H.H. Springmeyer Land Development & Live Stock Co. v. Irrigation Dist. No. 1, Carson Valley Unit, Truckee-Carson Project

• Citation: 251 P. 351,50 Nev. 80
• Decision Date: 04 December 1926
• Docket Number: 2660.
• Parties: H. H. SPRINGMEYER LAND DEVELOPMENT & LIVE STOCK CO. v. IRRIGATION DIST. NO. I, CARSON VALLEY UNIT, TRUCKEE-CARSON PROJECT.
• Court: Nevada Supreme Court

251 P. 351

50 Nev. 80

H. H. SPRINGMEYER LAND DEVELOPMENT & LIVE STOCK CO. v. IRRIGATION DIST. NO. I, CARSON VALLEY UNIT, TRUCKEE-CARSON PROJECT.

No. 2660.

Supreme Court of Nevada

December 4, 1926

Appeal from District Court, Douglas County; G. A. Ballard, Judge.

The H H. Springmeyer Land Development & Live Stock Company filed its petition with the Board of Directors of Irrigation District No. 1, Carson Valley Unit, Truckee-Carson Project seeking to have its lands excluded from the district. The Board of Directors denied the petition, and the petitioners filed a proceeding in the district court to have the order set aside. From a judgment setting aside the order of the Board of Directors and from an order overruling a motion for a new trial, the Irrigation District appeals. Affirmed.

Platt & Sanford, of Carson City, for appellant.

Cantwell & Springmeyer, of Reno, for respondent.

DUNN District Judge.

The appellant, Irrigation District No. 1, Carson Valley Unit Truckee-Carson Project, is an irrigation district in Carson Valley, Nev., organized July 13, 1914, under and by virtue of that certain act of the Legislature, approved March 20, 1911. Statutes 1911, p. 248.

The respondent, H. H. Springmeyer Land Development & Live Stock Company, is a corporation, organized and existing under and by virtue of the laws of the state of Nevada, and owns certain lands included within the boundaries of the appellant, Irrigation District.

The respondent sought to have its lands excluded from the irrigation district and filed its petition with the board of directors of said irrigation district, alleging, among other things, that said lands cannot be benefited by any system of works in contemplation or otherwise by said district. The board of directors denied the petition, and thereupon the respondent filed a proceeding in the district court of Douglas county, Nev., to have the order of the board of directors set aside and an order made excluding the lands from the district. The appellant thereafter filed a motion to strike and dismiss the petition upon the following grounds (1) That the court had no jurisdiction of the matter; (2) that the petition did not state any fact or facts sufficient to comply with the law providing for such a petition nor facts sufficient to constitute a cause of action.

The motion to strike and dismiss were overruled, and an answer to the petition was then filed, and a hearing had, and, upon the matter being submitted, the court entered its judgment setting aside the order of the board of directors of the irrigation district-refusing to exclude the lands of the respondent-and further decreed "the said board hereby is directed to exclude said lands from said district. * * *" Thereafter a motion for a new trial was made and denied, and this appeal is taken from said judgment and from the order overruling the motion for a new trial.

The questions for determination are:

(1) Is the Irrigation District governed by the law of 1911, or by the law of 1919, as amended? (2) If it is governed by the 1919 law, as amended, would respondent's lands be benefited by any proposed improvement the district might make?

The appellant contends: (1) That the district was organized under the law of 1911, and that sections 60 and 61 of said act provide that lands may only be excluded when it appears that said lands are "too high to receive a benefit from the water owned or controlled by the district," and, since the respondent did not allege this fact in its petition, that it therefore failed to state sufficient facts, and that the court had no jurisdiction; (2) that respondent's water rights are not sufficient, and that the lands of respondent will be benefited by an available additional supply of water, and also by the supervision and distribution of the water by the irrigation district.

The respondent contends: (1) That sections 60 and 61 of the 1911 act were repealed by the act of 1919, as amended, and that section 44 of the act of 1919 applies; (2) that the respondent has a full and complete water right, to wit, its 1858 water right covering some 327 acres and its 1876 water right covering some 223 acres, and that, therefore, its lands cannot be benefited by any proposed system of the irrigation district.

