142 P. 526 | Nev. | 1914
Lead Opinion
By the Court,
This is an appeal from an order overruling demurrer to the plaintiff’s complaint and from the order refusing to set aside a temporary injunction. The injunction was granted ex parte under the verified complaint.
The complaint on which the inj unction was granted is some eight paragraphs in length.
The first paragraph alleges that W. M. Kearney is the duly qualified and acting state engineer of the State of Nevada, and that the defendant, L. Tanner, is acting as
Paragraph 2, in substance, alleges that the plaintiffs are the owners of certain parcels of land situated in the Muddy River Valley in Clark County, State of Nevada, describing said lands by subdivisions.
Paragraph 3 sets forth the necessity of water to cultivate said lands.
Section 4 is as follows: “That more than 200 acres of said land has been continuously, since the year 1890 by said plaintiffs, and their grantors, as aforesaid, irrigated and rendered of great value, by the use and appropriation of 300 miner’s inches of the water of the stream known as the Muddy River flowing in a southeasterly coursé through the Muddy Valley in its natural channel, and that 300 miner’s inches of the waters thereof is necessary for the use of the said plaintiffs, and the irrigation of their said lands, as aforesaid.”
Section 5 of the complaint is as follows: “That the grantors and predecessors of said plaintiffs, to wit, prior to the year 1890, constructed a dam and flume in, on and upon the Muddy River above the lands herein described with a water ditch of a capacity sufficient to carry 300 miner’s inches of water, connecting said dam with said described lands of plaintiffs with sufficient laterals to irrigate the same, and thereafter from year to year during the irrigating season the said plaintiffs and their grantors and predecessors in interest diverted from the said Muddy River by means of said dam and flume, through the said irrigating ditch, and appropriated to beneficial use, in the irrigation of the lands above described, 300 miner’s inches of water, which said amount of water is now and at all times heretofore has been, necessary in the irrigation of the crops of plaintiffs in, on and upon the lands above described, and that at the time of said appropriation no other person or persons had acquired any right to said 300 inches of water, and the said water was flowing in said Muddy River unappropriated and unused and was appropriated by the grantors of plaintiffs.”
Section 7 alleges, in substance, that the defendants without authority of law notified the plaintiffs in writing that within ten days from the 22d day of July, 1913, the defendants would close the ditch of the said plaintiffs and prevent plaintiffs from diverting or using any water from the Muddy River, so appropriated by plaintiffs, and would not permit plaintiffs to divert any water whatsoever from the Muddy River and, it is further alleged, that the defendants threatened and will, unless prevented by order of court, shut off and prevent plaintiffs from diverting the water from the said river, and that the same is of great and irreparable damage to plaintiffs, and further alleging that plaintiffs have no speedy and adequate or other remedy at law.
Section 8 sets forth the nature of the crop raised on said land.
Pursuant to this complaint the district court issued an injunction pendente lite. Defendants moved in the court below to dissolve the inj unction on the following grounds:
“(1) That the court has no jurisdiction of the subject of the action or of the person of the defendants or either of them; (2) that the complaint does not state facts sufficient to constitute a cause of action or to warrant the continuance of said injunction in force; (3) that the law does not justify the said injunction, or a continuance in force thereof.”
At the time of filing the motion to dissolve the injunction, defendants also demurred to the compláint.
By sections 6 and 7 of the complaint the allegations of specific interference with a vested right are set forth.
It is not alleged in the complaint that any water district has been created by the state engineer under the act of 1913, or any other act; nor is it alleged that an adjudication of either the plaintiff’s water rights or of the relative rights on the Muddy River district has been established by the engineer. As to whether or not these allegations if affirmatively set up by way of answer would constitute a sufficient defense to defeat the contention of appellants is not before us at this time.
