(190 P.) the use of 1.4 second feet thereof for the irrigation of land described in his answer and cross-complaint, with date of priority of December 4, 1907. From the judgment, and from an order denying a motion for a new trial, appellant appeals to this court. The principal point raised by appellant is that the evidence is insufficient to sustain the findings of fact and judgment. It is admitted that respondent Mary Rabido and appellant are the owners of the lands described in their pleadings; that they are agricultural in character, and require the artificial application of water in order to raise profitable crops. The springs in question are situate on unoccupied public land of the United States, some distance up a canyon known as "Jagles canyon." While there is some conflict in the evidence, the preponderance of the evidence shows that respondents cleaned 2. Waters and water courses 133-Hostile out the springs, constructed a ditch to condiversion of water from another's ditch cannot initiate a water right. One who diverts water from the ditch of another, against the will and without the consent of the latter, cannot thereby initiate a water right. 3. Waters and water courses 140-Priority of appropriation depends on application to a beneficial use. Where a water right is dependent upon appropriation, rather than application for a permit, priority depends on application of the water to a beneficial use, not on date of commencement of construction of diversion works. Morgan, C. J., dissenting. duct the water around a flat situate some distance below them, cleaned out the channel through which the water flowed down the canyon, thus succeeding in bringing the water to the mouth of the canyon, and then conducted it into a ditch which they had constructed. The evidence is sufficient to sustain the finding of the trial court that prior to the time respondents performed this labor the water from the springs never reached the mouth of the canyon, and that it was entirely the result of their labor that the water became available for irrigation purposes. However, the evidence shows that the work com Appeal from District Court, Blaine Coun- menced in 1906 instead of 1904 as found by ty; F. J. Cowen, Judge. Suit by Mary Rabido and another against Sherman Furey, to determine priority to the right to use the water of certain springs, with cross-complaint by defendant. Judgment for plaintiffs as to a certain use, and for defendant as to a certain use. From the judgment and an order denying his motion for a new trial, defendant appeals. Modified and remanded, with directions. the court. As a result of respondents' labor, in the fall of 1907, the water came down to the mouth of the canyon and into the ditch which they had built, but they did not apply the water to a beneficial use that fall. In December, 1907, appellant discovered the water coming out of the canyon, and, without making any investigation to determine its source, filed in the office of the state engineer, on December 4th of that year, Hawley & Hawley and O. W. Worth wine, an application for a permit to appropriate all of Boise, for appellant. 1% second feet of the waters of Goggles Clark & Brodhead, of Mackay, for re- creek, giving the source of supply as Goggles spondents. McCARTHY, District Judge. This is an action brought by respondents in the district court in and for Blaine county to determine the relative rights of the parties in and to the waters of Jagles or Goggles springs, in Blaine county. The district court entered judgment, awarding to respondents the right to the use of .8 second feet of the waters of the springs for the irrigation of land owned by respondent Mary Rabido, described in the amended complaint, with date of priority of April 1, 1904, and to appellant the right to creek, and the location of the point of diversion as the mouth of Goggles Creek canyon. In May, 1908, he took some water from the ditch which respondents had constructed near the mouth of the canyon, conducted it to his land, and applied it to a beneficial use. The finding that about May 1, 1908, appellant applied to a beneficial use 1.4 second feet of said water is hardly sustained by the evidence. The evidence shows that in the spring of 1908, appellant applied said water on about 32 acres, in 1909 and 1910 on about the same amount of land, and in 1911 on about 80 acres. There is no definite evi For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes dence to show just how much water he applied on his land at those times. It is clear, however, that he did apply some of said water upon his land before the respondents applied any of it on the land described in their complaint, and that he diverted it from the ditch which respondents had built near the mouth of the canyon. Thereafter he made proof of completion of works, and on March 5, 1913, a water license was issued to him for 1.4 second feet of the waters of Goggles creek; the date of priority designated in said license being February 3, 1908. On June 3, 1908, respondent Joseph