In re Manse Spring and Its Tributaries, Nye County

• Decision Date: 18 December 1940
• Docket Number: 3306.
• Citation: 108 P.2d 311,60 Nev. 280
• Parties: In re MANSE SPRING AND ITS TRIBUTARIES, NYE COUNTY. v. MERICKEL HOLDING CORPORATION et al. BARRY
• Court: Nevada Supreme Court

108 P.2d 311

60 Nev. 280

In re MANSE SPRING AND ITS TRIBUTARIES, NYE COUNTY.

BARRY v. MERICKEL HOLDING CORPORATION et al.

No. 3306.

Supreme Court of Nevada

December 18, 1940

Appeal from Fifth Judicial District Court, Nye County; Wm. D Hatton, Judge.

Proceeding in the matter of the determination of the relative rights in and to the waters of Manse Spring and its tributaries in Nye County, Nevada. The trial court filed findings and decision in favor of the Merickel Holding Corporation and another and denied motion for new trial, and from the adverse judgment and order denying motion for new trial, Eddie Barry appeals.

Affirmed water for beneficial purposes during any five successive years which, under statute, could not impair vested rights where there was substantial evidence in the record upon which to base the finding. Comp.Laws §§ 7897, 7970.

Wm. M. Kearney and Robert Taylor Adams, both of Reno, for appellant.

Frank McNamee, Jr., of Las Vegas, for respondents.

Gray Mashburn, Atty. Gen., and W. T. Mathews and Alan Bible, Deputy Attys. Gen., for State Engineer.

ORR Justice.

Respondents, Merickel Holding Corporation and Harold D. Cornell, filed a petition in the office of the state engineer on April 14, 1937, requesting said state engineer to determine the rights in and to the waters of Manse Spring and tributaries, pursuant to the Water Law of Nevada. Thereafter the state engineer entered an order selecting the said stream system for adjudication, and made his order of determination June 8, 1937. On June 12, 1937, said state engineer filed a certified copy of his order of determination in the office of the clerk of of the Fifth Judicial District Court, in and for the County of Nye. On the 15th of June, 1937, the court set the time for hearing said matter for July 29, 1937. Appellant, Eddie Barry, within the time fixed by the order for filing contests, regularly filed and served his notice of exceptions to said order of determination. The matter was subsequently heard and submitted to the court for decision. Thereafter the court filed its findings and decision in favor of respondents. A motion for new trial was made and denied, and appellant brings the matter before this Court on appeal from the decision and order.

Appellant assigns as error the following:

(a) The court erred in holding that five continuous years of non-use of water did not constitute a loss of the water right.

(b) The court erred in holding that "intention to abandon" is a necessary element to be proven in determining the question of whether or not a water right is lost or forfeited by five years' continuous non-use as provided in Section 8 of Chapter 140, Statutes of 1913, as amended in 1917.

(c) The court erred in holding that a mortgagee of a water right was not bound by Section 8 of Chapter 140, Statutes of 1913, as amended in 1917, as to the requirement of beneficial use of water, in order to maintain the right.

(d) The court erred in holding that water rights perfected prior to 1913 could not be lost by non-use, as provided by Section 8, Chapter 140, Statutes of 1913, as amended in 1917, and that such rights could be lost only by actual intentional abandonment regardless of how long the non-use continues.

(e) The court erred in holding that Merickel Holding Corporation and Harold D. Cornell had any title whatever to the waters of Manse Spring.

(f) The court erred in holding that any title to either water or land passed to Merickel Holding Corporation and Harold D. Cornell by the purported quitclaim deed given by William F. Logan, as administrator of the estate of Jean Cazaurang, deceased, to Merickel Holding Corporation, a California Corporation, dated April 8, 1936, and filed for record in Nye County October 8, 1936.

(g) The court erred in holding that the administrator of the estate of Jean Cazaurang, deceased, could execute an effective deed to estate property without an actual sale and confirmation thereof as provided by the laws of Nevada relating to the estates of deceased persons.

(h) The court erred in admitting evidence of use of water by Daniel D. Marron on behalf of Merickel Holding Corporation and Harold D. Cornell after intervening rights were initiated to the waters lost by five years' continuous non-use.

