I concur in the opinion of the chief justice and in the order, but wish to give expression to one or two ideas not expressed by him.
Aside from the legal points made by counsel for defendant, he bears down with vigor upon the proposition that the judgment of the lower court is inconsistent, in that it concluded that equity demanded that *Page 437 each party was entitled to a portion of the range in question, and hence the order appealed from should be reversed.
In considering the contentions made by the defendant on this appeal we must keep in mind the fact that, pursuant to statute (Stats. 1935, p. 202, sec. 28), this court may reverse, affirm, or modify the judgment appealed from; furthermore, that cases are appealed for the correction of errors (Water Co. of Tonopah v. Tonopah Belmont Dev. Co., 50 Nev. 24, 249 P. 565), and that, if a judgment is right, though a wrong reason is given for it, there should be no reversal (Richards v. Vermilyea, on rehearing,42 Nev. 299, 300, 180 P. 121).
With the foregoing rules in mind, let us briefly review the facts. Plaintiff and his predecessors admittedly had enjoyed the right to range cattle in Hanks creek basin from 1882 to 1909 as a cattle range. In the last-mentioned year the defendant first began to graze his sheep therein. Prior to 1905, water was appropriated for irrigation and livestock purposes by simply putting it to a beneficial use. In 1905 the legislature (Stats. 1905, p. 67) enacted that one desiring to appropriate public waters should file with the state engineer his written application and follow that up as in said act provided. Such has been the law down to the present time. It is not even suggested that the defendant ever appropriated or acquired a water right in Hanks creek basin. We have a right to take judicial notice of matters of public knowledge, such as the climatic and range conditions in this state, and that livestock cannot exist upon the public range unless there is water available for them to drink.
So far as appears from the record in this case, plaintiff owns all the water in Hanks creek basin; defendant owning none. It is clear that defendant's sheep had to quench their thirst with water owned by plaintiff. While the public domain is free to all, such right is subject to such restrictions as the state may impose as a matter of police regulation. In re Calvo, 50 Nev. 125,253 P. 671. In 1925, as pointed out by the chief justice, the *Page 438 legislature enacted a law regulating the use of the public domain with reference to the appropriated waters thereon. So far as appears from the record, having in mind the 1925 act, the defendant did not and could not under the facts, show himself to be entitled to range his sheep in Hanks creek basin. This situation continued until the bringing of this suit. Such being the fact, the defendant could not acquire, except in a peaceable manner, a right to graze his sheep in Hanks creek basin, between 1925 and the bringing of this suit. That he did not acquire such peaceable right is clear. Plaintiff constantly protested the presence of defendant's sheep in the basin, except in 1927, when an agreement was entered into between the parties. Certainly it was not incumbent upon plaintiff to commit some overt act constituting a breach of the peace to establish the fact that defendant's grazing in the basin was not peaceable.
There were no formal findings of facts in this case, and we must look to the oral opinion of the lower court to ascertain what facts he found to have been established by the evidence. The chief justice has quoted from it at length, and I shall refer to only portions thereof. The court said: This, in the Court's opinion, changed somewhat the nature of the use of the water and the range and created a use in common, so far as the sheep of defendant and plaintiff's predecessors in interest were concerned, but did not change the use with respect to the grazing of cattle."
We must interpret this language. What did the court mean by the language used? He held there was a use in common as to sheep, but not as to cattle.
Prior to making the statements quoted, the court had recognized that the plaintiff and his predecessors had used the range exclusively as a cattle range, except for a period "to hold the range against defendant, since the court is satisfied that cattle and sheep cannot range together."
It is true that the court said at another place that the defendant continuously used a "portion" of this range after he became "established" thereon. The word *Page 439 "portion" is too indefinite to deserve consideration. The same may be said of "established" in the connection in which it is used.
Under the evidence, the facts found by the trial court, and the law, the temporary injunction was properly ordered.