The facts sufficiently appear in the opinion. We detail the principal and controlling facts stated in the pleadings because they are necessary for the proper understanding and explanation of appellant's contentions.
This action was brought by J. C. Ennor some years before his decease. In his complaint he alleged that during all the year 1896 he was the owner, in the possession, and entitled to the possession of all that parcel of land and appurtenances situated in Pine Valley, Eureka county, and known as "Ennor's Ranch"; that during all that year he owned and had constructed upon this ranch various dams and ditches, by and through which he stored and accumulated the waters of Pine creek, which during all that time flowed through and upon the ranch; that by means of these ditches he irrigated a large portion of the ranch during that time, and cultivated and induced the growth of large crops of hay; that portions of the ranch require drainage; that there is no water for the portions of the ranch which require irrigation except that which is stored and accumulated by means of these dams; that in July, 1896, and while plaintiff was the owner and in the possession of the ranch and the dams and ditches and appurtenances, the defendant unlawfully and with force and violence entered and broke down and destroyed plaintiff's dams, whereby the water which he had theretofore stored and accumulated for the purpose of irrigating his ranch was lost and wasted, and a portion of his ranch was overflowed, and the crops of hay thereon injured and destroyed; that by reason of this loss of water plaintiff was prevented from irrigating and harvesting any crops of hay upon certain other portions of his ranch — all to plaintiff's damage in the sum of $3,000, for which he asked judgment.
In his amended answer the defendant denied all these allegations, and by way of affirmative defense alleged that he and his grantors had been the owners and in the possession of the premises known as the "Raine Ranch," in Pine Valley, since May, 1868; that Pine creek is a natural surface stream of water, which, when unobstructed, flows through his land; that ever since May, 1868, except when unlawfully diverted, he and his grantors have used 700 miners' inches of *Page 212 the water of this creek in the beneficial and necessary irrigation of crops growing on his ranch; that such appropriation and use was long prior to any diversion by the plaintiff; that on the 11th day of July, 1896, plaintiff entered upon Pine creek above the ditches and dams of the defendant, and by means of the dams and ditches mentioned in the complaint wrongfully obstructed the natural flow of the water and diverted the whole thereof away from the defendant's lands, and thereby deprived him of water for the irrigation of his hay, grain, and vegetables, which, for the want of such irrigation, were greatly injured, and about to become valueless; that thereupon the defendant entered upon the Ennor ranch at the time stated in the complaint, without any unnecessary-injury to the same, and only to the extent needful, in order to permit such an amount of water to flow down to defendant's crops as was necessary for their irrigation.
Then "for a cause of action and as a counterclaim" against the plaintiff the amended answer repeated its foregoing allegations, and averred further that on or about the 11th day of July, 1896, the plaintiff entered upon the creek at points above the lands, dams, and ditches of the defendant, and by means of certain dams and ditches mentioned in the complaint wrongfully diverted away from the crops and lands of the defendant all the water of the creek until the 24th day of July, 1896; that by reason of such diversion defendant did not have sufficient water to irrigate his crops, which were damaged thereby to the extent of $3,000, for which sum he demanded judgment against the plaintiff.
The plaintiff objected to the filing of the amended answer, moved to strike out, and demurred on the grounds, first, that the answer, "taken altogether, is contradictory, and does not state facts sufficient to constitute a defense to the cause of action set up in the complaint; and, second, on the ground that it is ambiguous, uncertain, and unintelligible."
