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Action by the Reno Smelting, Milling & Reduction Works against Stevenson and others, to restrain the diversion of water. From a judgment for plaintiff, defendants appeal. The Attorney General, R. H. Lindsay, and T H. Wells, for appellants. R. S. Mesick, for respondent.

diminish the quantity of water which would otherwise descend to the proprietors below, nor throw the water back upon the proprietor above, without a grant, or an uninterrupted enjoyment of twenty years, which is evidence of it." 3 Kent, Comm. 439. "It is wholly immaterial," says Judge STORY in Tyler v. Wilkinson, 4 Mason, 400, "whether the party BELKNAP, J. This action is brought for be a proprietor above or below, in the course the purpose of determining rights to the use of the river. The right being common to all of water upon the following facts: The the proprietors on the river, no one has a plaintiff is a corporation engaged in the re- right to diminish the quantity which will, duction of ores. It is the owner in fee of 10 | according to the natural current flow to a acres of land on the Truckee river, upon proprietor below, or to throw it back upon a which its reduction works are situated. proprietor above. This is the necessary reLong prior to the commission of the griev-sult of the perfect equality of right among all ances alleged in the complaint it built a dam the proprietors of that which is common to in the river at a point above its own land, but with the consent of those whose lands were affected thereby. The water is used to furnish power to operate machinery at the works, and is conveyed from the dam by means of a ditch and flume. The height of the dam is such that the waters of the river | flow over it about 10 inches above its crest, and, unless the water is maintained at this height, sufficient cannot be diverted to fili the ditch and flume. The state of Nevada is the owner in fee of the land next below that of the plaintiff on the river. The insane asylum of the state is situated thereon, and the defendants, by virtue of their offices of governor, comptroller, and treasurer of the state, respectively, are commissioners for the care of the insane, and, as such, control the affairs of the asylum. In their capacity as commissioners they have caused the pond of water made by the dam of the plaintiff to be tapped by a flume, and thereby carried a portion of the waters to the asylum grounds for motive power. The district court enjoined this diversion of the waters. Plaintiff upon this appeal neither claims nor disclaims a right by virtue of a prior appropriation, but urges an affirmance of the judgment upon the sole ground that it is a riparian proprietor, and, as such, is entitled to the natural flow of the water through its land.

all." But the rule of the common law has never been applied by the courts of this state, except as hereinafter mentioned. The condition of settlers upon the public lands of the state necessitated a diversion of running waters from their natural channels for agricultural purposes, and our courts have, with the exception stated, protected the first appropriator to the extent of his appropriation to any beneficial use, and no obligation has been imposed upon him to return the water to its natural channel. The history of this subject is clearly stated by Mr. Justice FIELD in Atchison v. Peterson, 20 Wall. 510, as follows: "By the custom which has obtained among miners in the Pacific states and territories, where mining for the precious metals is had on the public lands of the United States, the first appropriator of mines, whether in places, veins, or lodes, or of waters in the streams on such lands for mining purposes, is held to have a better right than others to work the mines or use the waters. The first appropriator who subjects the property to use, or takes the necessary steps for that purpose, is regarded, except as against the government, as the source of title in all controversies relating to the property. As respects the use of water for mining purposes, the doctrines of the common law, declaratory of the rights of riparian owners, were, at The rights of riparian proprietors are thus an early day, after the discovery of gold, stated by Chancellor Kent: "Every proprietor found to be inapplicable, or applicable only in of lands on the banks of a river has naturally in a very limited extent, to the necessities of an equal right to the use of the water which miners, and inadequate to their protection." flows in the stream adjacent to his lands as Referring to the rule as above stated, and it was wont to run, (currere solebat,) with- which accords to the different riparian proout diminution or alteration. No proprietor prietors an equal right to the use of the waters has a right to use the water, to the prejudice of the stream, the opinion proceeds: “This of other proprietors above or below him, un- equality of right among all the proprietors less he has a prior right to divert it, or a title on the same stream would have been incomto some exclusive enjoyment. He has no patible with any extended diversion of the property in the water itself, but a simple usu-water by one proprietor, and its conveyance fruct while it passes along. Aqua currit et for mining purposes to points from which it debet currere ut currere solebat, is the lan- could not be restored to the stream. But the guage of the law. Though he may use the government being the sole proprietor of all water while it runs over his land as an in- the public lands, whether bordering on cident to the land, he cannot unreasonably streams or otherwise, there was no occasion detain it, or give it another direction, and he for the application of the common-law docmust return it to its ordinary channel when it trine of riparian proprietorship with respect leaves his estate. Without the consent of to the waters of those streams. The governthe adjoining proprietors, he cannot divert or ment, by its silent acquiescence, assented to

