Filippini, Application of

• Decision Date: 28 January 1949
• Docket Number: 3533.
• Citation: 202 P.2d 535,66 Nev. 17
• Parties: Application of FILIPPINI. In re WATERS OF DUFF CREEK, No. 11450.
• Court: Nevada Supreme Court

202 P.2d 535

66 Nev. 17

Application of FILIPPINI. In re WATERS OF DUFF CREEK, No. 11450.

No. 3533.

Supreme Court of Nevada

January 28, 1949

Appeal from District Court, Third District, Eureka County; W. R Reynolds, Judge.

Proceeding in the matter of the application of Dan Filippini to the state engineer of the state of Nevada, for permission to appropriate the waters of Duff Creek, No. 11450, wherein Dewey Dann filed a protest. The application was granted without any notice being given to Dewey Dann, and he filed an action against the state engineer and Dan Filippini. From a judgment dismissing the action, Dewey Dann appeals.

Cause remanded with directions.

Orville R. Wilson, of Elko, for appellant.

Alan Bible, Atty. Gen., W. T. Mathews, Sp. Asst Atty. Gen., and George P. Annand and Homer Mooney, Deputy Attys. Gen., for respondent State Engineer.

McNamara & Robbins, of Elko, for respondent Dan Filippini.

WINES District Judge.

This matter comes to this Court on an appeal after the following had occurred:

The respondent, Dan Filippini, made application, in the form prescribed by statute, to the office of the State Engineer to appropriate a portion of the waters of Duff Creek, situate in Eureka County, Nevada. The appellant, Dewey Dann, filed a protest. The State Engineer proceeded to make a field examination, and thereafter issued a 'ruling' granting the application. This was done without any notice being given to Dewey Dann, and although the State Engineer permitted the filing of the protest, no effort was made to comply with the statute, Section 7947, N.C.L.1929, regarding protests. Whereupon the appellant, pursuant to Section 7961 N.C.L.1929, filed his complaint in the Third Judicial District Court of the State of Nevada, in and for the County of Eureka. The defendants named in the action were the State Engineer and Dan Filippini. They appeared in the action and demurred to the complaint on general and specific grounds. The matter was submitted on briefs, and the District Court made and entered its order sustaining the demurrer on all grounds taken, and allowing the appellant time to amend. This he declined to do within the time allowed, or thereafter, and the District Court made and entered a judgment dismissing the action. From this judgment the appellant takes this appeal.

It will not be necessary to copy the pleadings into this opinion, as an examination of the record and the arguments of counsel has enabled us to arrive at the following as a proper statement of the initial issue before us:

The paramount issue in this case is--can a water right be acquired by prescription, i. e., by adverse use for a period of five years, against an owner of a water right which vested by diversion and beneficial use prior to 1903 and the enactment of any statutory water law, when the period of adverse use was initiated in the year 1933, and, following the enactment of the statutory water law of this state, which body of law had its inception in the year 1903 and was consummated, except as to minor matters, in that Act known as the Water Law of 1913. N.C.L.1929, § 7890 et seq. The procedural complement of this issue is concerned with the right of such an adverse user of a vested right to assert his claim by means of a protest to an application to divert and use such waters, made pursuant to the water law, and upon an adverse ruling to make application to the proper court in the manner provided by the water law of 1913.

Often the import of an issue stated in this manner is not apparent unless the terms used in stating it are prescribed. For this reason, and because it will assist, in this instance, in reaching a conclusion upon the issue, some of the terms here used will be defined.

The term 'water right' means generally the right to divert water by artificial means for beneficial use from a natural spring or stream. Boyce et ux. v. Killip et ux., Or., 198 P.2d 613. When we speak of the owner of a 'water right' we use the term in its accepted sense; that is to say, that the owner of a water right does not acquire a property in the water as such, at least while flowing naturally, but a right gained to use water beneficially which will be regarded and protected as real property. Nenzel et al. v. Rochester Silver Corp., 50 Nev. 352, 259 P. 632.

