dissenting:
I cannot agree with the resolution of the dispute between Snow and the Mesa since the evidence does not support either the judgment of the district court or the obscure modification thereof suggested by this court.
The main issues between Snow and the Mesa are the extent of the easement created by the 1948 Anderson-Coffee agreement, and whether that easement is still viable. Neither party to that agreement testified during the trial about his intention when the agreement was prepared and executed. The easement to drill a well for water was created by and rests solely upon paragraph 9 which reads: “Second party agrees that first party shall have the right to drill a well and the right of access thereto on and over the said premises known as the Anderson Ranch.”1
The extent of an easement created by contract is fixed by the contract, if clear, whereas the extent of an easement created by prescription is fixed by the use which created it. Cox v. Glenbrook Co., 78 Nev. 254, 371 P.2d 647 (1962). Paragraph 9 grants the right to drill a well in and over the Anderson Ranch. The location of that well is not specified by the agreement, but became fixed by use, when the first producing well was drilled, and that use measured the extent of the easement granted by paragraph 9.
The Mesa first drew water from Well No. 5, and later from Well No. 4 which was sunk at about the same spot. Well No. 4 was condemned by Washoe County as unsanitary. This circumstance extinguished the easement granted by paragraph 9. The Mesa’s present source of water is from Well No. 3 completed in 1960. The then owner of the Mesa requested permission from a predecessor in interest of Snow to drill that well, and permission was given. Thus, whatever right the Mesa presently enjoys to receive water from Well No. 3 does not derive from *489the old Anderson-Coffee agreement, but rests upon an oral permission the validity of which is open to serious question.
Notwithstanding these facts the district court ruled that the 1948 Anderson-Coffee agreement gave the Mesa the right to drill multiple wells anywhere upon the Anderson Ranch property sufficient for the business of the Mesa, together with the right to pipe water therefrom with full access for inspection and maintenance. This enormously broad judgment is not supported by the Anderson-Coffee agreement upon which it professes to rest and unfairly subjects the servient estate to intolerable burdens.
I respectfully dissent.
Paragraph 8 of the agreement referred to by the majority opinion has nothing whatever to do with drilling a well for water. That paragraph refers to appurtenant water rights in existence when the contract was made, and to priorities. Neither is involved in this case.