Opinion of the Court-Coleman, J. of farmers who desired to take water therefrom, among whom was one Ephraim Barney, the original proprietor of the Barney ranch. The witness A. M. Lamb testified that the ditch in its original form was completed in the year 1881, and that for two years thereafter he had charge of it; that during the first year he was in charge thereof the Barney ranch took 40 inches and the next year 60 inches of water; that he did not know the amount of water thereafter taken by this ranch. It appears that about this time litigation was instituted on account of the ditch and the ownership passed to one Hampton, and that from that time up to the present the water users were not owners of the ditch itself, but paid to the ditch. owner a certain sum annually for each inch of water used. L. Prosole, a witness for the respondents, testified that Barney was at one time using 100 inches of water from the ditch in question. How long a time this continued does not appear. In the year 1890 the ranch was acquired by one Nick Sorgi, who thereafter held it until the year 1904. He testified that he took 80 inches of water for the period that he held the ranch, excepting the last year, when he took no water. He also testified that he secured the ranch from Mrs. Barney, and that she informed him at that time that she was taking 80 inches of water. This witness further testified that he had paid $400 a year for the use of the water, at the rate of $5 per inch. S. H. Wheeler, manager of the appellant company, testified that this was the amount of water taken by Sorgi, excepting the year that he took no water for the ranch, and the books of the company show that $400 was the amount annually paid by Sorgi for 80 inches of water. There is also testimony to the effect that Sorgi's measuring box was fixed so as to apportion 80 inches to the ranch. The witness A. G. Pincolini, who purchased the Barney ranch for $2,750, in the year 1904, testified that before purchasing the ranch he had heard that it was "short of water," and that he went to see S. H. Wheeler relative to the matter of water, and that "he [Wheeler] said at first the Barney ranch used to have the right to 100 inches. Opinion of the Court-Coleman, J. And then he says when Mr. Sorgi came, he said he got 80 inches all the time. He says now it went down to about 40, I think 40, that year." The witness Sorgi testified that in the year 1903 he told Mr. Wheeler to "give the water to anybody who wanted it; I don't want any more water for that ranch," and that the following year he took no water for the ranch. Sorgi further testified that the next year he sold the ranch to Mrs. Candler, and that at the time he sold the same to her he told her, "Don't have no more water; they have to go see Mr. Sam Wheeler if he wants to get any more water or not." The Sturges ranch first received 15 inches of water. That was about the year 1894 or 1895. It was not until the year 1905 or 1906 that the Sturges ranch was receiving a total of 45 inches of water. There is no definite finding as to when the water rights for the Sturges and Barney ranches, respectively, were initiated, but it is clear that 30 of the 45 inches claimed to belong to the Sturges ranch did not date back more than about ten years prior to the trial of the case. 1. The undisputed evidence shows that if the Barney ranch was ever entitled to more than 80 inches of water, the right to such excess was abandoned prior to the acquisition of the ranch by Sorgi, and continued so abandoned up to the time of the purchase by respondents. It is also urged by respondents that conceding that abandonment is shown, appellant is estopped from urging it. As to this contention we may say: (1) Estoppel is not pleaded; (2) that issue was not determined by the trial court; and (3) we do not think the evidence is clear and strong enough to sustain the contention. Upon the issue of damages, the questions were propounded to the witnesses based upon the theory that plaintiffs were entitled, as a matter of right, superior to certain others receiving water from the ditch, to water in the amount of 145 inches. The witness Pincolini was asked the question: "Now, how much would you have raised if you had water amounting to 145 inches?" All of the testimony relative to the amount of damages Opinion of the Court-Coleman, J. is based upon the theory that plaintiffs were entitled to 145 inches of water, and that the rights of plaintiffs to this water were prior in time to certain other later water users. The instructions given to the jury apparently allowed no discretion to determine the amount of water, if any, that plaintiffs were entitled to over other prior appropriators. For example, the following excerpt is taken from instruction No. 2: * * * "If the jury find that the plaintiffs had for many years prior to the year 1909 received from said Steamboat Canal 145 inches of water for the irrigation of their said land and had applied the same to that purthe jury will find the issues in favor of pose, * the plaintiffs." A number of other instructions embodied this same feature. There is not in the entire record any proof whatever that this land in any one year had received from said