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quantity of water then in the ditch, depleted in the decree. If, then, Kelsey violated this the flow in plaintiffs' box to such an extent decree and closed the head gate, that is a that it could not reach their premises, result- matter with which Dalton and Kelsey only ing in this suit. A hearing was had before were concerned, and not these plaintiffs. a referee, and upon the testimony taken by Defendant and his co-owners, it is concedhim the learned trial court found that, as ed, were entitled to use the ditch.only for a legal effect of the acts disclosed by the the purpose of conveying surplus waters, evidence, Dalton was in no wise interfering from which it follows that if there were no with plaintiffs' rights; that there was an surplus therein, they had no right to remove abundant supply of water in the river for all the board which occasioned the injury to parties, and that plaintiffs could have had an plaintiffs. It was certainly not incumbent adequate quantity thereof by turning the upon plaintiffs, whose rights were first and same into the ditch; that such injury as was superior to defendant, to see that sufficient occasioned was the result of wrongful acts water was flowing in the canal to supply deon the part of Kelsey, not a party to the fendant's needs, for, their rights being first, suit, and not by reason of any claim or it necessarily devolved upon defendant to see doings of defendant, resulting in a dismissal that the desired surplus was in the canal, of the suit, and in this appeal.

and it became his duty, subject to the quali

fications to follow, to provide therefor, be M. L. Olmsted (Olmsted & Strayer, on the fore lowering his head gate to let such surbrief), for appellants. Leroy Lomax (Lomax plus pass through to his premises. Under & Anderson, on the brief), for respondent.

the agreement with plaintiffs' predecessors

in interest, plaintiffs were, and, are tenants KING, J. (after stating the facts as above). in common in the company ditch and dam at The facts above stated are practically conced- its source with Dalton and others, succeeded by the pleadings, as well as by defending to the original interests, making each reant's testimony, only the legal effect thereof sponsible in proportion to his interest therebeing in question. Defendant admits remov- in, for the maintenance and repair of the ing the four-foot board from his head gate, dam and ditch, and in case of default of one when there was no surplus water in the or more the other has a right to make such company ditch, occasioning thereby the deple- repairs, for which the defaulting party betion complained of, and at the same time ex comes liable for his pro rata; but such failpressly recognizes that plaintiffs' water right ure by plaintiffs, if any, did not justify dethrough the ditch is prior in time and supe fendant, under the law, in making up the rior in right to the claim of defendant and loss thus occasioned, by drawing off the wabis co-owners. The only point, then, with ter from plaintiffs' division box. See Moss which we are concerned, and as to which v. Rose, 27 Or. 595, 41 Pac. 666, 50 Am. St. there is any difficulty, is whether plaintiffs Rep. 743. When, therefore, he removed the had a right to elect to take the water through board, causing the depletion complained of, the box at the point mentioned. There can without making provision for an additional be no question, under the pleadings and ad- supply of water in the ditch to make up the missions of defendant, as to plaintiffs being deficiency, he necessarily invaded plaintiffs' entitled to the quantity, when needed, ca- rights to their injury, of which they were enpable of flowing through the box provided titled to complain. This was as much an enat his point of diversion. The conceded one-croachment upon plaintiffs' rights as if he eighth interest could not, without pressure, had tapped plaintiffs' ditch below the point flow through a box one foot square. But if of diversion. Had the company ditch been plaintiffs elect to take less than the quantity partitioned, so that plaintiffs' so-called "one to which they may be entitled, it is obvious foot” in width of water would have flowed that defendant is not in position to com- separately and apart from the waters in the plain. Furthermore this quantity appears to adjacent canal, it would certainly not be be adequate for plaintiffs' purposes. It will urged that Dalton would have the right, in be remembered that plaintiffs were not par- the event of a shortage, to open this partities to the former suit, and are in no wise tion; this, however, was not the method purbound thereby, and their interests, so far as sued. The waters claimed by each were alhere involved, must be considered as if such lowed to mingle, and were divided at the point suit had never been instituted. It is argued above indicated. The division box, therefore, that the suit in hand was properly dismissed. constituted the partition, and it was incumnot only for the alleged reason that there bent upon defendant, in the use of his surwas no interference or pretended interference plus, so to adjust it as not to interfere with with plaintiffs' rights, but on account of the plaintiffs' use, so long as plaintiffs' use and injury complained of being the result of manner of diversion were reasonable. wrongful acts by Kelsey. It is true that The method pursued by plaintiffs appears Kelsey was enjoined by the former decree to have been for the purpose of determining from either removing boards from, or ob- when they were receiving their quota of wa. structing the flow through Dalton's half ofter, for the court had ruled (although not as the head gate, unless otherwise ordered by against them, but as against defendant and

