
    [No. 1178.]
    J. W. SIMPSON, Appellant, v. JOHN WILLIAMS et al., Respondents.
    Prior Appropriation of Water—Evidence.—Upon a review of the evidence: Held, that the court did not err in finding that defendant’s appropriation of the water was prior in time to that of plaintiff.
    Idem—Amount of Water Used.—The amount of water to which the first appropriator is entitled must be limited to the amount actually applied to the purpose of irrigation.
    Idem—Conflict of Evidence.—This court will not interfere with the decision of the lower court upon the determination of a fact if there is a substantial conflict in the evidence.
    Possession of Land—Party in Possession May Maintain Action for an Interference With His Rights.—Defendant had a contract for the purchase of land and was in the possession thereof. At the trial no objection was made to the testimony showing the nature of his possession and his right to use the water in controversy: Held, that the defendant must be treated as the lawful occupant of the premises, and hence entitled to maintain the action for interference with his rights, injurious to his possession.
    Appeal from the District Court of the Fifth Judicial District, Nye County.
    The facts are sufficiently stated in the opinion.
    
      D. 8. Truman, for Appellant:
    I. The right to4he use of water, whenever acquired by appropriation, or otherwise, is an interest in land and cannot be granted or created except by operation of law, or by deed or conveyance in writing, subscribed by the party creating or granting the same. (Angelí on Water Courses, sec. 168; Morse v. Copeland, 2 Gray 302; Selden v. Del. $■ Hud. Canal Co., 29 N. Y. 639; Fuhr v. Dean, 26 Mo. 116; Foot v. New Haven $ N. H. R. R. Go., 23 Conn. 214; Smith v. O’Hara, 43 Cal. 371; Lobdell v. Hall, 3 Nev. 507; 1 Comp. Laws, 283.)
    II. Williams pleads the legal title in himself. He does not set up his equitable rights, nor does he allege an outstanding title in Withington. If the defendant Williams relies on an equitable title, it must be pleaded and the answer setting it up must possess all the elements and esseutial qualities of ■ a bill in equity. (Bliss on Code PI. sec. 161; Blum v. Robertson, 24 Cal. 127 ; Clark v. Huber, 25 Id. 593; Bruch v. Tucker, 42 Id. 346.)
    III. The defendant Williams having pleaded the legal title in himself, and not having pleaded the equitable title, must recover according to his pleadings or not at all. (Bliss on Code PI. see. 161 ; Rome Ex. Bank v. Eames, 1 Keyes 588; Tryon v. Sutton, 13 Cal. 493; Marshall v. Golden Fleece Co., 16 Nev. 156 ; Bow v. Blackburn, 2 Nev. 7Ó.)
    IY. Williams did not occupy the land or use the water until 1879. lie did not show a legal title in himself derived from his alleged grantors at any time, and without having connected himself with proper pleadings or evidence in these causes, with their rights, if he had any rights at all they only date from his own acts. His appropriation in 1879 must be treated as the inception of his rights in these actions. (Ghiiovich v. Davis, 17 Nev. 133.)
    V. If the court is right in decreeing any water of Duck-water creek to defendant, it cau only decree such portion as flows through the west branch, or such portion thereof as the evidence shows him entitled to. By the findings in these cases the pleadings are entirely disregarded by the court, and a conclusion is reached and decree given entirely foreign to pleadings and prayer for relief of defendant. The court finds defendant Williams entitled to two hundred inches of the water of Duckwater creek or the ivest branch thereof. Such findings give defendant not only a right of enjoyment of what he claims, but much that he does not, and while by the most liberal interpretation of the evidence and after the enlargement of the ditches upon the land, he claims one hundred and fifty inches, this is the greatest quantity shown to which any claim could be made by him. The defendant’s evidence shows that no such quantity as two hundred inches was ever used by him.
    No appearance for respondent.
   By the Court,

Belknap, J.:

This is an action to determine conflicting rights to the waters of Duckwater creek. The district court rendered a decree in favor of defendant, predicated upon the fact that his appropriation of the water was prior in time to that of the plaintiff. It is contended that this conclusion is unsupported by the evidence. It was shown at the trial that during the year 1866 J. D. Page had made claim to the land occupied by defendant, Williams, and diverted several hundred inches of the waters of the creek. Page made no use of the water, and his diversion of it appears to have been for a speculative purpose. But this is immaterial, under the facts of the ease, because in the following year he sold his rights to Withington, and he, as early as the spring of 1868, commenced using the waters for the purpose of irrigation. The first appropriation of the waters by the predecessors in interest of the plaintiff was made in the fall of 1868. There is no conflict in the testimony upon these facts, and the court correctly determined the question of priority of appropriation in favor of defendant. The district court awarded defeudaut the prior right to use two hundred inches of water. It is claimed that this allowance is unsupported by the evidence.

The witnesses for the defendant generally testified that since the year 1870 about one hundrel acres of the lauds occupied by defendant had been cultivated for grain and vegetables, and about fifty acres had been kept as meadow land. They estimated the volume of water used for the purpose of irrigation at from one hundred and thirty-inches to one hundred and fifty inches. Those who testified upon the point gave as their opinion that lands cultivated for grain or vegetables required an inch of water per acre, and that hay or grass lands required about half that amount. One witness, however, A. M. Self, testified that “one hundred acres of grass land requires one hundred inches of water.” And it was shown that during the years 1874 and 1875, two hundred acres of the land—one hundred of which was cultivated aud the remainder meadow— was irrigated. This was the maximum acreage irrigated. The amount of water to which defendant is entitled is limitecL to the amount actually applied to the purposes of irrigation. In determining this amount the court apparently disregarded the testimony of the witnesses who fixed it at from, one hundred and thirty inches to one hundred and fifty inches, and, accepting' the testimony of the witness Self, concluded that the amount of water actually used to irrigate the two hundred acres of land must have been two hundred inches. The finding is further sustained by the testimony of Withington, who said that from the spring of 1867 until the summer of 1878, two hundred and fifty inches of water was used throughout the irrigating season of each year.

The evidence was conflicting- as to the quantity of water used. It is the peculiar province of the' trial court to determine controverted questions of fact, and this court cannot interfere with such determination where there is a substantial conflict in the evidence. Appellant also contends that defendant has not such an interest in the land as enables him to maintain the affirmative defense of ownership pleaded by him. It appeared that the land was owned by Withing-ton, between whom and defendant there existed a contract of purchase and sale. Defendant had been in possession of the premises for some time, but the uatui-e of his possession is not disclosed by the record. No objection, however, was made to the introduction of testimony proceeding upon the theory of a right in Williams to the possession of the land, and the use of the waters of the creek. Under these circumstances we must disregard questions first made upon motion for new trial, and which could -have been obviated by-amendment of the pleadings had objections been seasonably taken, and consider whether the facts of defendant’s (Williams’) case constitute a defense to this action. The justice of the case requires that he should be treated, for the purposes of this appeal, as the lawful occupant of the premises. As such occupant he could maintain án action for any interference with his rights injurious to his possession. The rule is thus stated in Dicey on Parties, 338:

“The person to sue for any interference with the irnmN díate enjoyment or possession of land, or other real property, is the person who has possession of it, and no one can sue merely for such an interference who has not possession.”

As the result of this principle, the author states,'at page 340, “that when land is in the hands of a tenant, the person to sue for a trespass is the tenant, and not the landlord.”

The judgment and order of the district court are affirmed.  