Opinion of the Court-Hawley, C. J.

fendants in thereafter withholding from him the amount of water to which he was legally entitled. It was the duty of the defendants every fifteen days, or thereabouts, as plaintiff might need the water, to turn down a sufficient quantity, within plaintiff's appropriation, required to irrigate his lands, provided always, that he was not by other means. supplied with sufficient water for that purpose; and if they did not do so, or if plaintiff did not, on account of their wrongful acts, get all the water within his appropriation that was necessary for the irrigation of his crops, then, notwithstanding his own previous negligence, he would be entitled to recover at least nominal damages and costs, with a decree for equitable relief. There is another reason why the judgment cannot be sustained upon this finding. Defendants, in their pleadings, deny that plaintiff is entitled to any of the waters of Currant Creek except the waters flowing from the springs situate upon the Slaght ranch, below the lands owned by defendants, and assert an adverse right to all the waters flowing in said creek above said springs. The evidence shows that when defendants allowed the water above said springs to flow down to plaintiff's premises it was as a favor to plaintiff; that when they afterwards refused they based their refusal upon the ground that they had a better right to the use of the water. This was, in our judgment, such a diversion as by lapse of time. might ripen into a prescriptive right; and although plaintiff's crops of grain and vegetables were not actually damaged by the acts of defendants, it was, nevertheless, an injury to plaintiff's rights and entitled him to recover nominal damages, and to an equitable decree declaring the amount of water to which he is entitled.

The rule of law is, that in cases for the diversion of water, where there is a clear violation of a right and equitable relief is prayed for, it is not necessary to show actual damage; every violation of a right imports damage; and this principle is applied whenever the act done is of such a nature as that by its repetition or continuance it may become the foundation of an adverse right. (Parker v. Gris

Opinion of Beatty, J., concurring.

wold, 17 Conn. 288; Webb v. The Portland Manufacturing Company, 3 Sumner C. C. 189; Blanchard et al. v. Baker et al., 8 Greenleaf (Me.) 253; Stein v. Burden, 24 Ala. 130.)

The findings of fact by the court are like a special verdict of a jury, and must be taken in connection with the pleadings to support the judgment. (Swift v. Muybridge, 8 Cal. 445; Reynolds v. Harris, 8 Cal. 617.) They cannot be detached from each other, but must be read together for the purpose of ascertaining their meaning (Millard v. Hathaway, 27 Cal. 140; Kimball v. Lohmas, 31 Cal. 156); and if there is any conflict or discrepancy between general and specific findings the specific findings must control. (Hidden v. Jordan, 28 Cal. 302.) Applying these principles to the case under consideration it becomes at once apparent that the judgment rendered by the court was based upon the specific findings that support the pleadings of defendant, which allege that plaintiff's rights are confined to the water flowing from the springs on the Slaght ranch, and for this reason upon the merits of the case we are satisfied that the judgment ought to be reversed.

The preliminary objections urged by respondents' counsel are not, in our judgment, well taken. We think the court below was authorized, upon the application for a new trial under the specifications in the sixth subdivision of section 195 of the Practice Act (Stat. 1869, 226), to decide whether the findings sustained the judgment, and that its action in regard thereto can properly be reviewed by this Court on an appeal from the order overruling plaintiff's motion for a new trial.

The judgment and order appealed from are reversed and cause remanded for a new trial.

BEATTY, J., concurring:

In this case I concur in the judgment of the court upon the following grounds:

The defendants, by their answers, admit and justify the diversion of the waters of Currant Creek above the Slaght Springs, asserting that they did not naturally flow down to

Opinion of Beatty, J., concurring.

that point in the bed of the stream, and consequently that plaintiff could have made no appropriation of any waters. except those of the springs. They claim for themselves a prior appropriation of all the waters of the creek flowing above the springs. Such being the defense set up, if the plaintiff could prove that the waters of Currant Creek did naturally flow down to his premises, that he made an appropriation of the whole or any part of the water flowing from above the Slaght Springs prior to any appropriation by the defendants, and that they afterwards diverted the whole of the water above the springs at times when he needed it, and by virtue of his appropriation was entitled to it,-upon such a showing the court should at least have decreed the amount of water that he had first appropriated, enjoined the defendants from any future diversion of so much water, and given him a judgment for his costs, and that whether he proved any specific amount of damages capable of being exactly assessed or not. But the court, among other findings upon which it bases the judgment against the plaintiff for costs, finds that he contributed to his own damage by not making use of all the water that he might have used. That is to say, the court holds, that if a man is deprived of three-fourths of the water he is entitled to by the wrongful act of another, he can obtain no relief, legal or equitable, if he has allowed any portion of the remaining fourth to run to waste, because he has thereby contributed to his own damage. It is scarcely necessary to say that the doctrine of contributory negligence has no application to such a case, and consequently that the finding in question is wholly immaterial.