the quantity that would flow through the, on appeal. Gould v. Stafford, 91 Cal. 146, 27 four-foot aperture. When, therefore, it is Pac. 543; Id., 101 Cal. 32, 33 Pac. 429. At disclosed that the quantity was of the same the retrials the pleadings were amended and depth across the eight-foot box, and within the cause heard under new issues, and while the manner designated by the commissioner the results differ, the court adheres to the appointed by the court, it becomes clear that rule first announced on this point. To the the one-half awarded Kelsey, and the one same effect, Wiel, Water Rights (2d Ed.) § foot, or one-eighth, owned by plaintiffs, would | 196; Lakeside Ditch Co. v. Crane, 80 Cal. not have flowed through this opening, with- 181, 186, 22 Pac. 76. See, also, note to Barout an additional obstruction being placed in nard v. Shirley, 41 L. R. A. 758, where audefendant's aperture at the head gate. It is thorities considering this principle are colaccordingly immaterial, so far as defendant lated. is concerned, whether such obstruction was It is also argued that since defendant conplaced there for the purpose of increasing cedes plaintiffs' prior right, and manifests no the flow on Kelsey's side of the box, or for intention of continuing the interruption, the the purpose of running the additional quan- suit cannot be maintained. But it is clearly tity through the Carnes box, eight or ten feet established that he did insist upon the right above it. In fact the latter method would to deplete the flow in the manner complained seem to be the more convenient manner of of, and in his answer prays that his rights distributing the water, for when the supply therein be adjudicated, under which circumwas adequate for the demands of all, it stances it is fully settled that a suit is mainwould be left of uniform depth across the tainable. B. & C. Comp. § 394; Jones v. entire width of the head gate, and require Conn. 39 Or. 30, 47, 64 Pac. 855, 65 Pac. 1068, only such additional flow through the ditch 87 Am. St. Rep. 634, 54 L. R. A. 630; Hough above as would furnish the increased quan- v. Porter, 51 Or. 318, 372, 95 Pac. 732, 98 tity necessary to fill the Carnes box.

Pac. 1083, 102 Pac. 728; Whited v. Cavin, 55 The question then arises whether Kelsey | Or. 105 Pac. 396, 401. The same point was a necessary party. There is no dispute was urged in the briefs, and at the oral arbetween Kelsey and plaintiffs as to the quan- gument, but not deemed important in Seatity to which plaintiffs are entitled. It is weard v. Pacific Live Stock Co., 49 Or. 157, conceded by all, including Kelsey, that plain- 88 Pac. 963, and Williams v. Altnow, 51 Or. tiffs were entitled to one-eighth of the entire 275, 95 Pac. 200, 97 Pac. 539. flow, and Kelsey, insisting only that it be It follows that the decree dismissing the diverted to plaintiffs in the manner adopted, suit must be reversed, and one entered enin no way attempted to interfere with plain- joining defendant from interfering with the tiffs' use, but, on the other hand, endeavored flow of one-eighth the carrying capacity of to aid him in acquiring the supply required. the company ditch to and through the aperHe might properly have been made a party, ture provided by plaintiffs for that purpose. but it cannot, under the record, be held that And it appearing important that the rights he is a necessary party, for, as indicated, a of the parties hereto should be adjudicated, determination of the rights between plain- in the benefits of which each must share, and tiffs and Kelsey is not essential to the solu- that defendant was probably acting within tion of the difficulty between Dalton and the what he believed to be his rights, the costs Carnes. B. & C. Comp. § 41. The only in- allowed defendant in the circuit court will terference that plaintiffs were subjected to not be disturbed; plaintiffs to have their was by Dalton, hence it was not required that costs on appeal. he make any one else a party defendant by reason of the trespass complained of. It is

EAKIN, J., having at circuit court tried well settled that one tenant in common in a the former suit involving this ditch, took no ditch or water right may institute a suit for part. in this decision. unlawful interference therein by another ten

