McCormick v. Sixth Judicial Dist. Court in and for Humboldt County

• Decision Date: 15 May 1950
• Docket Number: No. 3612,3612
• Citation: 218 P.2d 939,67 Nev. 318
• Parties: . Supreme Court of Nevada
• Court: Nevada Supreme Court

Page 939

218 P.2d 939

67 Nev. 318

McCORMICK et al. v. SIXTH JUDICIAL DISTRICT COURT IN AND FOR HUMBOLDT COUNTY et al.

No. 3612.

Supreme Court of Nevada.

May 15, 1950.

Sidney W. Robinson and John C. Bartlett, both of Reno, for petitioners.

Sanford A. Bunce, of Lovelock, and J. D. Skeen, of Salt Lake City, Utah, for respondents.

BADT, Justice.

Petitioners seek to prohibit the respondent district court and the respondent presiding judge thereof from proceeding with the hearing initiated by Bessie L. Ellison, Lyle L. Ellison, Claude Larkin Ellison and Melba E. Ellison as the successors in interest of Ellison Ranching Co., a corporation, to hold the petitioners in contempt if they persist in violating a decree of said court adjudicating the water rights of Quinn River and of McDermitt Creek, one of its tributaries.

Petitioners assert three reasons in support of their contention that respondents are without jurisdiction to proceed: 1) because of the filing of the statutory affidavit and objection under the second proviso of sec. 8943, N.C.L.1929; 2) because the necessary parties are not before the court; and 3) because the contempt charges are not brought upon an affidavit but upon a petition verified only on information and belief.

On the hearing of the return of the alternative writ of prohibition counsel for the Ellisons appeared on behalf of the respondent court and judge and submitted a motion to quash upon the ground that the proviso contained in sec. 8943, N.C.L.1929 disqualifing the judge of the district court from presiding over the trial for an indirect or constructive contempt of a decree of the court applied only in cases where such judge had himself rendered the decree in question. They also contend that all necessary parties were before the court and that the verification of the contempt petition on information and belief satisfied the statute.

The hearing on the return of the alternative writ and the hearing on the motion to quash were consolidated and presented and submitted to this court at the same time. Before proceeding to a discussion of the points involved a brief history of the case as reflected from the files and opinions of this court will be in order.

The litigation was initiated in 1907 by a suit in equity seeking to establish and quiet title to the water rights of sundry appropriators on the Quinn River system. Additional parties were joined and sundry defendants affirmatively pleaded their rights as cross-complainants and the litigation, although a suit in equity, resolved itself into a general adjudication of the respective and relative rights of the water users on the system. On April 19, 1919, Hon. E. J. L. Taber, later the chief justice of this court, but then presiding district judge of the Fourth Judicial District Court in and for Elko County, presided over the action in what was then part of the Second Judicial District Court in and for Humboldt County and rendered the final decree of that court adjudicating the rights of the various users with great particularity, specifying the priority and the amount of water in cubic feet per second appropriated by each party, the stream and tributary from which each appropriation was made, the place of appropriation, the number of acres irrigated, etc.; the title of each party was quieted as to the rights adjudicated and appropriate injunctive clauses against interference were included. Thereafter the matter came before this court on four occasions. The present proceeding is the fifth.

In 1921 the case came before this court on a motion to dismiss the appeal from the judgment and from the order denying new trial. We denied the motion to dismiss for the reason that the questions involved required a careful examination of the record and a consideration incidentally of the merits of the appeal, and it was ordered that the motion to dismiss stand over to be heard and determined upon the presentation of the appeal on its merits. Pacific Live Stock Co. v. Ellison Ranching Co., 45 Nev. 1, 192 P. 262. This was under the file number 2448 in this court. Mr. Justice Sanders wrote the opinion. Mr. Justice Ducker did not participate.

In 1923, under No. 2579, entitled Pacific Livestock Co. v. Ellison Ranching Co.; Legarza v. Hart, District Judge, 46 Nev. 351, 213 P. 700, certiorari was sought to review a judgment holding the petitioners guilty of contempt. DistrictJudge Orr wrote the opinion for this court, Chief Justice Ducker being disqualified. The petitioners, being the contemners below, had demanded a jury trial under the statute--the contempt not being in the presence of the court. The district judge had denied a jury trial, holding the statute to be unconstitutional. This court agreed and dismissed the proceedings in certiorari.

