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and diverted. Ennor v. Raine, 27 Nev. 178, 213 (74 P. 1); Ronnow v. Delmue, 23 Nev. 29. Under this act defendant had the right to construct his ditch across the public lands of the United States, and could not be held responsible in damages for the digging of the ditch, to any party who came into possession of the land after the ditch had been completed. Shoemaker v. Hatch, 13 Nev. 261, 264, 268; Hobart v. Ford, 6 Nev. 77.

The act of Congress of 1866 (sec. 2401, ante) may be considered in connection with the later federal acts (secs. 3105, 3170, 3171, ante) and the following federal legislation. The provisions relating to right of way in the act of March 3, 1891 (Suppl. Rev. Stats. U. S., vol. 1, 946), are as follows:

Sec. 18-Rights of way granted through the public lands to canal companies-Not to interfere with government occupation and maps to be approved-Not to interfere with state control. That the right of way through public lands and reservations of the United States is hereby granted to any canal or ditch company formed for the purpose of irrigation and duly organized under the laws of any state or territory, which shall have filed, or may hereafter file, with the secretary of the interior a copy of its articles of incorporation, and due proofs of its organization under the same, to the extent of the ground occupied by the water of the reservoir and the canal and its laterals, and fifty feet on each side of the marginal limits thereof; also the right to take, from the public lands adjacent to the line of the canal or ditch, material, earth, and stone necessary for the construction of such canal or ditch; *; provided, that no such right of way shall be located as to interfere with the proper occupation by the government of any such reservation, and all maps of location shall be subject to the approval of the department of the government having jurisdiction

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of such reservation.

And the privilege herein granted shall not be construed to interfere with the control of water for irrigation and other purposes under authority of the respective states or territories. Sec. 19-Maps to be filed by canal or ditch company-Upon approval, future grants subject to right of way-Damages to settler. That any canal or ditch company desiring to secure the benefits of this act shall, within twelve months after the location of ten miles of its canal, if the same be upon surveyed lands, and if upon unsurveyed lands, within twelve months after the survey thereof by the United States, file with the register of the land office for the district where such land is located, a map of its canal or ditch and reservoir; and upon the approval thereof by the secretary of the interior the same shall be noted upon the plats in said office, and thereafter all such lands over which such rights of way shall pass shall be disposed of subject to such right of way.

Whenever any person or corporation, in the construction of any canal, ditch, or reservoir, injures or damages the possession of any settler on the public domain, the party committing such injury or damage shall be liable to the party injured for such injury or damages.

Sec. 20-Applicable to existing and future canals-Forfeiture for noncompletion. That the provisions of this act shall apply to all canals, ditches, or reservoirs, heretofore or hereafter constructed, whether constructed by corporations, individuals, or association of individuals, on the filing of the certificates and maps herein provided for. If such ditch, canal, or reservoir, has been or shall be constructed by an individual or association of individuals, it shall be sufficient for such individual or association of individuals to file with the secretary of the interior, and with the register of the land office where said land is located, a map of the line of such canal, ditch, or reservoir, as in the case of a corporation, with the name of the individual owner or owners thereof, together with the articles of association, if any there be. Plats heretofore filed shall have the benefits of this act from the date of their filing, as though filed under it; provided, that if any section of said canal, or ditch, shall not be completed within five years after the location of said section, the rights herein granted shall be forfeited as to any uncompleted section of said canal, ditch, or reservoir, to the extent that the same is not completed at the date of the forfeiture.

Sec. 21. Rights granted only for canal use. That nothing in this act shall authorize such canal or ditch company to occupy such right of way except for the purpose of said canal or ditch, and then only so far as may be necessary for the construction, maintenance, and care

of said canal or ditch.

And the following part of "An act providing for the transfer of forest reserves from the department of the interior to the department of agriculture," approved February 1, 1905: "Sec. 4. Rights of way for the construction and maintenance of dams, reservoirs, water plants, ditches, flumes, pipes, tunnels, and canals, within and across the forest reserves of the United States are hereby granted to citizens and corporations of the United States for municipal or mining purposes, and for the purposes of the milling and reduction of ores, during the period of their beneficial use, under such rules and regulations as may be prescribed by the secretary of the interior and subject to the laws of the state or territory in which said reserves are respectively situated." (33 U. S. Stats. B. 628.)

The secretary of agriculture has issued regulations regarding permits to occupy publie

lands in forest reserves which provide that applications shall be filed with the district forester, and that he may grant, extend and renew permits for noncommercial water-power works of one thousand horsepower capacity or less.