On Petition for Rehearing. ant (Moss v. Rose, 27 Or. 593, 41 Pac. 666, 50 Am. St. Rep. 743), and, as stated by the In the petition for rehearing our attention court in Gould v. Stafford, 77 Cal. at page is called to McPhee v. Kelsey, 41 Or. 194, 74 67, 18 Pac. at page 879: “Evidence that per- Pac. 401, 75 Pac. 713, where the ditch here sons other than defendant also diverted wa- involved was in controversy, the peti'ion ter from the stream was admissible only on averring it was there held that L. S. Kelthe issue as to the amount of damages. If sey and the successor of the elder Wilson defendant's diversion of water was wrong. "were the owners, or had the superior right ful, he could have no defense as against the to the amount of water which would fill the injunction in the fact that others were guilty present ditch to one-half its capacity; that of a similar wrong, and evidence offered to this respondent and his associates were enprove the latter fact would be irrelevant and titled to the use of the other half when inadmissible. And as plaintiff waived all there was sufficient water to fill the ditch, claim to damages (except nominal), we think and the decree of the circuit court which is that it was error to admit evidence of diver- in evidence in this cause is to the same efsions of water by third parties." The same fect;" and that it has been decreed and case was later before that Supreme Court conceded in all former litigation that Kelsey

and Wilson, (plaintiffs' predecessor in inter- y not exceeding a quantity equal to one-eighth est) were entitled jointly to one-half of the of the supply capable of being diverted ditch; and that it has never been held that through the company ditch. As the former Kelsey alone was entitled to one-half inter- decree gives to Kelsey as against Dalton and est. For these alleged reasons it is argued his associates in the former suit four-eighths we are in error in holding; in effect, that of the carrying capacity of the ditch, it must plaintiffs' one-eighth interest, when taken follow that when Kelsey and these plaintogether with. Kelsey's decreed rights, re- tiffs are each using their respective water sults in a right in defendant and others in- rights to the full extent allowed, there must terested with him to but three-eighths of the be less than four-eighths left for the other quantity capable of flowing through the com owners. This would leave the condition such pany ditch. If in this counsel were correct, that when plaintiffs are using no water, then there could be no question as to the sound as between Dalton et al., on the one hand, ness of their position, but, as stated in our and Kelsey on the other, each could, when former opinion, the final decree in McPhee the water is needed, use one-half thereof. v. Kelsey, reported in 44 Or. 194, 74 Pac. 401, That is to say the former decree, as between 75 Pac. 713, was vacated and a new hearing Kelsey and Dalton, is still effective. Kelsey, ordered (45 Or. 290, 78 Pac. 224), after which being first entitled to a “four-foot” supply, further testimony was taken, and in the de- after which, when not needed by the Carnes, cree entered thereunder the following lan- Dalton* et al. inay receive, when available, a guage appears: “That L. S. Kelsey is enti- like quantity, but when required by the tled to the prior and exclusive right to the Carnes Dalton's supply must be reduced in full amount of the water in said ditch to the proportion to the carrying capacity of the extent of said four-foot ditch in width; that Carnes' foot-square division box, whether plaintiffs James Dalton and P. L. Smith (be-one-eighth or less. ing the successors in interest jointly with In connection with the foregoing, reference George Neil of the rights of said McPhee, is made to our statement in the narrative of Smith, Tanner, and York in the said enlarge- facts, to the effect that Kelsey and Wilson ment of said ditch) are entitled to the amount were recognized as having one-half interest, of water carried by such enlargement, sub and the defendant and his co-owners oneject to Kelsey's rights above defined." It is half. This statement, however, had referalso conceded that four feet in width, as ence only to the original understanding behere used, means a one-half interest, and in tween the parties, and not to the decree as all the former litigation respecting this ditch finally entered. It is too obvious to admit of it is so treated.

discussion that not what we may now discovWhen viewed in connection with the con as the original understanding between tention and proof in the above case we fail the litigants, but the decree as finally entered to see any ambiguity in the language quoted in the former suit is binding upon this court. from the decree. It decrees as clearly as is In the petition much discussion is entered possible to do so that, as between Kelsey, into as to the alleged injustice in holding to on the one hand, and Dalton and Smith, on the effect that defendant cannot divert wathe other, Kelsey alone is the prior owner, ter from the river into the company ditch and entitled as a first right to a quantity of or in any way interfere with or use the divi. water equal to one-half of the carrying ca- sion head gate; that the division gate must pacity of the company ditch, and the part of forever remain closed for the benefit of Kel. the decree following the above excerpt en- sey and these plaintiffs, and defendant must joins Dalton and his then co-owner, Smith, accordingly lose his entire water rights, from any interference therewith. This de- etc., etc. But there is nothing in the opinion cree was offered in evidence by the plaintiff, from which such conclusions may be deducand for obvious reasons must be considered ed. We merely held in substance, and so in determining the rights of the parties here- stated, that defendant should be enjoined to, but plaintiffs cannot in any way be held from interfering with plaintiffs' prior right bound thereby, for neither they nor any of to the use of the quantity of water capable their predecessors in interest were parties to of being run through the Carnes box one foot that suit. This rule, although elementary ap- square, placed at their point of diversion a pears to have been overlooked by the peti- few feet above the Dalton-Kelsey division tioners.

