Ansolabehere v. Laborde

• Decision Date: 25 April 1957
• Docket Number: No. 3955,3955
• Citation: 73 Nev. 93,310 P.2d 842
• Parties: John ANSOLABEHERE, Appellant, v. St. John LABORDE, Respondent.
• Court: Nevada Supreme Court

Page 842

310 P.2d 842

73 Nev. 93

John ANSOLABEHERE, Appellant, v. St. John LABORDE, Respondent.

No. 3955.

Supreme Court of Nevada.

April 25, 1957.

Orville R. Wilson, Elko, for appellant.

Bradley & Grubic, John S. Belford, Reno, for respondent.

BADT, Chief Justice.

This appeal requires our approval of one, and our rejection of the other, of the two diametrically opposed concepts advanced by the respective parties as to the jurisdiction and power of the state to regulate the grazing use of those parts of the public domain available and accessible to the livestock of owners of stockwatering rights thereon. We have concluded that those features of the state statute governing the grazing use of the public lands were superseded and rendered ineffective by the enactment by Congress of what is known as the Taylor Grazing Act, 43 U.S.C.A. § 315 et seq.

Plaintiff's complaint is patently and directly predicated upon what is known as the 1925 stockwatering act. N.R.S. 533.485-533.510, 1925 Stats. 348. The act is entitled 'An Act relating to the use of water for watering live stock, the acquisition and proof of the right to such use, making certain actions a misdemeanor and prescribing a penalty therefor.' The preamble recites the great importance to the state of the use of water for watering range livestock; the fact that the value of such water right is directly dependent upon the availability to the owner of such right, of the grazing use of the public range in the vicinity of his watering place; and the fact that the existence in separate owners of two or more rights for watering range livestock in the same vicinity tends to produce controversies concerning the use of the public range that often result in breaches of the peace. 'Public range' is defined to include all lands belonging to the United States on which livestock are permitted to graze, including lands in the national forests and reserved for other purposes. 'Range livestock' are defined to be stock subsisting chiefly or entirely on the public range during the season when they are being watered there. N.R.S. 533.490 declares such use to be a beneficial use, and subsection 2 thereof provides that it shall be a sufficient measure of the quantity of the water to specify the number and kind of animals to be watered. N.R.S. 533.495 reads as follows: 'Whenever one or more persons shall have a subsisting right to water range livestock at a particular place and in sufficient numbers to utilize substantially all that portion of the public range readily available to livestock watering at that place, no appropriation of water from either the same or a different source shall subsequently be made by another for the purpose of watering range livestock in such numbers and in such proximity to the watering place first mentioned as to enable the proposed appropriator to deprive the owner or owners of the existing water right of the grazing use of such portion of the public range, or substantially to interfere with or impair the value of such grazing use and of such water right.'

N.R.S. 533.505 reads in part as follows: 'Any person who, without the right so to do, shall, on two or more separate days during any season water more than 50 head of livestock at the watering place at which another shall have a subsisting right to water more than 50 head of livestock, or within 3 miles of such place, with intent to graze the livestock so watered on the portion of the public range readily accessbile to livestock watering at the watering place of such other person, shall be guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not exceeding $500, or by imprisonment in the county jail not exceeding 6 months, or by both fine and imprisonment.'

Plaintiff alleged that he owned and was entitled to the use for stockwatering purposes of water rights described as follows: '(1) Upper Laborde Spring, Certificate No. 1004, Year of Priority--1917, Sufficient water to water, 2,500 sheep from April 1st to October 1st of each year. (2) Lower Laborde Spring, Certificate No. 1004, Year of Priority--1917, Sufficient water to water 2,500 sheep from April 1st to October 1st of each year. (3) Unknown Name Spring, Proof No. 01719, Year of Priority 1890, Sufficient water to water 2,500 sheep and 200 cattle from April 1st to October 1st of each year. (4) China Springs, Proof No. 01149, Year of Priority 1882, Sufficient water to water 2,500 sheep from April 1st to October 1st of each year.' It is important to note the allegation as to sufficient water for an aggregate of 10,000 sheep and 200 cattle.