Rabido and Ben Burnett filed in the state engineer's office an application for a permit to use 6.2 second feet of the waters of Jagles springs, which was approved by the state engineer on June 13, 1908. The application specified that the waters were to be used on a desert claim of Joseph Rabido. Any rights which may have accrued under that permit were subsequently quitclaimed by Rabido and Burnett to respondent Mary Rabido. In 1909 respondent Mary Rabido filed on the desert claim described in the amended complaint. On September 30, 1911, she applied for and received a permit to use four-fifths second feet of the waters of Jagles springs on her desert claim, giving the source of the water supply as Jagles springs, and the location of the point of diversion as about one mile from the mouth of Jagles creek. On April 21, 1916, the state engineer certified that the proof of completion of works under that permit had not been made as required by the laws of the state of Idaho, and that the permit was therefore voidable. In June, 1908, respondents continued their ditch to the desert claim of respondent Joseph Rabido, and irrigated 7 acres of his land with it, and in 1909 irrigated 40 acres of the desert claim of Mary Rabido with it. C. S. § 5561, reads as follows: "As between appropriators, the first in time is first in right." C. S. § 5562, reads as follows: "All ditches now constructed or which may hereafter be constructed for the purpose of utilizing seepage, waste or spring water of the state, shall be governed by the same laws relating to priority of right as those ditches, canals and conduits constructed for the purpose of utilizing the waters of running streams." C. S. § 5560, provides as follows: "The water appropriated may be turned into the channel of another stream and mingled with its water, and then reclaimed. * C. S. § 5569, which deals with applications to appropriate water, provides that the application shall give the source of the water supply, and a permit issued upon an appli cation also mentions the source of the water supply as given in the application. Appellant's application for a permit designates the source of supply as Goggles creek, and the location of the point of diversion as the mouth of Goggles Creek canyon. In other words, the application is for a permit to appropriate the waters of Goggles creek. The evidence shows that Goggles springs are not naturally tributary to or a feeder of Goggles creek. On the contrary, the waters of the springs spread over and sink into the ground at a place in the canyon known as "Rye Grass Flat," a little below the springs. The respondents, after clearing out the springs and increasing the flow, took the water around this flat and diverted it into the creek, cleaned out the creek, and thereby conducted the water in question down to the mouth of the canyon and into a ditch which they had dug, utilizing the creek part of the way as their ditch, which they had a right to do under the provisions of C. S. § 5560, supra. The water in question was therefore not the water of Goggles creek, but the water of Goggles springs. The application to appro [1] C. S. § 5556, provides as follows: "Water being essential to the industrial prosperity of the state, and all agricultural development throughout the greater portion of the state depending upon its just apportionment to, and economical use by, those making a bene-priate the water of Goggles creek covered ficial application of the same, its control shall be in the state, which, in providing for its use, shall equally guard all the various interests involved. All the waters of the state, when flowing in their natural channels, including the waters of all natural springs and lakes within the boundaries of the state are declared to be the property of the state, whose duty it shall be to supervise their appropriation and allotment to those diverting the same therefrom for any beneficial purpose, and the right to the use of any of the waters of the state for useful or beneficial purposes is recognized and confirmed. * C. S. § 5558, reads as follows: "The right to the use of the waters of rivers, streams, lakes, springs, and of subterranean only water which was naturally flowing therein, not the water of the springs, which did not naturally flow in it, but were diverted into it by respondent in the manner above indicated. We conclude that the application and permit issued pursuant thereto did not initiate a right to the water in question, namely, the water of Goggles springs. [2, 3] Appellant also claims a right to the water by reason of prior actual diversion and application to a beneficial use. The provision of C. S. § 5561, supra, has been enforced by a long line of decisions of this court. But in every case the water in question has been properly appropriated under the provisions of our statutes. (190 P.) right to the water by his attempted appro- We conclude that the evidence supports priation depends upon whether the water the finding of the trial court to the effect was subject to