State ex rel. Smith v. Sixth Judicial Dist. Court, Humboldt County

• Decision Date: 30 March 1946
• Docket Number: 3442.
• Citation: 167 P.2d 648,63 Nev. 249
• Parties: STATE ex rel. SMITH v. SIXTY JUDICIAL DISTRICT COURT, HUMBOLDT COUNTY et al.
• Court: Nevada Supreme Court

167 P.2d 648

63 Nev. 249

STATE ex rel. SMITH v. SIXTY JUDICIAL DISTRICT COURT, HUMBOLDT COUNTY et al.

No. 3442.

Supreme Court of Nevada

March 30, 1946

Writ of review by the State, on the relation of Alfred Merritt Smith State Engineer of the State of Nevada, against the Sixth Judicial District Court of the State of Nevada, in and for the County of Humboldt, and Thomas J. D. Salter, Judge of that court, to review respondents' action in sustaining demurrers to complaints in criminal contempts.

Application denied.

Alan Bible, Atty. Gen., George P. Annand and Homer Mooney, Deputy Attys. Gen., and W. T. Mathews, Sp. Asst Atty. Gen., for plaintiff and relator.

William M. Kearney, of Reno, for defendants and respondents.

TABER Chief Justice.

In May 1935, after due proceedings under the Water Law, §§ 7890-7978, N.C.L.1929, the sixth judicial district court in and for Humboldt County entered its 'Findings of Fact, Conclusions of Law and Decree in the Matter of the Determination of the Relative Rights in and to the Waters of the Little Humboldt River and Its Tributaries in Humboldt and Elko Counties.' Said decree will sometimes be referred to herein as the Carville decree. No appeal has ever been taken from it.

Henry McCleary Timber Company, Godchaux Cattle Company, Gerhard Miller, Sr., and Gerhard Miller, Jr., are four of the several dozen ranch owners and water users on said Little Humboldt River stream system. They were parties, or are successors in interest to parties, whose water rights were adjudicated in the Carville decree.

In April, 1945, the state commenced a criminal contempt proceeding in said district court against Frank McCleary, manager of the timber company. The complaint alleged that defendant had interfered with the state engineer and his assistants in the distribution of the waters of said river and its tributaries, including Martin Creek. It charged that between January 25 and March 2, 1945, defendant unlawfully and contemptuously placed an earthen dam in the channel of Martin Creek in such manner as to divert all its waters onto the timber company's lands and prevent the state engineer or his assistants from distributing to said cattle company, said Millers, or either of them, water which had been decreed to them in and by the Carville decree; that defendant failed to remove said dam, notwithstanding notice directing him to do so; that on two occasions defendant failed to install a headgate at a certain diversion point on Martin Creek, notwithstanding notice from the state engineer, pursuant to § 7941, N.C.L.1929, requiring him to do so. Said charges and others set forth in the complaint are therein alleged more specifically, at greater length and in more detail than here; and it is alleged that defendant's acts prevent the state engineer and his assistants from distributing the waters of said river and its tributaries pursuant to said decree, and constitute unlawful interference with officers of this court.

Defendant demurred to said complaint upon the ground that it failed to state facts sufficient to constitute a criminal contempt or any contempt, and the further ground that the court was without jurisdiction.

In May, 1945, the state commenced another criminal contempt proceeding in said district court against said Frank McClearly and three other defendants--Gose McCleary, Diego Gurridi and Dimas Alzola. Among other charges, the complaint alleged that on May 1, 1945 two water commissioners posted a statutory notice of regulation of diversion of water at a point on the Grayson Ditch, also known as the Big Ditch, where there were remnants of an old dam, the purpose of said commissioners being to keep the river channel at that point open in order that water would flow down and serve the water rights of Gerhard Miller, Jr., and Gerhard Miller, Sr.; that on May 5, 1945 defendants Gurridi and Alzola, employees of the McClearys, willfully and contemptuously dammed up the river channel and stopped the flow of all water therein, diverting all of it onto the McCleary lands; that said unlawful and contemptuous conduct on the part of the defendants prevents the state engineer and his assistants from delivering to the Millers the water to which they are entitled under the Carville decree, prevents the state engineer and his assistants from distributing the waters of the Little Humboldt River and its tributaries pursuant to said decree, and constitutes unlawful interference with officers of this court. Other charges were set forth in the complaint and, as in the first case, the matters therein were alleged at greater length and in greater detail than here given.

