Ormsby County v. Kearney

• Decision Date: 04 August 1914
• Docket Number: 2107,2115.
• Citation: 142 P. 803,37 Nev. 314
• Parties: ORMSBY COUNTY ET AL. v. KEARNEY, STATE ENGINEER. ANDERSON ET AL. v. KEARNEY, STATE ENGINEER.
• Court: Nevada Supreme Court

142 P. 803

37 Nev. 314

ORMSBY COUNTY ET AL. v. KEARNEY, STATE ENGINEER.

ANDERSON ET AL. v. KEARNEY, STATE ENGINEER.

Nos. 2107, 2115.

Supreme Court of Nevada

August 4, 1914

Proceeding for Writ of Prohibition.

Appeal from District Court, Humboldt County; Edward A. Ducker Judge.

McCarran and Norcross, JJ., dissenting in part.

Suit by Johannes Anderson and others against W. M. Kearney, as State Engineer, to restrain him from taking proceedings under Water Law 1913 (St. 1913, c. 140), to determine the right of complainants and others to appropriations of the water of the Humboldt river and its tributaries. From an order denying the motion to set aside a temporary injunction, the State Engineer appeals. Order modified. Writ of prohibition by Ormsby County, and others, as the Board of County Commissioners of Ormsby County, against W. M. Kearney, as State Engineer, for similar relief. Dismissed.

Cases No. 2107 and No. 2115 involve substantially the same questions and were heard together. Case 2107 was a proceeding in prohibition against the state engineer to prohibit that officer from proceeding to determine the relative priorities of water users or appropriators upon Clear creek; the county of Ormsby being one of such users or appropriators. Case 2115 was an action instituted by Johannes Anderson and 50 other claimants or appropriators of the waters of the Humboldt river for themselves and for all other claimants or appropriators of the waters of said river to obtain a decree establishing:

"That defendant, state engineer, has no right or authority to hear or determine any matter or thing relating to or concerning the relative right of plaintiffs, or either of them, or any other claimant to or appropriation of the water of said Humboldt river and its tributaries, which said rights to or appropriations of said waters have been made and completed prior to the approval of said act approved March 22, 1913. * * * That sections 18 to 58, both inclusive, of said act, approved March 22, 1913, are, and each of said sections is, and each and every part of each of said sections is, unconstitutional, invalid, null, and void."

In case No. 2115 a temporary injunction was also prayed for and granted. From an order denying a motion to set aside such temporary injunction, the state engineer appeals.

These cases involve the constitutionality of certain provisions of what is known as the state water law of 1913 (Stats. 1913, p 192). The act in question is entitled:

"An act to provide a water law for the state of Nevada; providing a system of state control; creating the office of the state engineer and other offices connected with the appropriation, distribution and use of water, prescribing the duties and powers of the state engineer and other officers and fixing their compensation; prescribing the duties of water users and providing penalties for failure to perform such duties; providing for the appointment of water commissioners, defining their duties and fixing their compensations; * * * and other matters properly connected therewith, and to repeal all acts * * * in conflict with this act," etc.

A brief synopsis of the principle provisions of the sections of the act, involved in these cases, follows.

By section 18 it is provided that, upon petition to the state engineer of one or more of the water users of a stream or stream system or upon his own initiative, it is the duty of the state engineer to enter an order for the determination of relative rights.

Section 19 provides for publication of notice of such order and the date when the state engineer shall begin examination of the rights of water users, and that water claimants will be required to furnish proofs of their claims.

Sections 20 and 21 provide for the gathering of certain data and information by the state engineer and matters essential to the proper determination of the water rights of the stream, which data shall consist of surveys, maps, measurements, etc.

Section 22 provides that, upon the filing of such data and information, the state engineer shall publish and mail notice to claimants of the date when he is to commence the taking of proofs of the water rights and the date prior to which the same must be filed.

Sections 23 and 24 provide that there shall be inclosed in such written notice a blank form, to be filled out and verified by the water claimant in furnishing information for the determination of the claimant's rights.

