142 P. 803 | Nev. | 1914
Lead Opinion
Opinion by
(after stating the facts) :
The water law of 1913 contains ninety sections and was manifestly designed to be a comprehensive statute covering the water law of this state. Many of the provisions of the act are not questioned in these proceedings. Those sections only are attacked which authorize the state engineer to determine the relative rights of the appropriators of water upon the streams in this state, which provide for appeals to the courts from the determinations made by him, and which provide for state control, through the office of the state engineer, of the distribution of such waters to the persons entitled thereto.
“Private rights are often involved in its exercise, but a law is not on that account rendered invalid or unconstitutional.” (In Re Street Railway Corporation, 24 R. I. 603, 54 Atl. 602, 61 L. R. A. 612.)
As said by Judge Cooley in his work on Constitutional Limitations (7th ed.), p. 829: It “embraces its whole system of internal regulation by which the state seeks not only to preserve the public order and to prevent offenses against the state, but also to establish for the intercourse of citizens with citizens those rules of good manners and good neighborhood which are calculated to prevent a conflict of rights, and to insure to each the uninterrupted enjoyment of his own so far as is reasonably consistent with a like enjoyment of rights by others.”
See, also, In Re Boyce, 27 Nev. 299, 75 Pac. 1, 65 L.R.A. 47, 1 Ann. Cas. 66; Ex Parte Pittman, 31 Nev. 43, 99 Pac. 700, 22 L. R. A. n. s. 266, 20 Ann. Cas. 1319; Noble State Bank v. Haskell, 219 U. S. 104, 31 Sup. Ct. 186, 55 L. Ed. 112, 32 L. R. A. n. s. 1062, Ann. Cas. 1912A, 487; Davidson v. New Orleans, 96 U. S. 97, 24 L. Ed. 616; State v. Bunting, 139 Pac. 731, and authorities therein cited.
It is difficult to perceive how there may be any effective regulation or control over the water rights of a stream system like that of the Humboldt River and its tributaries, except through some form of state supervision. This river extends for a distance of about 300 miles, is in five counties and three judicial districts. According to the brief of counsel for respondents in case No. 2115, there are from 700 to 1,000 water users on the Humboldt River system. Undoubtedly other claimants are constantly applying for water rights on this system. The state at large is not only interested in protecting prior appropriators in their rights, but is interested in the conservation of the waters of the stream system to the end that the largest possible amount of land may be brought under, cultivation through an economical
It cannot, we think, be said that the provisions of the act contemplate the deprivation of property without due process of law. It should, we think, be assumed that water claimants or appropriators will present their claims according to their respective rights, and it must be presumed, until the contrary appears, that a public officer will perform his duties. The act contemplates the securing to water users their rights, not the taking of the same away. The fact that human judgment is liable» to err will not justify an assumption in advance that it will err in all or any cases. Assuming, however, that errors will be made by the state engineer in determining the amount or time of an appropriator’s right, such right would not thereby be taken from the appropriator without due process of law. ( For purposes of the state’s exercise of its powers of administration, the enjoyment of such right may be affected, temporarily at least, but only after a notice and a hearing. The right, however, to have the matter finally adjudicated by the courts is not attempted to be taken away. Most water rights upon the streams of this state are undetermined by any judicial decree or other record. While the right exists, it is undefined. For the state, however, to administer such rights, it is necessary that they should be defined.
“Although the due process of law implies generally the course of judicial proceedings established at the time the constitution was framed, due process is not limited*340 to such, but refers also to many measures of a summary nature.”
This court in a few cases has had occasion to refer to the constitutional guaranty of due process of law, but those cases were dealing with matters of court procedure; and, while certain expressions were therein used which, taken literally, would seem to restrict the meaning of due process of .law to determinations by a court, no question was presented in those cases as to whether the constitutional guaranty had any such restricted limitations. Many cases may be found sustaining the authority of administrative officers or boards to determine personal or property rights as not violative of due process of law.
In Blach v. Glenn, 85 Kan. 735, 119 Pac. 67, 43 L. R. A. n. s. 1030, Ann. Cas. 1913a, 406, the Supreme Court of Kansas said:
“It has been held by the Supreme Court of the United States that the phrase ‘due process of law’ does not necessarily mean a judicial proceeding. (McMillen v. Anderson, 95 U. S. 37, 24 L. Ed. 335.) On the other hand it does not necessarily mean a special tribunal created for the express purpose of hearing the merits of the particular controversy. Where ample notice is.provided which gives to the property owner an opportunity to have a hearing in any court of competent jurisdiction before his property is affected, he is afforded due process of law.”
In Enterprise Irrigation District v. Tri-State Land Co., 138 N. W. 179, and in Farm Investment Co. v. Carpenter, 9 Wyo. 110, 61 Pac. 258, 50 L. R. A. 747, 87 Am. St. Rep. 918, the Supreme Courts of Nebraska and Wyoming held similar provisions in the water laws of those states to be due process of law.
See, also, Wedemeyer v. Crouch, 68 Wash. 14, 122 Pac. 366, 43 L. R. A. n. s. 1090; Louisville & N. R. Co. v. Garrett, 231 U. S. 298, 34 Sup. Ct. 48; San Diego L. &. T. Co. v. National City, 174 U. S. 739, 19 Sup. Ct. 804, 43 L. Ed. 1154; Spring Valley Water Works v. San Francisco,, 82
The provisions of the act in question do not violate the • due process of law provisions of the state or federal constitutions.
In State v. State Bank and Trust Co., 31 Nev. 456, 103 Pac. 407, 105 Pac. 567, we held that the state banking law providing that, if the bank commissioners, either from the report of the bank examiner, or from their own knowledge, decide that it is unsafe for any such corporation to continue to transact business, they shall authorize the bank examiner to take such control of such corporation, and to hold possession of the same until the order of the court thereafter to be obtained, did not confer judicial powers upon an executive board in violation of the constitution. See, also, State, ex rel. Williams, v. District Court, 30 Nev. 225, 94 Pac. 70. This identical question has been considered by the supreme courts of two states having similar laws, and from which many of the provisions of our statute have been copied. (Farm Investment Co. v. Carpenter, 9 Wyo. 110, 61 Pac. 258, 50 L. R. A. 747, 87 Am. St. Rep. 918; Crawford Co. v. Hathaway, 67 Neb. 325, 367, 93 N. W. 781, 60 L. R. A. 889, 108 Am. St. Rep. 647; McCook Irrigation & W. P. Co., v. Crews, 70 Neb. 115, 102 N. W. 249; Enterprise Irr. District v. Tri-State Land Co., 92 Neb. 121, 142, 138 N. W. 171, 178.)
In Enterprise Irrigation District v. Tri-State Land Co., supra, the Nebraska court says: .“In the face of these decisions, it hardly seems necessary to again consider the question, but we have done so, and have examined further authorities. It is a matter of common knowledge that, both in the administration of the laws of the United States and of the several states, boards of individuals, for the purpose of exercising executive.or administrative functions, are often compelled to inquire into and determine questions requiring the exercise of powers judicial in their nature. Some of such determinations are often;
In Farm Investment Co., v. Carpenter, supra, the Supreme Court of Wyoming, considering this question, said: “The statute nowhere attempts to divest the courts of any jurisdiction granted to them by the constitution to redress grievances and afford relief at law or in equity under the ordinary and well-known rules of procedure. A purely statutory proceeding is created to be set in motion by no act or complaint of any injured party, but which in each Instance is to be inaugurated by order of the board — a proceeding which is to result, not in a judgment for damages to a party for injuries sustained, nor the issuance of any writ or process known to the law for the purpose of preventing the unlawful invasion of a party’s rights or privileges, but the finality of the proceeding is a settlement or adjustment of the priorities of appropriation of the public waters of the state, and is followed by the issuance of a certificate to each appropriator showing his relative standing among other claimants, and the amount of water to which he is found to be
In Speer v. Stephenson, 16 Idaho, 707, 102 Pac. 365, the Supreme Court of Idaho, considering the provisions of the Idaho statute providing for a contest of a permit issued by the state engineer and vesting power in that officer to cancel such permit, and providingffor an appeal to the district court from an order of the state engineer revoking or refusing to revoke such permit, said: “By this statute, where a permit has been granted by the state engineer, permission is also granted to any person holding a permit post-dated to present facts, showing that the holder of the permit has not complied with the law, and authorizes the state engineer, if he finds that the law has not been complied with, to cancel such permit. This is purely a ministerial duty connected with the administration of the law as it is imposed upon the state engineer. A very exhaustive discussion of this question may be found in the case of Farm Investment Co. v. Carpenter, 9 Wyo. 110, 61 Pac. 258, 50 L. R. A. 747, 87 Am. St. Rep. 918. See, also, Ewing v. Mining Co., 56
See, also, Waha-Lewiston L. & W. Co. v. Lewiston Sweetwater Irrigation Co. (C. C.) 158 Fed. 137; In Re Silvies River (D. C.) 199 Fed. 495, 501.