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the general occupation of the public lands for | "* It is to be observed that the commining, and, to encourage their free and un- mon law of England was adopted by the limited use for that purpose, reserved such founders of the American colonies to a limlands as were mineral from sale, and the ited extent only. The emigrants from Engacquisition of title by settlement. And he land brought with them the general princiwho first connects his own labor with prop-ples of the common law of that country, and erty thus situated and open to general ex-adopted and put them in practice so far as ploration does, in natural justice, acquire a they were applicable to their situation; and, better right to its use and enjoyment than as the people of each colony acted independothers who have not given such labor. So ently of the rest in this respect, it has resultthe miners on the public lands throughout the ed that the common law of each of the states Pacific states and territories by their cus- differs in some particulars from that of the toms, usages, and regulations everywhere others, and that in none of them is it wholly recognized the inherent justice of this prin- | identical with the common law of England." ciple, and the principle itself was at an early Professor Washburn, in his treatise upon the period recognized by legislation, and enforced Law of Real Property, (volume 1, p. 36,) by the courts in those states and territories." It may be well to underAnd in Basey v. Gallagher, Id. 670, after stand how far the common and statute law referring to the views above quoted, the court of England have been adopted as the law of say: "The views there expressed and the this country. As a general proposition, so rulings made, are equally applicable to the much of these as was suited to the condition use of water on the public lands for purposes of a people like that of the early settlers of of irrigation. No distinction is made in those this country was adopted by common constates and territories by the custom of min- sent as the original common law of the colers or settlers, or by the courts, in the rights onies. They brought it with them as they of the first appropriator from the use made did their language, and regarded it as a herof the water, if the use be a beneficial one."itage of inestimable value, by which their In the case of Vansickle v. Haines, 7 Nev. rights of person and property were to be reg249, it was held that the patentee of the ulated and secured. Especially was this true government succeeded to all of its rights, and in regard to the law of real property." "The among these was the right to have the water common law of England," said Judge STOof a stream theretofore diverted returned to RY, "is not to be taken in all respects to be its natural channel. In that case the patent that of America. Our ancestors brought of the government had been issued prior to with them its general principles, and claimed the passage of the act of congress of July 26, it as their birthright, but they brought with 1866. The court considered the statute pro- them and adopted only that portion which spective in its nature, and that it did not apply was applicable to their situation." Van to that patent. Subsequently, in the case of Ness v. Pacard, 2 Pet. 144. "The common Broder v. Water Co., 101 U. S. 274, the su- law," says Chancellor Kent, "so far as it is preme court of the United States declared applicable to our situation and government, that the statute was rather a voluntary rec- has been recognized and adopted as one enognition of a pre-existing right of possession, tire system by the constitutions of Massaconstituting a valid claim to its continued chusetts, New York, New Jersey, and Maryuse, than the establishment of a new one; land. It has been assumed by the courts of and, following this view, the construction justice, or declared by statute, with the like given to the statute in Vansickle v. Haines modifications, as the law of the land in every was overruled in Jones v. Adams, 19 Nev. state. It was imported by our colonial an78, 6 Pac. Rep. 442. Again, in Vansickle v.cestors as far as it was applicable. Haines, the court considered that the lan- 1 Kent, Comm. 473. guage of the statute adopting the common law In Bogardus v. Trinity Church, 4 Paige, precluded a consideration of the question of 198, the question was whether the statute of its applicability. The statute is as follows: 32 Hen. VIII., and that of 21 Jac. I., consti"The common law of England, so far as it is tuted a part of the law of the state of New not repugnant to or in conflict with the con- York. Chancellor WALWORTH said: "It is stitution and laws of the United States, or a natural presumption, and therefore is the constitution and laws of this state, shall adopted as a rule of law, that, on the settlebe the rule of decision in all the courts of this ment of a new territory by a colony from state." Gen. St. 3021. This was substan- another country, especially where the colotially the statute when Vansickle v. Haines nists continue subject to the same governwas decided. The statute is silent upon the ment, they carry with them the general laws subject of the applicability of the common of the mother country, which are applicable law, but we think the term "common law of to the situation of the colonists in the new England" was employed in the sense in which territory; which laws thus become the laws it is generally understood in this country, of the colony until they are altered by comand that the intention of the legislature was mon consent or by legislative enactment. to adopt only so much of it as was applicable* *The common law of the mother to our condition. An examination of the country, as modified by positive enactments, authorities will render this apparent. together with the statute laws which are in In Curt. Comm. § 16, the author says: force at the time of the emigration of the col

