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In Re Waters of Barber Creek

December 31, 1919

IN THE MATTER OF THE DETERMINATION OF THE RELATIVE RIGHTS TO THE WATERS OF BARBER CREEK AND ITS TRIBUTARIES IN DOUGLAS COUNTY, NEVADA. EUGENE SCOSSA, APPELLANT, V. CLARISSA CHURCH AND BARBER ESTATE, RESPONDENTS.


Appeal from First Judicial District Court, Douglas County; Frank P. Langan, Judge.

Chartz & Chartz, for Appellant.

Platt & Sanford, for Respondents.

By the Court, Sanders, J.:

This cause was tried in the district court on exceptions duly taken by Eugene Scossa to the order of determination of the state engineer purporting to adjudicate and to establish the rights to the use of the waters of Barber Creek and it tributaries in Douglas County.

When proceedings before the state engineer in the administration of the water law (Stats. 1913, c. 140) in all its phases has reached the district court for adjudication, the practice therein is not clearly defined. The record in this case furnishes an opportunity to express our views on the subject.

The water law as a governing instrument to be effectual must relate to courts as well as to persons charged with its practical administration. Prior to the amendments, the water law pictured the state engineer as a sort of Gargantua ready to swallow up courts, streams, and stream-systems. The amendments of 1915 (Stats. 1915, c. 253) are designed to avoid the unconstitutionality of administrative adjudications of water rights by the state engineer. Notwithstanding the decision of this court in the case of Vineyard L. & S. Co. v. District Court, 42 Nev. 28, 171 Pac. 166, an impression prevails, evidently shared in by the state engineer, the court, and counsel in this case, that the hand that drafted the amendments to the water law did not succeed in depriving the state engineer of his capacity to supersede the authority of courts. This is evidenced by the order of determination of the state engineer and a document filed in this cause erroneously indorsed, treated and styled “decree.” The court, in disposing of the issues raised by the several exceptions taken by Scossa to the order of the state engineer, seven in number, adopting its own language, states:

[43 Nev. 407, Page 410]

“This court has reviewed carefully all the proof submitted and all the facts relating to the water rights of Barber Creek and tributaries and the relative determinations made in the matter by the state engineer. The conclusions reached by this court upon the law and facts coincide with the relative determinations made and entered by the state engineer of Nevada. Decree will therefore be entered confirming, approving, and affirming the relative determination and as amended and modified by the supplemental order of determination as made by the state engineer of Nevada and filed in this court.

“The further decree of this court will be entered providing that each party pay his own costs in said matter.”

1, 2. This is the decree we are called upon to affirm or reject. It is in no sense a decree. A decree in a water case, above all others, should be as definite as language can make it. Certainty in its terms, positiveness in its requirements, justice in its conclusions, is its sole purpose. By virtue of section 35 of the water law as amended, a party in interest who is aggrieved or dissatisfied with the order of determination of the state engineer may invoke the equity jurisdiction of the court for affirmative relief through exceptions taken to the order. The proceedings thereunder shall be as nearly as may be in accordance with the rules governing civil actions. The statute prescribes the pleadings, the evidence is assembled, and the exceptions are compiled from the entire record of the proceedings before the state engineer. We are of the opinion that the most important rule of the civil practice act (Rev. Laws, 4943-6225) that may consistently be applied in disposing of the exceptions is that it is incumbent upon and necessary for the court to make and cause to be entered its findings upon each separate exception, draw its conclusions therefrom, and render and cause to be entered a decree that finally and effectually disposes of each issue

[43 Nev. 407, Page 411]

raised by the exceptions. It is made the duty of the court to dispose of the exceptions. They can be disposed of in but one way, and that is by specific findings. If the court is privileged to escape this duty by simply affirming or modifying the order of the state engineer, then the order must be taken and accepted by the court as an administrative adjudication of water rights binding and conclusive upon the court. It is true the statute (section 36 as amended) provides:

“After the hearing, the court shall enter a decree affirming or modifying the order of the state engineer.”

Taken literally, this provision amounts to a legislative mandate that the order of the state engineer ousts the court of jurisdiction to administer the statute or to adjudicate disputes based upon rights vested or rights acquired under the statute. It would be incongruous for the legislature to afford affirmative relief to an aggrieved party in interest from an impracticable, illogical, and unjust order or finding of the state engineer and to say that courts are without power to reject the order and may only send the same back to the state engineer for modification. While the ultimate findings of the state engineer are entitled to great respect, and in practice are not often disputed, they do not take from the court the power to grant relief to a party whose rights the state engineer may have infringed. It is just as essential for courts to make findings and draw their conclusions upon issues joined on exceptions taken ...


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