The soundness of the reasoning in the Wyoming and Nebraska decisions holding that the rulings of the state engineer or water board, as the case may be, are primarily administrative, and quasi-judicial only, has been questioned by Wiel and Kinney, text-writers on the subject of water law. If the question were before us, unsupported by the decisions of at least two courts, we might be disposed to give more weight to the reasoning advanced by these text-writers and the arguments of counsel supporting the contention that certain provisions of the act are void because vesting judicial powers in an executive officer in violation of the constitution. In a consideration of a question of this kind, however, courts must be governed by rules of construction. It is a fundamental rule that- all presumptions are in favor of legislative enactments. Another well-settled rule is that a mere doubt as to whether a statute is violative of a constitutional provision must be resolved in favor of the statute. In the face of the decisions of the courts of two states, which courts have given extensive and repeated consideration to the question, it would be almost presumptuous for a court of a state which has adopted these statutory provisions from the' laws of such states, after they had been construed by the highest court's of those states, to say, notwithstanding, that they are unconstitutional beyond all reasonable doubt. The decisions of the
The line between acts of executive officers which are essentially judicial and those which are administrative rather than judicial, although <¡ms¿-judicial,is not always easy to draw. Some courts have adopted a more liberal rule than is applied by other courts in determining such questions. The decisions of this court would seem to follow the more liberal constructions.
We think the court below properly held that the provisions of the act in controversy were not violative of the provisions of the constitution regulating the distribution of the powers of state government.
“The district courts in the several judicial districts of this state shall have original jurisdiction in all cases in equity; also, in all cases at law, which involve the title of the right of possession to, or the possession of real property. * * * They shall also have final appellate jurisdiction in cases arising in justices’ courts, and such other inferior tribunals as may be established by law.”
We think the court below was in error in so holding. The determinations made by the state engineer of the relative rights of water users upon a stream are not made in “cases in equity” or “cases at law,” as those terms are used in the constitutional provision quoted, supra.
As said in Farm Investment Co., supra: “In an earlier part of this opinion we had occasion to allude to some of the particulars wherein the statutory proceeding differs from an ordinary suit in the courts. Affirmative relief in favor of one party as against another is not its object. Adversary pleadings, as they are commonly employed and understood, are not involved. Indeed, in the strict
In dealing with an analogous situation, involving an appeal to the district court from the action of the state engineer of Idaho, revoking a water permit, under the provisions of the Idaho statute, and a removal of the matter on appeal to the Circuit Court of the United States for the District of Idaho, Judge Dietrich, in denying a motion to remand, said: “The proceedings prescribed by the Idaho statutes to be. taken before and by the state engineer are essentially nonjudicial in their character, and are purely administrative, and in no sense do they constitute a suit at law or in equity. * * * The state engineer’s proceedings are ex parte, and are neither in form nor substance judicial in their nature. The legislature may have contemplated that in some, if not many, instances licensees would not resist cancelation of permits, and that the proceedings before and by the engineer would furnish a simple and inexpensive mode for formally and publicly declaring the termination of the licenses, and of clearing the public record of an apparent, though nonexistent, right. In case, however, the holder of the permit has not abandoned his right, and claims that the same is not forfeited, having notice of the action of the state engineer, he may institute a judicial inquiry. Other modes might have been provided for instituting the action, but the legislature in its wisdom saw fit to call the proceedings an ‘appeal.’ Whether the means and method prescribed are sufficient to enable the state court to acquire jurisdiction of the parties is not a question now under consideration. It simply need be said that the legislature intended and attempted to confer jurisdiction upon a judicial tribunal, and whether its intention in that regard has been rendered effectual is for the court in which such question is raised, be it state or federal, to determine.” (Waha-Lewiston L. & W. Co. v. Lewiston Sweetwater Irrigation Co., supra.)
In Re Silvies River, 199 Fed. 501, Bean, District Judge,
“The phrase ‘suits at- common law and in equity’ embraces not only ordinary actions and suits, but includes all the proceedings carried on in the ordinary law and equity tribunals, as distinguished from proceedings in military, admiralty, and ecclesiastical courts. It is a very comprehensive term, and is understood -to apply to any proceedings in a court of justice by which an individual pursues a remedy which the law affords. Modes of proceeding may vary, but, as it affects the right of removal, any civil proceeding in a state tribunal in which a judgment or decree is sought as to the rights of the parties and presented by the pleadings for j udicial determination is an action or suit within the meaning of the statute, regardless of the forum or tribunal before which thematter ispending. (Weston v. City Council of Charleston, 2 Pet. 449-464, 7 L. Ed. 481; Gaines v. Fuentes, 92 U. S. 10, 23 L. Ed. 524.) And the state cannot, by creating special proceedings or special tribunals, deprive the federal court of jurisdiction of such a suit or prevent a removal. (In Re The Jarnecke Ditch, 69 Fed. 161.) But a proceeding carried on by or before executive or administrative officers in the exercise of their proper functions cannot be regarded as a suit or action, although it may become such on appeal to a court having power to determine questions of law and fact, either with or without a jury, and where there are parties litigant to contest the case on one side or the other. (Upshur Co. v. Rich, 135 U. S. 467, 10 Sup. Ct. 651, 34 L. Ed. 196; Waha-Lewiston L. & W. Co. v. Lewiston Sweetwater I. Co., 158 Fed. 137.)
“Now the preliminary proceedings before the state board of control, in taking testimony and making findings of fact concerning the rights of the various claimants to the waters of a given stream, are, in my judgment, not judicial, but rather administrative. The powers of the board are not brought into action by the filing of a paper in the nature of a complaint setting up asserted rights,*349 but by the mere presentation to it of a petition or request by one or more users of water, without any allegations of issuable facts, other than that the petitioner is a water user on the stream, and a request for the determination of the relative rights of the various claimants to such waters. No affirmative relief is asked, and no adverse pleadings are required or permitted, or issues joined, until after the evidence taken by the board is open to the inspection of the various claimants and owners. After the filing of the petition, the proceedings are to be conducted by the board and upon its initiative. Neither the petitioner nor the claimants obtain any redress for an injury as the result of such proceedings, but merely evidence of their title or right to the use of the water. It is true the board is vested with power to issue notice to the various claimants requiring them to present their claims, to take testimony and make findings of fact, but these findings must be confirmed by the court. The board has no power to make an adjudication of the rights of the claimants. Its duty is to ascertain the facts and present them to the court for its consideration. .After the evidence and determination of the board has been filed with the court, the proceeding probably becomes a suit or action, but, until the board has completed its examination, made its determination, and filed its report, the proceedings are purely administrative.