appropriation at the place that respondent Mary Rabido has a prior and in the manner in which he attempted right to .8 second feet of the waters of to appropriate it. The language used in C. S. Goggles springs. However, the date of § 5556, indicates that water is subject to ap- priority should not be 1904, as found by the propriation only when flowing in its natural trial court, nor even 1907, the year the water channel, and that it must be appropriated was brought down the canyon. Since the therefrom. The principle underlying this state engineer certified that the water permit statutory provision is recognized by the Su- granted her was voidable because of failure preme Court of Utah in Sowards v. Meagher, to make proof of completion of works, we 37 Utah, 212, 108 Pac. 1112, and by the Su- must fall back on the date of the actual appreme Court of Wyoming in McPhail v. For- plication of the water for the date of her ney, 4 Wyo. 556, 35 Pac. 773. It is similar priority. to the generally recognized principle that a valid water right cannot be initiated by using another's ditch against his will, or by any other trespass. Wiel, Water Rights in Western States (3d Ed.) vol. 1, §§ 221, 391; McRae v. Small, 48 Or. 139, 85 Pac. 503; Marshall v. Niagara Springs Orchard Co., 22 Idaho, 144, 125 Pac. 208. A general definition of the term "natural channel," applicable to all cases, is a difficult matter. A great deal depends upon the circumstances of each individual case. It may be that water which has once been diverted from its original natural channel, and has, after being used or abandoned, gotten into a channel other than the original one, can be said to be flowing in a natural channel within the meaning of this statute. That question is not before us, and we do not pretend to decide it. It is not necessary in this case to apply the language of that statute to all possible cases which may arise when water has been diverted from its original natural channel and does not return to it. The specific question upon which we pass in this case is whether the water in question, which respondents caused to flow down the canyon and into the ditch which they had constructed, and from which appellant diverted it, was flowing in its natural channel and was diverted therefrom by appellant. In view of the evidence, as summarized above, we answer this question in the negative. Goggles creek, or canyon, was not the natural channel for said water, but was used by respondents as a ditch to carry to their ditch the water which they had diverted from the springs. It is perfectly clear that the ditch out of which appellant diverted the water was not its natural channel. We must not be understood as holding that respondents acquired a completed water right mere ly by thus diverting it. On the contrary, in the absence of a valid filing by them, or a completed appropriation, appellant or any one else could have gone to the source of the water, namely, the springs, and made a valid filing or appropriation. But under this statute the water was not subject to appropriation at the place and in the manner attempted by appellant. From the evidence in the record it is not possible to state exactly when the .8 second feet of water was applied to her entry. The taking of further evidence on this point by the trial court will be necessary. So far as appellant is concerned, we find that he has acquired no valid right to the waters of Goggles springs, being the water in question. His permit and license give him a right to the waters of Goggles creek, and would apply to any water which may run down that creek, as distinguished from the waters of Goggles springs. The only waters in litigation under the issues of this case are the waters of Goggles springs. Since appellant has no right to them, no relief can be afforded him in this action. The case is remanded to the trial court, with instructions to modify its findings of fact and conclusions of law, and decree in accordance with the views herein expressed. In order to fix the exact date of respondents' priority, the trial court is ordered to take further evidence on the question as to the date when the .8 second feet of the waters of Goggles springs were applied by respondents to the land belonging to respondent Mary Rabido and described in the amended complaint. No costs are awarded on this appeal. RICE, J., concurs. MORGAN, C. J. (dissenting). The waters of Jagles springs are property of Idaho, and were subject to appropriation wherever found. They were unappropriated public waters, the right to use which might be acquired, until they were used in the irrigation of the lands of these litigants. The parties to this action having failed to conform to the requirements of the law in making their applications to the state engineer, their priorities depend on the dates they placed the waters to a beneficial use. It must not be understood that C. S. § 5560, grants to respondents the right to use the creek bed as a ditch without the consent of the owner of the land on which it