195 P. 1101 | Nev. | 1921
Lead Opinion
By the Court,
W. C. Pitt, John G. Taylor, and Peter Anker, with thirty-five other persons and corporations, on behalf of themselves and all others, claiming a vested property right to the use of water from the Humboldt River
(a) That the state engineer has no right or authority to. try, hear, or determine “contests” concerning the vested property rights, or the relative rights, of appropriators in and to the waters of said Humboldt River stream-system; that the acts done and orders made by said state engineer in reference to or concerning the trial of all such “contests” concerning vested property rights, as set forth in the complaint, are without right or authority and invade and impair such vested rights in and to real property.
(b) That sections 18 to 39, both inclusive, and sections 45, 46, 51, 88a, and 88b, of the water code of Nevada (chapter 140, Stats. 1913, as amended by chapter 253, Stats. 1915), are, and that each of said sections is, unconstitutional, invalid, null, and void:
(c) That by virtue of the action referred to in the complaint wherein Peter Anker is plaintiff, and all persons claiming any right to the use of water of said Humboldt River stream-system are defendants, said action being for general adjudication and determination of the rights and the relative rights of all claimants and appropriators in and to the waters of said stream-system, said district court acquired original jurisdiction of the subject-matter thereof, and cannot be divested of such original jurisdiction; that the acts, orders, and proceedings of the state engineer, complained of in the complaint, are an invasion and infringement of the original jurisdiction of said district court to try, and of the rights of the parties to such suit to have tried, by the • district court, the vested property rights involved in such suit; said property rights and issues involved in such suit and in the proceedings before the state "engineer are identical, and involve issues of law and fact as to the title, right of possession to and the possession of real property.
(d) That all the water of said Humboldt River stream-
(e) That the state engineer be enjoined, pendente lite, from proceeding to hear or determine, and from making any order determining, the rights or the relative rights of plaintiffs, or either of plaintiffs, or of any other claimants, in or to the waters of said Humboldt River stream-system, which said rights were initiated and completed prior to the approval of' said water code, approved March 22, 1913, and from trying any issue of law or fact arising upon “contests” between any claimants to the use of water from said stream-system, which said claimed right of use had been perfected; and from making any determination as to or concerning the vested water rights of plaintiffs or of any claimant to the use of water of said Humboldt River stream-system, which would in any way impair vested rights; that upon final hearing such injunction be made perpetual.
The injunction, pendente lite, as prayed for, was granted, and the summons and injunction served upon the state engineer on April 10, 1919. The defendant interposed a motion to dissolve said injunction, upon the grounds that the complaint does not state facts sufficient to constitute a cause of action, and does not state facts sufficient to entitle plaintiffs to the injunction or to the relief demanded, dr to any relief..
Defendant’s motion to .dissolve the injunction was heard; upon such hearing defendant offered in evidence the verified complaint and the temporary injunction. The plaintiffs offered in evidence the verified complaint, the printed abstract of claims, and the printed supplemental abstract of additional and amended claims to
The motion to dissolve the injunction, pendente lite, was granted, from which order plaintiffs have appealed.
We accept cheerfully the admonition of learned counsel for appellants that this appeal cannot be disposed of properly without a “clear-cut” decision upon the two questions, namely:
(1) Are sections 29, 30, 31, and 32 of the general water law, relative to contests initiated before the state engineer, inhibited by, or do they do violence to, the letter and spirit of section 6, article 6, Constitution of the State of Nevada?
(2) Does the suit of Peter Anker against all persons claiming any right to the use of the waters of the Humboldt stream-system entitle plaintiffs to the injunc-tive relief demanded by their bill of complaint?
The act itself recognizes that its sections may be construed to be distinct and severable. Section 87 provides:
“Each section of this act and every part of each section is hereby declared to be independent sections, and parts of sections, and the holding of any section or part thereof to be void or ineffective for any cause shall not be deemed to affect any other section or any part thereof.”
“In the case of any such suit now pending or hereafter commencfed the same may at any time after its inception, in the discretion of the courts be transferred to the state engineer for determination as in this act provided.”
It might be contended that the proper interpretation of this provision supplements the argument of counsel for appellants, that the original jurisdiction of the district court is supplanted by the proceedings before the state engineer. Section 45 of the act, read in the light of the letter and spirit of the entire act, shows that the state engineer and district courts are to act as coordinate agencies to effect, with the least possible expense, a speedy determination, for administrative purposes, of the relative rights of various claimants to the waters of a stream or stream-system, in order to make water do its full duty; that it may not be wasted, and that it shall be employed to the fullest extent. Since the state engineer in the instant case, as an administrative officer, was only proceeding to do what the court might require him to do in the Anker case, the averments of the complaint relative to its pendency furnish no ground for injunctive relief.
Entertaining these views, we affirm the order of the lower court sustaining respondent’s motion to vacate the temporary injunction issued herein; and it is so ordered.
Concurrence Opinion
I concur.
Concurrence Opinion
concurring:
I concur in the order. The opinion of my esteemed associates adheres to the . conclusions reached in the Vineyard case on all points considered therein, and apparently approves of the reasoning in the case of Bergman v. Kearney. It simply states their conclusion as to the constitutionality of sections 29, 30, 31, and 32 of the statute, without presenting the theory upon which the conclusion is reached. Accepting, as the opinion seems to do, the correctness of the process of reasoning resorted to in both of the above-named cases, I am unable to determine the viewpoint of my associates. Since we all agree that the process of reasoning and conclusions reached in the cases mentioned were right, I see no way of escaping the conclusion that the state engineer does not exercise judicial authority in hearing and determining a contest in the sense and for the purposes contemplated by the statute, and therefore I must disagree with my esteemed associates in their conclusion as to the constitutionality of the sections mentioned.
I am not in accord with the views expressed relative to section 45; but, in view of the nature of the opinion, it would serve no good purpose to present my ideas relative thereto.