“In so far as the board has jurisdiction over the adjudication of water rights, it is in effect a standing examiner, created by the state, charged with the duty, when requested by the users of water, of examining into and reporting to the court the facts on which the rights of the various claimants are based, so that such rights may be authoritatively settled and determined by a j udicial tribunal. Until the report is made and filed with the court, there is no action or suit within the meaning of the removable statute.”
The Oregon law under consideration by the federal court in the Silvies River case, supra, differs from the Nevada, Wyoming, and Nebraska laws in that, after the
And further that: “During the time the hearing of the order of the board of control is pending in the circuit court, and until a certified copy of the j udgment, order, or decree of the circuit court is transmitted to the board of control, the division of water from the stream involved in such appeal shall be made in accordance with the order of the board.” (Silvies River Case, supra, 199 Fed. 499; Wattles v. Baker County, 59 Or. 255, 117 Pac. 417; Lord’s Oregon Laws, secs. 6648, 6652.)
In practical effect, there is little difference between the Oregon statute and the Nevada, Wyoming, and Nebraska statutes. Both in Oregon and the other three states mentioned, the findings of the state engineer or water board are in force and effect until stayed or set aside by the court. The Oregon statute requires the court to adjudicate the relative rights of all water users, whether there is any dispute as to the determination of the water board or not, and this adjudication is initiated by the state itself. Under the laws of the latter states, parties contesting must initiate an adjudication by the courts, and only those cases go before the court where there is an actual controversy. In cases where the parties are satisfied with the determination made by the water officials, it may be possible that the subsequent adoption and approval of a court gives to such determinations a more
It is unnecessary to consider other constitutional questions raised by counsel in these cases, for they are not essential to a determination of the cases before us. Courts as a rule will not determine such questions, except as is necessary to completely dispose of the cases as presented.
A question has been raised as to whether the proceeding in prohibition (Case No. 2107) was an appropriate remedy, but, as that proceeding must be dismissed in any event, we will not consider that question. In case No. 2107 the proceeding is dismissed.
The district court is directed to modify the temporary injunction so as to only restrain the state engineer from making determinations which would in any way impair vested rights.
Concurrence Opinion
Opinion of
I concur in the orders.
How far may the state engineer proceed under the act of 1913, creating the water law ? To what extent are the provisions of that statute constitutional? The act purports to authorize this officer, by detailed procedure, to determine the relative rights of water users, and subject to rehearings and appeals to make his determinations conclusive and to empower him to administer and regulate the use of water in accordance with such determinations.
From this it appears that the legislature may have been in doubt as to the validity of certain parts of this statute.
It has now come to be generally recognized that under our free government, with all its constitutional guaranties, statutes passed for the public benefit, to meet the new conditions which arise, will be sustained and enforced, although they affect private property or limit the right of contract.
“Article 6 — -Judicial Department
“Section 1. The judicial power of this state shall be vested in a supreme court, district courts, and in justices of the peace. The legislature may also establish courts, for municipal purposes only, in incorporated cities and towns.”
Section 44 of the water law provides: “The final orders or decrees of the state engineer, in the proceedings provided by law for the adjudication and determination of
By this section it is attempted to make the determination of the state engineer a final adjudication, if there is no rehearing or appeal, but it is not apparent that the constitution will allow it to have that effect, for if such determination could be a conclusive adjudication as the statute states, even if there is no rehearing or appeal, it would in effect be giving the force of a j udgment to the determination of the state engineer and have the effect of conferring judicial power upon him, something the constitution does not permit when it provides that the judicial power of the state shall be vested in the supreme court, district courts, and justices of the peace and courts established for municipal purposes only. With the judicial power of the state limited by the constitution to these courts, the judges of which are required by the constitution to be elected, it would seem that the legislature cannot invest the state engineer, or any appointive or administrative officer, with the judicial power of finally adjudicating vested rights to water. If the legislature could give the state engineer power to make final adj udications of water rights, it could authorize him, or some other appointive officer, to make final adjudications of the right to mines, lands, and other property and claims, and divest the courts of the jurisdiction given them by the constitution, or, if appeal be nominally allowed to the courts, hedge it about with such expensive and burdensome restrictions as to place it beyond the reach of ordinary litigants.
As the constitution limits the judicial'power in this state to the supreme court, district, justice, city, and municipal -courts, it follows that it does not provide for an appeal to the district court from the decision of any tribunal not mentioned in that document. The fact that
If there were a provision in the state constitution authorizing the legislature to establish other courts at its discretion, and provision had been made by statute for a special tribunal to determine the rights of water users, a very different question might be presented. Various provisions in relation to courts are found in the organic acts of different states. Upon the adoption of our state constitution, probate courts, which were permitted under the territorial government, were no longer allowed, and the jurisdiction they exercised was transferred to the district court. Decisions in Wyoming and other states having different constitutional and statutory specifications can have but little bearing upon this question.
It being concluded that the state engineer may take evidence and determine water rights for administrative purposes, and that his determinations are not binding as final adjudications, even if no appeal from them be taken, the further question arises as to whether, on the same theory that banks, railroads, and public service corporations are controlled, the state engineer, with the assistance of the duly appointed water commissioner, may allow, restrict, and regulate the use of the water claimed under vested rights without impairing them, in accordance with his determinations, subject to the right of any water user who may feel aggrieved thereby to apply to the courts to restrain the state engineer or the water commissioner from depriving the appropriator of any water to which he may be entitled. If the parties, or any
Concurrence in Part
concurring in the order in Case No. 2115; dissenting in Case No. 2107:
I concur in the order, as made applicable to case No. 2115, entitled Anderson, et al., v. Wm. M. Kearney, in so far as its force extends, but, inasmuch as it only partially affirms the order of the lower court, I contend that it should go farther to the extent of a complete affirmance of that order. But it must not be understood that I concur in the opinion leading up to the order made.
The question of the constitutionality of the several sections of the water law of 1918 was, in my judgment, submitted to this court for its interpretation and decision.
Under the notices published by the engineer and served upon the several claimants, as set forth in case No. 2115, the engineer sought to proceed to the determination of relative rights, and therein he sought to conduct his proceedings under provisions of the several sections contained in the water law of 1913, and which were directly questioned in the lower court and directly questioned in this court, and I hold that it was our duty to meet those questions squarely and answer them, inasmuch as they were directly involved.
I dissent from the order dismissing the proceedings in case No. 2107, entitled Ormsby County, et al., v. Kearney. An order, at least equal in effect to that made in case 2115, should have been made in case 2107.
An opinion, which follows, presents my reasons for dissenting from the order as made in case No. 2107 and my reasons for concurring in the order so far as made in case No. 2115, also my reasons for contending that the order made in the latter case should extend farther and be more comprehensive.
The appeal in case No. 2115 is from an order of the
On the 21st day of May, 1913, W. M. Kearney, as state engineer of the State of Nevada, caused to be served upon respondents, and also caused -to be published in local newspapers, the following notices:
"State of Nevada.
"In the Office of the State Engineer.
"In the Matter of the Adjudication of the Relative Rights to the Waters of the Humboldt River and Its Tributaries.
" Order.
"It appearing to me, W. M. Kearney, state engineer of the State of Nevada, from an investigation made of the Humboldt River and its tributaries, one of the most important stream systems in the State of Nevada, that the relative rights to the use of water of the various claimants upon the said Humboldt River and its tributaries in the counties of Humboldt, Lander, Eureka, and Elko, State of Nevada, should be determined: Now, therefore, it is hereby ordered, that the Humboldt River and its tributaries, situated within the counties of Humboldt, Lander, Eureka, and Elko, State of Nevada, is hereby selected for the determination of relative rights to the*360 use of water of the various claimants thereon. It is further ordered, that the proceedings for. the determination of the relative rights to the waters of the said Humboldt River and its tributaries, situate in Humboldt, Lander, Eureka, and Elko Counties, State of Nevada, shall begin on the 26th day of May, A. D. 1913. All claimants to rights in the waters of said stream system are required to make proof of their claims in the manner prescribed by law.
