'THE OPHIR SILVER MINING Co. V. CARPENTER ET AL.

(4 Nevada, 534. Supreme Court, 1868.)

Insufficient diligence in constructing ditch lets in intervenors. Defendants grantor, in 1858, constructed a ditch from the Carson river to Dayton, a distance of four and one half miles; in 1859 and 1860 plaintiff's grantors tapped the river below the head of the Dayton ditch; in 1864 the Dayton ditch was finally enlarged to much greater capacity and so as to interfere with the supply to plaintiff 's ditch-this enlargement of the Dayton ditch, having been contemplated since 1858, but the work not prosecuted with diligence between 1858 and the time when the rights of the plaintiff's grantors accrued: Held, that the plaintiff's ditch had the appropriation prior to the enlarged ditch.

Facts not amounting to reasonable diligence. The cleaning of the old ditch in 1859, with the enlargements in places, but not so as to increase the capacity of the ditch to any greater scale, no labor toward enlargement in 1860, but little except repairs in 1861 and 1862 and no definite effort to increase the capacity of the ditch, with expenditures commensurate to the undertaking until 1863 and 1864, was not sufficient diligence to hold the ditch as enlarged against an undertaking which had been vigorously prosecuted shortly after the completion of the original ditch.

Date of appropriation. Where the work of appropriation is not prosecuted with diligence, although finally completed, the appropriation is dated from the completion, and not from the original commencement of the enterprise.

Relation. Priority of appropriation gives the better right to the use of running water when the right itself springs from appropriation and not as an incident of ownership of the soil; and where labor is required to complete the appropriation a reasonable time is allowed for such labor, and if completed within such reasonable time the appropri ation is considered as relating back to the first act done by the locator. Sickness and want of means no excuse for delay. In considering the question of reasonable diligence upon enterprises requiring much labor and capital, the illness of the principal operator, or his want of pecuniary means, and such other accidents causing delay as are incident to the person and not to the enterprise, can not be taken as an excuse to prolong the time which should be allowed.

2 Due diligence defined. To constitute diligence does not require unusual efforts or expenditures, but only such constancy in the pursuit of the undertaking as is usual with those in like enterprises who desire a speedy accomplishment of their designs; such assiduity as shows a bona fide intention to complete it within a reasonable t me.

Verdict set aside-Want of diligence. Due diligence is a question for the jury, but the term is sufficiently well defined to justify a court in setting the verdict aside, when, upon an admitted state of facts, there appears an utter want of diligence.

1 Same v. Same, 4 M. R. 653.

2 Highland Ditch Co. v. Mumford, 2 M. R. 3.

Practice-Injunction after verdict upon legal issues. In a suit in which equitable relief is sought by injunction, but which is entirely dependent upon the legal issues, the parties have a 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. Appeal from the District Court of Storey County, First Judicial District.

C. J. HILLYER, and THOMAS H. WILLIAMS for appellant, the plaintiff below.

ALDRICH & DE LONG, for respondents.

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 $3,000, for which judgment is asked against the defendants. An injunction is also prayed for to restrain any future diversion. The defendants claim the 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 uncontradicted evi1 Emma Mine Case, Post INJUNCTION.

dence 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 opposite 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 toward 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 defendant's right to that quantity of water now claimed by them will relate back to the spring of 1858, and thus antedate the plaintiffs' 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 toward 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 toward 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, "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 1863 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 tes