southernmost branches of Snow creek, described in the complaint, and for equitable relief against further diversion. In his answer defendant prays for a decree adjudging to him the right to use the waters of Snow creek, or a sufficient quantity thereof to irrigate so much of his land as may be irrigated by said waters; that his right to so much of the waters of Niagara creek as he had diverted through "Mahan's Ditch" be adjudicated superior to that of plaintiff; and that plaintiff be perpetually enjoined from interfering with his said rights. The action was commenced April 13, 1881, and on July 26, 1881, a trial was had which terminated in a verdict by the jury on 83 special issues of fact, and a general verdict in favor of plaintiff, for five dollars damages. On the same day the court made and filed certain findings, and plaintiff and defendant, each by his counsel, made a motion for judgment in his favor, upon the pleadings, general verdict of the jury, special verdict of the jury, and the findings of the court, which motions were taken under adviseinent by the court, but never decided. No further action was taken in the case, so far as the record shows, by the court or either party, until March 26, 1887, when plaintiff, by his present counsel, gave notice of a motion for judgment on the pleadings, general and special verdicts of the jury, and findings of the court before mentioned. When the last-named motion came on to be heard, counsel for defendant objected to the hearing of the same, and the granting thereof, upon the ground that plaintiff had been guilty of laches, negligence and inexcusable delay in making the same. The objection was overruled, and an exception taken. Thereupon counsel for defendant proved that Hon. J. H. FLACK, the judge before whom the cause was tried, died in October, 1881, and, after argument, judgment was rendered and entered against defendant in the sum of five dollars damages; and it was ordered, adjudged, and decreed that, at the time this suit was brought, plaintiff was and is the owner of the usufruct, and entitled to use and enjoy, for the irrigation of the land described in complaint, all the waters of said Niagara creek, and all the waters naturally flowing in the two southernmost branches of said Snow creek at all times and whenever he requires the same for the proper irrigation of the land described in complaint; that defendant was and is the owner, and entitled to use, for irrigation of the land described in his answer, and for stock and domestic purposes, all the waters of Snow creek naturally flowing therein, except that part naturally flowing in the two southernmost branches of said Snow creek; and each party was perpetually enjoined from depriving the other of any rights to him belonging, as set forth in the decree. Plaintiff recovered his costs.

1. It is urged that the court erred in granting the plaintiff's motion for judgment, on account of his laches, negligence, and inexcusable delay in making the same. From the facts above stated, it appears that each party claimed to be the owner, and entitled to the use, of the waters in dispute, and asked affirmative relief against the other in relation to the same; that on the date of the verdicts, each submitted a motion for judgment in his favor; that the motions were taken under advisement by Judge FLACK, who died October 1881, before rendering judgment in the cause; that plaintiff made another and similar motion for judgment before Judge FITZGERALD in March, 1887, which was granted. It is also stated by counsel for defendant in their printed briefs, and is the truth, that Judge BIGELOW, who was plaintiff's attorney when the suit was brought and tried, succeeded Judge FLACK by appointment and election, and was the presiding district judge in Elko county, wherein the cause was tried, until January, 1887, when, for the first time after Judge FLACK'S death, a judge competent to render judgment was provided. Although it is not claimed that there is any statute of limitations within which this case falls, it is undoubtedly true, as claimed by the learned counsel for defendant, that all rights of action may be lost by lack of diligence in asserting them; and, in proper cases, actions may be dismissed for want of prosecution, and