"Dated and entered at Carson City, State of Nevada, this 21st day of May, 1913.
" [Signed] W. M. Kearney,
" [Seal. ] State Engineer. ”
"Notice of Order and Proceedings to Determine Water Rights Before the State Engineer of Nevada.
"In the Matter of the Determination of the Relative Rights to the Waters of the Humboldt River and Its Tributaries.
"To whom it May Concern: You are hereby notified that the state engineer will begin the proceedings for the determination of the relative rights to' the waters of the Humboldt river and its tributaries, situate in Humboldt, Lander, Eureka, and Elko Counties, State of Nevada, on the 26th day of May, A. D. 1913. All claimants to rights in the waters of said stream system are required to make proof of their claims in the manner prescribed by law.
" By order of the state engineer.
"W. M. Kearney, State Engineer.
"Dated at Carson City, Nevada, this the 21st day of May, A. D. 1913.”
The notices heretofore set forth were given by the state engineer, pursuant to the act of the legislature of the State of Nevada, approved March 22,1913.
It is the contention of respondents, plaintiffs in the court below, that sections 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, and 58 of
The act in question starts out by declaring that the water of all sources of water supply within the boundaries of the state, whether above or beneath the surface of the ground, belong to the public.
Section 2 is: "Subject to existing rights, all such water may be appropriated for beneficial use as provided in this act and not otherwise.
"Sec. 3. Beneficial use shall be the basis, the measure and the limit of the right to the use of water. ”
The act proceeds by providing for standards of measurement, creating the office of state engineer, maximum amount of water to b'e allowed, and prescribing the duties of the state engineer and his assistant.
Section 18 prescribes as follows: "Upon a petition to the state engineer, signed by one or more water users of any stream or stream system, requesting the determination of the relative rights of the various claimants to the waters thereof, it shall be the duty of the state engineer, if upon investigation he finds the facts and conditions justify it, to enter an order granting said petition and to make proper arrangements to proceed with such determination; provided, however, that it shall be the duty of the state engineer, in the absence of such a petition requesting a determination of relative rights, to enter an order for the determination of the relative rights to the use of water, of any stream selected by him; commencing on the streams in the order of their importance for irrigation. As soon as practicable, after said order is made and entered, it shall be the duty of the state engineer to proceed with such determination as hereinafter provided. A water user upon or from any stream or body of water shall be held and deemed to be
Section 19 provides for the preparing of notices, setting forth that all claimants to rights in the waters of the stream system to be determined are required to make proof of their claims. The section further provides: "Which notice shall be published for a period of four consecutive weeks in one or more newspapers of general circulation within the boundaries of said stream system. ”
Section 20 provides for the making of investigation by the state engineer, such investigation to be with reference to ditches diverting waters and the lands irrigated therefrom.
Section 22 provides: "Upon the filing of such measurements, maps and determinations, the state engineer shall prepare a notice setting forth the date when the said state engineer is to commence the taking of said proofs, as to the rights in and to the waters of said stream system, and the date prior to which the same must be filed; provided, however, that the date set prior to which said proofs must be filed shall not be less than sixty days from the date set for the commencement of the taking of said proofs, which notice shall be deemed to be an order of the state engineer as to its contents, and which notice the state engineer shall cause to be published for a period of four consecutive weeks in one or more newspapers of general circulation within the boundaries of the said stream system, the date of the last publication of said notice to be not less than fifteen (15) days prior to the date fixed for the commencement of the taking of proofs by the said state engineer. At or near the time of the first publication of said notice it shall be the duty of the said state engineer to send by registered mail to each person, or deliver to each person, in person, hereinafter designated as claimant, claiming rights in or to the waters of said stream system, in so far as such claimants can be reasonably ascertained, a notice equivalent in terms to the said published notice setting forth the date when the said state engineer will commence the said taking of proofs, and
Section 23 deals with the question of the state engineer mailing to claimants certain printed forms for proofs.
Section 24 provides for the making of such statements by the claimants under oath.
Section 25 is as follows: "It shall be the duty of the state engineer to commence the taking of proofs on the date fixed and named in the notice provided for herein for the commencement of the taking of proofs, and he shall proceed therewith during the period fixed by him and named in the said notice, after which no proofs can be received by or filed with the said state engineer; provided, however, that the state engineer may, for cause shown, in his discretion, extend the time in which proofs may be filed. Any person who shall fail to appear herein and make proof of his claim or rights in or to the waters of said stream system, as required by this act, prior to the expiration of the period fixed by said state engineer during which proofs may be filed, shall be deemed guilty of a misdemeanor, and if an individual person, shall upon conviction, be punished by a fine of not less than two hundred and fifty dollars ($250), and not exceeding one thousand dollars ($1,000), or by imprisonment in the county jail for a term of not less than ten days and not exceeding six months, or by both such fine and imprisonment in the discretion of the court, and if a corporation, each and every officer and director thereof shall be amenable to said punishment hereinbefore in this section provided; provided, however, that the state engineer may, in his discretion, accept and. use as a proof of claim any instrument purporting to be a record of a water right, recorded in the county or counties in which such stream system lies, and render a finding for a water right for the number of irrigated acres of land as found by his observation; provided further, that a finding rendered by the state engineer on a water claim, the holder of which is in
Section 26 provides for the intervention of interested parties.
Section 27 has to do with the fees to be paid by claimants to the state engineer.
Section 28 provides for the assembling of all proofs filed with the state engineer, and further provides that as soon as possible the state engineer shall prepare a notice fixing and setting the time and place when and where the evidence taken by or filed with him shall be open to the. inspection of all interested persons; said period of inspection to be not less than ten days, which notice shall be deemed to be an order of the state engineer as to the matters contained therein.
Section 29 provides for the manner of instituting contests.
Section 30 has to do with the conduct of hearing the contests.
Section 31 empowers the state engineer to make rules governing contests.
Section 32 provides for the payment of fees by the contestants.
Section 33 is as follows: "As soon as practicable after the hearing of contests, it shall be the duty of the state engineer to make, and cause to be entered of record in his office, an order determining and establishing the several rights to the waters of said stream; provided, however, that within sixty days after the entry of an order establishing water rights, the state engineer may, for good cause shown, reopen the proceedings and grant a rehearing. Such order and determination shall be prepared, and, after certification by the state engineer, printed in the state printing office. A copy of said order and determination shall be sent by registered mail, or delivered in person to each person who has filed proof of claim, and to each person who has become interested through intervention or by having entered a contest
Section 34 provides: "Any party, or any number of parties acting jointly, who may feel themselves aggrieved by the determination of the state engineer may have an appeal from the order of the state engineer to any district court of the State of Nevada in which any part of such stream system involved in such determination may be situated. All persons joining in the appeal shall be joined as appellants, and all persons having interests adverse to the parties appealing or either of them shall be joined as appellees; provided, however, that such appeal must be taken within six (6) months of the date on which said party or parties appealing have received a copy of the order of the state engineer determining said rights.”
Section 35 provides: "The party or parties appealing shall, within six (6) months after the receipt of a copy of the order of the state engineer determining the rights to the use of water, file in the district court to which appeal is taken, a notice in writing stating that such party or parties appeal to such district court from the determination and order of the state engineer; and upon the filing of such notice, the appeal shall be deemed to have been taken; provided, however, that the party or parties appealing shall, within the six (6) months mentioned, enter into an undertaking, to be approved by the district court or judge thereof, and to be given to all the parties in the said suit or proceeding, other than the parties appealing, and to be in such an amount as the court or judge thereof shall fix, conditioned that the parties giving their said undertaking shall prosecute their appeal to effect and without unnecessary delay and will pay all costs and damages which the party to whom the undertaking is given, or either, or any of them, may sustain in consequence of such appeal. ”
Section 37 provides: "The appellant or appellants shall within sixty days after the appeal, as provided for, is perfected, file in the office of the clerk of the district court a certified transcript of the order of determination made by the state engineer, and which is appealed from, a certified copy of all records of the state engineer relating to such determination, and a certified copy of all evidence offered before the state engineer, including such measurements, maps, and determinations as herein provided to be made of record by the state engineer, 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 out of the office of the clerk of the district court, within the time and in the manner provided by law for the issuance and sérvice of summons in actions of law.”