The trial took place in the district court in September and October, 1890, and a verdict was rendered and judgment entered in favor of the defendant for $100 damages and costs of suit. From an order denying a new trial, plaintiff has appealed to this court. *Page 213
It will be perceived that no appropriation or use of the water on the Ennor ranch prior to the year 1896 is alleged in the complaint. It seems that the case was brought and tried by the plaintiff on the theory that the defendant was a trespasser when he went upon Ennor's premises, tore out the dams, and let the water flow to his crops, regardless of whether he was the prior appropriator and owner of the water, and, if it were diverted, that, instead of going after it, he ought to have applied directly to the court. On this appeal it is still urged that when defendant entered the Ennor ranch he became liable for at least nominal damages. We do not so interpret the law. Since the passage of the act of Congress of July 26, 1866, c. 262,14 Stat. 251 [U. S. Comp. St. 1901, p. 1437], the prior appropriator is entitled to a right of way for conveying his water along its natural channel, and through ditches constructed prior to the time that other rights attached to the land traversed by these water courses. All locators, patentees, owners, and claimants whose rights are initiated after the appropriation of the water hold subject to this easement. (Hobart v. Ford, 6 Nev. 77; Shoemaker v. Hatch,13 Nev. 261.) The defendant being the appropriator and owner of the water, as was properly alleged as a defense in the answer, and as appears to have been found by the jury, he was as much entitled to have it flow through the Ennor ranch in the natural channel, and in ditches used by him or his grantors prior to the location of that place, as through his own lands, and had as much right to remove dams and obstructions on the Ennor ranch to the extent necessary to allow his water to flow for the proper irrigation of his crops as he had to remove dams on his own ranch or obstructions in his own lane or doorway, provided he did so peaceably. It is apparent that he entered the plaintiff's ranch along the channels in which he was entitled to have the water flow, and cut the dams, with the intention of recovering the water which, under the verdict of the jury, belonged to him, and not for the purpose of committing an injury or trespass against his neighbor. Except for the water which he sought, and evidently had the right to recover, it is not to be supposed that he would have gone *Page 214 there. The defendant's instructions given by the court proclaim the correct rule in this regard, and those offered by the plaintiff were properly refused.
Counsel for appellant contend most forcibly that the alleged counterclaim set up in the amended answer is not a cause of action arising out of the transaction set forth in the complaint as the foundation of the plaintiff's claim, and is not such a one as defendant is permitted to make under section 47 of our civil practice act (Comp. Laws, sec. 3142). No objection on this ground was made by demurrer, motion, against the admission of testimony, specification of error, in the statement on motion for a new trial, or otherwise in the district court. On behalf of respondent it is claimed that this objection is waived, and also that it is without merit, while appellant insists that it goes to the jurisdiction of the court, and cannot be waived, and cites many authorities holding that the. objection to the jurisdiction of the court may be raised at any time. The principle of law covered by these cases is well established, and must be conceded; and, if the alleged counterclaim would have been bad on demurrer — which we think unnecessary to decide — it becomes important to determine whether it comes within the rule, and relates to a matter vital to the jurisdiction of the court, or whether it is a mere irregularity, which plaintiff waived by failing to make objection in the lower court. Much of the argument was directed to this branch of the case, but it is only important to the extent of $100, and the principle involved, for, as the jury returned a verdict for that sum, the judgment could be modified to that extent, and allowed to stand for costs, as suggested by counsel for respondent. (Wright v. Cullers, 2 Wilson, Civ. Cas. Ct. App. sec. 751.) The assertion in the opinion in Macdougall v. Maguire, 35 Cal. 280, 95 Am. Dec. 98, cited and relied upon by counsel for appellant, that such objection can be made at any time, may be considered as dictum, for the objection was raised there on the trial in the lower court, and not for the first time on appeal, as here. The alleged counterclaim avers facts on which Raine would have been entitled to recover from Ennor in a separate action. It states a demand for $3,000 damages, and facts, which, if proven, would warrant *Page 215 the recovery of that sum. Under the constitution and statute the district court, in which the answer was filed and the case tried, had jurisdiction of the subject-matter. It was asserted in a civil action, as distinguished from a criminal one and from a probate or special proceeding, in which it could not have been properly considered.
Whether damage occasioned Raine by the stoppage of the water above by Ennor from July 11th to July 24th is closely enough allied with the retaking of the water and the ending by Raine of the diversion on the latter day — which in reality is the basis of the complaint — to sustain a counterclaim in the face of a demurrer, we need not decide, for we believe that it was a mere irregularity that could be and was waived by failing to make the objection. (Caldwell v. Greely, 5 Nev. 260; Paul v. Cragnaz, 25 Nev. 311, 59 P. 857, 60 P. 983, 47 L.R.A. 542.)
If it be conceded that the counterclaim would have been bad on demurrer, still, as the district court had jurisdiction of the subject-matter, we see no reason why it could not be properly tried and determined by the consent or acquiescence of the parties, under the same rule that holds that the right to object to a misjoinder of causes of action is waived by a failure to demur, and that the trial of cases between the same and different parties may be consolidated. The practice act has to this extent modified the common-law rule that one tort cannot be set up against another, and this and the exception created by the act of Congress before mentioned to the theory that the mere entry upon the premises of another makes one liable to nominal damages tend to illustrate that, although from education and training lawyers and judges are imbued with the doctrines of the common law, and, like other people, being slaves of habit, are reluctant and slow to enforce the changes demanded by the letter and spirit of the code and statutes, the law is a progressive science, and by legislative enactment and judicial decision fits itself to meet the new conditions that arise in the affairs of men.
