Carpenter v. Sixth Judicial District Court Ex Rel. County of Humboldt , 59 Nev. 42 ( 1937 )

A new trial cannot be granted a claimant upon an issue that is not raised by the filing of exceptions to the state engineer's order of determination except in cases where the trial court, after submission and decision of the case, changes, modifies and alters the rights of noncontestants as specified and set forth in the state engineer's order of determination.

It was not within the power of Presiding Judge Lockhart to grant the new trials to the noncontestants when it appeared upon the face of the record that Presiding Judge Edwards reached the only conclusion which he could properly have reached on the record, that is that Judge Bartlett's findings and decree as to said noncontestants' priorities was void, there being no exceptions filed as provided by the water code.

Gray Mashburn, Attorney-General, W.T. Mathews and W.Howard Gray, Deputy Attorneys-General, for Respondents; M.A. Diskin, Morley Griswold, McNamara Robbins, and Milton B. Badt, for sundry claimants:

The position of counsel for petitioners as to lack of jurisdiction of Judge Bartlett is not tenable for the following reasons:

1. Because, from the very nature of the proceedings, all of the claimants of water rights to the Humboldt river stream system were before the court in a "determination of the relative rights."

2. Your claimants herein filed exceptions, as shown by exhibits attached to the claimants' answer on file in the above-mentioned matter.

3. In adjudication cases it is not necessary that any exceptions or objections be filed in order to vest jurisdiction and to permit and authorize the trial court to enter a final judgment in accordance with law and facts. In re Water Rights in Silview River (Ore.), 237 P. 322; In re Rights to Use of Waters of Owyhee River (Ore.), 23 P.2d 206; sec. 35 of water code, being sec. 7922, N.C.L.

Certainly, the application of the doctrine of relation, a judicial theory, is such a phase of the adjudication as affects the entire stream system. Its application must be general along the entire stream. Section 35 of the water code certainly gives the court power to do equity as between the relative rights. Plain City Irr. Co. v. Hooper Irr. Co. (Utah), 51 P.2d 1069.

OPINION This is an original proceeding in prohibition to restrain the Honorable J.M. Lockhart, as presiding judge of the Sixth judicial district court of the State of Nevada, in and for the county of Humboldt, or any other district judge who may hereafter preside in said cause, from proceeding with the new trials granted by the said district judge in the cause entitled: "In the Matter of the Determination of the Relative Rights of Claimants and Appropriators of the Waters of the Humboldt River Stream System and its Tributaries."

The order of determination of the state engineer, determining water rights on the Humboldt river system, was filed with the clerk of the Sixth judicial district court, in and for Humboldt County, on January 17, 1923. A number of claimants on the stream system filed their exceptions to the said order. Hearings on these exceptions were had before the Honorable George A. Bartlett, presiding district judge, whose findings and decree were subsequently filed and entered. In the said findings and decree, some 191 claimants, who had not filed exceptions in that regard, were awarded earlier and better priorities with respect to their water rights than had been allotted to them in the order of determination of the state engineer; such earlier and better priorities being based upon the application of the doctrine of relation in determining the dates of such priorities. The petitioners herein moved for and obtained an order, made by the Honorable H.W. Edwards, presiding district judge, setting aside the said Bartlett findings and decree, in part, and granting a new trial with respect to the application of the doctrine of relation to the 191 noncontest claimants above referred to. Upon such new trial, Judge Edwards made findings of facts and conclusions of law reciting that the application of the doctrine of relation to the said noncontest claimants by Judge Bartlett was without authority of law and void, and entered his decision and decree with respect thereto. To the latter decision motions for new trial were interposed, and were granted by Judge Lockhart. The claimants who sought and were granted new trials by Judge Lockhart took the position that all of the claimants on the river system should have the benefit of an investigation of the facts bearing on the application of the doctrine of relation. With approval of the movents' attitude, Presiding Judge Lockhart granted new trials, the scope of which would open to consideration and adjudication the claims of all claimants on the river system which might now be presented, based on the doctrine of relation. The petitioners now seek to restrain the respondent court from proceeding with the new trials so granted by Judge Lockhart.