oftentimes equity refuses to aid a party who has slept upon his rights. "To let in the defense that the claim is stale, and that the bill cannot, therefore, be supported, it is not necessary that a foundation shall be laid by any averment in the answer of the defendants. If the case, as it appears at the hearing, is liable to the objection by reason of the laches of the complainants, the court will, upon that ground, be passive and refuse relief. Every case is governed chiefly by its own circumstances; sometimes the analogy of the statute of limitations is applied; sometimes a longer period than that prescribed by the statute is required; in some cases a shorter time is sufficient; and sometimes the rule is applied where there is no statutable bar. It is competent for the court to apply the inherent principles of its own system of jurisprudence, and to decide accordingly." Sullivan v. Railroad Co., 94 U. S. 811. "The reason of the rule is apparent, and consists in the difficulty, and, in many cases, the impossibility, of ascertaining, after a great lapse of time, the facts necessary to enable the court to exercise its power with safety. He who delays asserting his rights until the proofs respecting the transaction out of which he claims his rights arose are so indeterminate and obscure that it is impossible for the court to see whether what seems to be justice to him is not injustice to his adversary, should be denied all relief; for, by his laches, he has deprived the court of the power of ascertaining, with reasonable certainty, what the truth is, and thus of doing justice." McCartin v. Traphagen, 11 Atl. Rep. 164. And in Adams' Adm'r v. Taylor, 14 Ark. 67, it is said that * * "while courts of chancery may have a discretion to determine the rights of parties seeking an adjudication, notwithstanding the lapse of time, where the facts are not disputed, or are susceptible of being clearly ascertained, the reason why they refuse relief in accordance with a statute by which they are not expressly bound is the fear of doing injustice, and the inability to afford relief where the sources of testimony have become obscured or lost by lapse of time." In Daggers v. Van Dyck, 37 N. J. Eq. 137, the court said: * * * "The delay of the complainant in seeking redress constitutes no defense. It is only when the complainant has slept over his wrongs so long that, if relief be given to him, great and serious wrong will be done to the defendant, that laches constitute a complete defense. Here the parties are in almost the same position now that they were at the time the wrong for which redress is sought was done, and relief may be given to the complainant without doing any harm whatever to the defendant." And see Spurlock v. Sproule, 72 Mo. 510; Lawrence v. Rokes, 61 Me. 42; Spaulding v. Farwell, 70 Me. 21; Wissler v. Craig, 80 Va. 22; Cranmer v. McSwords, 24 W. Va. 601; Neel's Appeal, 88 Pa. St. 49; Smith v. Thompson, 7 Grat. 112; Getchell v. Jewett, 4 Greenl. 367; Platt v. Platt, 58 N. Y. 646; Burden v. Stein, 27 Ala. 114; In re Lord, 78 N. Y. 111; People v. Common Council, Id. 63. In the light of the above decisions let us now examine the claim of error under consideration. Conceding for the present that, aside from the question of laches, plaintiff was entitled to the relief granted, the granting or refusing of the motion was within the legal discretion of the court, and its action will not be disturbed unless such discretion was abused. Hayne, New Trials & App. § 289. Lapse of time is the only evidence of laches or abandonment of the cause shown by the record. Judge BIGELOW was disqualified except to call another judge or transfer the case to another judicial district for decision. We shall not stop to inquire whether he had power, or it was his duty, to dispose of it by either method upon his own motion. It cannot be said there was laches on the part of either party, during the time Judge FLACK held the cause under advisement, that is to say, until October, 1881. It seems strange if no effort was made by either party to expedite a decision. But, under the circumstances, conceding there were five years and five months of inaction on the part of both parties after Judge FLACK's death, we cannot say the court abused its discretion in overruling defendant's objection on the ground of laches. The facts on which the

court acted, and upon which only it could, at any previous time, have predicated its decision, were among the files and records of the court, unaffected by time. There were no new facts to be ascertained. The result of the original transactions was embodied in the verdicts and findings. There was no showing or pretense that, by reason of delay, defendant had been deceived as to plaintiff's intentions or claims, or that by reason thereof he had been induced to do anything he would not otherwise have done. It was not shown or intimated that defendant had suffered the slightest injury on account of the delayed judgment, and no reasons existed why the court could not do complete justice to both parties on the 8th day of April, 1887, as well as it could have done so the day succeeding Judge FLACK's death. We are satisfied with the conclusion reached for the reasons above expressed, and will not extend the volume of this opinion by discussing a question suggested at the oral argument, that is to say, whether or not defendant can complain of the delay, inasmuch as he did not himself move the court to call another judge, or transfer the cause to another district for decision, although after Judge FLACK's death, as well as before, his motion for judgment was pending. But see Canal Co. v. Kidd, 28 Cal. 684; Baird v. Moses, 21 Ga. 250.

