Opinion
No. 1363.
October Term, 1892.
APPEAL from the District Court of the State of Nevada, Washoe county.
A. E. Cheney, District Judge.
Robert M. Clarke and Charles A. Jones, for Appellant.
I. The Truckee river is not a non-navigable but is a navigable water course. It is used for transporting wood, logs and lumber to market. (Rev. Stats. U. S. Sec. 2395; Shoemaker v. Hatch, 13 Nev. 261, 267; Gould on Waters, Secs. 7, 8, 9.) It is meandered, and thus reserved for public use. (Rev. Stats. U. S. Sec. 2395 and 2476; Shoemaker v. Hatch, 13 Nev. 267.)
II. The center, or middle thread of the stream, is not a fixed and immovable point, but is a varying, movable point depending upon the stage of the water, flow of the current and shifting of the true bed of the stream. (Black's Law Dic. 773; Anderson's Law Dic. 460; Abbott's Law Dic. 497.)
III. Whether the Truckee river be a navigable or non-navigable stream, respondent by virtue merely of his ownership of land washed by the stream, or over which the stream flows in its bed, is not the owner of any valuable water power as decreed by the court below. In this state such ownership can only be acquired by the appropriation of the water and the application of it to some useful or beneficial purpose. ( Barnes v. Sabron, 10 Nev. 217; Straight v. Brown, 16 Nev. 317; Hobart v. Wicks, 15 Nev. 418; Smith v. Logan, 18 Nev. 149; Schultz v. Sweeny, 19 Nev. 359; Reduction Works v. Stevenson, 20 Nev. 269.)
Thos. E. Haydon, in pro. per. for Respondent.
I. None of the questions made in appellant's brief were made in the court below in the pleadings, evidence or argument and cannot therefore be considered in this court. ( Dalton v. Libby, 9 Nev. 192; Grant v. Hunsacker, 55 Am. Dec. 411; Amidown v. Osgood, 58 Am. Dec. 172; Western Stage Co. v. Walker, 65 Am. Dec. 797; Bassett v. Carleton, 54 Am. Dec. 606.)
II. Appellant has no interest in the questions he seeks to raise on appeal. The court below decreed in his favor every interest he claimed in his answer and he has no pecuniary interest in any question he makes on this appeal. ( Wiggins v. Swett, 39 Am. Dec. 719; Smith v. Bradstreet, 16 Pick. 264; Marr v. Hanna, 23 Am. Dec. 449; Black v. Kirgan, 28 Am. Dec. 394; Ringold v. Barley, 59 Am. Dec. 111; Sanford v. Howard, 68 Am. Dec. 106.)
Action by Thomas E. Hayden against Samuel Brown and the Reno Electric Light and Power Company to abate a nuisance caused by the construction of a dam across a stream. Judgment against the light and power company. Brown appeals.
The plaintiff and defendant Brown owned land on either side of the Truckee river. The plaintiff alleged that his land extended to the middle thread of the stream. This was not denied in the answer. The action was brought to abate a dam constructed by the defendants across the river at that point, and which plaintiff alleged had damaged him by causing his land to be overflowed and washed away. The defendant Brown admitted that he had constructed a dam on his side of the stream to the middle thread thereof, as he claimed the right to do, but denied that it had caused the plaintiff any damage, and denied that he had constructed it or authorized its construction on the plaintiff's side, but alleged that this had been done by his lessee, the light company, without his authority or consent. No judgment was entered against defendant Brown, but it was decreed that the light company should abate that part of the dam which it had constructed on the plaintiff's side of the stream.
This action was brought to abate a nuisance caused by a dam constructed across the Truckee river, to enjoin its future maintenance, and for damages. Samuel Brown and the Reno Electric Light Power Company, a corporation, were made defendants. Brown answered for himself alone, and the company failing to answer, its default was duly entered. The cause was tried by the court and jury. Special issues were submitted and found in favor of defendant Brown, and he alone appeals from the judgment.
The points in this decree to which the appellant objects are: " First, the establishment of the Truckee river as a non-navigable water course; second, the establishment of a fixed, arbitrary and immovable center or middle thread of the stream; third, the extension of respondent Haydon's land to such fixed, permanent and immovable center or middle thread; fourth, the recognition and establishment of a valuable water right in respondent Haydon, by virtue of his ownership of land extending to the center or middle thread of the Truckee river."
In our opinion, the decree is entirely in favor of the defendant Brown. No injunction is entered nor are any damages awarded against him. The decree directs that as against him the plaintiff shall take nothing. The finding that the plaintiff's land extends to the middle thread of the stream is in accordance with the admissions in the pleadings, and was really invited by the defendant, who claimed in his answer to own on the other side of the river, to the same middle thread, and to have the right to maintain his dam to that point. As no injunction was granted against his so doing, this right must have been found in his favor. As the navigability or non-navigability of the river could only affect the parties as to their ownership of the bed of the stream, these allegations and admissions make the finding that the river is non-navigable entirely immaterial.
As Brown disclaims in his answer all ownership or title to that part of the dam erected on the plaintiff's side of the stream and decreed to be a nuisance, and all right to maintain the same, and denies that he constructed it or authorized its construction, he is not prejudicially affected by that part of the decree directing the other defendant to abate it. As upon every issue in the pleadings the decree is in appellant's favor he has no cause to complain of it.
The judgment appealed from is affirmed.