Ophir Silver Mining Co. v. Carpenter

4 Nev. 534

• Court: Nevada Supreme Court
• Decided: July 1, 1868
• Status: Published

Opinion

By the Court,

Lewis, C. J.

This action is founded upon an alleged unlawful diversion of water, whereby it is claimed the plaintiff was damaged in the sum of three thousand dollars, for which judgment is asked against the defendants. An injunction is also prayed for to restrain any future diversion.

The defendants claim tbe right to divert the full quantity of water taken by them, by reason of an appropriation prior in point of time to any claim or appropriation by the plaintiff. And thus this controversy may be determined upon its merits by the resolution of the question which of the parties made the first appropriation of the water diverted by the defendants.

We have carefully examined the voluminous record in the case for the purpose of determining this main question, and as our conclusions are in favor of the plaintiff, the consideration of any minor questions is rendered unnecessary.

We concede for the purposes of the present discussion (although it is a fact by no means beyond doubt) that the grantors of the defendants made claim to and intended to appropriate the full volume of water now claimed by them long prior to the time when the plaintiff’s grantors appropriated what is claimed by it, and place our decision entirely upon the failure on the part of those from whom defendants derive their title to prosecute their claim to consummation with that diligence which is necessary when it is attempted to make the final act of appropriation relate to the time when the first step was taken or the first act done to make it. ' We propose to rely solely upon the undisputed facts and uncontra-dicted evidence to support the conclusion at which we have arrived, the substance of which may be thus stated:

In the spring of the year 1858, J. H. Rose, the grantor of defendants, desiring to convey water to the village of Dayton, from the Carson River, constructed for that purpose a ditch, about four and a half miles in length, and of dimensions varying at different points. At its immediate head it was sixteen feet wide. For a distance of one-fourth of a mile below it averaged seven and one-half feet wide on top, and two and one-half feet deep. Its general size below that point was three and one-half feet wide at the top, two and one-half feet on the bottom, and two and one-half feet deep. The ditch was thus constructed in the year 1858. In the following year water was run through it to Dayton. And it remained pretty much in this condition until the fall of the year 1862, at which time Rose entered into a contract with Shanklin and McConnell for its enlargement to its present capacity. Work was immediately commenced under that contract, and the present ditch completed early in 1865. Under this contract an entirely new survey was made, and the water was taken from the river at a point one-quarter of a mile above the head of the old ditch, and on the oppo- ■ site side of the river. The size of this new ditch, which is called the Shanklin and McConnell ditch, is thirteen feet in width at the top, nine feet on the bottom, and four feet deep. Its flumes are six feet by three, with a fall of one-fifth of an inch to the rod. The volume of water which can be run through it is ten times greater than could have been run through the old Rose ditch — its capacity being fifty-seven cubic feet per second, while the old ditch was capable of discharging only about four and a half feet.

The grantors of the plaintiff made no claim to any water until the month of July, a. d. 1859. In that year they diverted the water from the river at a point some distance below the head of the Rose ditch, used some quantity of it that year, and in the fall of 1860 completed their ditch to its present capacity; and have ever since used the water thus diverted for motive power.

The defendants claim that the ditch as constructed or enlarged by Shanklin and McConnell is in accordance with the original design of Rose, from whom they acquire their right; that such design was manifested by the fact that his first ditch was of as great capacity for a quarter of a mile from its head as the present ditch, and hence that their right to the entire volume of water which the present ditch will carry must relate to the time when Rose did the first act towards appropriating it, which was in the spring of the year 1858.

The plaintiff concedes that the defendants, as the first appropriators, have the right, first, to divert through their ditch so much of the water of the river as would have run through the old ditch. It is then claimed that the plaintiff is entitled to sufficient water to fill its ditch, counsel arguing on its behalf that the grantors of defendants had no right to increase the capacity of the old ditch to its prejudice. Where the right to the use of running water is based upon appropriation, and not upon an ownership in the soil, it is the generally recognized rule here that priority of appropriation gives the superior right. When any work is necessary to be done to complete the appropriation, the law gives the claimant a reasonable time within which to do it, and although the appropriation is not deemed complete until the actual diversion or use of the water, still if such work be prosecuted with reasonable diligence, the right relates to the time when the first step was taken to secure it. If,' however, the work be not prosecuted with diligence, the right does not so relate, but generally dates from the time when the work is completed or the appropriation is fully perfected.