When that case was decided a statute of the state was in force adopting the common law "so far as the same is applicable, and of a general nature." No mention of this qualification is made in the opinion. The court appears to have assumed its existence independently of express enactment, because in the year 1841, before the legislature had annexed the qualification to the statute, the court, in Boyer v. Sweet, 3 Scam. 120, said: “It is true, we have, like most other states in the Union, adopted the common law by legislative act; but it must be understood only in cases where that law is applicable to the habits and conditions of our society, and in harmony with the genius, spirit, and objects of our institutions." In the case of People v. Appraisers, 33 N. Y. 461, the question was whether the common-law rule of evidence to determine whether streams are navigable was applicable in the state of New York. In discussing the subject the court adopted the views expressed by Judge BRONSON, in a dissenting opinion, in Starr v. Child, 20 Wend. 149, as follows: "By the common law, the flow and reflow of the tide is the criterion for determining what rivers are public. This rule is open to the double objection that it includes some streams which

onists, become in fact the common law rath- | common-law rule to the condition and cir er than the common and statute law of the cumstances of our people, that it does not, colony. The statute law of the mother coun- and never has, prevailed in Illinois." Seetry, therefore, when introduced into the col- ley v. Peters, 5 Gilman, 142. ony of New York by common consent, because it was applicable to the colonists in their new situation, and not by legislative enactment, became a part of the common law of this province." And the rules of the common law are not enforced in localities to which they are inapplicable. In Illinois it was held that the rule of the common law requiring the owner of cattle to keep them upon his own land was inapplicable. The court said: "However well adapted the rule of the common law may be to a densely populated country like England, it is surely but ill adapted to a new country like ours. If this common-law rule prevails now, it must have prevailed from the time of the earliest settlements in the state; and can it be supposed that, when the early settlers of this country located upon the borders of our extensive prairies, they brought with them and adopted as applicable to their condition a rule of law requiring each one to fence up his cattle; that they designed the millions of fertile acres stretched out before them to go ungrazed, except as each purchaser from government was able to inclose his part with a fence? This state is unlike any other of the eastern states in their early settlement, because, from the scarcity of timber, it must be many years yet before our extensive prai-are not in fact navigable, and which, conseries can be fenced, and their luxuriant quently, might well be the subject of indigrowth, sufficient for thousands of cattle, vidual ownership; and it excludes other must be suffered to rot and decay where it streams, which are in fact navigable, and grows, unless the settlers upon their borders which in every well-regulated state should are permitted to turn their cattle upon them. belong to the public. Although the ebb and Perhaps there is no principie of the common flow of the tide furnishes an imperfect standlaw so inapplicable to the condition of our ard for determining what rivers are navigacountry and people as the one which is ble, it nevertheless approximates the truth, sought to be enforced now for the first time and may answer very well in the island of since the settlement of the state. It has Great Britain, for which the rule was made. been the custom in Illinois so long that the But such a standard is quite wide of the mark memory of man runneth not to the contrary when applied to the great fresh-water rivers for the owners of stock to suffer them to run of this continent, and would never have been at large. Settlers have located themselves thought of here, if we had not found the rule contiguous to prairies for the very purpose ready made to our hands. Now, I think no of getting the benefit of the range. The doctrine better settled than that such porright of all to pasture their cattle upon un- tions of the law of England as are not adaptinclosed ground is universally conceded. No ed to our condition form no part of the law man has questioned this right, although of this state. This exception includes, not hundreds of cases must have occurred where only such laws as are inconsistent with the the owners of cattle have escaped the pay- spirit of our institutions, but such as were ment of damages on account of the insuffi-framed with special reference to the physical ciency of the fences through which their condition of a country differing widely from stock have broken, and never till now has the common-law rule, that the owner of cattle is bound to fence them up, been supposed to prevail or to be applicable to our condition. The universal understanding of all classes of the community, upon which they have acted by inclosing their crops and letting their cattle run at large, is entitled to no lit-pothesis of its adoption, subject, always, to tle consideration in determining what the law is; and we should feel inclined to hold, independent of any statutes upon the subject, on account of the inapplicability of the

