In re Reno Press Brick Co.

• Decision Date: 05 November 1937
• Docket Number: 3194.
• Citation: In re Reno Press Brick Co., 58 Nev. 164, 73 P.2d 503 (Nev. 1937)
• Parties: In re RENO PRESS BRICK CO. WASHOE COUNTY WATER CONSERVATION DIST. v. RENO PRESS BRICK CO.
• Court: Nevada Supreme Court

73 P.2d 503

58 Nev. 164

In re RENO PRESS BRICK CO. WASHOE COUNTY WATER CONSERVATION DIST. v. RENO PRESS BRICK CO.

No. 3194.

Supreme Court of Nevada

November 5, 1937

Appeal from District Court, Washoe County; Thos. F. Moran, Judge.

Proceeding in the matter of the application of the Reno Press Brick Company to exclude certain lands from the Washoe County Water Conservation District, an irrigation district. Judgment granting the application, and the irrigation district appeals.

Reversed.

Price & Merrill, of Reno, for appellant.

George Springmeyer, Sallie R. Springmeyer, and Bruce R. Thompson all of Reno, for respondent.

TABER Justice.

Respondent corporation is the owner of 33 acres of land included within the boundaries of appellant irrigation district. Acting under the provisions of section 44 of the Irrigation District Act (section 8059, N.C.L. 1929), as amended, Statutes of Nevada 1933, pp. 278, 279, c. 186, § 8, respondent, on April 30 1936, applied in writing to appellant's board of directors for the exclusion from the district of said piece of land. After considering the application, the board of directors of the irrigation district, on July 9, 1936 rejected respondent's application in whole. Thereafter, respondent petitioned the district court to set aside said order of appellant's board of directors, and to direct that said land be excluded from the district. The matter was later tried, and, in December, 1936, the district court granted respondent's application, and adjudged that said land be excluded from the irrigation district. This appeal is taken from said judgment, and from an order of said district court denying a motion for a new trial.

The portion of said section 44 of the Irrigation District Act with which we are primarily concerned, reads as follows: "The board of directors of any district now or hereafter formed under the provisions of this act, either upon its own initiative or upon the application in writing of any holder of title or of evidence of title to land in the district, may, by a majority vote, exclude from the district any land or lands theretofore included in the district, and change the boundary lines of the district, so as to exclude or leave out certain tracts or portions of tracts when the proposed system or systems of irrigation cannot practically include such land or lands, or when such land or lands would not be benefited by the district or by any improvement it might make." Respondent's application for exclusion of its land was and is based upon the contention that said land would not be benefited by certain improvements contemplated by the district.

The tract of land sought to be excluded from the irrigation district adjoins the city of Reno on the north. No part of it is within the city limits, but its southern boundary line is identical along its whole length with a portion of the northern boundary line of the city of Reno. The land has been irrigated for the past twenty or twenty-one years. For the first five or six years, two crops of alfalfa were grown upon it annually. After that, it was allowed to go to pasture. With an ample supply of water, it will produce good pasturage crops.

This land was deeded, on April 30, 1932, by J. L. Raffetto and wife to Parker Brick Company. The deed contained the following provisions relating to water, reservoir, and ditch rights: "Together also with six miners inches of water for the use of the party of the second part, said water to be taken out of the reservoir hereinafter referred to, the party of the second part to pay its proportion of all necessary expense incurred in maintaining the said reservoir and the irrigating ditch leading thereto, as well also, its proportion of the charges and expense incurred in the delivery of the water flowing and to flow in said ditch to said reservoir from the Highland Ditch, but the parties of the first part are in nowise to be held responsible to the party of the second part for the delivery of said six inches of water, or any part thereof, should there at any time be a shortage of water in said reservoir. Excepting and reserving from said parcel of land that portion thereof used by the parties of the first part for reservoir purposes and containing approximately two acres of land." "The parties of the first part herein reserve the right of way along the north line fence of the property herein conveyed for the perpetual maintenance of a ditch of sufficient width and depth to carry fifty inches of water, with sufficient ground on both sides of said ditch to enable the parties of the first part to properly clean and care for said ditch."