2. It is claimed that, under the law as declared in Jones v. Adams, 19 Nev. 6 Pac. Rep. 442, the complaint states no cause of action, because it bases plaintiff's right to recover upon riparian ownership, and not upon appropriation. This case does not call for a discussion of the rights of riparian proprietors, nor does it require a restatement of the points decided in Jones v. Adams, which speaks for itself. In his complaint plaintiff alleges that "Niagara creek is a natural surface stream of running water which, until the commission of the grievances hereinafter stated, has from time immemorial constantly flowed over, upon, and through the lands of the plaintiff, *** and of right ought still to flow over, through, and upon the same, and that said lands embrace the natural banks, beds, and channel of said stream." The same allegations are made in relation to the two southernmost branches of Snow creek. But following the allegations just stated in each cause of action is a full and explicit statement of facts showing an appropriation of all the waters of Niagara creek in 1875, and of the two southernmost branches of Snow creek in 1874. In his answer, defendant did not, as to Niagara creek, claim to be riparian proprietor, but alleged prior appropriation and title by prescription. As to Snow creek, two of its natural channels pass over and through defendant's lands, but the two southernmost ones do not. Defendant claimed the waters adjudged to plaintiff by prior appropriation only, and set up title by prescription to the same. From the pleadings and findings it seems plain that the case was tried mainly upon the two issues just stated, raised by the answer,-prior appropriation and prescription, and it is certain that by the judgment plaintiff was awarded no relief except such as he was entitled to receive upon findings in his favor on those two issues. It is also claimed that the complaint fails to state facts constituting a cause of action because there is no proper averment that plaintiff is the owner, or entitled to the use or flow or enjoyment, of the waters of Niagara creek, or to the two southernmost branches of Snow creek. As to Niagara creek, the criticism of counsel is entirely without merit. As to Snow creek there is no allegation in terms that plaintiff is the owner or entitled to the use of the waters naturally flowing in the two southernmost branches; but plaintiff's appropriation in 1874, by means of dams and ditches constructed by him for irrigating purposes upon his land, his continued use thereof since that time, except when prevented by defendant, and the necessity of such use, together with ample facts justifying equitable relief, are fully averred, and they are sufficient to sustain the judgment. The facts material to be alleged were plaintiff's prior appropriation and defendant's diversion. If plaintiff first appropriated the waters in question for irrigating purposes upon his land, the

law gave him the right to continue their exclusive use regardless of the pleader's opinion in the premises. When those facts were alleged and admitted or proven, the law determined plaintiff's rights to be that he was entitled to use and enjoy the waters up to the amount of his appropriation; and an allegation of the conclusion of law following the facts alleged would add nothing to the pleading. Mr. Pomeroy says: "In accordance with the principles of pleading adopted in the new American system, the existence of a legal right in the abstract form is never alleged by the plaintiff; but, instead thereof, the facts from which that right arises are set forth, and the right itself is inferred therefrom. The cause of action, as it appears in the complaint when properly pleaded will, therefore, always be the facts from which the plaintiff's primary right, and the defendant's corresponding primary duty, have arisen, together with facts which constitute the defendant's delict or act of wrong." Pom. Rem. & Rem. Rights, § 453. Again it is urged that "the matters alleged as grounds for equitable relief in both courts are not sufficient to sustain the judgment as to the equitable relief therein granted.' To sustain this assertion counsel for defendant say: "In neither of the counts is there any allegation of the plaintiff's ownership or appropriation of the use or enjoyment of the water, or any trespass of the defendant. All that is alleged is matter tending to show the irreparable nature of the defendant's trespasses. It is well settled that, in a complaint for both legal and equitable relief, the statement of each cause of action must be separate and complete in itself. Nor can the allegations of any count be eked out by those of another, unless by express reference." We presume counsel's argument is predicated upon the theory that there are four causes of action stated in the complaint instead of two, two for judgments at law and two for equitable relief,-and that the latter must contain all the allegations necessary to sustain the injunction granted, including those of plaintiff's ownership or right of use, or prior appropriation, and defendant's diversion, although the same facts are previously alleged in stating facts looking to legal relief; because it cannot be denied that plaintiff's appropriation and defendant's diversion are plainly and separately alleged in the parts of the complaint preceding the allegations justifying equitable relief. It may be admitted that, when a complaint contains more than one cause of action, "each count must contain all the facts necessary to constitute a cause of action; and that its defects cannot be supplied from statements outside of it, and not then if the matters omitted relate to the gravamen of the action." Haskell v. Haskell, 54 Cal. 265; Pom. Rem. & Rem. Rights, § 575. This complaint fills every requirement stated and follows approved precedents. Plaintiff declares separately upon two causes of action only, although, in each he seeks two kinds of relief, as he is permitted to do. Pom. Rem. & Rem. Rights, §§ 78, 437, 452, 454, 575; Bliss, Code Pl. § 114. In each cause of action the grounds of equitable interposition are stated subsequently to and distinct from those upon which the judgment at law is sought, and, in each, the portion which seeks equitable relief is separated from the preceding part by apt words. Mining Co. v. Clarkin, 14 Cal. 548. As to each stream, all the facts stated as grounds for legal and equitable relief constitute but one cause of action, and in seeking the equitable interposition of the court, it was only necessary or proper to allege other facts which, in addition to those previously stated as grounds for a judgment at law, would justify the injunction sought.