(i) The court erred in holding that 300.6 acres of land had been irrigated from Manse Spring and that said area was entitled to a water right when the original proofs showed only a maximum of 141.4 acres ever had been irrigated.

(j) The court erred in holding that water could be beneficially used for irrigation purposes twelve months in each year and in fixing the irrigation season as twelve months each year.

(k) The court erred in holding that water lost by non-use or forfeiture could be re-established without making a new application to the state engineer, as provided by the statute to appropriate the public waters of the state.

Joseph Yount in the year 1877 began the use of the waters of Manse Springs, by diversion and application of said waters to beneficial use for irrigation and domestic purposes. From year to year this use was increased, resulting in 1910 with as much as 300 acres of land being under cultivation and irrigated by the said Joseph Yount from the waters of the said Manse Springs. Down through the years from 1877 to June 5, 1929, the day of the death of Jean Cazaurang, the successor in interest of said Joseph Yount, all of the waters of the said Manse Springs were beneficially used upon the Manse Ranch. From June 15, 1929, until September 11, 1936, according to the findings of the trial court, no water was used from said springs for irrigation or cultivation of lands except a small amount to irrigate an orchard and vineyard of a few acres, the water for such purpose being taken from Manse Spring No. 2. The court also found that the water from said springs during the years last mentioned formed a swampy area, on which a few head of livestock pastured, and some water was used upon the ranch for domestic purposes by the caretaker placed there by the administrator of the estate of Jean Cazaurang.

Appellant's main contention is that the right to the waters of Manse Springs was lost by non-use as defined by statute, and that said waters were subject to appropriation by appellant. The section of the statute relied on by appellant is Section 8 of the Water Law (Sec. 7897, N.C.L. 1929), which reads in part as follows: "And in case the owner or owners of any such ditch, canal or reservoir shall fail to use the water therefrom for beneficial purposes for which right exists during any five successive years, the right to use shall be considered as having been abandoned, and they shall forfeit all water rights, easements and privileges appurtenant thereto, and the water formerly appropriated by them may be again appropriated for beneficial use, the same as if such ditch, canal or reservoir had never been constructed."

The much greater part of the arguments presented by respective counsel deal with the construction to be placed on said Section 8, appellant contending that the five years' non-use works an absolute forfeiture, respondent answering with the contention that five years' non-use as defined in the statute does no more than to shift the burden of proof as to the question of abandonment, and that abandonment, as distinguished from forfeiture, still must obtain in order to cause the loss of a water right.

We find ourselves in agreement with the argument of appellant that the Legislature has declared all water within this state, whether above or beneath the surface of the ground, to belong to the state; that the use of water is authorized by law; and this Court has, since the overruling of the riparian doctrine in the case of Jones v. Adams, 19 Nev. 78, 6 P. 442, 3 Am.St.Rep. 788, held that there is no ownership in the corpus of the water, but that the use thereof may be acquired, and the basis of such acquisition is beneficial use. In Walsh v. Wallace, 26 Nev. 299, 67 P. 914, 99 Am.St.Rep. 692, it is stated: "To constitute a valid appropriation of water, there must be an actual diversion of it, with intent to apply it to beneficial use, followed by an application to such use in a reasonable time."

So we find the doctrine of appropriation 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; Twaddle v. Winters, 29 Nev. 88, 85 P. 280, 89 P. 289.

Appellant further asserts, and we further agree, that if one voluntarily abandons his right to use water, the water becomes a part of the natural stream or source and again reverts to the state absolutely, without any title to its use outstanding against the state. Abandoned water is subject to appropriation immediately.

Water being state property, the state has a right to prescribe how it may be used, and the Legislature has stated that the right of use may be obtained in a certain way. The state, having a right to designate the method of appropriation, may also provide how long water may be permitted to run idly by and not be beneficially used. This the state has done, in relation to some rights, by the enactment of Section 8 of the Water Law. In that statute both the words "abandonment" and "forfeiture" are used and the said terms are entirely different in their operation. This distinction is well set out in Kinney on...