Plaintiff owns 240 acres of land and seek to quiet title to the water of a creek. Their property was once owned by John Pedro, who had the appropriative right to “the entire flow” of the creek. Pedro was not adjacent to the water but he brought the right and then diverted the waterway through a constructed dam. When Pedro died, his estate was given to his children, who then sold it to Plaintiff. State authorities later issued appropriative rights to the water flaw to Defendants. Defendants had restrictions on the amount they could divert to their property for irrigation. Defendants argue that Plaintiffs did not put the water to beneficial use for nine consecutive years, where they only used to for personal livestock and irrigation. Their use was entirely personal and not profitable. Defendants also argued that 5/6ths of Plaintiff’s water was wasted due to considerable leakage. At trial, the court found Pedro had put his water rights to “beneficial use” for irrigation and domestic purpose. The court ruled that Nevada’s grant of appropriative rights was invalid as a result.
“Generally, an appropriative water right is forfeited by force of statute and reverts to the public if the appropriator fails to put it to beneficial use during a three-year period.”
“Plaintiff’s existing appropriative right is measured not by the flow originally appropriated and not by the capacity of the diversion ditch, but by the amount of water put to beneficial use at the delivery point plus such additional flow as is reasonably necessary to deliver it.”
Whether personal or unprofitable use of water constitutes “beneficial use” such that an appropriative title to water can remain with the title holder.
No, reversed. “Agriculture is a beneficial use of water even if it does not result in profit.” Domestic, personal use is also beneficial use for purposes of maintaining title to waterways, even if it is not for profitable use.
The loss of water by plaintiffs is unreasonable. “An appropriator cannot be compelled to divert according to the most scientific methods.” Whatever the locality’s custom for diversion is sufficient, so long as it isn’t wasteful. The loss of 5/6ths of water is unreasonable. The diversion, therefore, is excessive.
Outside the record at trial, it was acknowledged that the leakage caused by Plaintiff’s diversion runs beneath the land in the State Forest Service, which goes to greatly support wildlife populations. More efficient delivery resulting in less loss would hamper this population. Defendants’ solution for piping would hamper this loss. The court, therefore, acknowledges the loss and remands to the trial court for determination of what will be the most efficient delivery method in the future.