The rule that the right to object to a misjoinder of causes of action in a complaint and to an improper counterclaim inserted in the answer is waived is supported by abundant authority in the cases that were cited. Short extracts from *Page 216 a part of these opinions indicate how well the rule is established.
"The question whether a counterclaim was lawfully presented was not raised upon the trial, and should have been presented by demurrer, or by an objection at the trial. It cannot, therefore, be now considered." (Westervelt v. Ackley, 62 N.Y. 508.)
"The objection was not made that liability so incurred was not the proper subject of a counterclaim. It is therefore too late to raise it now." (Vann v. Rouse,94 N.Y. 407.)
"Appellant now asks a reversal of the judgment on the sole ground that the so-called supplemental cross-complaint of a defendant was insufficient. But the case comes clearly within the rule that, where a case is tried upon the theory that the issues are properly joined in the trial court, and no objection or exception is taken there, it is too late to raise such objections here." (Kirsch v. Kirsch,83 Cal. 635, 23 P. 1083, approving Hiatt v. Boardof Trustees, 65 Cal. 481, 4 P. 464; Spiers v. Duane, 54 Cal. 176; Cave v. Crafts,53 Cal. 141; Van Maren v. Johnson, 15 Cal. 313.)
"The cause of action alleged in the answer, being in no way connected with the subject of plaintiffs' action, was not proper matter of counterclaim. But the only way to make the objection that a cause of action alleged as a counterclaim is not the proper subject of counterclaim in the particular action is by demurrer. If plaintiff omits to demur on that ground, and takes issue upon the facts alleged, he waives his objection to the character of the cause of action, and consents that it may be tried and determined as if it were proper to plead it as a counterclaim." (Walker v. Johnson, 28 Minn. 149,9 N.W. 632.)
"The plea does not show any connections between the two transactions, and it is manifest from its allegations that they were wholly independent of each other. We do not believe that a general demurrer was sufficient to cause the plea or cross-action to be stricken out. There can be no objection to such cross-demand being allowed in a suit on a liquidated claim if the plaintiff be satisfied to have it heard and determined. The statute was enacted for the benefit of the plaintiff, and he may waive it as one may waive the statute *Page 217 of limitations." (A. B. Frank Co. v. A. H. Motley Co. (Tex.Civ.App.) 37 S.W. 868.)
"The provision of the statute against a set-off of a claim on contract against a recovery on a tort does not apply where there is no objection by the parties or judge to the pleading of a set-off." (Syllabus, Gillett v. Moody (Tex.Civ.App.) 54 S.W. 35.)
"But, even if the counterclaim were an improper one, the defendant waived the objection by not demurring to the answer. It was said in Parker v. Wiggins,10 Kan. 425, that the plaintiff, instead of availing himself of a bar to the action on the counterclaim, preferred to risk a hearing upon the merits; but the courts properly held that that point had been waived by neglecting to interpose it as a defense at the proper time. Such a defense, not being upon the merits, is called `dilatory,' and its indulgence, except at the first favorable opportunity, is not favored in law. This point has been decided inZabriskie v. Smith, 13 N.Y. 322, 64 Am. Dec. 551, and in Merritt v. Walsh, 32 N.Y. 689, so far as the same is applicable to a petition, and we think the same rules are applicable to a counterclaim set up by way of answer that govern a demurrer to a petition." (Wyman v. Herard (Okl.) 59 P. 1018.)
"This additional count, however, it is contended, is in form ex delicto, which could not be joined with the original count on the same cause of action, which wasex contractu. But whether it was subject to that criticism or not it is unnecessary to decide, even if such misjoinder existed, since there was no objection raised for its alleged misjoinder with the others." (Richmond D. R. Co. v. Jones (Ala.)14 So. 786.)
"The district court had jurisdiction of both causes of action, and we must presume that plaintiff in error was satisfied to have them joined. This court will not notice alleged errors to which no exception was taken in the trial court. (Pettit v. Black, 13 Neb. 142,12 N.W. 841; Dutcher v. State, 16 Neb. 30,19 N.W. 612; Warrick v. Rounds, 17 Neb. 411,22 N.W. 785.)" (First Nat. Bank of North Bend v. Miltonberger (Neb.) 51 N.W. 232.)
