Ophir Silver Mining Co. v. Carpenter
4 Nev. 534 (1868)
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Rule of Law:
Under the doctrine of prior appropriation, a claimant's right to water relates back to the time the first step was taken to secure it only if the claimant prosecutes the necessary work with reasonable diligence. Reasonable diligence is an objective standard based on the steady labor usual for similar enterprises, and personal circumstances such as illness or lack of funds do not excuse long periods of inactivity.
Facts:
- In the spring of 1858, J. H. Rose, the defendants' grantor, began constructing a ditch to divert water from the Carson River, with an initial design to eventually create a much larger ditch.
- In 1859, a small amount of water was run through the partially completed ditch.
- In July 1859, the plaintiff's grantors initiated their own water appropriation from the Carson River at a point downstream from Rose's ditch.
- The plaintiff's grantors worked vigorously on their project and completed their ditch to its full capacity in the fall of 1860, and have continuously used the water since.
- From the fall of 1859 to the summer of 1862, Rose performed minimal work on his ditch, with one period of eighteen months seeing only a few days of labor, and a subsequent year seeing only three months of work.
- In the fall of 1-862, Rose contracted with Shanklin and McConnell to greatly enlarge the ditch, a project that was completed in early 1865 with a capacity ten times that of the original ditch.
- Rose claimed his inactivity was due to illness and lack of funds.
Procedural Posture:
- The plaintiff sued the defendants in a trial court (nisi prius court), seeking monetary damages and an injunction to stop the diversion of water.
- The defendants asserted a defense of a superior right based on a prior appropriation.
- The case was tried before a jury, which returned a verdict in favor of the defendants, specifically finding that their grantor had prosecuted the work on the ditch with due diligence.
- The plaintiff, as appellant, appealed the jury's verdict to this appellate court.
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Issue:
Does a water rights claimant's failure to perform substantial work on a water diversion project for a period of over two and a half years, with the exception of approximately three months of labor, constitute a lack of reasonable diligence sufficient to defeat the relation-back of their priority date?
Opinions:
Majority - Lewis, C. J.
Yes. The claimant's right does not relate back because the failure to perform substantial work for such a prolonged period constitutes an utter lack of the reasonable diligence required by law. The doctrine of relation-back is contingent upon the claimant prosecuting the work with the constancy and steadiness of purpose usual for men engaged in similar enterprises who desire a speedy completion. Here, the evidence shows that from the fall of 1859 to the summer of 1862, work on the ditch was effectively abandoned. Rose's excuses of illness and pecuniary inability are not cognizable, as the law considers only excuses incident to the undertaking itself, such as weather or labor shortages, not the personal circumstances of the claimant. Because diligence was lacking, the defendants' right to the enlarged water capacity dates from the project's completion in 1865, making it junior to the plaintiff's right, which was perfected in 1860.
Analysis:
This decision solidifies a key component of the relation-back doctrine in prior appropriation water law by establishing an objective test for 'reasonable diligence.' By rejecting personal excuses like illness or poverty, the court prevents speculative holding of water rights and promotes the actual, productive use of water resources. This precedent ensures that early claimants cannot indefinitely 'squat' on a priority date without making a genuine and continuous effort to put the water to use, thereby providing certainty for subsequent appropriators and encouraging efficient development.