As we have already stated, we concede the fact, for the present, that Rose designed, when he constructed his ditch in the year 1858, to enlarge it to the capacity of the present ditch, and if he has shown that the design thus conceived was prosecuted with a reasonable degree of diligence until its completion, then the defendants’ right to that quantity of water now claimed by them will relate back to the spring of 1858, and thus ante-date the plaintiff’s right eighteen months or two years, thereby giving them the superior right. But in our opinion the evidence shows an utter failure on the part of Rose to prosecute his original design with that diligence which the law requires. The manner in which this work was prosecuted we gather from the testimony of Rose himself. In the year 1858 the ditch was constructed, and a great deal of work was necessarily done. In the succeeding year also a considerable amount of work was done in cleaning out the ditch and enlarging it in some places. Some time in the summer of this year the ditch was completed to such an extent that a small quantity of water was run through it to Dayton. It is very doubtful whether any work was done this year towards a systematic enlargement of the ditch for the purpose of increasing its general capacity. Rose himself thus describes the work done: “ I was trying to get more water through; so wherever earth or rock slid in from the sides of the ditch, all the men hired by the day were instructed to dig or throw it out, and to throw out all the loose dirt or gravel that was not worked out by the water running through.” However this may be, it is certain that in the succeeding year, that is in 1860, nothing whatever was done towards enlargement. Indeed the only thing done during the entire year was the employment of two men, who were engaged for a few days in throwing out rock from the ditch. This is all the work that was done between the fall of 1859 and the month of May, A. D. 1861, a period of more than eighteen months. As counsel for appellant very aptly remarked, u Rose during this time gave to other pursuits his time and industry, and to the vast enterprise of securing all the waters of the Carson River, only a diligent contemplation.” The year 1861 is little less barren of results. A few men were employed for a period of three months only, who, Rose says, were engaged in cleaning out and enlarging the ditch. From the fall of 1861 to the summer of 1862 nothing appears to have been done. In the summer from three to twenty men were employed, and continued work for about five months. But it is not pretended that they were employed at enlarging, but only cleaning out the ditch. Rose testifies that he did not know that it was enlarged at all that year; that the heavy rains during the winter had filled it up in many places; that he had it all cleaned out. In September of this year the contract between Rose and Shanklin and McConnell was entered into, and during the years 1868 and 1864 the work progressed, and the present ditch of the defendants was completed. Thus, it appears, that from the fall of 1859 to the summer of 1862, a period of over two years and a half, work was done upon the ditch for about three months only; that was during the year 1861, when Rose testifies that from seventeen to twenty men were employed. During this period of inactivity on the part of Rose, the grantors of the plaintiff prosecuted their work vigorously, and finished their ditch to its present capacity in the year 1860. These facts, it is argued on behalf of defendants, show such diligence on the part of their grantor in the prosecution of his original design as to make their right to the quantity of water now diverted by them relate to the time when Rose in the year 1858 did the first act towards appropriation. We are constrained to differ from counsel upon this proposition.

In our judgment those facts exhibit an utter want of diligence in the prosecution of the design which it is claimed was undertaken by Rose. If the' labor of twenty men for three or four months, in a period of two years and a half, constitutes diligence in the prosecution of such a vast enterprise as this, it is difficult, if not impossible, to designate the entire want of diligence. The manner in which this work was prosecuted certainly does not accord with what is generally understood to be reasonable diligence. Diligence is defined to be the “ steady application to business of any kind, constant effort to accomplish any undertaking.” The law does not require any unusual or extraordinary efforts, but only that which is usual, ordinary, and reasonable. The diligence required in cases of this kind is that constancy or steadiness of purpose or labor which is usual with men engaged in like enterprises, and who desire a speedy accomplishment of their designs. Such assiduity in the prosecution of the enterprise as will manifest to the world a bona fide intention to complete it within a reasonable time. It is the doing of an act, or series of acts, with all practical expedition, with no delay, except such as may be incident to the work itself. The law, then, required the grantors of the defendants to prosecute the work necessary to an execution of the design with all practical expedition.