Section 60 of the act of 1911 (Statutes 1911, p. 248) provides:

" Exclusion of Land from District. The holder or holders of any title to land included within the boundary of an irrigation district may file with the board of directors of said district a petition in writing praying that the boundaries of said district may be so changed as to exclude the said lands described in said petition. The petition shall describe the boundaries of the several parcels owned by the petitioners; if the petitioners be the owners respectively of the district parcels of land, such petition must also state that the lands described in said petition are too high to be watered from water owned and controlled by said irrigation district. Said petition must be acknowledged in the same manner that conveyances of land are required to be acknowledged."

Section 61 of the same act provides:

" Survey of Lands to be Excluded. The board * * * must cause the lands * * * to be surveyed * * * and, if found to be too high to receive any benefit, * * * must * * * exclude the lands."

Under these sections, it is very evident that the sole ground for the exclusion of land is the fact that the land is "too high to be watered by water owned or controlled by the district." It also appears that this fact must be stated in the petition. The petition in this case did not state any such fact, and there was no evidence offered tending to show that the ground was "too high."

Different provisions of the 1911 act were amended and new sections were added by subsequent Legislatures in 1915 (St. 1915, c. 278) and 1917 (St. 1917, c. 150), but sections 60 and 61 were not changed. In 1919 the Legislature passed another act relating to the same subject-matter as the act of 1911, and section 68 of the act of 1919 (Statutes 1919, p. 114) provides:

"Nothing in this act shall be construed so as to affect the validity of any district heretofore organized under the laws of this state, or its rights in or to property, or any of its rights or privileges of whatsoever kind or nature; but said districts are hereby made subject to the provisions of this act as far as applicable."

Section 69 of the same act (Statutes 1919, p. 114) provides:

"Nothing in this act shall be construed as repealing or in any wise modifying the provisions of any other act relating to the subject of irrigation or drainage except such as may be contained in the act entitled, 'An act to provide for the organization and government of drainage, irrigation and water storage districts, to provide for the acquisition of water and other property, and for the distribution of the water thereby for irrigation purposes, and for other matters properly connected therewith,' approved March 20, 1911, and subsequent acts supplementary thereto or amendatory thereof, all of which acts, so far as they may be inconsistent herewith, are hereby repealed."

It thus appears that it was the intention of the Legislature to repeal all of the provisions of the act of 1911 and amendments thereof, in so far as they are inconsistent with the provisions of the act of 1919. The act of 1911 is the one under which the irrigation district in this case was organized, and, as shown above, sections 60 and 61 of the 1911 act provided that lands may only be excluded when it was shown in the petition and also determined by the board that the lands were "too high" for the water to be used on them.

Section 44 of the act of 1919 (Statutes 1919, pp. 103, 104) provides:

"The holder or holders of title, or evidence of title, as described in section 1 hereof, may file with the board of directors a petition, in writing, praying that the boundaries of said district be so changed as to exclude the lands described therein. The petition shall describe the boundaries of the several parcels owned by the petitioners and shall state the reasons for the exclusion prayed for. The board of directors shall cause the land described in such petition to be surveyed and reported upon by a competent irrigation engineer, and if the board shall then find said lands to be of such a character as to prevent their receiving benefits from the existing or proposed works, the board shall make an order changing the boundaries of said district so as to exclude the land described in said petition."

By a comparison of this section with sections 60 and 61 of the 1911 act, we find that in the 1911 act, the "petition must also state that the lands * * * are too high to be watered from water owned and controlled by said irrigation district," and in section 44, supra, the petition shall state the reasons for the exclusion prayed for, and if the lands be of such a character as to prevent them from receiving benefits from the existing or proposed irrigation system, then they must be excluded. In the 1911 act they could only be excluded when they were "too high," and in the 1919 act they may be excluded for any reasons which show that the land will not receive benefits. There is nothing in section 44 of the 1919 act which requires the petition to show that the lands are "too high." It is clear that, if there are any reasons stated which show that the land cannot be benefited, they must be excluded, under the provisions of section 44. Sections 60 and 61 of the 1911 act are therefore in conflict with section 44 of the 1919 act.

Section 69 of the 1919 act (Statutes 1919, p. 114) repeals all sections of the 1911 act and amendments...