Section 38 provides that the proceeding on appeal shall be conducted in the manner in which appeals are taken from the district court to the supreme court.
Section 39 provides the manner in which the judgment of the district court may be transmitted to the state engineer.
Section 40 provides that the costs on the appeal proceedings shall be paid by the losing party.
Section 41 provides for the manner of staying the order or decree appealed from, providing in that respect that an undertaking with good and sufficient sureties may be filed with the district judge in such amount as that officer may prescribe, conditioned that the appallent will pay all damages that may accrue to the appellee or appellees by reason of such order or decree not being enforced, should the proceedings and appeal be decided against the appellant.
Section 42 provides that hearings in these classes of cases shall have precedence over all civil causes.
Section 44 provides: " The final orders or decrees of the state engineer, in the proceedings provided by law for the adjudication and determination of rights to the use of the waters in this state, shall be conclusive as to all prior appropriations, and the rights of all existing claimants upon the stream or other body of water lawfully embraced in the adjudication, subject, however, to the provisions of law for appeals, rehearings and for the reopening of the orders or decrees therein.”
Section 45 provides: "In any suit which may be brought in any district court in the state for the determination of a right or rights to the use of water of any stream, all persons who claim the right to use the waters of such stream and the stream system of which it is a part shall be made parties. When any such suit has been filed, the court shall by its order duly entered, direct the state engineer to furnish a complete hydrographic survey of such stream system, which survey shall be made as provided in section 20 of this act, in order to obtain all physical data necessary to the determination of the rights involved. The cost of such suit, including the costs on behalf of the state and of such surveys, shall be charged against each of the private- parties thereto in proportion to the amount of water right allotted. In the case of any such suit now pending or hereafter commenced the same may at any time after its inception, in the discretion of the court, be transferred to the state engineer for determination as in this act provided. ” Section 46 has to do with the appropriation of $5,000 to constitute a hydrographic fund.
Sections 47, 48, and 49 have to do with the definition of certain words used in the act.
Section 50 makes provision for the state engineer to formulate rules requiring claimants to furnish blue-prints of particular parcels of land.
Section 51 provides: "Upon the final determination of
Three primary questions are involvéd in the determination of the matter at bar:
First — By the water law of 1913 and its provisions, authorizing adjudication and determination, set forth from sections 18 to 51, inclusive, is the state engineer vested with powers in contravention to the provisions of the constitution of the United States and the constitution of the State of Nevada?
Second — By the act of 1913, is the state engineer empowered to adjudicate and determine the right of plaintiffs to the use of the waters appropriated, inasmuch as it is admitted in these proceedings, and for the purpose of these proceedings, that these rights became vested, prior to the creation of the office of state engineer, by the act of the water law of 1913?
Third — By section 84 of the water law of 1913 are legal appropriations of water, made and acquired prior to the operation of the water law of 1913 exempt from the operation of that act?
Further it is stated in that-case: "By 'due process of law,’ as used in the constitution, is simply meant such general legal forms and course of proceedings as were known either to the common law or as were generally recognized in this country at the time of the adoption of the constitution.”
See Wright v. Cradlebaugh, 3 Nev. 342; State v. Millain, 3 Nev. 466.
Due process of law not only requires that the party shall be brought into court, but that he shall have opportunity in court to establish any facts which, according to the usages of common law, or the provisions of the constitution, will be a protection to himself and property.
Article 3, sec. 1, of the constitution of the State of Nevada, provides that: "The powers of the government of the State of Nevada shall be divided into three separate departments, the legislative, the executive, and the judicial; and no persons charged with the exercise of powers properly belonging to one of these departments shall exercise any functions appertaining to either of the others, except in the cases herein expressly directed or permitted. ”
Article 6, sec. 1, of the constitution of Nevada, provides: "The judicial power of this state shall be vested in a supreme court, district courts, and in justices of the peace. The legislature may also establish courts, for municipal purposes only, in incorporated cities and towns. ”
Article 6, sec. 6, of the constitution of the State of Nevada, provides: "The district courts in the several judicial districts of this state shall have original jurisdiction in all cases in equity; also, in all cases at law which involve the title or the right of possession to, or the
It may be well to observe here that the subject under consideration is one which deals with real property, in the strictest sense of the word. (Hough v. Porter, 51 Or. 318, 95 Pac. 732, 98 Pac. 1083, 102 Pac. 768.)
Mr. Kinney, in his work on Water Rights, 2d ed. vol. 2, sec. 768, says:
"The distinct, exclusive, usufructuary estate acquired by an appropriator to the use of water,-by its lawful appropriation, is property of the highest order and oftentimes of the highest value. The water right is protected by the law as such, and is subject to all the usual incidents of property. This property right in water is as important, as valuable, and as extensive as the use to which it is applied. The land is comparatively valueless without the water to irrigate it. * * * The property in a water consists, not alone in the amount of water claimed under an appropriation, but also in the priority of the appropriation. And it very 'often happens that the chief value of an appropriation consists in its priority over other appropriations from the same stream. Hence, to deprive one of his priority to appropriate would be to deprive him of a most valuable property right. A perfected water right is a vested property right and its value capable of estimation in money, and one which the law protects. A water right is such a property right that it comes clearly within the constitutional provisions that property shall not be taken or damaged for public or private use, except upon due process of law and upon just compensation.”
The courts of many .of the western states have announced a similar doctrine; in fact, it is one almost universally accepted. (Waha v. Lewiston, 158 Fed. 137; Mohl
The power to determine relative rights sought to be conferred by this statute upon the state engineer has, in our judgment, been very properly termed a power to quiet title. (Rickey Land Co. v. Miller & Lux, 152 Fed. 11, 81 C. C. A. 207.)
It is further contended by appellant that the view of
In approaching the subject, it may be well to compare the organic law of Nevada with that of Wyoming in the first instance, and, secondly, with that of Nebraska, and in our comparison to consider the grants and inhibitions of jurisdiction of the established courts in the respective states.
At the outset we find our own constitution lacking in any provision bearing directly upon the subject of public waters, or appropriation, or use of the same, except in so far as we may have adopted the common, law.
In the constitution of Wyoming a specific provision is found bearing at length upon the subject. Article 8 of the constitution of Wyoming is devoted entirely to the subject of irrigation and water rights, and, in order that my analysis may be more comprehensive, I quote it at length:
"Section 1. Water Is State Property. The water of all natural streams, springs, lakes, or other collections of still water, within the boundaries of the state, are hereby declared to be the property of the state.
" Sec. 2. Board of Control'. There shall be constituted a board of control, to be composed of the state engineer and superintendents of the water divisons; which shall, under such regulations as may be prescribed by law, have the supervision of the waters of the state and of their appropriation, distribution and diversion, and of the various officers connected therewith. Its decisions to be subject to review by the courts of the state.
"Sec. 3. Priority of Appropriation. Priority of appropriation for beneficial uses shall give the better right. No appropriation shall be denied except when such denial is demanded by the public interests.
" Sec. 4. Water Divisions. The legislature shall by law divide the state into four (4) water divisions, and provide for the appointment of superintendents thereof.