is situated. Furthermore, the evidence does not justify the conclusion, which may be drawn from the foregoing opinion, that, in taking the water, appellant committed a trespass. On Petition for Rehearing. MCCARTHY, District Judge. The foregoing opinion holds that appellant did not acquire any right to the waters of Goggles springs. The questions as to whether he acquired a right to the waters flowing in Goggles creek, and as to whether waters originating in Goggles springs, but which are permitted to flow in Goggles creek, are waters of Goggles creek, are not discussed or decided. Since the appeal was taken from the judgment, and not from a portion thereof, the entire judgment is before the court, and subject to review, even though the respondents took no cross-appeal. The petition for rehearing is denied. (Supreme Court of Nevada. June 8, 1920.) 1. Costs 42(2)-Offer of judgment as to undisputed part of claim makes cost dependent upon result of disputed part. When plaintiff unites in the same action a claim that is not disputed with one that is, defendant may remove from the controversy the undisputed claim by offer of judgment, as authorized by Comp. Laws, § 3470, and thus make the subsequent costs of the litigation depend upon the result of the litigation in regard to the disputed claim. 2. Costs 42(2)—Offer of judgment need not include costs. Appeal from District Court, Nye County; Mark R. Averill, Judge. On rehearing. Former opinion (38 Nev. 164, 145 Pac. 941) adhered to, with modification as to costs. H. R. Cooke, of Tonopah, for appellant. SANDERS, J. This case was commenced in the lower court in 1908. It was appealed to this court in 1910. The judgment and order appealed from was affirmed on January 2, 1915. See opinion, 38 Nev. 164, 145 Pac. 941. Upon the application of the losing party a rehearing was granted in March, 1915. The matter of rehearing slumbered on the calendar of this court until December, 1919, and was presumably brought to a hearing because of an order directed to the parties to show cause why the case should not be stricken from the trial calendar. No member of this court as it is at present constituted participated in the opinion. The transcript consists of more than 800 pages. The cause appears to have been submitted upon full and exhaustive briefs covering every step in the proceedings. Ordinarily, unless limited or restricted by order, a rehearing opens up the entire case; but in this instance we are justified in confining this opinion on rehearing to the points raised in the petition for rehearing. It is pointed out in the petition that the court neglected to pass upon and decide two vital points necessary for a complete disposition of the case. One is that the court neglected and failed to decide which of the parties is entitled to costs of trial in the district court; and the other, Did the trial court err in giving a certain instruction over the objection of plaintiff, and duly excepted to at the time? [1] The question of costs involves the construction and application of section 3470, Cut. Offer of judgment under Comp. Laws, Comp. Laws of Nevada, the statute in force 3470, need not include costs. when the cause was tried in the court below. 3. Costs 42(4)—Offer of judgment does not When the plaintiff unites in the same action, affect costs accruing prior to offer. Although plaintiff failed to obtain a more favorable judgment than offered by defendant, plaintiff was entitled to accrued costs up to the time of the making of the offer. 4. Appeal and error 984(1)-Whether judgment "more favorable" than that offered, as affecting costs, within discretionary determination of court of jurisdiction. Whether judgment recovered was "more favorable" than judgment offered by defendant, within the meaning of Comp. Laws, § 3470, as to offer of judgment as affecting costs is to be determined by the tribunal having jurisdiction of the matter, and the exercise of the district court's sound discretion in this respect will not be disturbed, although the Supreme Court is not without power to correct abuse thereof. as it did in the present case, a claim that is not disputed with one that is, the defendant may remove from the controversy the undisputed claim by the offer of judgment, as authorized by said section 3470, and thus make the subsequent costs of the litigation depend upon the result of the litigation in regard to the disputed claim. The defendant by his answer in this case offered to allow plaintiff to take judgment against him for the sum of $616, less the sum of $42.80, for and on account of the second cause of action set forth in the complaint. The plaintiff did not accept the offer. By proceeding to trial it in effect elected not to accept, and evidently was content to take the chance of obtaining upon the trial a more favorable judgment than that offered. The verdict of the jury is (190 P.) for the sum of $573.20, with interest thereon | process of manufacture; and if you believe from at the legal rate from June 8, 1908, and that the evidence