Opinion of the Court-Hawley, C. J.

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as the grantee aforesaid, by virtue of ownership of said two hundred inches of water, and the direct and implied authority to the undersigned in said indenture, to repair said ditches as aforesaid, sufficient to obtain said two hundred inches of water for irrigation and domestic purposes, and any interference upon your part with the full and direct flow of said two hundred inches of water in either of said ditches, as the undersigned may elect, either by selling the same or shutting the water off at the head, or any intermediate point upon said ditches, or using any other means whereby the undersigned will be prevented from a full and uninterrupted use of all rights granted him by said indenture, will be fully resisted according to law in such cases made and provided." On the twenty-fourth of January, 1879, a similar notice was given, in which the following language is used: "You are hereby notified that I am ready and willing at all times, and under all circumstances and conditions, to perform the conditions devolved upon me by virtue of said deed of conveyance, and even more when an equitable necessity shall arise; that by virtue of my rights aforesaid, and the willingness specified to fulfill any condition devolved upon me thereby, I hereby demand for irrigation and domestic purposes, under the claim in my deed of conveyance, an undivided two hundred inches of water for irrigating purposes during the irrigating season, and twenty-five inches during the fall, winter and spring seasons for domestic purposes. You are further notified that if said twenty-five inches of water are not furnished forthwith for domestic purposes, as aforesaid, and two hundred inches for irrigation purposes, as aforesaid, in due and proper time, without notice, suit will be commenced against you to compel specific performance of all conditions. and rights accruing to me as grantee of Nevada Land and Mining Company (Limited).

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These notices are clear, positive and explicit, to the effect that appellant requires two hundred inches of water for the irrigation of his land. He demands that that amount be furnished him for that purpose, and threatens to

Opinion of the Court-Hawley, C. J.

bring suit if any portion of it is withheld. By the giving of these notices he is estopped from denying that he "continuously used" the full amount required and demanded by him. The other objections are without merit. The settlement referred to was a compromise made by the parties (in a similar action) for a prior period of time. Respondent accepted a less amount than he sued for, and gave a receipt for the amount paid, it being "stipulated, understood, and fully agreed that the money paid aforesaid, and the conditions under which it was paid, there having been a dispute as to the exact amount due, and the above amount having been paid as a compromise, shall in no manner or way affect any subsequent settlement that may be made between the said Evans and myself; but that all settlements hereafter entered into shall be made by virtue of, and under a construction" of, the deed.

The fact that the notices were given prior to the commencement of this action is immaterial. The demands for two hundred inches of water have never been withdrawn. The requests, demands and threats of litigation were continuous in their nature. Respondent had the right to act under these notices; to furnish the water to the extent required, and collect that proportion of the expenses for the repairs of the ditches as long as these requests and demands remain unchanged. He might have submitted his case upon the notices and letters written by appellant, without introducing any testimony as to the amount of water actually used, and the court did not err in withdrawing from the consideration of the jury (as it did in the instruction) the testimony of appellant to the effect that he only used fifty inches of water, and that that amount was sufficient to irrigate the land." The purposes for which the notices were admitted in evidence were broad enough to have the effect of an estoppel as to the quantity of water needed to irrigate the land, and appellant could not have been misled or deceived by the giving of an instruction to that effect. If he had ever withdrawn his demands or changed his requests it was his duty, and he had the oppor

Points decided.

tunity, to testify to that effect. There is no error in the record prejudicial to appellant.

The judgment of the district court is affirmed.

[No. 1150.]

GEORGE SMITH, RESPONDENT, v. MICHAEL LOGAN ET AL., APPELLANTS.

WATER RIGHTS-NECESSARY PARTIES TO ACTION.-A flume company diverted the waters of the stream above the lands of the parties to this action, but the waters thus diverted were returned to the stream for plaintiff's use, undiminished in quantity: Held, that the flume company was not, therefore, a necessary party to the suit.

IDEM-WHO MAY MAINTAIN ACTION.-A party to whom certain lands are granted for the purpose of bringing an action for water rights connected therewith, there being an oral agreement between the parties that upon the termination of the litigation the lands should be reconveyed, may prosecute and maintain the action in his own name. Such suit is founded on the legal title.