*373 "Sec. 5. State Engineer. There shall be a state engineer who shall be appointed by the governor of the state and confirmed by the senate; he shall hold his office for the term of six (6) years, or until his successor shall have been appointed and shall have qualified. He shall be president of the board of control, and shall have general supervision of the waters of the state and of the officers connected with its distribution. No person shall be appointed to this position who has not such theoretical knowledge and such practical experience and skill as shall fit him for the position. ”
The constitution of Nebraska is silent upon the subject of irrigation and water rights, but in this respect it may be well to observe that the doctrine of riparian rights has at all times consistently been held in force in that state. (Crawford v. Hathaway, supra.)
In the case of Crawford v. Hathaway, supra, it must be observed that while the Supreme Court of Nebraska cited approvingly the decision of the Supreme Court of Wyoming in the case of Farmers’ Investment Co. v. Carpenter, supra, without a constitutional provision bearing upon the subject of irrigation or water rights, it premised the case largely upon the doctrine of riparian rights consistently maintained and applied in that state, and laid as a second premise the right of condemnation, declaring the same to be applicable as against riparian owners.
In our judgment, the constitution of the State of Wyoming, declaring, as it did, that all natural bodies of water are property of the state, and in giving to the board of control the power to supervise the waters of the state and the appropriation thereof, seems to have been adopted with the view of conferring ultimate powers of determination, whether they be termed judicial or quasi-judicial, on the board of control, and the statute of Wyoming, construed and interpreted in the case of Farmers’ Investment Co. v. Carpenter, supra, was enacted pursuant to this special constitutional authorization.
In discussing the case of Farmers’ Investment Co. v.
Whatever may be said by way of argument as to the decision of the Wyoming court, in the case of Farmers’ Investment Co. v. Carpenter, supra, and its application to the statute under consideration, this much is manifest at the outset: That, by specific declaration, the organic law of Wyoming laid the foundation for legislation upon the subject of water rights and contemplated a board of control with supervisory powers. Whether the Supreme Court of Wyoming, in its construction and interpretation of the Wyoming statute, rested its case upon the constitutional provision or not, it at least had the constitutional provision before it, expressly declaring the spirit and policy of the founders of the government of that state applicable to public waters.
But the constitution of Nevada, in my judgment, will not
The framers of our constitution, having in mind the all-important question of the protection of life and the security to the individual of the enjoyment of property, after guaranteeing these things, prescribed the avenues by which either might be taken from the individual, and in that respect they conferred upon the district courts in the several judicial districts of the state original jurisdiction in all cases in equity, and also conferred upon those courts original jurisdiction in all cases at law, which involved the title or the right of possession to or possession of real property. The founders of the organic law also prescribed the only avenues by which the district court should have appellate jurisdiction. In that respect article 6, sec. 6, prescribes that they shall also have final appellate jurisdiction in cases arising in justices’ courts and such other inferior tribunals as may be established by law. And the affirmative words in a constitution that courts shall have the jurisdiction stated naturally include a negative that they shall have no other. (Lake v. Lake, 17 Nev. 238, 30 Pac. 878.)
When jurisdiction is affirmatively conferred upon a given court, it is to be deemed exclusive, unless by constitutional provisions an exception is made, or the power is conferred upon the legislature to extend jurisdiction in certain cases. Original jurisdiction affirmatively conferred upon a given court in civil actions, without a stated exception, and without power expressly given to the legislature to either limit or increase this jurisdiction, the jurisdiction thus conferred is exclusive. (State v. Rising, 10 Nev. 97.)
Section 33 of the act of 1913 empowers the engineer to make and cause to be entered of record in the office an order determining and establishing the several rights to the waters of a given stream.
Reading sections 18, 25, and 33 in conjunction with section 44, the act makes conclusive the orders of the
What is involved in the determination of the state engineer ? The right to the use of water for beneficial purposes. Upon what does this right depend? Prior appropriation and beneficial application. Are these questions of law as well as of fact? Manifestly they are. Are they questions which may involve the law and the adjudication and decrees of courts? These questions must all be answered in the affirmative.
It is claimed that these sections, and the policy of the law generally, merely confers upon the state engineer ministerial powers, and that even though the powers of the state engineer, as sought to be conferred, are quasi-judicial, the claimant is not deprived of due process of law, inasmuch as the statute prescribes that he may appeal to the district court. These contentions, in my judgment, are untenable, under a strict reading of the statute. By section 44 it is provided that the determination of the state engineer shall be conclusive as to all existing claimants upon the stream. Section 55 emphasizes the conclusiveness of the state engineer’s determination, and the constitution precludes appeal.
It is suggested that the provisions of these sections are only to confer upon the state engineer ministerial powers in order to carry out a scheme of water supervision and regulation. But .how can this be seriously contended for, when by section 44 the final determination of the state engineer is termed "a decree,” and the proceeding is termed "an adjudication and determination,” and the decree of the state engineer is by that section made conclusive as to the existing rights of the claimants upon the stream? Conclusive decrees made by a ministerial officer upon a matter involving the title and the right of possession to propertythat subject with reference to which the fundamental law of this state declares "the district courts of the several judicial districts of the state
It is unnecessary for me to say, I apprehend, that the state engineer is not "an inferior tribunal,” as contemplated by the provision of the constitution. (Meagher v. County of Storey, 5 Nev. 249.) This being disposed of, the only appellate jurisdiction which the district court is possessed of is in cases arising in justices’ courts.
This last observation makes the provisions of the water law of 1913 even more drastic than its words imply, for it confers upon a ministerial officer powers of final determination on matters inyolving the right of the possession to property, and fixes the only avenue of redress for a party aggrieved to a court, which, by constitutional prescription, is precluded from assuming appellate jurisdiction. This provision of the water act of 1913 is a nullity. A law which is in conflict with the fundamental law of the state is not a law at all. (Meagher v. Storey Co., 5 Nev. 249; Lake v. Lake, 17 Nev. 230, 30 Pac. 878.) Furthermore, the only appellate jurisdiction which the district court takes under the constitution is a final appellate jurisdiction, one from which there is no appeal to the highest court of the state. (Floyd and Gutherie v. Sixth Judicial District Court, 36 Nev. 349; Bancroft v. Pike, 33 Nev. 80, 110 Pac. 1; State v. Rising, 10 Nev. 101; Leonard v. Peacock, 8 Nev. 157.)
Hence it follows that unless we read into section 6 of article 6 of our constitution a different appellate jurisdiction for the district court from that which the constitution
I have already mentioned that the water law of 1913 is dissimilar to the Wyoming act, construed in the case of Farmers’ Investment Co. v. Carpenter, supra, and it may be well to observe here that, while those portions of the water act of 1913 adopted from the Wyoming statute might be applicable under the constitutional provisions of Wyoming, they are inapplicable under the constitutional provisions of this state. This is especially true when we consider the constitutional conference of jurisdiction extended to the several courts in the respective states. The constitutional authorization of appellate jurisdiction of the district court in the States of Wyoming and Nebraska differs most materially from that conferred upon the district court in this state.
Article 5, sec. 10, of the constitution of Wyoming, provides: "They shall have such appellate jurisdiction in cases arising in justices’ courts and other inferior courts in their respective counties as may be prescribed by law. ”
Article 6, sec. 17, of the constitution of Nebraska, provides: "Appeals to the district court from the judgments of county courts shall be allowed in all criminal cases, on application of the defendant; and in all civil cases, on application of either party, and in such other cases as may be provided by law.”