our own. It is contrary to the spirit of the common law itself to apply a rule founded on a particular reason to a case where that reason utterly fails,-cessante ratione legis, cessat ipsa lex." In states where the common law has not been adopted by legislative enactment, courts have proceeded upon the hy

its applicability to the locality. Stout v. Keyes, 2 Doug. (Mich.) 184; Lorman v. Benson, 8 Mich. 18; Morris v. Vanderen, 1 Dall. 67; Report of the Judges, 3 Binn. 595; Shewel

v. Fell, 3 Yeates, 21; Flanagan v. Philadelphia, 42 Pa. St. 219; State v. Čawood, 2 Stew. (Ala.) 360; Inge v. Murphy, 10 Ala. 885.

other stream of water. It was, as has been said, born of the necessities of the country and its people, was the growth of years, perFrom these authorities we assume that the manent in its character, and fixed the status applicability of the common-law rule to the of water-rights with respect to public lands. physical characteristics of the state should No valid reason exists why the government, be considered. Its inapplicability to the Pa- which owned both the land and the water, cific states, as shown in Atchison v. Peter- could not do this. It thus became, in my son, supra, applies forcibly to the state of judgment, as much a part of the law of the Nevada. Here the soil is arid, and unfit for land as if it had been written in terms in the cultivation unless irrigated by the waters of statute-books, and in connection with which running streams. The general surface of all grants of public land from either governthe state is table land, traversed by parallel ment should be read. In the light of the mountain ranges. The great plains of the history of the state, and of the legislation state afford natural advantages for conduct- and decisions with respect to the subject in ing water, and lands otherwise waste and question, is it possible that either governvalueless become productive by artificial ir- ment, state or national, ever contemplated rigation. The condition of the country, and that conveyance of forty acres of land at the the necessities of the situation, impelled set- lower end of a stream that flows for miles tlers upon the public lands to resort to the through public lands should put an end to diversion and use of waters. This fact of subsequent appropriation of the waters of itself is a striking illustration, and conclu- the stream upon the public lands above, and sive evidence of the inapplicability of the entitle the grantee of the forty acres to the common-law rule. The system which the undiminished flow of the water in its natnecessities of the people established was rec- ural channel from its source to its mouth? ognized and confirmed by the legislation of It seems to me entirely clear that nothing of congress-First, by the act of July 26, 1866, the kind was ever intended or contemplatwhich declares, in its ninth section, "that ed." The case of Coffin v. Ditch Co., 6 Colo. whenever, by priority of possession, rights to 443, recognizes appropriation as the law of the the use of water for mining, agricultural, state of Colorado. Some of the principles anmanufacturing, or other purposes, have vest-nounced in that case are applicable here. “It ed and accrued, and the same are recognized is contended by counsel for appellants," say and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same; * **" and, second, by the desert land act, which encourages the appropriation and use of water upon such of the public lands as will not, without irrigation, produce an agricultural crop, by authorizing the sale of a greater amount of such land than the purchaser could otherwise acquire, upon proof of his having conducted water upon it for the purpose of irrigation. This act applies only to the Pacific coast states and territories. U. S. St. 1877, p. 377. The legislature of the state also has encouraged the diversion of water by an act approved March 3, 1866, the general object of which is expressed in its title, as follows: "An act to allow any person or persons to divert the waters of any river or stream and run the same through any ditch or flume, and to provide for the right of way through the lands of others." Gen. St. §§ 362-365. And the adjudication of the courts, with the exception mentioned, have sustained the doctrine of appropriation upon which the people acted. That the doctrine should be upheld, as well after the issuance of the patent of the government as before, we quote the views of Mr. Justice Ross, in a dissenting opinion in Lux v. Haggin, 69 Cal. 450, 4 Pac. Rep. 929: "The doctrine of appropriation thus established was not a temporary thing, to exist only until some one should obtain a certificate or patent for forty acres, or some other subdivision of the public land, bordering on the river or v.21p.no.4-21