box; such quantity not to exceed one-eighth The pleadings in this case concede, and of the carrying capacity of the company the proofs fully establish, that the plaintiffs, ditch. If then there is at any time only sufSamuel and W. A. Carnes, have the first ficient in the ditch to supply the quantity right to a quantity of water equal to one awarded plaintiffs, then as between the eighth of the carrying capacity of the ditch plaintiffs and defendant the plaintiffs are involved; from which it necessarily follows, entitled to close defendant's side of the divi• when taken in connection with the adjudica- sion-box in such manner as may prove estion in the McPhee-Kelsey suit, that defend sential to the diversion of such quantity ant Dalton cannot interfere with plaintiffs' through the Carnes division box. Again, first right to the use of a quantity of water when there is only sufficient to furnish Kel


quantity awarded them, the Dalton side. of | for the findings in the former suit recite that the division box may, for that purpose, be "the bottom of the Dalton box is 4 feet 4 closed entirely. But when all water capa- inches wide, and has a rapid fall for a disble of flowing through the company ditch, in tance of 10 feet above the box and the same excess of that required by either or both of through the box”; hence when there is only the parties last named, is in the company sufficient in the ditch to supply plaintiffs, ditch, the excess must be permitted to flow or to supply plaintiffs and Kelsey, as the to defendant's premises, and the boards in case may be, and defendant's head gate is the head gate may be removed or arranged in left open, it must necessarily follow that a such manner, whether by defendant, his em- part of the water would flow through Dalployés, or others authorized so to do, as to ton's head gate, depleting plaintiff's supply permit such surplus to flow through the proportionately. The contention on this point head gate.

overlooks the adjudicated as well as concedWe do not wish to be understood as ad- ed fact that plaintiffs and Kelsey are prior judicating in this suit any controversy be appropriators, and their actual needs, to the tween Kelsey and this defendant, for exam- extent of four-eighths formerly decreed Kelple, as to what lands and where Kelsey may sey, and that here awarded plaintiffs, must irrigate, etc. We intend only to recognize first be supplied before any water may flow their relative rights as expressed in the de- to defendant, and whatever may then be left cree in evidence between them, and the to defendant, whether much or little, becomes rights thereunder are here considered merely immaterial. It may prove more practicable in connection with, and only in so far as may to run the quantity going to Kelsey and be essential to a full understanding and de- these plaintiffs, as tenants in common, termination of the controversy in hand. Nor through Kelsey's side of the box, but if so can we at this time determine the relative it will necessitate a rearrangement of the rights of the plaintiffs between themselves, company division head gate. This, if found or as between plaintiffs and Dalton's co-own

necessary, may be directed by the trial court ers, or as against Kelsey, the reasons for

as before, through the aid of commissioners, which are obvious. Indeed it is unfortunate

appointed for the purpose. that all were not made parties either to the

We appreciate the suggested difficulty posformer suit, or to the one before us, where issues could, and should, have been framed sible to arise in carrying out and making efwith the view to a determination (during the fective the decree when entered, if all the lifetime of the witnesses) of the relative parties involved and interested do not comrights of all concerned, but in the absence of ply with the former decree, as well as the such presentation we are powerless to afford one here entered, but with that we have

It is our function to intera complete remedy for the many complexities nothing to do. possible to arise between all those interested. | pret and not to administer the law. In this

It is argued that it is unnecessary, in or- connection, however, it may not be improper der to furnish plaintiffs the water awarded to note that, as supplementary to the usual them, to obstruct the flow through defend method of dealing with those who may reant's division box. When the company ditch fuse to comply with a decree in this class of is used to its full carrying capacity this po- cases, an adequate administrative system apsition is tenable, but to concede this conten- pears to have been provided in the act of tion, when the supply is inadequate for all, 1909. See Laws 1909, p. 319. would be to question the law of gravitation, The petition for rehearing is denied.


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(33 Nev. 82)

such nomination, providing such office is to STATE ex rel. JOSEPHS v. DOUGLAS, Sec- be filled by election. The respondent has filretary of State. (No. 1,926.)

ed a general demurrer to the petition, and (Supreme Court of Nevada. Aug. 8, 1910.) the proceeding has been submitted upon the 1. CONSTITUTIONAL LAW (8 46*)-DETERMINA- petition and the demurrer thereto. TION OF CONSTITUTIONAL QUESTION-NECES- By an act of the Legislature entitled "An SITY – VALIDITY OF STATUTES — PRESUMP- act to consolidate certain state offices in the

Courts will presume statutes to be valid state of Nevada," approved February, 20. and will not consider a question affecting their 1893, it is provided : “Seçtion 1. The Secreinvalidity, unless essential to a determination of tary of State shall be ex officio clerk of the the case.