"It is equally well settled that the question of the proper *Page 218 subject of counterclaim must be raised by demurrer, or it will be deemed waived. (Walker v. Johnson,28 Minn. 147, 9 N.W. 632; Boom Co. v. Prince,34 Minn. 71, 24 N.W. 344.)" (Talty v. Torling (Minn.) 82 N.W. 632.)
"It can require no argument to show that this so-called `counterclaim' had no proper place in the case, and ought not to have been allowed to remain in it, had it been properly and seasonably objected to. The proper way to raise the question whether the cause of action is the subject of counterclaim is by demurrer. (Campbell v. Jones,25 Minn. 15").) By failing to demur on this ground, the plaintiff waived all objection to the answer as a counterclaim. (Walker v. Johnson, 28 Minn. 147,9 N.W. 632.) Counsel asks us to reconsider our former decision on this point, but, after an examination of all the authorities cited by him, we see no reason to change our views. The reasoning of the court in Ayres v. O'Farrell, 10 Bosw. 143, cited by us in Walker v. Johnson, although not the opinion of a court of last resort, strikes us as sound and convincing. We think confusion has sometimes arisen by failure to distinguish between a case where the `counterclaim' fails to state a cause of action and a case where, although it states a good cause of action, it is one which is not the subject of counterclaim under the statute. Of course, in the first case the defect can be taken advantage of at any time, even after judgment, precisely as if it were set up in a complaint." (Lace v. Fixen, 39 Minn. 48, 38 N.W. 762.)
It is held in Shuster v. Finan, 19 Kan. 114,Cushing v. Miller, 62 N. H. 517, andCreager v. School District, 62 Mich. 101,28 N.W. 794, that the form of the proceeding will not invalidate it if objection is not seasonably made.
Other decisions are cited in those mentioned, and the following also are in point: Lee v. Russell (Ky.) 38 S. W 874; McKune v. Santa Clara ValleyMill Lumber Co. (Cal) 42 P. 980; Township ofNoble v. Aasen (N. D.) 76 N.W. 990;Mississippi Rum River Boom Co. v. Prince (Minn.) 24 N.W. 344; Campbell v. Jones,25 Minn. 156; Baugh v. Barrett (Iowa) 29 N.W. 426;Puffer v. Lucas, 101 N. C. 285, 7 S.E. 734; Abbott's Trial Brief (Civil) 73, note "Objections Waived," and list of cases. *Page 219
If the counterclaim were beyond the jurisdiction of the district court, and the case were reversed for that reason, the plaintiff could plead the statutes of limitations effectively at this late day, if defendant brought a new action for the damages he claims to have suffered. Under such circumstances the Supreme Court of Missouri refused to examine the question of jurisdiction, then raised for the first time, and said: "We feel that gross injustice would be done should we consider the question, and determine that the original judgment was null and void for want of jurisdiction in the court to render it. If that judgment was a nullity, then the statute of limitations could be interposed against the demand." (Boone's Admr. v. Shackleford'sAdmr., 66 Mo. 493.)
At the close of the defendant's testimony the plaintiff moved the court to reopen the case, and offered to prove that he and his grantors had used and enjoyed the Ennor ranch and its appurtenances since 1871 in the same manner that he had done in 1896. It will be noticed that the proffered testimony had no tendency to disprove that Raine was the prior appropriator and owner of the water, which, by tearing out the dams, he allowed to flow to his ranch; nor that he was not entitled to a right of way for the conveying of this water along the natural channel or ditch through the Ennor place; nor was it sufficiently complete in other respects to establish a bar by limitation. If it be claimed that the offer was broad enough to show that the plaintiff had used the water for more than five years in the "same manner" that he used it in 1896, his use and the running of the statute were interrupted by Raine that year, and inferentially every one previous. In order to create a right by prescription, the claimant's use of the water must be uninterrupted, adverse, under claim of right, and with the knowledge of the owner. (Authors v. Bryant,22 Nev. 247, 38 P. 439.)
If the plaintiff had been allowed to prove all the offer included, that would not have strengthened his case, for these essentials were lacking.
Some decisions hold that an amendment to the answer ought not to be permitted, unless by a defendant acting in a *Page 220 fiduciary capacity, for the purpose of interposing the statute of limitations, and, if a defendant is to be denied this privilege on or before the trial, and thereby prevented from proving this defense, by analogy and for reasons equally convincing the plaintiff ought not to be favored with this opportunity after the close of the defendant's testimony. There may be extreme cases where the trial court would, in its sound discretion, be justified in making exceptions to this rule.
The judgment of the district court is affirmed, with costs in favor of the respondent.
BELKNAP, C. J.: I concur.