Article 6, sec. 6, of the constitution of Nevada, in this respect, provides: "They shall also have final appellate jurisdiction in cases arising in justices’ courts and such other inferior tribunals as may be established by law. ”
The constitutional provisions of the States of Wyoming and Nebraska, conferring appellate jurisdiction upon the district courts and county courts, do not make that jurisdiction final, and I am unable to find an expression of the
As has already been stated, the constitution limits the appellate jurisdiction of the district court to those cases appealed from justices’ courts and such other inferior tribunals as may be established by law, and hence it follows that unless we read into this provision of the constitution either that the state engineer is an inferior tribunal, established by the water law of 1913, or that the district court will take appellate jurisdiction in cases other than those conferred upon it by the organic law, it necessarily follows that the provision of the water law of 1913, as to appeals from the orders and determinative decrees of the state engineer, are unconstitutional, and the district court would be without power to assume such jurisdiction. If we view the contemplated final orders or decrees of the state engineer and his determinations in the light of these conclusions, it unanswerably follows that, there being no appeal from the determinations of the state engineer, they are therefore final determinations, and these final determinations are in matters in which the right of possession to property is involved, and the party aggrieved is cut off from access to the civil courts, and the constitutional guaranty is nullified. My reasoning, in this respect, might not be applicable under the laws and constitution of Wyoming or Nebraska, inasmuch as different provisions are there made as to the original and appellate jurisdiction of the several courts from that which is found in our organic law.
It has been asserted that the hearing and proceeding before the state engineer is neither a matter at law nor in equity. Assuming, for the time, the correctness of this assertion, the property subject to determination and
Water being a property right, and its enjoyment arising primarily on appropriation and priority, each of these elements is essential to the right under the doctrine of first in time first in right. Yet, if we give to section 25 of the water law of 1913 the full meaning of the words there used, it is within the power of the state engineer, moreover, it is made mandatory, that the state engineer shall render a finding in case of the claimant who defaults in making proof that the claimant, regardless of his actual priority, shall be given a later priority than that of others whose proofs were filed in accordance with the provisions of the act.
The very acme of severity, if not absurdity, is reached by section 25, wherein it is prescribed that any person who shall fail to appear and make proof of his claim or right in and to the waters of a stream system, as required by this act, prior to the expiration of the period fixed by the state engineer during which proof may be filed, shall be deemed guilty of a misdemeanor and, if an individual person, shall be punished by a fine of not less than $250 and not exceeding $1,000 or by imprisonment in the county jail for a term of not exceeding six months, or by both such fine and imprisonment, in the discretion of the court. Section 25, as it stands, reads that a defaulting claimant shall be divested of his property rights, and,
Mention of section 25 is unnecessary in the matter at bar, except in so far as it goes to refute the assertion that the acts of the engineer are only ministerial. Section 25 carries out the spirit of the law which is to make final the decrees rendered by the engineer. This is absent in the laws of the other states.
Mr. Kinney, in his work on Irrigation and Water Rights, in discussing the subject of state control, under a system similar to the Wyoming law, says: "It was evidently the intent to give him (the state engineer) or board of control, over which he presides, the exclusive jurisdiction in the determination of existing water ¡rights within the state, and the power to enforce his or its decisions, in the distribution of the water. In other words, as far as this phase of the subject is concerned, it was to be a government by engineers. But the constitutional convention and the legislature, departing from the original conception of the framer of the bill, gave the right of appeal to the courts. And, further, the supreme court of the state, by its decisions in construing the law after its enactment, has also modified what was undoubtedly the intent of the framer of the bill by holding that an appropriator who had not even presented his claim to the board of control, even after notice of the proceedings, was not estopped from afterward asserting his rights in the district court, and further by holding that a water right' cannot be made an inseparable appurtenance to a certain tract of land, as was attempted by the act, but which feature was held to be unconstitutional, and that, too, even after the 'views’ of the engineer in question
In the case of Thorp v. Woolman, 1 Mont. 168, the Supreme Court of Montana, in' passing upon the constitutionality of an act providing for the appointment of three commissioners empowered by the act of the legislature to apportion in a just and equitable proportion the waters of certain streams, without dwelling upon the subject at length, said: "The powers given this commission by the act under which they conducted their proceedings are clearly judicial. They are empowered by it to apportion the waters in a just and equitable proportion. This required them to determine what was just and equitable between these parties. In the next place, the apportionment was to be made with a due regard to the legal rights of all. This required of them to determine what these legal rights were. The organic act of this territory, which is its fundamental law, limits the powers of legislation, vests judicial power in a supreme court, district courts, probate courts, and in justices of the peace. No tribunal which does not belong to one of these classes is legal. As this commission cannot claim to belong to either one of these, it was a tribunal exercising judicial authority without legal warrant, and its acts are void.”
The decision in the case of Thorp v. Woolman, in this respect, was reannunciated by the same court in the case of Thorp v. Freed, 1 Mont. 656.
In view of my analysis heretofore set forth, it is unnecessary for us to dwell on the hardshipful and expensive means, set forth in the water law of 1913, by which appeals may be perfected. It is not a question as to whether or not the respondents in this case are
It may be contended that we are not called upon to construe or interpret many of the sections herein referred to, but this contention is untenable, inasmuch as sections 18 to 51, taken as a whole, constitute a proposed scheme for investigation, determination, and adjudication on the part of the state engineer, and the entire plan whereby the state engineer’s determination is to become final, and the entire arrangement whereby the courts are ousted of jurisdiction, is to be found within those sections of the act.
It will not do to say that the claimant may relieve himself of the action of the engineer by an action in court, by the ordinary proceeding, independent of the provisions of the act. This would be to declare that hardshipful litigation is to be promoted by this act. It would in effect say that the action of the engineer, however arbitrary and unjust, must stand against a claimant’s property, unless by good fortune he be possessed of the means to carry on litigation.
The notice of the engineer in this case declares that he will determine relative rights of the water claimants on the Humboldt River system within the several counties named. The scope of the term “relative rights” may at first thought fail to receive due appreciation. It is not a question of the engineer determining the appropriations and priorities for his own guidance and supervision, or
The question of relative rights, as between water claimants on a stream.system, is a matter between the several claimants, one to be determined by the courts, and one with which the engineer has no concern.
“These executives,” says the Supreme Court of Colorado, “may, and indeed should, prevent waste and insist upon economical use; but, where there is a real and bona fide dispute as to the relative rights to the use of water * * * between several claimants, these officers are not called upon to inject themselves into the controversy and decide between them.” (Boulder & Left-Hand Ditch Co. v. Hoover, 48 Colo. 343, 110 Pac. 77.)
It follows that the acts of the engineer, even if intended to be ministerial, become final because of constitutional provisions as to the jurisdiction of courts prohibiting review by the process suggested by the act.
May I suggest the query: What difference is there between a decree rendered by a court, as to the right to enjoy property, and a decree rendered by a ministerial officer, as to the right to enjoy property, if either or both are final? The former is by that department of the government invested by the organic law with powers to decree on that subject; the latter is, by a ministerial
“The test of its unconstitutionality is whether it operates to deprive any person of a right guaranteed or given him by the constitution. If it does, it is a nullity, whatever may be its form.” (Davies v. McKeeby, 5 Nev. 372.)
Being final, they effect the subjects of which the courts have exclusive original j urisdiction. Hence, the provisions of the act in this respect are contrary to the constitution. The conclusions reached by the courts of Wyoming and Nebraska are not binding on this court, first, because the act in question is different in its provisions from the water act of Wyoming, construed in the case of Farmers’ Investment Co. v. Carpenter; second, in the case of Farmers’ Investment Co. v. Carpenter, the Supreme Court of Wyoming had before it, whether it rested its case upon it or not, specific provisions in the constitution of Wyoming providing ab initio for the enactment of such a law as that found in the statutes of Wyoming; third, the constitution of Wyoming, applicable to its judicial department, does not limit the appellate jurisdiction of the district court as does the constitution of Nevada. Moreover, it does not make final the judgment of the district court on matters of which it takes appellate jurisdiction.
It is admitted in this action that all of the plaintiffs
The act of 1903 (Stats. 1903, c. 4) followed closely the enactment of the national irrigation act, sometimes known as “the Newlands Act,” and it was at the instance and suggestion of the author of that bill that the legislature of 1903 passed the enactment.
The act of 1903 was superseded by the act of 1905 (Stats. 1905, c. 46), and both of these statutes were made applicable only to future and not past appropriations.