Reservoirs, other acts of Congress in relation to.

Paragraph 4 of the act of Congress entitled "An act making appropriations for sundry expenses of the government for the fiscal year ending June thirtieth, eighteen hundred and eighty-nine, and for other purposes," approved October 2, 1888 (25 Stats. L. 505, Suppl. U.S. Rev. Stats., vol. 1, 626), provided that:

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"For the purpose of investigating the extent to which the arid region of the United States can be redeemed by irrigation, and the segregation of the irrigable lands in such arid region, and for the selection of sites for reservoirs and other hydraulic works neces sary for the storage and utilization of water for irrigation and the prevention of floods and overflows, the work to be performed by the geological survey under the direetion of the secretary of the interior. And all the lands which may hereafter be designated or selected by such United States surveys for sites for reservoirs, ditches or canals for irrigation purposes and all the lands made susceptible of irrigation by such reservoirs, ditches or canals, are from this time henceforth hereby reserved from sale as the property of the United States, and shall not be subject after the passage of this act to entry, settlement or occupation until further provided by law; provided, that the president may at any time in his discretion, by proclamation, open any portion or all of the lands reserved by this provision to settlement under the homestead laws."

Paragraph 3 of the act of Congress entitled "An act making appropriations for sundry civil expenses of the government for the fiscal year ending June thirtieth, eighteen hundred and ninety-one, and for other purposes," approved August 30, 1890 (26 Stats. L. 371, Suppl. U. S. Rev. Stats., vol. 1, 791), repealed the act of October 2, 1888, in so far as it provided for the withdrawal of public lands from entry, occupation and settlement, and provided: "All entries made or claims initiated in good faith and valid but for said act, shall be recognized and may be perfected in the same manner as if said law had not been enacted, except that reservoir sites heretofore located or selected shall remain segregated and reserved from entry and settlement as provided by said act, until otherwise provided by law, and reservoir sites hereafter located or selected on public lands shall in like manner be reserved from the date of the location or selection thereof."

The remainder of the paragraph limits the amount of land to be acquired by one person, and is the same as section 3169, ante.

Artesian wells and bounties, secs. 702-707, et seq.

Beneficial use, see ownership in this note and secs. 3105, 4674.

Certainty in decree. Authors v. Bryant, 22 Nev. 242; Walsh v. Wallace, 26 Nex. 299; Twaddle v. Winters, 29 Nev. 88; Ronnow v. Matthews, 23 Nev, 29.

Contract to keep flume in repair not a Covenant running with a millsite. Wheeler v. Schad, 7 Nev. 204.

Conveyance, failure to obtain from first appropriator. Chiatovich v. Davis, 17 Nev.

133.

Counterclaim, waiver of: Where in an action for injuries to water rights, the district court in which the action was brought had jurisdiction of the subject-matter of a counterclaim by defendant, claiming to be a prior appropriator of the water, alleging damages from plaintiff's alleged diversion thereof, plaintiff's failure to object in the trial court by demurrer or otherwise that the facts alleged in the answer did not constitute a proper counterclaim, constituted a waiver of his objection thereto. Ennor v. Raine, 27 Nev. 178, 213 (74 P. 1). Damages for floating timber on river. Mandelbaum v. Russell, 4 Nev. 551.

Damages for overflow and to crops. Malmstrom v. People's Drain Ditch Co., 32 Nev.

246.

Damage to crops. Candler v. Ditch Co., 28 Nev. 167, 6 Ann. Cases, 949, and note; Roeder v. Stein, 23 Nev. 92.

Decree and costs recoverable irrespective of damages. Brown v. Ashley, 13 Nev. 251.

Decree for more water than claimed in pleading. Doherty v. Pratt, 34 Nev. -.

Deed conveying interest in ditch and right
to run water therein, does not convey water.
Twaddle v. Winters, 29 Nev. 88.
Diversion, point of, may be changed.
Hobart v. Wicks, 15 Nev. 418, 421; Union
M. & M. Co. v. Dangberg, 81 Fed. 73; see
Roeder v. Stein, 23 Nev. 92.

Drainage: The prevailing doctrine is that when two tracts of land are adjacent. and one is lower than the other, the owner of the upper tract has an easement in the lower land to the extent of the water naturally flowing from the upper land to the lower tract, and is not liable for such flow; but the courts have generally declared that the servitude of the lower land cannot be augmented or made more burdensome by the acts of man; and the upper land owner. while having the right to make a reasonable use of the water for irrigation, must so use and control it as not to injure his neighbor's land. Boynton v. Longley, 19 Nev. 69. Drainage of mine through tunnel not natural stream. Cardelli v. Comstock T. Co.,

26 Nev. 284.

Errors, assignment of, on appeal. Dick v. Bird, 14 Nev. 161.