The petitioners contend that, because of the absence of exceptions to the order of determination of the state engineer on the ground of failure to apply the doctrine of relation, there are no issues on that subject presented in the pleadings upon which a new trial could be based. In answer to this, the respondents maintain that such issues may be raised, or may be deemed to be raised in the absence of such exceptions. Section 35 of the water law (section 7922 N.C.L.) provides as follows: "At least five days prior to the date set for hearing, all parties in interest who are aggrieved or dissatisfied with the order of determination of the state engineer shall file with the clerk of said court notice of exceptions to the order of determination of the state engineer, which notice shall state briefly the exceptions taken, and the prayer for relief, and a copy thereof shall be served upon or transmitted to the state engineer by registered mail. The order of determination by the state engineer and the statements or claims of claimants and exceptions made to the order of determination shall constitute the pleadings, and there shall be no other pleadings in the cause."

1. The exceptions, duly filed, perform functions of such importance that the necessity of filing them should not be dispensed with. It is the filed exception that gives notice to all other claimants as to the objections and demands of the exceptor. The purpose of the law is to limit the questions to be decided in the adjudication proceedings to issues raised by exceptions duly filed. In Humboldt Land Cattle Company v. Sixth Judicial District Court, 47 Nev. 396, 224 P. 612, 614, this court said: "The section * * * requires all those aggrieved or dissatisfied to file notice of their exceptions with the clerk setting forth the grounds and prayer for relief, thus affording all parties in interest who are satisfied with the order of determination an opportunity to appear before the court and oppose any alteration or modification of the order as proposed by those excepting."

In the case of In re Water Rights in Humboldt River Stream System, 49 Nev. 357, 246 P. 692, 694, this court further said: "The water law is a special statutory proceeding brought into effectual existence after much travail to meet a great public need. The law meets every demand for a full, fair, and just determination of the rights of every water user. * * * Though these rights are secured to him, he must avail himself of them by proceeding in the manner outlined in the water law."

See, also, Ruddell v. Sixth Judicial District Court, 54 Nev. 363,17 P.2d 693.

This court has held that a judgment which adjudges matters outside the issues raised by the pleadings is so far void. Schultz v. Mexican Dam Ditch Company, 47 Nev. 453, 224 P. 804; Douglas M. P. Co. v. Rickey, 47 Nev. 148, 217 P. 590.

2. As we view this matter, there was no jurisdiction as the basis for Judge Bartlett's order awarding the 191 noncontesting claimants an earlier and better priority than that fixed by the order of determination. If this is true, we fail to see how Judge Lockhart could have jurisdiction to grant a new trial with a view of restoring to these noncontesting claimants, or any of them, priorities which Judge Bartlett awarded, or any priorities other than those fixed in the order of determination.

3. The proceedings sought to be reviewed grew out of and are limited solely to the attack on Judge Bartlett's decree as to the 191 noncontesting claimants, made by petitioners. No other claimant on the Humboldt river stream system attacked the Bartlett decree in this respect, so far as appears, and no other claimant, as a result of the motion on which Judge Edwards based his ruling, could enlarge the scope of the proposition presented by petitioners' application, upon which he acted, so as to extend to and raise questions other than was originally raised by the motion for a new trial.

4. It is argued on behalf of respondents that the record brought up by the petitioners is lacking in essential elements. Upon considering the objections in that regard, we find no essential element to be lacking.

For the reasons given, it is hereby ordered that the demurrers to the petition for writ of prohibition, and the motions to quash the alternative writ, are overruled, and that said Presiding Judge, J.M. Lockhart, or any other district judge who may hereafter preside in said cause, is prohibited, enjoined, and restrained from proceeding with the new trials granted by said presiding district judge in said court and cause by orders dated December 3, 1936, and filed therein on December 5, 1936.

The petitioners are allowed their costs in this proceeding.

NOTE — TABER, J., having disqualified himself, the Governor designated HON. WM. D. HATTON, Judge of the Fifth Judicial District, to sit in his stead.