Covington v. Becker

By the Court, WHITMAN, J.: This ease was originally appealed by Covington et als., plaintiffs, in the Court below, and one of the defendants named Lamb. The former have dismissed their appeal, and Lamb is alone before this Court. The assignments of error are numerous, but all, with the exception of the fourth, are addressed to the specification of error in the findings and judgment on matters of evidence. The fourth assignment referred to above is as follows: “ That these defendants are riparian proprietors on Reese River above the land of plaintiffs, and are entitled to use the water of the stream in irrigating their lands for agricultural purposes, without any liability on that account to plaintiffs.” The agreement in the record rebuts the proposition that Lamb is a riparian proprietor thus: “ The only title to the lands of plaintiffs and defendants is a possessory one; the fee being in the General Government.” The law applied in the case was that universally recognized in this State and California in such state of facts — that of prior appropriation; and it is not complained that it was incorrectly applied, if the findings were warranted by the evidence, save upon the hypothesis that Lamb was a riparian proprietor. As to [283] that fact, in the sens.e intended by the assignment, it has been seen that Lamb has agreed himself out of Court. If the fact was otherwise, and as claimed in the assignment, it would be doubtful, to say the least, under the weight of authority at the present time, if he would be thereby benefited. (Lobdell v. Simpson, 2 Nev. 274.) As this question, generally considered, may and probably will become of extreme and practical importance, it is not intended to intimate any opinion thereon, as it is not necessary under the facts for the decision of this case. As to the other assignments, they are covered by the rule laid down in Quint and Hardy v. The Ophir Silver Mining Co., (4 Nev. 304) as follows: “ The law is now thoroughly settled that a verdict will not be set aside by an Appellate Court upon this ground [conflict of testimony] when the lower Court has refused to do so, unless there be such a decided preponderance of evidence against it as to create a conviction that it was the result of mistake or misconduct on the part of the jury.” There is, in this case, certainly substantial evidence to warrant the decision of the District Court, complicated and contradictory in some particulars it is true, but yet it must be confessed, upon entire perusal, that it does not clearly appear that appellant has any legal cause for objection. The findings and decree are as favorable to him as the whole testimony justified. The order refusing motion for new trial, and decree of the District Court, are correct, and must be affirmed. It is so ordered.