The judgment must, therefore, be sustained upon the other findings if sustained at all. In all the balance of the findings there is but one material fact asserted, and that is, in effect, that Currant Creek does not naturally flow down to plaintiff's premises, but sinks above the Slaght Springs; all the rest is merely argument to prove this fact or deduction from it, and the finding is opposed to all the testimony in the case. It is, moreover, inconsistent with the

Argument for Relator.

other finding, that plaintiff contributed to his own damage; for to say that plaintiff contributed implies that the defendants also contributed, and they could only contribute by diverting water which would have flowed down to plaintiff except for their diversion. The motion for a new trial should have been allowed.

[No. 731.]

THE STATE OF NEVADA EX REL. R. L. CHASE, RELATOR, v. F. A. ROGERS, RESPONDENT.

ENACTING CLAUSE, SECTION 23, ART. IV, OF THE CONSTITUTION, CONSTRUED.The provision of Section 23, Art. IV, of the Constitution, that the enacting clause of every law shall be as follows: "The People of the State of Nevada represented in Senate and Assembly, do enact as follows," is mandatory.

IDEM. The omission of the words "Senate and" from the enacting clause of an act of the legislature, renders the act unconstitutional and void. IDEM.-The above provision of the Constitution is an imperative mandate of the people in their sovereign capacity, to the legislature, requiring that all laws, to be binding upon them, shall upon their face express the authority by which they were enacted, and an act without such authority appearing upon its face is not a law.

EVIDENCE OF THE EXISTENCE OF A LAW.-This Court will not look beyond the enrolled bill in the office of the secretary of state, in order to ascertain the terms of a law.

APPLICATION for writ of mandamus before the Supreme

Court.

The facts are stated in the opinion.

Thomas Wren, for Relator.

I. The act entitled "An act to define and establish the boundary lines of Eureka County," embraces but one subject and matter properly connected therewith. One object of the act was to "establish the boundaries of Eureka County," and it does not make any difference whether that was the principal object or not; it might properly embrace all or any other matter resulting from the establishment of the

Opinion of the Court-Hawley, C. J.

boundary, or properly connected therewith. (Municipality No. 3 v. Michoud, 6 La. Ann. 607; Bowman et al. v. Cockrill, 6 Kan. 334, 335; Washington v. Page, 4 Cal. 338; Ec parte Newman, 9 Cal. 523; Pierpont v. Crouch, 10 Cal. 315; Brewster v. City of Syracuse, 19 N. Y. 117.)

II. Section 23 of Article IV of the Constitution was adopted merely for the purpose of producing uniformity and precision in the enacting clause of bills, and is directory. It should be construed liberally, and not rigorously, for the purpose of upholding, and not overthrowing statutes for trivial errors and slight omissions.

Robert M. Clarke and H. C. Street, for Respondent.

I. The provisions of Sections 17 and 23, Article IV, of the Constitution, are mandatory, and not directory merely. They are the paramount law, which it is the duty of the court peremptorily to enforce. (State v. Silver, 9 Nev. 227; State v. Miller, 45 Mo. 495; Durkee v. Janesville, 26 Wis. 697; People v. O'Brien, 38 N. Y. 193; People v. McConvill, 35 N. Y. 449; Supervisors v. Heenan, 2 Minn. 330; Mewher-, ter v. Price, 11 Ind. 201; Foley v. State, 9 Ind. 363; State v. Kinsella, 14 Minn. 524; Chiles & Thomas v. Monroe, 4 Ky. 75; Cooley's Const. Lim. 82, 150, 78, 79, 130-1.)

II. The act in question embraces more than one subject, and the subject is not expressed in the title. It is, therefore, in conflict with Section 17, Article IV, of the Constitution, and is void.

III. The act in question has no enacting clause as required by Section 23, Article IV, of the Constitution, and is for this reason invalid. (Cushing's Law and Practice of Legislative Bodies, 819, 820, Secs. 2101, 2102; Cooley's Const. Limitations, 130, 131; 1 Washington Ter. R. 135.) By the Court, HAWLEY, C. J.:

This is an application for a writ of mandamus to compel the respondent, the county recorder of Elko County, to transcribe and deliver to relator, the county recorder of Eureka County, certain records pursuant to the provisions