Bergman v. Kearney

• Decision Date: 08 March 1917
• Docket Number: A-46.
• Citation: 241 F. 884
• Parties: BERGMAN et al. v. KEARNEY, State Engineer.
• Court: U.S. District Court — District of Nevada

241 F. 884

BERGMAN et al. v. KEARNEY, State Engineer.

No. A-46.

United States District Court, D. Nevada.

March 8, 1917

[Copyrighted Material Omitted]

This is a suit brought by plaintiffs, for themselves and in behalf of other appropriators of water from the Humboldt river system whose rights thereto were acquired prior to the approval of the present water law of Nevada. The purpose of the suit is to procure a permanent injunction, restraining defendant as state engineer of Nevada, from proceeding to hear or determine any of the rights or appropriations of plaintiffs or of any other claimant in and to the waters of Humboldt river and its tributaries, including the Little Humboldt which were initiated and perfected prior to the passage of the Nevada Water Law, approved March 22, 1913. In detail, the court is asked to restrain defendant from hearing and determining, or from entering any order determining, such rights, from issuing to any one claiming waters of said stream a certificate of determination, from making any order requiring proofs of appropriation to be filed within any fixed time, and from refusing to receive and file proofs of appropriation from the Humboldt river, when such proof is offered during office hours of the engineer, and accompanied by the proper fees. Plaintiffs also pray for a judgment and a decree:

'(1) That defendant, as state engineer, has no right or authority to hear or determine any matter or thing relating to or concerning the rights or relative rights of plaintiffs, or of either of them, or of any other claimant to or appropriator of the waters of said Humboldt river and its tributaries, including the Little Humboldt, which rights or appropriations were completed prior to the approval of the act of March 22, 1913.

'(2) That each and all of the acts of defendant in proceeding to here and determine such rights are in excess of any authority vested in him as state engineer.

'(3) That the state of Nevada, including the public or the people thereof, as a sovereign proprietor, never did, and does not now, own, possess, or have any right, title, claim, or interest in or to the water of all, or any, sources of water supply, or of all, or any, of the natural water courses, within the boundaries of the state, whether above or beneath the surface of the ground.

'That the state of Nevada has no right or authority, by legislation or otherwise, to create an administrative office, and vest such office with power to determine the facts or law establishing plaintiffs' vested rights, the right of possession to or the possession of the right to the use of water claimed by plaintiffs as a vested property right.'

Defendant admits that as state engineer he has notified plaintiffs, and each of them, to make and file in his office sworn statements or proofs of their respective claims and appropriations; that he is hearing, and will continue to hear, testimony, to receive proofs, to make the orders and determinations, and to perform the other things required of him by the Water Act of 1913, as amended in 1915; but he denies that such a course will in any manner invade or impair the vested rights of plaintiffs or other appropriators on said river system, or that the law, in so far as it directs the doing of these things already performed by him, or now in contemplation, violates either the Constitution of the United States or the Constitution of Nevada.

In so far as it is necessary to an understanding of the issues involved, the act, in brief outline, is as follows:

'Section 1. The waster of all sources of water supply within the boundaries of the state, whether above or beneath the surface of the ground, belongs to the public.

'Section 2. Subject to existing rights, all such water may be appropriated for beneficial use as provided in this act and not otherwise. * * *

'Sec. 84. Nothing in this act contained shall impair the vested right of any person to the use of water, nor shall the right of any person to take and use water be impaired or affected by any of the provisions of this act where appropriations have been initiated in accordance with law prior to the approval of this act.'

Whenever a petition signed by one or more water users on any stream or stream system is presented to the state engineer, requesting a determination of relative rights of various claimants to the waters thereof, if on investigation the facts warrant it, the engineer shall enter an order granting the petition, and proceed to make a determination. In the absence of such a petition, it is the duty of the engineer to enter such an order of determination of any stream selected by him, commencing on the streams in the order of their importance for irrigation. Section 18.

As soon as practicable after the order, the engineer, for a period of four consecutive weeks, must publish a notice, setting forth the fact of the order, the pendency of the proceedings, the date when his examinations will commence, and requiring all claimants to make proof of their claims. Section 19.

Beginning at the time fixed in the notice, the engineer must investigate the flow of the stream, the diverting ditches, the lands irrigated, make surveys and prepare maps showing the course of the stream, the location of each ditch or canal, the area, outline and character of culture of each parcel of land upon which the water of the stream has been used, and gather such other data and information as may be essential to a proper determination of water rights in the stream. Sections 20 and 21.

On filing his measurements and maps, the engineer must give notice of the date when he will commence taking proofs, and fix a date, not less than 60 days thereafter, prior to which the proofs must be filed. Service of this notice is required to be made by publication in one or more newspapers for a period of four consecutive weeks, and by registered mail or delivery to each claimant in person. With each notice by registered mail, a blank form must be inclosed, on which the claimant is required to present in writing all particulars necessary for the determination of his right. He must state the nature of the right or use on which his claim is based, a description of the works of diversion and distribution, the date of beginning and completing the construction of such works and of any enlargements, the dimensions of the ditches, the date when the water was first used for irrigation or for other beneficial purposes, and, if for irrigation, the amount of land reclaimed the first and subsequent years, with the dates of reclamation, the area and location of lands intended to be irrigated, the character of the soil, the kind of crops, and such other facts as will show the nature and extent of his right, and his compliance with the law. Sections 22 and 23.

This statement must be under oath. Section 24.

At the time fixed in the notice, the engineer is to commence taking proofs, and proceed therewith during the time fixed in the notice, after which no proofs shall be received or filed unless the time is extended therefor by the state engineer. If any claimant neglects or refuses to make proof of his claim within the time fixed, the state engineer shall determine the right of such claimant from such evidence as he may obtain, or may have on file in his office in the way of maps, plats, surveys, and transcripts, but exceptions to such determinations may be filed in court. Section 25.

Any person interested in the water of a stream, who has not been served, and has no actual knowledge of the pendency of the proceedings, may at any time within six months after the entry of the engineer's determination file a petition to intervene. Section 26.

As soon as practicable after expiration of the time for filing proofs, the engineer must assemble and certify an abstract of all proofs, and cause the same to be printed. He must also prepare a notice, fixing the time and place when and where evidence taken by or filed with him shall be open to inspection of all interested parties for a period of not less than ten days. A copy of this notice and abstract must be delivered by the engineer, or sent by registered mail, to each person who has appeared and filed proofs, at least thirty days prior to the first day of such period of inspection. Section 28.

If any person claiming an interest desires to object to any other claim, he may initiate a contest by filing in writing with the engineer a written state ment under oath, setting forth the grounds of the proposed contest. The contestant may, if he prefers, accomplish the same purpose by filing later with the clerk of the court in which the adjudication will be made his exceptions to the engineer's determination. When a notice of contest has been filed with the engineer, it is his duty to fix a time and place for the hearing. Notice to all parties to the contest must be served and return made in the same manner as in civil actions in the district courts of the state, or it may be sent by registered mail, and the receipt of such notice constitutes valid and legal service. Witnesses who neglect or refuse to attend and testify may be compelled by the district court to do so. The evidence will be confined to the subjects enumerated in the notice of contest and the reply, and must be reported and transcribed in its entirety. Sections 29, 30, 35.

As soon as possible after the hearing of contests, the engineer must make and record in his office an order determining and establishing the several rights to the waters of the stream and at any time within 60 days thereafter he may, for good cause shown, reopen the proceedings and grant a rehearing. The order of determination must be printed, and a copy delivered or sent by registered mail to each...