FINDINGS EXCEPTIONS TO TIME OF FILING.-In construing the statute relative to defective findings: Held, that the exceptions required to be filed in court within five days are the exceptions of the party dissatisfied with the findings. IDEM-ERROR WITHOUT PREJUDICE:-Held, that if any error occurred in the time of filing the exceptions, appellant could not have been prejudiced thereby, as all the additional findings were favorable to him. APPROPRIATION OF WATER BY TRESPASSER.-Respondent appropriated sufficient water to irrigate certain lands to which he had no title. Appellant subsequently obtained a contract for the purchase of these lands from the true owner: Held, that the water so used and appropriated by respondent while he was a trespasser did not become appurtenant to the land, and, hence, did not pass to appellant under his contract of purchase. IDEM-ADVERSE USE-PRESCRIPTIVE RIGHTS.-In reviewing the findings: Held, that respondent acquired a prescriptive right to a certain quantity of water, previously appropriated by appellant, by reason of an adverse use; that appellant lost his right of appropriation, as previously acquired by him, to the extent of his non-user for the period prescribed by the statute of limitations; but as he resumed possession of sufficient water to irrigate five acres of land before the expiration of the statute of limitations, his appropriation to that extent should be maintained.

APPEAL from the District Court of the Second Judicial District, Washoe County.

Upon a rehearing, the court ordered that its previous

Argument for Appellant.

decision should be modified. The opinion, as here published, contains the modification and change directed by the court.

The facts are sufficiently stated in the opinion.

A. C. Ellis, for Appellant:

I. The court erred in dismissing the corporation as a party defendant after it had answered. It was an indispensable party to the proper determination of the rights of the parties to the use of the waters of said stream. (Dicey on Parties, 322-4; 2 Sawyer 455.) If plaintiff gave consent to the corporation to divert this water after defendant built its flume upon the faith of this consent, this easement would ripen into an absolute property right upon the conditions reserved and would be adverse to plaintiff and defendant. (Laws of 1869, Civ. Prac. Act, sec. 13; Lee v. McLeod, 12 Nev. 280; Woodbury v. Parshly, 7 N. H. 237; Snowden v. Wilas, 19 Ind. 14; Stevens v. Benson, Id. 369; Lane v. Miller, 27 Ind. 537; Rhodes v. Otis, 33 Ala. 578; Campbell v. Mc Coy, 31 Penn. 264; Prince v. Case, 2 Am. Lead. Cases 760-1.) Logan could not lose his right of appropriation by non-user simply, he must have abandoned his right or must have lost it by permitting plaintiff to acquire it by prescription. (Simson v. Eckstein, 22 Cal. 580; Union Water Co. v. Crary, 25 Cal. 504.) He might resume and utilize his right at any time, unless intentional abandonment was shown, or unless the water had been adversely used for five years. (Partidge v. Mc Kinney, 10 Cal. 181; Moon v. Rollins, 36 Cal. 333.)

R. M. Clarke and S. D. King, for Respondent:

I. The court did not err in dismissing the El Dorado Wood and Flume Company as a party defendant. (1 Pet. 299; 6 Wheat. 550; 3 Gray 308; 1 Waits' Pr. 161; Sawyer v. Chambers, 11 Abb. Pr. 110; Adams' Eq. 314; Barb. on Part. 450, 452; Moak's Van Sant. Pl. 78 and 79,

Opinion of the Court-Belknap, J.

etc., and cases cited; Story Eq. Pl. 572; Civil Pr. sec. 599; Harlan v. Eureka M. Co., 10 Nev. 92.)

II. Findings reviewed and claimed to be correct in every particular and sufficient to support the judgment.

By the Court, BELKNAP, J.:

This suit is brought for the purpose of determining the relative rights of the parties hereto to the waters of Steamboat creek. Their rights, whatever they may be, are based upon appropriations made by themselves and their predecessors in interest.

The joint answer of the defendants sets forth that a corporation known as the Eldorado Wood & Flume Company, is a necessary party defendant to the action, by reason of the fact that it was and theretofore had been, under claim of right, diverting permanently away from the natural channel all of the waters of the creek. The corporation was made a party defendant, and answered the joint answer. At the trial of the cause, and after the introduction of testimony touching the issues raised by the pleadings of the defendants and the corporation, the court dismissed it as a party defendant.

It was shown that the flume company diverted a portion of the waters of the stream at a point several miles above the lands owned by plaintiff or defendants. The lands of defendants are situated below the point of diversion and above the lands of the plaintiff. The waters diverted by the flume company were returned to the channel of the creek at a point below the lands of the defendants and above those of the plaintiff. Testimony was introduced in behalf of the plaintiff and the flume company tending to show that "the water was not diminished by the flume company's diversion and use, and that as much water was returned to the plaintiff's land by the flume company as would have reached said land if none were diverted by the flume company." Defendants introduced testimony in contradiction of this. There is no express finding upon this issue, but as the judgment was for the plaintiff, it is our duty to adopt