the court, "that the common-law principles of riparian proprietorship prevailed in Colorado until 1876, and that the doctrine of priority of right to water by priority of appropriation thereof was first recognized and adopted in the constitution. But we think the latter doctrine has existed from the date of the earliest appropriations of water within the boundaries of the state. The climate is dry, and the soil, when moistened only by the usual rain-fall, is arid, and unproductive. Except in a few favored sections, artificial irrigation, for agriculture, is an absolute necessity. Water in the various streams thus acquires a value unknown in moister climates. Instead of being a mere incident to the soil, it rises, when appropriated, to the dignity of a distinct usufructuary estate or right of property. It has always been the policy of the national, as well as the territorial and state, governments, to encourage the diversion and use of water in this country for agriculture; and vast expenditures of time and money have been made in reclaiming and fertilizing, by irrigation, portions of our unproductive territory. * ** * The right to water in this country, by priority of appropriation thereof, we think it is, and has always been, the duty of the national and state governments to protect. The right itself, and the obligation to protect it, existed prior to legislation on the subject of irrigation. It is entitled to protection, as well after patent to a third party of the land over which the natural stream flows, as when such land is a part of the public domain, and it is immaterial whether or not it be men

tioned in the patent, and expressly excluded from the grant." Our conclusion is that the common-law doctrine of riparian rights is unsuited to the condition of our state, and that this case should have been determined by the application of the principles of prior appropriation. Judgment reversed, and cause remanded for a new trial.

(20 Nev. 290)

FENSTERMAKER v. PAGE. (No. 1,295.) (Supreme Court of Nevada. April 16, 1889.) MALICIOUS PROSECUTION-PROBABLE CAUSE-EVI

DENCE.

1. In an action for malicious prosecution, where plaintiff alleges that defendant instigated a prosecution against him for wounding cattle, the property of another, evidence by plaintiff that the cattle alleged to have been wounded belonged to himself is not admissible to show want of probable cause, where no offer is made to show that defendant knew, or should have known, that the cattle did not belong to another.

2. Where plaintiff in such action fails to establish want of probable cause, a nonsuit is properly granted.

Appeal from district court, Eureka county; A. L. FITZGERALD, Judge.

Action by Fenstermaker against Page for malicious prosecution. A nonsuit was granted, and plaintiff appeals.

Wren & Cheney and Peter Breen, for appellant. Baker & Wines, R. M. Beatty, and Henry Rives, for respondent.

