otherwise would have done. The plaintiff pleaded the former judgment and decree.

The court, in its finding of facts, states that defendant did not divert the waters of the creek “ except during the freshet season of said years and during that portion of the dry season of said years when if not so diverted by defendant said water would have been absorbed by the soil and atmosphere * * * before it reached the lands of plaintiff,” and that the volume of water was not, by the acts of defendant, so diminished “as in any manner to deprive plaintiff of sufficient water to irrigate” the crops growing on his lands, and for all domestic ¡purposes.

Judgment was rendered in favor of the plaintiff for. one dollar damages, and a decree was entered substantially the same as in the former action, and the defendant was enjoined “ from ever hereafter diverting or obstructing in any manner any of said waters of said creek from the natural channel thereof, so as to prevent said waters, or any portion thereof, from flowing down to or upon the plaintiff’s said lands.”

The former judgment was rendered on the merits, and it is conclusive between the parties as to their respective rights to the waters of Coyote creek.

Conceding that the former judgment was too broad, and that it would have been modified if the proper objection had been made, still it is apparent, upon well-established principles of law, that the same question can not again be considered. It is res judicata. (Freeman on Judgments, sec. 249, and authorities there cited.)

The diversion of the waters of Coyote creek, by the defendant, was a violation of plaintiff’s rights, as established by the former decree, and entitled him to nominal damages, and to the decree and injunction which he obtained in the second action. (Barnes v. Sabron, 10 Nev. 247.)

The judgment of the district court is affirmed.