Defendants demurred to said last-mentioned complaint upon the ground that it failed to state facts sufficient to constitute a criminal contempt, and the further ground that the court was without jurisdiction to hear or entertain said complaint.

The demurrers were argued at great length, and it was stipulated that in considering them the court could examine the Carville decree along with the complaints. In due time the court signed and filed written orders sustaining both demurrers.

In the first ruling the court, among other things, said: 'An examination of the decree also indicates that it is uncertain in many respects in that the point of diversion and the names and locations of the ditches through which water is to be distributed are not specified. Many essential items necessary to make a decree definite and certain without leaving anything to be interpreted by the water users or the water commissioners are omitted from the decree. In other words, the decree leaves certain vital matters to be interpreted either by the water commissioners or by the water users. The Supreme Court has said on several occasions that a decree involving water rights should be as definite and certain as language can make it.'

In ruling on the demurrer in the second case the court said, in part:

'While the facts in the instant case are different than the facts in the first contempt case, they are in their nature similar and involve the same decree and the same property and the claimed water rights and ditches of the same parties. The Court has announced its decision in the case of State of Nevada vs. Frank McCleary and the same legal situation exists here as was announced in that case.

'The Court has at the suggestion of counsel for both parties examined the decree so as to ascertain the water rights which the State Engineer alleges he is distributing, but on account of the uncertainty involved in connection with the points of diversion, ditches, dams, as well as the confusion concerning the channels and ditches, the Court is unable to find that the complaint shows a contempt has been committed.

'The complaint is not definite and certain enough in the light of the decree to indicate to the Court that the State Engineer was attempting to distribute water in accordance with the decree. It was said in the case of State ex rel. Hinckley v. Sixth Judicial District Court , 1 P.2d 105, that it would not be a contempt of court to interfere with the State Engineer unless he was distributing water in accordance with the decree.

'The cases cited in the companion case of State of Nevada v. Frank McCleary heretofore argued, establishes the rule that a judgment in a water case must be specific and certain. It must specifically determine the rights of the parties in a definitive manner. 3 C.J. 1197, Section 131.

'The case entitled 'In re Bassett Creek and its Tributaries in White Pine County,' Nev., 155 P.2d 324, seems to be in point when the complaint for a criminal contempt is examined in the light of the terms contained in the decree.

'I am unable to find from the complaint that a contempt has been committed.'

There being no right of appeal to this court in criminal contempt cases (Phillips v. Welch, 11 Nev. 187), nor, as contended, any plain, speedy, and adequate remedy in the premises, the state has applied to this court for a writ of review, claiming that the district court, in sustaining the demurrers, exceeded its jurisdiction. Attached to the application and affidavit are copies of the complaints, demurrers, rulings on the demurrers, and a copy of the Carville decree.

It is alleged that in arguing the demurrers, defendants' main attack upon the complaints was that the Carville decree was so indefinite, uncertain and invalid and void as to the defendants that no contempt on their part could have been committed as alleged in said complaints, for the reason that said decree contains no definite statement and specification of points of diversion of the ditches of the parties involved in the contempt proceedings.

It is further alleged that 'in many instances the Carville Decree does not contain specific designations of the points of diversion and/or the names of ditches of particular water rights granted and decreed therein, but in lieu thereof gives the source of the water and refers to the cultural maps pertaining to such water rights filed in the adjudication proceeding in said district court; that said cultural maps then and there were made a part of said decree by reference * * *.' It is also alleged that at the hearings on the demurrers relator argued and urged upon the court below that the cultural maps should be examined and considered in construing said decree; but that relator believes said maps were not examined or considered by the court, relator's belief being based on the language employed by the court in its ruling on the first demurrer including the words 'After considering the arguments of counsel and examining the complaint in connection with the decree * * *'--no mention of maps being made by the court in either of its...