The matter was next before this court in 1930 under Nos. 2448 and 2449 in 52 Nev. 279, 286 P. 120. The appeal was on the merits and the court again considered and referred to the prior motion to dismiss. The main ground of this was that of the forty or fifty parties to the suit only a few had been served with the notice of appeal. Appellants claimed that the ones not served were in no sense adverse. This court held however that respective and relative rights of all of the parties were involved and that this court had no jurisdiction of the appeal on account of failure to make service of the notice of appeal on all adverse parties. The order was not only for the dismissal of the appeal but also for the affirmance of the order denying appellants' motion for new trial, as the notice of intention to move for a new trial had likewise not been served on many of the parties not deemed by movants to be 'adverse.' (No. 2449 concerned an order permitting amendment of answers after submission. These answers contained additional allegations as to the tributary character of a number of additional creeks as tributaries of the Quinn River.) Sanders, J., wrote the opinion.

In 1931 in Pacific Live Stock Co. v. Malone, 53 Nev. 118, 294 P. 538, in an opinion written by Moran, district judge, this court denied mandamus which was sought by the Pacific Livestock Co. to compel the state engineer to administer the distribution of the waters of Quinn River in accordance with the decree. Mandamus was sought on the ground that it was the statutory duty of the state engineer to administer and distribute the water in accordance with the 1919 decree. The court however held that the state engineer's duties under the statute arose only as a result of a decree in a general adjudication proceeding, whereas this was an equity suit.

By sec. 46 1/2 of the water law, Statutes 1947, c. 159, p. 519, the legislature provided for the making of an order by a district court, on petition, that the state engineer make a hydrographic survey and distribute the water on any stream system on which the rights of all water users have been determined otherwise than (the statute reads 'than otherwise') provided in sections 1851 of the water law, Laws 1913, c. 140. This act of 1947 adding section 46 1/2 to the water law was enacted apparently for the purpose of abrogating the objection found in Pacific Live Stock Co. v. Malone, supra, to the administration of the decree by the state engineer.

The record under No. 2448 remains in the files of the clerk of this court. The transcript consumes some 7000 typewritten pages and the file contains numerous exhibits including maps picturing the entire stream system (with the exception of those parts existing in the State of Oregon), the various dams, ditches, and canals and the irrigated lands of the several parties.

We turn first to the sufficiency of the verification of the contempt petition to confer jurisdiction on the respondent court. The petitioners in this court rely upon the provisions of section 8943, N.C.L.1929, reading in part as follows: 'When the contempt is not committed in the immediate view and presence of the court or judge at chambers, an affidavit shall be presented to the court or judge of the facts constituting the contempt * * *.'

Petitioners frankly concede that a duly verified petition for an order to show cause in contempt would be equivalent to the 'affidavit' mentioned in the foregoing section, and cite a number of authorities holding that in view of the criminal or quasi-criminal nature of the proceedings a petition verified only upon information and belief, without even reciting the nature of the information or the facts upon which the belief is based, is so lacking as to be halted by prohibition. Cases cited by respondents call attention to the fact that the statute contains no provisions requiring a verification by an affiant knowing the facts of his own knowledge, and hold that an affidavit or petition verified on information and belief is sufficient to invoke the jurisdiction of the court. The cases are not harmonious, and we do not find it necessary, for the purposes of this case, under the facts appearing in our own opinions and records, to adopt either rule as controlling in this jurisdiction. See Creekmore v. United States 10 Cir., 237 F. 743, L.R.A. 1917C, 845. And the same matters thus appearing to this court, likewise appear to the respondent district court, both from its own files and from the various remittiturs sent down from this court. The petition to the district court for an order to show cause in contempt, verified on information and belief, alleges as facts: The entry of the decree of 1919; the adjudication therein of various water rights to the predecessor of the petitioners showing dates of priorities (the earliest being 1874), the number of cubic feet per second awarded for each separate appropriation (aggregating 37.84 cubic feet from Quinn River), the source, the number of irrigable acres, and description in legal subdivisions; the dependence of the lands on the waters of McDermitt Creek as contributing the larger part of the flow of Quinn River. A...