ditch the amount of 145 inches of water. The Sturges ranch did not receive 45 inches until about the year 1905 or 1906. If 100 inches of water was ever used upon the Barney ranch, it must have been for a short time some twenty years earlier than the time when the Sturges ranch had increased the amount of its use to 45 inches. Under no theory of the case can it be said that the Barney ranch, as a matter of right, is entitled to more than 80 inches of water. While it is conceded that the Sturges ranch received 45 inches of water one year, the use of such amount is of comparatively recent date with reference to other water users. While an attempt was made to prove that the appellant company had diverted water to later water users, so as to affect the rights with reference to the Barney ranch, little, if any, attempt was made to establish the fact that these later water users were subsequent in time when compared with the Sturges ranch. Assuming that the evidence shows that the Barney ranch is entitled to 80 inches of water and the Sturges ranch to 45 inches, the way the questions relative to damages were propounded, it is impossible for this court Sanders, J., concurring to say what the amount of damages would have been unless we should resort to a matter of pure speculation or attempt to exercise the functions of the jury. There is no proof whatever that the Barney ranch ever took 100 inches of water, except that given by a witness who was a stranger to the title and who did not fix the time. of use. In order to recover damages for the deprivation of water, and to obtain an injunction against further interference therewith, there must be established an appropriation prior in time to other water users, and a right to the continuous use thereof. It is ordered that the judgment and order appealed from be reversed, and that a new trial be granted. SANDERS, J., concurring: I concur in the conclusions announced by my associate, but upon grounds different from those stated. Because of the opposite views expressed by counsel as to the character of this action it is made necessary to determine, in the first instance, the respondents' right under the pleadings, and what were the issues to be determined upon the trial. It is the contention of appellant that the action was in equity, and the contention of the respondents that it was an action at law for damages, and for an injunction to prevent further injuries. This action was a mixed action, appealing to both the equity and law side of the court. The primary object and purpose of the suit was to establish and protect respondents' right to the use and enjoyment of 145 inches of water for the irrigation of their land, flowing in the Steamboat Canal, a water ditch used and operated for many years by the appellant company, and its predecessors in interest, for conveying waters appropriated from the Truckee River to lands situate under its system, and delivering the same for a valuable consideration. In addition to the equitable relief sought, the respondents, in substance, allege that their crops had been greatly damaged during the years 1909, 1910, 1911, and 1912, by reason of the appellant's failure or refusal to Sanders, J., concurring deliver to respondents the specified amount of water; that the appellant threatens to and, unless restrained, will divert, and continue to divert, the water flowing in said canal to other users subsequent in right to that of respondents, to their irreparable injury and damage. They allege damages in the sum of $5,870; and pray judgment for said sum, and for an injunction. Appellant denies the averments of the complaint, and for an affirmative defense alleges, that the land of respondents, being situate at the extreme end of the canal, approximately thirty-two miles from its source, has never been supplied with any specified amount of water, for the reason that it was impossible so to do because of the situation of the land, and that by reason of its situation it was always understood that respondents should receive such amount of water as appellant could furnish, and should pay therefor irrespective of any particular or specified amount; that such had been the entire course of dealing, and that at no time was there any understanding, contract or agreement otherwise or different. Upon this averment the respondents joined issue, and by way of defense alleged: "But in this behalf plaintiffs allege, that defendant promised and agreed to supply plaintiffs with 145 inches of water through its ditch." The manner in which the case was tried is not to be commended. (Simpson v. Harris, 21 Nev. 375.) The whole case was submitted to a jury without request for special findings. Where legal and equitable issues are raised by the pleadings the latter can be tried with or without a jury (Treadway v. Wilder, 12 Nev. 108), but it is conceded to be proper in such cases to in some manner keep the issues separate. (Low v. Crown Point M. Co., 2 Nev. 75.) The jury returned a general verdict in favor of respondents and assessed their damage at $4,500. The court made full findings of fact, and "established and sanctioned" the verdict by making it a part of its findings (Duffy v. Moran, 12 Nev. 94), and |