Findings of jury, when sufficient without new trial. Jerrett v. Mahan, 20 Nev. 89, When not sufficient. Winters v. Fulstone, 20 Nev. 260.

Indefinite decree as to quantity invalid. Walsh v. Wallace, 26 Nev. 299.

Injunction, award by. Twaddle v. Winters, 29 Nev. 88.

Irrigating season. Twaddle v. Winters, 29 Nev. 88.

Measurement of water by ditch at smallest point. Ophir S. M. Co. v. Carpenter, 6 Nev. 393; Union M. & M. Co. v. Dangberg, 81 Fed. 73.

Nuisance. Bliss v. Grayson, 24 Nev. 422. Obstruction placed in stream, when cannot be abated. Proctor v. Jennings, 6 Nev. 83. Overflow-Burden of proof-Contributory fault. Malmstrom v. People's Drain Ditch Co. 32 Nev. 246.

Ownership, water not subject to private— Only the right to use beneficially may be acquired. Dalton v. Bowker, 8 Nev. 190; Roeder v. Stein, 23 Nev. 92; Gotelli v. Cardelli, 26 Nev. 382; Twaddle v. Winters, 29 Nev. 88; Berry v. Equitable G. M. Co., 29 Nev. 451; Union M. & M. Co. v. Dangberg, Si Fed. 73.

The same is true under the reclamation act, see. 3105.

Parties to action. Ronnow v. Delmue, 23 Nev. 29; Bliss v. Grayson, 24 Nev. 422; Doherty v. Pratt, 34 Nev.-.

A flume company diverted the waters of the stream above the lands of the parties to this action, but the waters thus diverted were returned to the stream for plaintiff's use, undiminished in quantity: Held, that the flume company was not, therefore, a necessary party to the suit. Smith v. Logan, 18 Nev. 149.

Idem-Who may maintain action. A party to whom certain lands are granted for the purpose of bringing an action for water rights connected therewith, there being an oral agreement between the parties that upon the termination of the litigation the lands should be reconveyed, may prosecute and maintain the action in his own name. Such suit is founded on the legal title. Idem. Patented lands subject to water rights and rights of way. In Barnes v. Sabron, 10 Nev. 217, it was held that land obtained by patent from the government subsequent to the act of Congress of 1870 (16 U. S. Stats., sec. 17), is under the provisions of that act held subjeet to water rights and rights of way vested or previously acquired under the act of 1866. Percolating waters. No distinction exists between waters running under the surface in defined channels and those running in distinct channels upon the surface; but a distinction is made between percolating waters and waters running in distinct channels, whether upon the surface or subterranean. Strait v. Brown, 16 Nev. 317.

Regarding percolating waters, see Howard v. Perrin, 200 U. S. 71, L. Ed. 50, 319, and note, 30 L. R. A. 186.

Use of water percolating in one's own soil. It was held that the use of water percolating in one's own soil was not actionable, and that a person may lawfully dig a well upon his own land. Moser v. Caldwell, 7 Nev. 363. Pleadings, when sufficient. Jerrett V. Mahan, 20 Nev. 89.

Power to regulate. Roeder v. Stein, 23 Nev. 92; Twaddle v. Winters, 29 Nev. 88.

Prescriptive rights. Authors v. Bryant, 22 Nev. 242; Smith v. Logan, 18 Nev. 149; Union M. & M. Co. v. Dangberg, 81 Fed. 73. The right acquired by prescription is only commensurate with the right enjoyed, and

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mere acquiescence or permission on the part of the lower land owner to allow the flow of waste or surplus water in such limited quantities as did his land no injury, does not give the upper land owner the prescriptive right to increase the flow so as to damage the lower land owner. Boynton v. Longley, 19 Nev. 69.

A party claiming a prescriptive right for five years who, within that time, enlarges the same, cannot at the end of that time claim the use as enlarged within that period. The acts by which the right is sought to be established must be such as to operate as an invasion of the right claimed to such an extent that during the whole period of use the party whose estate is sought to be charged with the servitude could have maintained an action therefor. Idem.