But the evidence clearly shows that this was not done. The ditch was of the same general size, and the flumes of the same capacity, at the tim'e when Shanklin and McConnell commenced work, as they were in the spring of 1859.

As no great effort is made necessary, so no unreasonable dilatoriness or delay is tolerated. But it is unnecessary for us to determine what would be deemed reasonable diligence on the part of the grantors of the defendants in this case ; it is enough to say that the doing of five or six days’ work during a period of sixteen months, that is from the fall of 1859 to the month of May, 1861, and only three months’ labor during a period of two years and a half, does not exhibit that diligence which the law requires. The weather would not have prevented work upon this ditch ordinarily more .than three or four months in the year, hence labor upon it could probably have been prosecuted during eight or nine months out of every twelve. ■ Here, however, there was a period of thirty months, when only about three months’ work was done, or one month out of every ten. Rose during this time may have dreamed of his canal completed, seen it with his mind’s eye yielding him a great revenue; he may have indulged the hope of providential interposition in his favor; but this cannot be called a diligent prosecution of his enterprise. Surely he could hardly have expected to complete it during his natural life by such efforts as were made through this period.

It is, however, claimed on behalf of the defendants that all the work was done at this time which under the circumstances could be done, and that the law requires no more. Rose’s illness for a short time early in the year 1860; his want of means, and considerations of economy, are suggested as circumstances to be considered in determining whether the enterprise was prosecuted with reasonable diligence. Rose testifies that in the spring of the year 1860 he was sick. But it is not shown that that should necessarily interfere with the prosecution of the work. For aught that appears in the record it could have proceeded notwithstanding his illness. If it were admitted, however, that his illness constituted a valid excuse for a want of diligence, it would only excuse it whilst such illness continued, which was only for a short time in the early part of 1860. But we are inclined to believe that his illness is not a circumstance which can be taken into consideration at all. Like _ the pecuniary condition of a person, it is not one of those matters incident to the enterprise, but rather to the person. The only matters in cases of this kind which can be taken into consideration are such as would affect any person who might be engaged in the same undertaking, such as the state of the weather, the difficulty of obtaining laborers, or something of that character. It would be a most dangerous doctrine to hold that the ill-health or pecuniary inability of a claimant of a water privilege will dispense with the necessity of actual appropriation within a reasonable time, or the diligence which is usually required in the prosecution of the work necessary for the purpose. We find no recognition of such doctrine in the law. Nor are we disposed to adopt it as the rule to govern cases of this kind. There is nothing, therefore, in the voluminous record brought before us which in any wise tends to excuse the inactivity and want of effort displayed during the two years and a half we have referred to. Nothing to show that the work of enlarging the ditch could not have been systematically prosecuted during the greater part of every year, or that there was any difficulty in getting laborers.

We conclude, therefore, that Rose and his associates did not prosecute the work upon their ditch with that diligence which the law required, and so their right to any quantity of water, beyond what could be taken through the old ditch, is subordinate and subject to the rights of the plaintiff.

