Gibbs v. Gardner Et Al‪.‬

Waters and Water Rights ? Injunction ? Abatement of Private Nuisance in Maintaining Headgate in Ditch ? Prescription ? Lack of Diligence in Applying for Relief ? Appeal in Equity Case ? Presumption on Appeal. Appeal in Equity Case ? Injunction ? Presumption That Judgment of Trial Court Correct. 1. The supreme court enters upon the consideration of the questions presented on an appeal in an equity case with the presumption that the trial court was correct in its determination of the controversy, the burden being upon appellant affirmatively to show reversible error. Same ? Findings ? When not to be Disturbed on Appeal. 2. The findings of fact made by the district court in an equity case will not be disturbed on appeal unless there is a decided preponderance of the evidence against them, nor where the evidence discloses reasonable grounds for different conclusions. Nuisance ? When Public or Private. 3. A nuisance is common or public where it affects rights to which every citizen is entitled; it is private where it affects a single individual or a determinate number of persons in the enjoyment of some private right not common to the public. Waters and Water Rights ? Right to Maintain Headgate in Ditch may be Acquired by Prescription. 4. Like a water right, so a right to maintain and operate a headgate in a ditch may be acquired by prescription. Nuisance ? Injunction to Abate Private Nuisance ? Plaintiff must Act Within Reasonable Time. 5. One seeking a writ of injunction to abate a private nuisance must act within a reasonable time, since a court of equity will refuse its aid where the complainant has slept upon his rights for a considerable time by acquiescing in the alleged nuisance. Waters and Water Rights ? Adverse Possession and Exercise of Right to Divert Water ? Presumption of Grant ? Private Nuisance ? Injunction. 6. Adverse possession and exercise of the right of diverting water for the statutory period is sufficient to raise a presumption of a grant, and to defeat an action for an injunction against a private nuisance; the extent of the prescriptive right, however, must be limited by the actual enjoyment, and must be commensurate with that enjoyment. Waters and Water Rights ? Abatement of Alleged Nuisance in Maintaining Headgate in Ditch ? Prescription ? Laches in Seeking Relief. 7. Held, in an action to enjoin the owner of a water right in a ditch owned jointly by him and others owning small tracts of land - Page 77 near a city for agricultural purposes, whose rights in the water flowing therein had not been adjudicated inter sese, from operating a headgate in the ditch in an unlawful manner and to abate a nuisance resulting therefrom, that it appearing that defendant had used the headgate uninterruptedly in the manner complained of since 1911, the defendant not only had acquired a prescriptive right in its use, but that plaintiff by his unreasonable delay in seeking relief lost his right to complain of the alleged nuisance.