The name of Parker Brick Company was later changed to the Nevada Brick & Tile Company, Inc. On March 25, 1935, the Nevada Brick & Tile Company, Inc., deeded the land involved in this case to respondent. This conveyance contained the following paragraph: "Together with all the appurtenances thereunto belonging or in anywise appertaining, including all water rights consisting of six (6) miner inches of water only and ditch rights belonging to or used in connection with the irrigation or cultivation of said land, so far as applicable only to the said six (6) miner inches of water, and together with the buildings thereon and all machinery affixed to said premises; it being understood that the party of the second part will share in the expense of maintaining all ditch and ditch rights so far as applicable to said six (6) miner inches of water."

During the three or four years that Parker Brick Company owned this property, it was used for the manufacture of brick, and to that extent the statement heretofore made, that this land has been irrigated for some twenty or twenty-one years, must be qualified. The buildings and machinery which had been used by Parker Brick Company in the manufacture of brick on said premises were of small value at the time the property was purchased by respondent. The premises have not been used for brick making at any time since respondent has owned them.

Mr. J. L. Raffetto paid respondent $75 for the use of the land in 1935; the premises being used by Mr. Raffetto for pasturage and the water for its irrigation supplied by him. In 1936, respondent allowed Davey Gardella, a neighboring farmer, to use the land for pasturage, without paying any rent therefor. Mr. Gardella also furnished the water for irrigation, as respondent's water right, as we have seen, is limited to six miner's inches.

Washoe County Water Conservation District was organized in June, 1929. Its manager, Thomas R. King, testified, as follows, in the district court:

"Q. Are you familiar with the planning of the District for the conservation of water and its application to lands in the District? A. Yes, I am.

"Q. State briefly what those plans are? A. The plans propose to settle by compromise instead of litigation the differences in opinion as to water rights belonging to the various water users of the Truckee River and also to construct the reservoir on the Little Truckee River which will impound flood waters and other waters, and release these waters for the benefit of members of the Irrigation District and of the Power Company, and of the Truckee Canal Irrigation District at times when the natural flow of the water of the Truckee River is insufficient to provide an adequate amount of irrigation water and to charge the members of the District for the water supplied them through this construction in proportion to the benefits the various parcels of land will receive.

"Q. Has that plan progressed so far that an agreement has been entered into with the Government of the United States for the carrying out of the plan? A. No, the agreement has not been entered into. However, an agreement has been drawn which has been approved by the United States, the Conservation District and the Truckee Canal Irrigation District and the Sierra Pacific Power Company, and as I understand, a requisite number of owners, as individuals within the boundaries of the Irrigation District, and in other words, it is now ready for execution.

"Q. Does the plan contemplate the furnishing of water to anyone except those who are within the District and contribute toward the cost of the upstream storage? A. It does not--and further the Nevada Statutes and the Irrigation District Act would prevent any such granting of water or benefits."

Without water the land in controversy would be valueless for agricultural purposes. With an adequate water right it would be worth from $125 to $150 per acre for agricultural purposes. With the exception of about three and one-half acres, the land is susceptible of irrigation by gravity. Mr. Raffetto offered respondent $100 for the use of the property in 1936, he to furnish the water; and Mr. Ernest Capurro, a farmer who has been familiar with this property for many years, told the president of respondent corporation that he thought the use of the land was worth $100 or $110 per year.

It is estimated that this property would be worth about $400 an acre if subdivided for residential purposes. The amount paid by respondent when it purchased the property (including the old plant) was $15,000. The testimony of William I. Smyth associate professor of metallurgy in the Mackay School of Mines and chemist of the State Analogical Laboratory, based on samples taken from various places on the premises, shows clearly that the clay content makes this property suitable for brick making. Mr. Albert J. Caton, president of respondent company, values the land for brickmaking purposes at $500 an acre. He testified that when this property was offered for sale to respondent company, it was checked over for the purpose of using the ground for its clay content, "or any other use...