He alleged that these stockwatering rights were established on the open, public range in an area embracing Township 21 North, Range 44 East, M. D. B. & M., that he had a current, valid Taylor grazing permit 'and sufficient livestock to fill said permit, to utilize substantially all that portion of the public range readily available to livestock watering at the aforesaid stockwatering places'. His ownership of the described water rights, that they were upon the public domain and that he had a Taylor grazing permit were not denied. Plaintiff then alleged that defendant, without ownership of stockwatering rights in the area, violated the terms of the stockwatering act 'by watering on more than one occasion in 1954 more than 50 head of his livestock without the right to do so, or within three miles of each of the aforementioned stockwatering places owned and controlled by plaintiff'; that defendant threatened to continue 'to trespass on plaintiff's aforementioned water rights' to plaintiff's irreparable damage etc. and prayed for an injunction enjoining defendant 'from trespassing upon and interfering with plaintiff's water rights as hereinabove described and from in any manner obstructing or preventing the exercise of plaintiff's rights as set forth hereinbefore'.

As affirmative defenses, defendant alleged his ownership of four ranches in the county situated in Nevada Grazing District No. 6, Bureau of Land Management, Department of Interior, with grazing rights to run 1,166 head of cattle on the public domain pursuant to action of the Bureau under the Taylor Grazing Act and that he had been issued a permit to run 350 head of cattle from the Caton ranch and 150 head of cattle on the Silver Creek Drainage 'as a drift'; that Silver Creek Drainage is the area in which plaintiff's said springs are situated and that defendant's cattle could not be grazed in the Silver Creek Drainage without using said springs; that if deprived of the use of said springs he would suffer irreparable damage and would have no area in which to run approximately 500 head of cattle; that by an injunction of his use of the springs the court would be controlling the public domain owned and controlled by the federal government. As a separate affirmative defense he alleged that as the waters and range area were entirely within Nevada Grazing District No. 6, Bureau of Land Management, Department of the Interior, the court had no jurisdiction over the subject matter of the action or to grant the relief demanded. He further pleaded that he and his predecessors since 1900 had run 500 head of cattle on the Silver Creek Drainage, watering them at the springs claimed by plaintiff, had made concurrent use of the said springs and had a vested right to the use thereof. He pleaded separately a prescriptive right to use the springs. His answer contained no prayer for relief.

His defense of the lack of the court's jurisdiction is predicated upon the contention that when the United States, the owner of the said public lands, entered upon the control and administration thereof through the act of Congress known as the Taylor Grazing Act, those features of the 1925 stockwatering act having to do with the control of grazing rights or privileges thereon were superseded and rendered ineffective. This contention must be sustained.

That act of Congress is entitled 'An Act To stop injury to the public grazing lands by preventing overgrazing and soil deterioration, to provide for their orderly use, improvement, and development, to stabilize the livestock industry dependent upon the public range, and for other purposes.' 43 U.S.C.A. § 315, 48 U.S.Stats. 1269, approved June 28, 1934. Section 1 provides that in order to promote the highest use of the public lands the Secretary of the Interior is authorized in his discretion to establish grazing districts. It also provides: 'Nothing in this Act shall be construed in any way to diminish, restrict, or impair any right which has been heretofore or may be hereafter initiated under existing law validly affecting the public lands * * *.' Section 2 requires the Secretary to make provision for the protection, administration, regulation and improvement of grazing districts thus created and to make such rules and regulations and establish such service as may be necessary to accomplish the purposes of the act and to insure the objects of such grazing districts, namely, to regulate their occupancy and use and to provide for the orderly use, improvement and development of the range. Section 3 authorizes the Secretary to issue grazing permits to graze livestock on such districts upon the payment of reasonable fees. It then contains the following proviso: 'That nothing in this Act shall be construed or administered in any way to diminish or impair any right to the possession and use of water for mining, agriculture, manufacturing, or other purposes which has heretofore vested or accrued under existing law validly affecting the public lands or which may be hereafter initiated or acquired and maintained in accordance with such law.' Section 16 of the act reads as follows: 'Nothing in this Act shall be construed as restricting the respective States from enforcing any and all statutes enacted for police regulation, nor shall the police power of the respective States be, by this Act, impaired or...