The act of 1905 was superseded by the act of 1907 (Stats. 1907, c. 18), in which act we find the provision: “All existing rights to the use of water, whether acquired by appropriation, or otherwise, shall be respected and reserved, and nothing in this act shall be construed as enlarging, abridging, or restricting such rights.”
The act of 1907 by its terms applied specifically to unappropriated waters. The act of 1907 was superseded by the act of March 22, 1913. Section 2 of the act of 1913 provides: “Subject to existing rights, all such water may be appropriated for beneficial use as provided in this act and not otherwise.”
Section 84 of the act of 1913 is as follows: “Nothing in this act contained shall impair the vested right of any person to the use of water, nor shall the right of any person to take and use water be impaired or affected by any of the provisions of this act where appropriations have been initiated in accordance with law prior to the approval of this act. * * * ”
The original law of this state applicable to the use of water in the natural streams of the state was governed by the doctrine of riparian ownership, as known at common law, and many appropriations were made and
The various legislative acts applicable to the subject of public waters and the appropriation thereof clearly disclose that it was the intent of the legislature in each instance to recognize existing rights, and the same intention and spirit are manifest in the act of 1913.
It might be said that under a system of water control, such as that contemplated by the acts of the various states in the arid region, and in fact under the act of 1913 of this state, the engineer might determine, for his own administrative purposes, and for the purpose of admitting future appropriations, the exact extent of each appropriator’s right, but this is not the object nor the scope of the proposed action of the state engineer as declared by his notices, upon which the complaint in this case was founded, because by these notices he assumes the province of declaring relative .rights, and draws each claimant into open contest with every other claimant on the river system upon the two important subjects; i. e., amount of appropriation and priority. And acting under the statute of 1913 and under his notices, given pursuant thereto, he seeks to make final orders and decrees as to their respective relative rights, and thereby he declares his intention to make such orders and decrees as will necessarily impair and affect, to the extent of his determination and judgment, at least the vested rights of persons whose appropriations have been initiated in accordance with the customs or laws of this state prior to the act of 1913.
By section 84 of the water law of 1913, the legislature, in my judgment, merely sought to carry out that same declaration and purpose and intention which had been a feature in former legislative acts upon the same subject; i. e., to recognize appropriations made under former laws or legislative acts, and to keep those appropriations free
The determination of individual rights upon a river system must not be confused with the determination of relative rights. The determination of relative rights in this instance is one affecting the rights of one individual as against another or a number of others, while the determination of individual rights is one which does not correlate the comparative rights of any other person. The latter might properly be said to be essential under a system of state control in order that the controlling power might supervise and determine the availability of future appropriations, but the former has no place in' the contemplation of such a system, but belongs primarily to the courts. (Weil on Water Rights in Western States, vol. 2, p. 1103, and authorities there cited.)
The act of Congress of July 26, 1866, enacted for the purpose of dealing with the rights of miners who had theretofore, without objection, mined in the public lands, provided: “That wherever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right of way for the construction of ditches and canals for the purpose aforesaid is hereby acknowledged and confirmed.” (Act July 26, 1866, c. 262, sec. 9, 14 Stat. 253.)
In construing this act, the Supreme Court of the United States, speaking through Mr. Justice Miller, said: “We are of the opinion that the section of the act which we have quoted was rather a voluntary recognition of a preexisting right of possession, constituting a valid claim to its continued use, than the establishment of a new one.” (Broder v. Water Co., 101 U. S. 276, 25 L. Ed. 790; Platte Water Co. v. Northern Colo. Irr. Co., 12 Colo. 533, 21 Pac. 711.)
While many of the provisions-of the water law of 1913 may have been adopted from the statutes of Wyoming, it ■is manifest that many of the provisions were taken from and are more nearly like the statutes of Oregon, but in •the latter state the court is looked to for adjudication.
The legislative plan of most of the western states for the regulation of the use of water, vesting adjudication in their courts, has been brought about by reason of their constitutional provisions and the holding of their courts to the effect that any adjudication of priorities within the meaning of the irrigation acts are judicial determinations. (Kinney on Irrigation, vol. 3, 2d ed. p. 1586; Sterling Irr. Co. v. Downer, 19 Colo. 595, 36 Pac. 687; Thorp v. Woolman, 1 Mont. 168.) Holding to the same effect upon analogous subjects are People v. Dunn, 157 N. Y. 528, 52 N. E. 572, 43 L. R. A. 247; In Re Dumford, 7 Kan. App. 89, 53 Pac. 92; State v. Blaisdell, 22 N. D. 86, 132 N. W. 769, Ann. Cas. 1913e, 1089; Bridge Co. v. Hogadone, 150 Mich. 638, 114 N. W. 917.
“The more we study the workings of the laws of the state control as to the determination by governing boards in the first instance, of existing rights to the use of water, the more firmly we are convinced that all judicial or ‘quasujudicial’ powers should be taken from the state engineer and governing boards, and vested in the courts, as is the case in Colorado, where, under our form of government, that power properly belongs. And, fortunately, this is the rule in the most of the states which have recently adopted these laws. It is true that in Wyoming and Nebraska any party feeling himself aggrieved by the decision of the state engineer or governing board may appeal from such decision to the district court, but the first trial is before the board. And, furthermore, when an appeal is taken, it takes a double amount of time and expense upon the part of the contestants in attending the trials and getting their evidence properly before the board and court. Why is it not better for all parties concerned, in the first instance, to bring the action in court and to have the matter properly adjudicated and finally settled by a proper decree? If not satisfied with the decree and judgment of the trial court, a party may then*391 appeal to the supreme court of the state.” (Kinney on Irrigation, 2d ed. vol. 3, p. 2902.)
The contention that the construction placed upon the Nebraska statute by the supreme court of that state in the case of Crawford v. Hathaway, supra, should be binding on this court is untenable, inasmuch as the Nebraska law was more nearly an exact copy of the Wyoming law than is our water law of 1913. The provisions of our statute, as they appear in sections 18 to 51, inclusive, are tantamount to the provisions of the Oregon law (sections 6635 to 6648), with the exception of section 25 of our statute.
The Nebraska court in the case of Crawford v. Hathaway, supra, based its conclusions upon the following assertion:
“The Wyoming statute, from which ours is borrowed, has been subjected to judicial construction, and is upheld by the supreme court of that state on the express ground that the powers authorized therein are not judicial but administrative. (Farm Investment Co. v. Carpenter, 9 Wyo. 110, 61 Pac. 258, 50 L. R. A. 747, 87 Am. St. Rep. 918.) With this authoritative construction of the statute, and a decision of the very question raised in the case at bar, upon reasoning quite convincing and satisfactory, it would seem that the question should be regarded as at rest.” (Crawford v. Hathaway, 67 Neb. 365, 93 N. W. 795, 60 L. R. A. 889, 108 Am. St. Rep. 647.)
In discussing the Wyoming and Nebraska decisions, supra, Mr. Weil, in his work on Water Rights in Western States, says: “These decisions are not consistent or clear among themselves; they are inconsistent with the weight of authority, * * * and are unsound upon principles, * * * as is_ shown by the general adoption in most states of a system of adj udicating rights by special proceedings in court and not by administrative officers.” (Weil, Water Rights in Western States, vol. 2, 1108, 1109.)
Speaking finally, the vital question in this case, regardless of what phase it may assume, is not as to whether the
It is my conclusion, from the anaysis heretofore set forth, that the provision of the act in question seeks to confer judicial powers upon a non judicial officer. Moreover, it seeks to take from the courts that which the organic law specified should be limited to the province of the courts — the right to determine matters involving the possession or the right of possession to property. Moreover, the act cannot be viewed as retroactive, and the specific provisions of section 84 speak for the legislative intent in that respect.
The order of the lower court in refusing to dissolve the inj unction should have been affirmed.
