tifies 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 toward 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 time 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 caual 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 can not 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 while 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 tal en 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 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, 8 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 ap pellate court to set aside the verdict of a jury when it is not warranted by the evidence, is not, we presume, denied by respondent, 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 can not well be presented in a record, or at best but imperfectly. It behooves the appellate court, in view of the disadvantages which it must neces

sarily 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: State v. Yellow Jacket Co., 5 Nev. 415.

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 we 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 finding 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 can not 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.