We are referred to the case of McLean v. Farmers’ High Line Canal Co., 44 Colo. 184, 98 Pac. 16, but in that case the plaintiffs alleged that they owned certain adjudicated priorities. This is a direct allegation that their water rights have been adjudicated by the courts under the water law of Colorado prior to the commencement of the action. These adjudications under the decisions in Colorado must, of necessity, have been made as against other water users. In that respect the court, in passing upon the sufficiency of the complaint, said:
“By section 2448, 1 Mills Ann. St., it is made the duty of the superintendent of irrigation to distribute the waters in his division in accordance with the rights of priority of appropriation as established by the judicial decrees entered in the several water districts, included in such division, and that he shall have general control over the water commissioners of the districts embraced in his division. The several decrees of the water districts within a water division are to be treated as one, and the water distributed accordingly. It is the duty of the superintendent of a water division to make such distribution by direction to the water commissioners under his control. (Lower Latham D. Co. v. Louden I. C. Co., 27 Colo. 267, 60 Pac. 629, 83 Am. St. Rep. 80.) The law presumes that public officials discharge their duties in conformity with the statutes, and the burden of showing to the contrary rests with him who relies thereon. * * * It appearing, then, from the averments of the complaint that the acts of the defendants of which plaintiffs complain were committed by them for the purpose of supplying ditches with water in district No. 2, the presumption*399 attaches that they ordered the headgates of plaintiff’s ditches to be closed so as to supply senior priorities further down the stream; so that the averments of the complaint to which we have referred do not state any facts from which it is made to appear that the acts of the water officials which the plaintiff sought to enjoin were not necessary in the discharge of their official duties.” (McLean v. Farmers’ High Line Reservoir Co., 44 Colo. 190, 98 Pac. 18.)
The complaint in the case in question cannot be subjected to the same criticism as that referred to in the McLean case, supra. In this case there is no allegation of other appropriators, and the court will not presume that there may be other appropriators.
Mr. Story, in his work on Equity Jurisprudence, in discussing how far a court of equity has jurisdiction to interfere in cases of public functionaries exercising special public trusts, says: “The court will not interfere to see whether any alteration or regulation which they may direct is good or bad; but, if they are departing from that power which the law has vested in them, if they are assuming to themselves a power over property which the law does not give them, this court no longer considers them as acting under authority of their commission, but treats them, whether they be a corporation or individual,
The complaint in this case, in our judgment, contains sufficient allegations of fact to warrant the court in granting a temporary injunction in the first instance and in denying appellants’ motion to dissolve when the same was made.
The orders of the trial court in overruling the demurrer and in denying the motion to dissolve the temporary injunction should be sustained.
It is so ordered.
Dissenting Opinion
dissenting:
It appears from the complaint that the appellants, respectively, are proceeded against in their official capacity as state engineer and water commissioner of the Muddy River water district. There is no specific allegation in the complaint that a water district has been established in pursuance of law for the said Muddy River.. The fact, however, that the appellants are sued in their official capacities warranted the court below, and warrants this court, in assuming, for the purposes of the case,
By the provisions of the statute a water district shall not be created until the necessity therefor shall arise, and not until the priorities on the stream or stream system within the district shall have been determined.
It is not contemplated that a water district will be established unless there are a number of water users upon a stream or stream system. When a water district has been established, it is made the duty of the state engineer to divide, or cause to be divided, the waters of the natural stream or stream system within the district among the several ditches “according to the rights of each respectively, in whole or in part, and to shut or fasten, or cause to be shut or fastened, the head-gates or ditches, * * * as may be necessary to insure a proper distribution of the waters thereof. * * * Whenever, in pursuance of his duties, the water commissioner regulates the headgate to a ditch * * * it shall be his duty to attach to such headgate * * * a written notice properly dated and signed, setting forth the fact that such headgate * * * has been properly regulated and is * * * under his control, and such notice shall be a legal notice to all parties interested in the diversion and distribution of the water of such ditch. * * * ” (Section 54.)
There is no specific allegation in the complaint that the relative rights of appropriators or users of the waters of the Muddy River have been determined in accordance with the provisions of the water law of 1913, which was and is a prerequisite to the establishment of a water district. That fact, however, must be assumed from the
The allegation that the appellants have, “without any authority of law therefor and without right, * * * closed the headgate of their flume ditch” is a mere conclusion of law. Before a court is authorized in issuing an inj unction against the officials of a water district the facts should be clearly alleged in the complaint showing the establishment of said district, the determination of the relative rights of water appropriators or users, and that such officials are acting in violation of such established rights. In such a case water appropriators or users whose rights have been determined in accordance with the statute to be prior in time, and whose rights may be affected by this suit, are necessary parties.
The case of McLean v. Farmers’ H. L. C. & R. Co., 44 Colo. 184, 98 Pac. 16, is substantially on all fours with the case at bar, and supports the position I have taken.