The owner of upper land, who has for more than five years enjoyed the privilege of running the waste water used from artificial sources for the purpose of irrigating his land, does not acquire an easement to run the same over the lower lands in such unreasonable or unnatural quantities as to damage the property of such lower land owners, and an injunction will issue to prevent such injury, although the parties enjoined are not jointly liable for the damages. Blaisdell v. Stephens, 14 Nev. 17.

Action for diversion of water-Vindication and preservation of a right-Adverse right. Where the act complained of is committed under a claim of right, which, if allowed to continue for a certain length of time, would ripen into an adverse right, and deprive the plaintiff of his property, he is not only entitled to an action for the vindication of his right, but also for its preservation. Brown v. Ashley, 16 Nev. 311.

Rates chargeable for water-Valuation of tangible property. It has been held that a mere appropriator and carrier of water for rental or sale and distribution to consumers is entitled to an income upon its plant, but is not entitled to charge for the so-called water right, nor to be allowed for the water itself, in the fixing of the rate. Act of Congress of June 17, 1902, construed and compared with state legislation. Opinion by Morrow, J., San Joaquin and Kings River C. & I. Co. v. County of Stanislaus, U. S. Circuit Court, Ninth Circuit, Northern District of California, decision filed September

18, 1911.

Rates for water - Valuation of plant. Regarding rules for valuation of property for fixing rates for water distributed by a public service corporation, see decisions by Farrington, J., U. S. District Judge for Nevada, in S. V. W. Wks. v. City of San Francisco, 165 Fed. 667, and S. V. W. Wks. v. City of San Francisco, filed October 21, 1911, in the U. S. Circuit Court, Ninth Cir

cuit, Northern District of California. Knoxville v. Knoxville Water Co., 212 U'. S. 1, 53 L. Ed. 371; Kennebec Water District v. City of Waterville, 54 Atl. 6, 60 L. R. A. 856. Wiel on Water Rights (3d ed.), sec. 1305.

Repair of ditches-Liability in proportion to amount of water conveyed. Brown v. Evans, 18 Nev. 141.

Reservoirs. See references to acts of Congress, above in this note.

Riparian doctrine does not prevail. Walsh v. Wallace, 26 Nev. 299; Twaddle v. Winters, 29 Nev. 88; see Appropriation, above.

Seepage and evaporation, effect of. Tonkin v. Winzell, 27 Nev. 88.

State legislation authorized. State legislation regulating the use of public waters was authorized by the acts of Congress of March 3, 1891 (26 Stats. L. 1095, U. S. Comp. Stats. 1901, 1570) and July 26, 1866 (sec. 2401, ante), recognizing the validity of local customs and the decisions of courts in respect to the appropriation of water. Gutierres v. Albuquerque L. & I. Co., 188 U. S. 545 (23 Sup. Ct. Rep. 338, 47 L. Ed. 588). For act

of Congress of June 17, 1902, recognizing vested rights and state legislation, see sec. 3105 and Stats. 1903, p. 24.

Trespasser. Appropriation by trespasser does not become appurtenant to the land. Smith v. Logan, 18 Nev. 149.

Appropriation by removing dam of earlier appropriator. Doherty v. Pratt, 34 Ner. —. Tunnel-Drainage through not natural stream. Cardelli v. Comstock Tunnel Co., 26 Nev. 284.

Valid appropriation, what constitutes. Roeder v. Stein, 23 Nev. 92; Walsh v. Wallace, 26 Nev. 299; Gotelli v. Cardelli, 26 Nev. 382; Twaddle v. Winters, 29 Nev. 88; Union M. & M. Co. v. Dangberg, 81 Fed. 73.

Vested rights recognized by federal and state legislation, secs. 2401, 3105 (Stats. 1903, p. 24).

Wrongful diversion. Roeder v. Stein, 25 Nev. 92; Bliss v. Grayson, 24 Nev. 422; Twaddle v. Winters, 29 Nev. 88; Ennor v. Raine, 27 Nev. 178; Gotelli v. Cardelli, 26 Nev. 382; Tonkin v. Winzell, 27 Nev. 88.

STATE STATUTES

General act in relation to water of February 26, 1907, sections 4672-4705.

Act of March 16, 1901, creating state board of irrigation, section 4706.

Act requiring water users to install headgates and measuring weirs, approved March 10, 1909, sections 4707-4709.

Act to allow the running of water through any ditch or flume and to provide for right of way, approved March 3, 1866, sections 4710-4713.

Act relating to the construction of waste ditches and to provide right of way, approved February 26, 1887, section 4714.

Act to provide for turning stored water into channels or streams and for reclaiming the same, approved March 9, 1899, section 4715.

