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Ophir Silver Mining Co. v. Carpenter - 4 Nev. 534


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. 


Appellant mining company filed an action against appellee landowners to recover for an alleged unlawful diversion of water from a river, and to obtain an injunction to restrain the landowners from future diversion of such water. The mining company also held an appropriation to divert river water, and alleged that the landowners' water use negatively impacted on its ability to use its appropriation. The mining company claimed that the landowners took water in excess of the amount allowed by the original appropriation to their grantor, Rose, who failed to exercise due diligence in constructing the ditch to obtain the water appropriation. Rose's appropriation was granted in 1858, and work on the ditch was done over a period of years, and done on an inconsistent basis. The trial court entered judgment in favor of the landowners on a jury verdict and the mining company appealed.


Did the landowners fail to exercise due diligence in executing the appropriation as required under the parties' agreement?




The court ordered a new trial. The court determined that the evidence established the mining company's contention that no such appropriation had been finalized inasmuch as the original landowners had failed to exercise due diligence in executing the appropriation as required under the parties' agreement. The court held that where the right to the use of running water was based upon appropriation and not upon an ownership in the soil, priority of appropriation was the superior right. Due diligence meant the steady application or constant effort to accomplish the undertaking. The landowners failed to offer sufficient evidence establishing that the original landowners had used due diligence in constructing a ditch in order to obtain the water appropriation. There was 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. While it was conceded that Rose was ill for a short time early in the year 1860 so that his want of means, and considerations of economy were suggested as circumstances to be considered in determining whether the enterprise was prosecuted with reasonable diligence, it was not shown that those circumstances should necessarily interfere with the prosecution of the work. Therefore, the court found that the district court erred in denying the mining company's claim for an injunction and in entering judgment for the landowners on the jury's verdict on the issue of diligence, which was not supported by the evidence.

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