The term 'vested rights', as that term is used in relation to constitutional guarantees, implies an interest it is proper for the state to recognize and protect and of which the individual could not be deprived arbitrarily without injustice. City of Los Angeles v. Oliver, 102 Cal.App. 299, 283 P. 298. It is some interest in the property that has become fixed and established. Evans-Snider-Buel Co. et al. v. McFadden et al., 8 Cir., 105 F. 293, 58 L.R.A. 900. See also Vol. 44, Words and Phrases, Permanent Edition, page 203. When used in connection with a water right, the sense of the term is immediately apparent. It means simply that a right to use water has become fixed either by actual diversion and application to beneficial use or by appropriation, according to the manner provided by the water law, and is a right which is regarded and protected as property.

The term 'vested right' is sometimes used to describe water rights which came into being by diversion and beneficial use prior to the enactment of any statutory water law, relative to appropriation. We use it here, however, as a term describing a water right which has become fixed and established either by diversion and beneficial use or by permit procured pursuant to the statutory water law relative to appropriation.

One of the ways of acquiring the right to use of water before 1903 was by diversion and beneficial use. The doctrine of appropriation is the settled law of this state. Reno Smelting Works v. Stevenson, 20 Nev. 269, 21 P. 317, 4 L.R.A. 60, 19 Am.St.Rep. 364. 'Appropriation,' prior to the enactment of the water law, was defined by this Court as: 'An actual diversion of the [water], with intent to apply it to a beneficial use, followed by an application to such use within a reasonable time.' Walsh et al. v. Wallace et al., 26 Nev. 299, 67 P. 914, 917, 99 Am.St.Rep. 692.

We have seen that appropriation is an original acquisition from the government by diversion and use. Hence, there can be no appropriation by prescription. State v. Quantic, 37 Mont. 32, 94 P. 491; Jackson v. Indian, etc., Co., 18 Idaho 513, 110 P. 251. In order that there may be an adverse use, a superior right must be infringed. Egan v. Estrada, 6 Ariz. 248, 56 P. 721; Clark v. Ashley, 34 Colo. 285, 82 P. 588. No rights can be gained against or from the government by prescription. Hence an appropriation is a method of acquiring a right to the use of water from the government and the acquisition of a right by adverse use contemplates a right already in existence, and acquired as such by adverse use from the owner thereof. The acquisition of a right to use water by prescription has been defined by this Court in the case of Authors v. Bryant, 22 Nev. 242, 38 P. 439, 440, as follows: 'In order to establish a right by prescription to the use of water claimed by another, the use and enjoyment must have been uninterrupted, adverse, and under claim of right, and with the knowledge of the owner.' Adverse possession of the use of water is governed by the same rules as adverse possession of land, Vansickle v. Haines, 7 Nev. 249; and the period of such use must be for five years. Ennor v. Raine, 27 Nev. 178, 74 P. 1; Section 8517, N.C.L. 1929.

The Water Law of 1913, Public Act c. 140, Statutes of 1913, page 192, and those acts which preceded it, is a body of law relating to water and its use within the State of Nevada. It is entitled as an act providing for a system of state control, creating the office of the State Engineer, providing for a system of distribution and use of water, and providing for the appropriation, use and distribution of water. We shall have something to say as to the purposes of this body of law in connection with our next subject, the meaning of the word 'appropriation' under this law.

We have intentionally delayed our definition of this term under the water law, since we are aware that our definition of the word will go a long way toward supporting or defeating the respondents' contention. The respondents' contention amounts simply to this--that the water law of 1913 provides for the only means of acquiring a right to use water, except by purchase, since 1913. If sustained, this contention would obviate the possibility of obtaining a water right from the owner by adverse use. The law, being Section 2 of the Act, and Section 7891, N.C.L.1929, states 'Subject to existing rights, all such water may be appropriated for a beneficial use as provided in this act and not otherwise.' 'All such water' has reference to Section 1, being Section 7890, N.C.L.1929, which provides that the water 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. We have above noted that appropriation is a term having a definite meaning in this State. This Court has already held in Re Manse Springs, etc., 60 Nev. 280, 108 P.2d 311, 315, that: 'The right of use may be obtained in a certain way. The state having a right to designate the method of appropriation.' (Emphasis supplied.) We take this as importing that the meaning of the word 'appropriation' in the sense that it is an acquisition of a right to use unappropriated water from the government is in no way changed. The manner in which one might lawfully proceed to acquire right to use water from the government has been modified by statute, but the character of the act remains, as ever, an acquisition of a...