[Ed. Note.-For other cases, see Constitution. Supreme Court and ex officio State Librarian. al Law, Cent. Dig. $$ 43–45; Dec. Dig. $ 46.*]

St. 1893, p. 32, c. 35. 2. CLERKS OF COURT (8 1*)–NATURE OF OF

It is the contention of relator that in so FICE.

far as said act attempts to consolidate or The office of clerk of the Supreme Court is combine the offices of Secretary of State a constitutional office.

and clerk of the Supreme Court, it is beyond [Ed. Note.–For other cases, see Clerks of the power of the Legislature and, hence, vioCourt, Dec. Dig. 8 1.*]

lative of the Constitution; that said act call3. OFFICERS ($ 4*)–ABOLITION OF OFFICE.

The Legislature, in the absence of special not and does not have the force of an amendauthorization in the Constitution, may not abol- ment or repeal of the law existing at the time ish a constitutional office, or change, alter, or of its enactment, providing for the election of modify its constitutional powers and functions.

a clerk of the Supreme Court as other state [Ed. Note.-For other cases, see Officers, Dec. officers are elected (Comp. Laws, $$ 1782, Dig. $ 4.*]

1790, 1793), which provisions of the statute, 4. CLERKS OF COURT ($ 2*)–ABOLITION OF OFFICE-STATUTES-CONSTITUTIONALITY.

so far as the office in question is concerned, Const. art. 4, § 32, providing that the Leg. are unaffected by other subsequent legislaislature shall provide for the election by the tion. If the relator is right in this contenpeople of a clerk of the Supreme Court, etc., tion, the writ prayed for should issue, otherprovides, as amended in 1889, that the Legislature shall have power to increase, diminish, wise not. consolidate, or abolish the following county Section 32 of article 4 of the state Constiofficers: County clerks, county recorders, etc. tution, as originally adopted, reads as folHeld, that by expressly designating certain offices which might be consolidated, the Constitu- lows: "The Legislature shall provide for the tion intended to exclude all other offices, and election, by the people, of a clerk of the Suhence Act February 20, 1893 (St. 1893, p. 32, preme Court, county clerks, county recordc. 35), providing that the Secretary of State shall be ex officio clerk of the Supreme Court ers, who shall be ex officio county auditors. and ex officio State Librarian, while sufficient district attorneys, sheriffs, county surveyors, to confer color of authority on the Secretary public administrators, and other necessary of State acting ex officio clerk of the Supreme officers and fix, by law, their duties and comCourt, it is without force as an amendment or repeal, by implication, of the statute (Comp. pensation. County clerks shall be ex officio Laws $8 1782, 1790, and 1793), providing for clerks of the courts of record, and of the the election of a clerk of the Supreme Court in boards of county commissioners in and for the manner other state officers are elected.

their respective counties." This section of (Ed. Note.--For other cases, see Clerks of Courts, Dec. Dig. 8 2.*]

the Constitution, as amended in 1889, now

reads: “The Legislature shall have power to Mandamus by the State on the relation of increase, diminish, consolidate or abolish the Joe Josephs against W. G. Douglas as Secre- following county officers : County clerks, tary of State of the State of Nevada. Writ county recorders, auditors, sheriffs, district granted.

attorneys, county surveyors, public adminisWm. Woodburn and James R. Judge, for trators and superintendents of schools. The relator. R. C. Stoddard, Atty. Gen., and Legislature shall provide for their election by Leonard B. Fowler, Deputy Atty. Gen., for the people, and fix by law their duties and respondent.

compensation. County clerks shall be ex of

ficio clerks of the courts of record and of the NORCROSS, C. J. This is an original pro boards of county commissioners in and for ceeding in mandamus, brought by the relator their respective counties.” Comp. Laws, § 8!;. to require the respondent to file his nomina- In considering the question presented by tion papers and affidavit as a candidate for counsel in the briefs and in the oral arguthe Democratic Party nomination for the ment, it will be well to advert first to the office of clerk of the Supreme Court, to be questions presented and deiermined in the voted for at the primary election to be held decision of this court in the case of State ex on the 6th day of September, 1910. The rela- rel. Howell v. La Grave, 23 Nev. 373, 48 Pac. tor's petition alleges the necessary facts to 674, in which case the act now in question entitle him, as matter of right, to have his was also involved. Howell was then Secrenomination papers and affidavit filed and to tary of State and, by virtue of said act, was hare his name certified as a candidate for the clerk of the Supreme Court, at least, de

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

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