Section 25 provides that it shall be the duty of the state engineer to commence the taking of proofs on the day fixed in the notice, and that he shall proceed therewith during the period fixed by him and named in the said notice, after which no proofs can be received or filed, except for cause shown; that failure to furnish proofs within the time prescribed is a misdemeanor; that the state engineer may, in his discretion, accept and use certain records as proof of claims; that a finding rendered by the state engineer upon a water claim, the holder of which is in default, shall be given a later priority than the rights of claimants whose proofs were duly filed.

Section 26 provides for the intervention of persons interested, upon whom no service of notice shall have been had.

Section 28 provides that, as soon as practicable after the expiration of the period fixed in which proofs may be filed, the state engineer shall assemble all proofs filed and prepare an abstract which shall be printed; that thereafter the state engineer shall prepare a notice fixing and setting a time and place when and where the evidence taken by or filed by him shall be open to inspection of all interested persons; that a copy of said notice, together with a printed copy of the abstract of proofs, shall be delivered or sent by registered mail at least 30 days prior to the first day of such period of inspection to each person who has appeared and filed proof; that such proofs shall be open to inspection.

Section 29 provides that any person, claiming any interest in the stream system, whether claiming under vested title or under permit from the state engineer, who desires to contest any of the statements and proof of claims filed, shall, within 20 days after said evidence and proofs shall have been opened to public inspection in writing, notify the state engineer, stating with reasonable certainty the grounds of the proposed contest; that the statement or proofs of the person whose rights are contested and the verified statement of the contestant shall be deemed sufficient to constitute a proper cause for such contest.

Section 30 provides for the hearing of such contest before the state engineer, the time and manner of conducting the same, and that the evidence in such proceeding shall be confined to the subject enumerated in the notice of contest and answer and reply, when the same are permitted to be filed, and that all testimony taken at such hearing shall be reported and transcribed in its entirety.

Section 33 provides that, after the hearing of contests, it shall be the duty of the state engineer to cause to be entered of record in his office and served on interested parties an order determining and establishing the several rights to the waters of said stream; that the determination of the state engineer shall be in full force and effect from and after the date of such entry unless stayed by an appeal to the courts.

Section 34 provides that aggrieved parties may have, within six months, an appeal from the order of the state engineer to the district court.

Section 35 provides that parties appealing shall file in the district court an undertaking and a notice in writing stating that such parties appeal from the determination and order of the state engineer.

Section 36 provides for notice to the state engineer and to the parties whose rights may be affected by the appeal.

Section 37 provides that the appellants shall file with the clerk of the district court a certified transcript of the order of determination and the records, maps, evidence, and papers used in the hearing, together with the petition setting out the cause of the complaint of the party or parties appealing, to which petition all parties joined as appellees shall be served with notice by the issuance of a summons as in actions of law.

Section 38 provides that the proceedings on appeal shall be conducted according to the provisions of the Civil Code of Procedure governing appeals from the justice court to the district court and from the district court to the Supreme Court.

Section 39 provides that a copy of any judgment rendered by the district court shall be transmitted to and be controlling upon the state engineer.

Section 43 provides that the civil practice act shall govern appeals from the decrees of the district court and for rehearings in the Supreme Court.

Section 44 provides that the final orders or decrees of the state engineer in the proceedings shall be conclusive as to all prior appropriations, and the rights of all existing claimants subject to the provisions for appeals, rehearings, and for the reopening of orders and decrees therein.

Section 45 provides that, in any suit which may be brought in any district court for the determination of water rights, all interested persons shall be made parties; that, in the case of any suit now pending or hereafter commenced, the same may be transferred to the state engineer for determination, as in this act provided.

Section 52 provides for the appointment by the state board of irrigation of water commissioners for each water district, and provides for the salary and duties of such commissioners, and that the same shall be charged against the water users.

Section 53 provides that the state engineer shall divide ...