This asser

3. It is asserted that "the judgment rendered by the court is unsupported by the findings, and the same are insufficient to sustain the judgment. "As to Niagara creek it is said they are insufficient because the amount of water necessary for the proper irrigation of plaintiff's land is not found. tion is based upon the answer to the seventh issue submitted to the jury on behalf of plaintiff, as follows: "How much of the waters of that stream was required for the proper irrigating of the crops growing on that land during

1875? Answer. We do not know." In view of other findings we are by no means convinced that a finding of the amount of water required by plaintiff in 1875 was material but that question we need not decide. The findings of the jury must be construed together; and so treating them they show without substantial contradiction that all the waters of Niagara creek, if properly used, were necessary to irrigate the quantity of land plaintiff had under cultivation in the years 1875, 1876, 1879, and 1881. The jury found that plaintiff's ditches constructed prior to and during the year 1875 were sufficient to carry all the water of Niagara creek during the irrigating season, that the entire waters flowed through said ditches, and were used by plaintiff and his tenants during that season for irrigating the land described in complaint; that all the waters of said creek, if properly used, were necessary to irrigate the quantity of land plaintiff had under cultivation in 1875, 1879, and 1881. It is true that, in answer to the question under consideration, the jury said they did not know how much of the waters of this creek was necessary for the proper irrigation of the crops growing on plaintiff's land in 1875, but they did know and find that the entire waters of the creek were required to properly irrigate the quantity of land plaintiff had under cultivation that year. Since the last question was fully answered, there must have been some reason, real or imaginary, why they were unable to reply to the first. It may have been because the testimony did not show that crops were grown upon the entire amount of land cultivated that year. Crops do not always grow, although the seeds are planted and the ground is watered.. It was found that in 1875 plaintiff and his tenants irrigated 74 acres of land with water from Niagara creek, and, as before stated, that all the waters of said creek were necessary, in that year, to irrigate that amount of land in a proper manner. The jury may have said: "All the water was required to irrigate the land plaintiff cultivated in 1875, but we do not know there were growing crops on all the land or half of it, and consequently we do not know how much water was required to irrigate the growing crops properly." There is no necessary contradiction between the findings on this subject, and there is no failure to find that plaintiff required all the waters of Niagara creek for the proper irrigation of the land cultivated by him in 1875, 1879, and 1881. Finally, it is claimed that, as to all the waters of Snow creek, the findings contain every element of an adverse use known to the law for a period of more than eight years, that is to say, from 1872 to 1881, and consequently that the court erred in granting an injunction as to the waters of the two southernmost branches thereof. Again the findings must be construed together. At folio 100 et seq. of the transcript, the jury was asked: "Has the defendant, since the year 872, used the waters of Snow creek for the purposes of irrigating continuously, peaceably, openly, notoriously, under claim of right, and adversely to plaintiff and all other persons? Answer. Yes." The court below applied these findings to all the waters of Snow creek, except those naturally flowing in the two southernmost branches thereof; and the question is whether they embrace, or were intended by the jury to embrace, the entire waters of all the branches of Snow creek, or only those included by the court. From the pleadings and findings construed together, it is plain to us that the jury did not intend to find that since 1872 defendant had used all the waters of Snow creek in the manner stated at folio 100, or had so used any of the waters naturally flowing in the two southernmost branches thereof. Some of the reasons for this conclusion will be stated. It was found that in 1873 defendant moved on to plaintiff's land, described in complaint, and erected a dwelling-house thereon, as lessee of plaintiff; that defendant commenced using the waters of the two southernmost branches on the lands now claimed by him in 1876; that his use thereof prior to that time was on plaintiff's land described in the complaint, and that in 1876 defendant changed the point of diversion of the waters of Snow creek from a point on plaintiff's land, described in complaint, v.17p.no.1-2