Act authorizing boards of county commissioners to institute and maintain suits against parties depositing sawdust in rivers or streams and providing for a tax to pay the expense of the same, approved March 5, 1887, sections 4716, 4717.

Act to provide for the protection of agricultural lands and relating to the obstruction and pollution of waters and streams, approved February 19, 1862, sections 4718-4720.

"Act defining and prohibiting unlawful diversion and waste of water," approved February 28, 1889, sections 4721, 4722.

Act to provide for drainage, irrigation, and water storage districts for the acquisition of water and property and relating to other matters connected therewith, approved March 20, 1911, sections 4723-4791.

Artesian wells and bounties, sections 702-707, et seq.

Furnishing impure water, section 6540.

Injury to dam, bridge, or flume, section 6757.
Injury to rafts or water craft, section 6756.

Polluting waters, section 6547.

Running water on highway, section 6770.

The act of March 9, 1889 (Stats. 1889, 107), providing for the recording of statements by water claimants for the determination of priorities, and other matters, was repealed by the act of February 3, 1893 (Stats. 1893, 131).

The act of February 16, 1903 (Stats. 1903, 18), and the act supplementary thereto of 1905 (Stats. 1905, 67), providing for a state engineer for determining the priorities to vested water rights, and for acquiring by application to his office rights to water not already vested, have been expressly repealed and superseded by the act of February 26, 1907.

An Act to provide for the appropriation, distribution and use of water, and to define and preserve existing water rights, to provide for the appointment of a state engineer, an assistant state engineer, and fixing their compensation, duties and powers, defining the duties of the state board of irrigation, providing for the appointment of water commissioners and defining their duties.

Approved February 26, 1907, 30

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4686. Oath of claimants.

4687. Claimant must make statement within
ninety days-Misdemeanor.
4688. State engineer to make measurement
and plat of ditches and irrigable
lands.
4689. State engineer to issue certificates to
appropriators and county recorders
-Recording at state's expense.
4690. Parties aggrieved may bring action-
Court may employ expert-Costs.
4691. Water commissioners to apportion
water-Priorities-Judgment.
4692. State engineer a member and secre-
tary state board of irrigation.
4693. Powers and duties of state board and
water commissioners.

4694. Number and compensation of water
commissioners under state engineer.
4695. Appropriators to obtain permission
from state engineer-Application to
contain-Defective application cor-
rected-Priority.

4696. Notice application published expense applicant-Protest, reasons stated -Evidence-Vested rights reserved.

4697. Application When to be refused, when to be approved-Approval for less amount-Change of place of diversion-Evidence of work-Cancelation of permit.

4698. Fees and charges-Publication-Fees to go to state treasury.

4699. State engineer to issue certified copies
of records-Copies evidence.

4700. Seal for state engineer.
4701. Parties may sue within sixty days-
Necessary defendants-Appeal.
4702. Applicant must furnish map.
4703. State engineer to issue certificate-
Recording fee-Date of priority.
4704. Misdemeanor for interfering with
water officers.

4705. Punishment.

4706. Repeal of previous acts.
4707. Water users to install headgates and
weirs-Plans by state engineer.
4708. State engineer may install if water
users do not.

4709. Water user failing to install, guilty of
misdemeanor.

4710. Certificate for building ditch or flume
-Commencement of work.
4711. Rights conferred to enter and appro-
priate private lands-Compensation,
how made-Duty of appraisers-
Appeal.

4712. Undisturbed right to ditch and flow.
4713. Act to apply to ditches and flumes
already constructed and extensions.
4714. Right of way and condemnation for
waste ditches.

4715. Stored water may be conveyed through streams and reclaimed.

4716. County commissioners may institute suit to prevent pollution of streams. 4717. Tax may be levied for enforcement of this act.

4718. Obstruction and pollution of streams. 4719. Action for damages.

4720, Penalty.

4721. Unlawful diversion and waste of

water. 4722. Penalty.

4672. Certain waters subject to appropriation.

SECTION 1. All natural watercourses and natural lakes and the waters thereof which are not held in private ownership, belong to the state and are subject to appropriation for beneficial uses.

4673. Existing rights to be respected.

SEC. 2. All existing rights to the use of water, whether acquired by appropriation, or otherwise, shall be respected and preserved, and nothing in this act shall be construed as enlarging, abridging or restricting such rights. 4674. Use of water limited to beneficial purposes.

SEC. 3. There is no absolute property in the waters of a natural water

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