It is, however, contended that the verdict of the jury upon this point is conclusive. And as it found that the work was prosecuted with due diligence, the Court, it is argued, must be controlled by that finding. The general power of an appellate Court to set aside the verdict of a jury when it is not warranted by the evidence is not, we presume, denied by respondents, but it is argued no such verdict should be disturbed when no other objection is made to it, if upon any rational-view of the evidence it can be supported. To this qualification we heartily assent, believing it to be the correct rule, and one founded upon most excellent reason. The jury and Judge at nisi prius generally have better means of arriving at correct conclusions upon matters of fact than the appellate Court has. They have the opportunity of observing the general bearing of the witnesses and the manner in which they testify, and are better able to determine what degree of weight should be given to the testimony of each particular witness than the appellate Court. So, too, evidence is sometimes of a character which cannot well be presented in a record, or at best but imperfectly. It behooves the appellate Court, in view of the disadvantages which it must necessarily labor under in passing upon the weight of testimony, to give great consideration to the verdict of the jury upon it, and this the Courts are generally disposed to do. (See cases referred to in The State v. The Yellow Jacket Company, recently decided.)

If, therefore, there be any evidence of a substantial character to support the verdict, the better opinion, we think, is that it should not be disturbed, simply because the weight of evidence appears to be against it. However, if there be no substantial evidence upon the side of the verdict, it is the undoubted duty of the appellate Court to set it aside. In our opinion the record in this case presents just such a case.

The testimony on behalf of the defendants, without any weight being given to that of the plaintiff, not only fails to show that their grantors prosecuted the work on their ditch with reasonable diligence, but on the contrary shows affirmatively that they did not. There is no dispute whatever as to the amount of work done during the time to which wé have referred. Indeed, the testimony of the defendants’ grantors is accepted as correct in that respect. It must be conceded that in the ordinary course of things work of the character required could have been carried on during the greater part of every year. But by the defendants’ own evidence it is shown that for one entire year nothing of any consequence was done, and for a period of two years and a half the work on this great project was carried on only for about three months, and no excuse which can be recognized by the law is offered for this inactivity. These ' are facts which are not denied by the defendants. Such being the case, it is only necessary for this Court to decide whether these undisputed facts show that diligence on the part of the grantors of the defendants in the prosecution of the work on this old ditch which the law required of them.

There is no evidence to weigh. Nothing to be done but to decide whether all that is claimed to have been done by the grantor of defendants meets the requirements of the law. If it is perfectly apparent that it does not, why should not the verdict of the jury find-, ing otherwise be set aside, as a verdict in any other case which is totally unsupported by the evidence ? We see no reason why the verdict of a jury should be any more conclusive upon the question of due diligence than it is upon any other fact. Due diligence is sufficiently clearly defined to enable the Courts to determine whether any given state of facts is sufficient to constitute it or not. Whether it has been shown or not is certainly not a matter to be finally determined by the arbitrary assumption or conclusion of a jury in every particular case. If so, and the Courts have nothing definite and fixed by which the correctness of such assumption or conclusion may be tested, then the verdict of a jury upon the question of ' diligence must in every case be absolutely final, even if it involved an evident and bald absurdity. If they found due diligence to have been exercised when absolutely nothing was done, or that it was not exercised when everything possible was done, litigants could not be relieved from such a finding. But as we have already stated, we think a verdict upon the question of diligence may, like the verdict upon any other question, be set aside if unsupported or unwarranted by the evidence. The undisputed evidence in this case shows an utter want of diligence on the side of the defendants. The finding to the contrary must therefore be set aside.

The equitable relief sought in this case is ancillary to and entirely dependent upon the legal issues. A final injunction should not be granted until it is determined that the defendants diverted more water than they had a right to, and that by reason of such diversion the plaintiff was deprived of the quantity to which it was entitled. These are facts, however, to determine which the parties have a right to claim a jury. As it was necessary under the old practice to have the title or legal right settled by the law Court before an injunction would issue, so here, although the entire relief, legal and equitable, is sought in one action, still the parties have the right to claim a jury to determine all the legal issues, and an injunction can only be granted when the verdict of the jury is in his favor who claims such equitable relief. As there are issues involved in this case which must be passed upon by a jury before the final injunction can properly issue, we cannot direct the Court below to issue such injunction, but must order a new trial.

It is so ordered.

WHITMAN, J., did not participate in the foregoing decision.