in this case that the plaintiff was the plaintiff take nothing by his first cause the manufacturer of the safe, which is the of action, and that the defendant have his subject-matter of this action, and that said plaintiff sold said safe under an order therefor costs and disbursements, taxed at $from defendant. which safe was by him intended Both parties filed with the clerk a memoranto be, and was, used for the ordinary and usual dum of costs. Each moved to strike the cost purposes for which safes are used, then plainbill of the other. The plaintiff's memoran- tiff warranted by the sale of said safe that said dum amounted to $547.05, and the defend- safe was reasonably fit for purpose and use." ant's to the sum of $563.05. The court struck plaintiff's cost bill, and, with certain deductions, allowed that of the defendant. If we clearly interpret the position taken by counsel, it is his contention that the in[2] It is contended that the so-called offer struction is not applicable to the case in any to allow judgment was ineffectual, because of its phases, and is a mere abstract stateit did not tender or include costs. The stat- ment of the law. Whether an abstract inute contains no such requirement. It is struction calls for a reversal of the case deenough that the offer contains a sum for pends upon whether as a result of the inwhich judgment is to be entered, and, if the struction prejudice resulted to the complainplaintiff fail to obtain a more favorable judging party. We are not prepared to say that ment, he shall not recover costs, but shall pay the defendant's costs from the time of the offer. Hammond v. N. P. R. R. Co., 23 Or. 157, 31 Pac. 299; Megrath v. Van Wyck, 5 N. Y. Super. Ct. 750. the instruction was calculated to mislead the jury and affect their conclusion upon the issue of express warranty. Entertaining these views, we are of the opinion that the judgment and order appeal [3] It is further objected that the court dis-ed from should be affirmed, and that the deallowed to plaintiff the accrued costs up to the time of the making of the offer, amounting to the sum of $26. This was error. Douthitt v. Finch, 84 Cal. 214, 24 Pac. 929; 5 Standard Enc. Proc. 871, note 19. [4] The appellant contends that the judgment recovered was "more favorable" to it than the judgment offered. Therefore.it is entitled to its costs as a matter of right. Whether or not a judgment is "more favorable" in the particular case, within the meaning of the statute, is a question to be determined by the tribunal having jurisdiction of the matter. State v. District Court, 26 Nev. 253, 66 Pac. 743. It is true the court in the case cited had under review a statute relative to the power and authority of the district court on an appeal from a justice of the peace. No good reason appears why the same reasoning should not be applied to the statute in question. We are of the opinion that the term "more favorable" must be construed with reference to the facts and circumstances of each particular case. While we do not go to the extent of holding that this court is without power or authority to correct an abuse of the power conferred by the statute, we do hold that whether or not a judgment is "more favorable" in the particular case must be left to the sound discretion of the district court. Without reviewing the facts, we conclude to accept the lower court's version of the judgment that it is not more favorable to the plaintiff than to the defendant. fendant's costs should be reduced, by credit- COLEMAN, C. J., and DUCKER, J., con cur. (21 Ariz. 465) SHILL V. JONES et al. (No. 1767.) (Supreme Court of Arizona. June 3, 1920.) 1. Pleading 367 (6)-Motion to make more definite and certain addressed to discretion. Motion to make a pleading more definite and certain is always addressed to the sound discretion of the court, which should be exercised in the interest of justice, not arbitrarily or capriciously. 2. Appeal and error 960 (2)—Order on motion to make pleading more definite and certain will not be revised. to When an order granting or denying motion make a pleading more definite and certain is made, it will not be revised by the appellate court. 3. Pleading 367(1)-Motion to make complaint more definite and certain cannot take place of demurrers. A motion to make more definite and certain, made under Civ. Code 1913, par. 474, cannot take the place of general and special demurrers to the complaint, as it should be employed when the pleading is defective in some respect, The instruction complained of reads as fol- but not demurrable under paragraph 468. lows: The jury is instructed that, where one sells an article of his own manufacture, he thereby warrants it to be free from any latent defect not disclosed to the buyer arising from the 4. Pleading 367 (2)-Motion to make complaint more definite and certain addressed to indefinite statement of cause of action. Motion to make the complaint more definite and certain is addressed to a statement of For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |