Pitt v. Scrugham

By the Court, Sanders, C. J.:

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 *424 stream-system, brought their suit in the district court of Humboldt County against J. G. Scrugham, as state engineer, seeking judgment and decree of the court:

(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- *425 system, including such water as has been appropriated, was, and the unappropriated water of said, stream-system now is, the property of the United States, and not of the State of Nevada; that the State of Nevada has no right or authority, by legislative act, to create an office and vest in the officer thereof power to try, establish, and determine issues of law and fact, which are determinative of the title, right of possession to, or possession of real property.

(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 *426 the waters of the Humboldt River and its tributaries, compiled by the office of the state engineer; the printed synopsis of the water law of 1913, as amended by Stats. 1915, comprising rules and requirements relating to the determination of existing rights, etc., compiled by the state engineer.

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?

1. As preliminary to a discussion of these questions, it is not improper to remark that we yield to the pioneer and forward citizens of Nevada, engaged in agricultural pursuits, the right to challenge the authority of any administrative officer, acting under an unconstitutional law, to do or threaten to do an act that constitutes an unlawful interference with their constitutional rights, among the most prominent of which is the en j oyment of private property. In this arid state there are but four small streams that pretend to flow for a comparatively short distance continuously throughout the year, one being the Humboldt River, whose supply of water is utilized to the greatest possible extent. It is manifest from the argumentative averments contained in plaintiffs’ voluminous complaint that many of those who have been for years, and are now, entirely dependent upon the variable flow of the Humboldt for the success of *427 their farming enterprises look askance upon any water law, however beneficent in purpose or plan, that tends to limit or to police their right to the use of water, initiated long prior to the creation of the office of state engineer.

2. It must be understood that the power conferred upon the state engineer by the act of 1913, as amended by the statute of 1915, to determine relative rights of various claimants to the waters of a stream or stream-system, and to regulate the use thereof, is legitimate legislation (Vineyard L. & S. Co. v. District Court, 42 Nev. 1 , 171 Pac. 166 ; Bergman v. Kearney, 241 Fed. 884 ); that the statute of 1913, as amended, has been adjudged and declared to be constitutional, with the reservation that, when alleged independent sections of the law should come before us in a proper proceeding to contest their validity, we were then to consider and determine the questions involved. Vineyard L. & S. Co. v. District Court, supra.

3. Counsel for appellants insist that the time has now come for an authoritative decision of the special question whether sections 29, 30, 31, and.32 of the present water law relative to “contests” are unconstitutional, because they attempt to confer judicial powers upon the state engineer to hear and determine questions properly and only determinable by a regularly organized court.

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.”

4. We are of the opinion that sections 29, 30, 31, and 32 have for their purpose a severable and distinct object from the other sections of the act. With these sections eliminated, the purpose and object of the law to bring *428 about a speedy, summary, and effectual determination of the relative rights of various claimants to the use of water of a stream or stream-system for administrative and regulative purposes is accomplished. We are of the opinion that the sections specified are unconstitutional, because they attempt to give judicial powers to the state engineer to hear and determine contests involving not relative but vested rights, which the statute itself expressly inhibits. Section 84.

5. It is urged in the next place that the suit of Peter Anker against all the water users of the Humboldt, Little Humboldt, and their tributaries, to determine the rights to the use of the waters thereof, instituted subsequent to the proceedings before the state engineer, warrants the injunctive relief demanded. We are not in accord with this contention. The statute (section 45) expressly provides:

“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.

*429 All other points raised and discussed by counsel for appellants are set at rest by the cases of Bergman v. Kearney, supra, and Vineyard L. & S. Co. v. District Court, supra, and to review what is decided in those cases would be a work of supererogation.

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.