BELKNAP, J This is an action to recover damages for an alleged malicious prosecution. The complaint charges that defendant falsely and maliciously, and without reasonable or probable cause, instigated a criminal proceeding against the plaintiff for the alleged crime of wounding cattle, the property of another man, by reason whereof plaintiff was damaged, etc. The cause was tried in the district court. When the plaintiff rested his case, a motion for nonsuit was allowed, based upon the ground of failure to prove want of probable cause for, and malice in, the prosecution of the criminal charge. Plaintiff must have shown both malice and want of probable cause to sustain the action. Stewart Sonneborn, 98 U. S. 187; Ricord v. Railroad Co., 15 Nev. 179.

Appellant claims that evidence tending to prove these matters was erroneously excluded at the trial. The statute under which the criminal prosecution was had is as follows: "Every person who shall willfully or maliciously wound or kill, with fire-arms, knives, or other deadly weapon, any cattle or domestic animal belonging to another person, * ** shall, on conviction, be punished by imprisonment in the state-prison not less than one year nor exceeding three years, or by fine not exceeding five hundred dollars, or by both such fine and imprisonment." Gen. St. § 4688. Plaintiff, a witness in his own behalf, was asked the question: "To whom did those heifers belong?" This question was propounded for the purpose of showing, as asserted by counsel, that the prosecution

was false and malicious, and without reasonable or probable cause. The court refused to allow the question to be answered, and its ruling is assigned as error.

The fact that the cattle wounded belonged to the defendant in the criminal case, (the plaintiff here,) if such were the fact, was, of itself, immaterial upon the issue of want of probable cause. The question upon this particular issue was not as to the guilt of the plaintiff upon the criminal charge, but whether the defendant had probable cause to believe him so, (Brennan v. Tracy, 2 Mo. App. 540,) and no offer was made in connection with the question of evidence showing that defendant knew, or should have known, that the cattle wounded did not belong to another person. "The existence of a want of probable cause,' "say the court in Stewart v. Sonneborn, 98 U. S. 194, "is, as we have seen, essential to every suit for a malicious prosecution. Both that and malice must concur. Malice, it is admitted, may be inferred by the jury from want of probable cause, but the want of that cannot be inferred from any degree of even express malice."

It is not claimed that any other evidence contained in the record tends to establish a want of probable cause for the prosecution of the criminal proceeding. The plaintiff's case, therefore, failed to establish this essential fact, and a nonsuit was properly granted. It is unnecessary to consider the other assignments of error. Judgment affirmed.

(20 Nev. 28:)

Ex parte LIVINGSTON. (No. 1,304.) (Supreme Court of Nevada. April 13, 1889.)

CONSTITUTIONAL LAW-TITLES OF ACTS.

1. The act (St. Nev. 1889, p. 71) entitled "An act fixing the time for the opening and closing of saloons and gaming-houses" is not repugnant to the constitutional provision (article 4, § 17) that each act "shall embrace but one subject, and matter properly connected therewith, which subject shall be briefly expressed in the title."

2. The word "saloon "clearly refers only to places where intoxicating liquors are kept, and is not misleading.

Application for habeas corpus.

W. E F. Deal, for petitioner. The Attor ney General and J. D. Torreyson, for the State.

HAWLEY, C. J. Petitioner, having been arrested for a violation of the "act fixing the time for the opening and closing of saloons and gaming-houses," (St. 1889, p. 71,) asks to be discharged from custody, upon the ground that said act is unconstitutional. The authority of the legislature, under the police power of the state, to pass acts regulating or prohibiting the sale of spirituous liquors, or regulating or suppressing gambling, is unquestioned. State v. Ah Chew, 16 Nev. 55; State v. Donovan, 20 Nev. - 15 Pac. Rep. 783. This authority is expressly admitted by counsel for petitioner. In fact, there cannot now be any question, if any there ever was, that it is the duty of courts to up

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