IN THE MATTER OF THE DETERMINATION OF THE RELATIVE RIGHTS OF CLAIMANTS AND APPROPRIATORS IN AND TO THE WATERS OF BASSETT CREEK AND ITS TRIBUTARIES IN WPIITE PINE COUNTY, STATE OF NEVADA
In re Bassett Creek
IN THE MATTER OF THE DETERMINATION OF THE RELATIVE RIGHTS OF CLAIMANTS AND APPROPRIATORS IN AND TO THE WATERS OF BASSETT CREEK AND ITS TRIBUTARIES IN WPIITE PINE COUNTY, STATE OF NEVADA.
IN THE MATTER OF THE DETERMINATION OF THE RELATIVE RIGHTS OF CLAIMANTS AND APPROPRIATORS IN AND TO THE WATERS OF BASSETT CREEK AND ITS TRIBUTARIES IN WPIITE PINE COUNTY, STATE OF NEVADA.
No. 3406
April 19, 1944.
147 P. (2d) 1022.
Milton B. Badt, of Elko, for Appellant.
William M. Kearney, of Reno, for Respondent B. H. Robison.
Alan Bible, Attorney-General, and W. T. Matheivs, Deputy Attorney-General, Amici Curise.
OPINION
By the Court,
Taber, J.:
In August 1941 the State Engineer made his final order of determination of the relative rights of Bassett Creek and its tributaries, situated in White Pine County. The only two water users on the Bassett Creek stream system are appellant Richard Bate and respondent B. H. Robison. Exceptions to said order of determination were later filed by Robison with the clerk of the Seventh judicial district court which, after a hearing as provided by statute, entered its decree modifying the state engineer's order. Bate moved for a new trial, which was denied, and he has appealed to this court from said decree, and from the order denying a new trial. Respondent has moved for a dismissal of both appeals; also to strike the bill of exceptions and record on appeal. He contends that this court is without jurisdiction to entertain either appeal.
The trial court's written decision, dated September 4, 1942, was filed September 12. Service of notice of the decision was admitted by Bate on September 18. The latter's notice of intention to move for a new trial, dated.September 18, was served September 19, and filed September 21. Robison's proposed findings of fact and conclusions of law were filed October 15. Bate served and filed proposed modifications, and the court, by order dated November 2 and filed November 10, settled the findings and conclusions of law as proposed by Robison, and also on November 10 filed its judgment dated November 2. On the last-named date the court overruled Bate's motion for a new trial. Appellant's notice of appeal was served November 20, and was filed -November 21. His bond on appeal was also filed November 21.
It is respondent's contention that the motion for a new trial was of no effect because the notice of intention was filed before the entry of the final decree. As the 1913 water law, N. C. L. 1929, sec. 7890 et seq., contains no provision prescribing the time within which the notice of intention must be served or filed, the court is of opinion that section 4 of the 1937 new trials and appeals act (Stats. of Nevada 1937, chap. 32, p. 55, 2 N. C. L., 1931-1941 Supp. sec. 9385.54, pp. 1248, 1249) should govern. That section reads in part: "The party intending to move for a new trial must — within five days after the verdict of the jury, if the action was tried by jury, or within ten days after service, by the prevailing party in the action or proceeding upon the unsuccessful party thereto, of a written notice of the decision of the court, or referee, if the action was tried without a jury — serve upon the adverse party and file with the clerk of the court a notice of his intention to move for a new trial In cases like the present, as we said in Carpenter v. Sixth Judicial District Court, 59 Nev. 42, 48, 73 P. 2d 1310, 84 P. 2d 489, 492, "ten days from date of notice of decision are allowed for filing notice of motion for new trial." In the instant case notice of intention to move for a new tidal was properly served and filed within ten days after service of written notice of the trial court's decision.
The notice of appeal was addressed to the state engineer and attorney-general as well as to respondent and his attorneys. A copy of the notice was served on the state engineer and attorney-general. The notice of intention to move for a new trial, however, was directed to respondent and his attorneys, and served upon the latter, but was not directed to the state engineer or attorney-general, nor was a copy served, upon either of them. Respondent, relying chiefly upon .sec. 36(a) of the water law (Stats. of Nevada, 1937, chap. 150, pp. 328, 329) and In re Silver Creek, 57 Nev. 232, 61 P. 2d 987, contends that the notice of intention must be directed to and a copy served upon the attorney-general and the state engineer.
In the Silver Creek case there were three .sets of claimants, who may be referred to as Cronin, Catón, and LaBorde. Two of these, LaBorde and Catón, filed exceptions in the district court to the state engineer's final order of determination. Cronin filed no exceptions. The trial court, after due hearing, made certain changes in the order of determination, and with such changes confirmed and approved it. Catón moved for a new trial. The notice of intention was directed to the state engineer, the attorney-general, LaBorde and his: attorneys, and Cronin and her representative, the attorney-general. A copy of the notice of intention was served upon La Borde's attorneys, and upon the attorney-general, attorney for the state engineer. The motion for a new trial was denied, and thereafter Catón filed and served notice of appeal from the judgment and from .the order denying his motion for a. new trial. The notice of appeal was directed to LaBorde and his attorneys and served upon the latter. No other notice of appeal was filed or served. ." •
Section 36(d) of the water law (Stats. of Nevada, 1937, chap. 150, p. 330, 2 N. C. L., 1931-19.41 Supp. sec. 7923(d), pp. 1121, 1122) provides: "Notice of intention to move for a new trial shall be served'upon the attorneys of record for claimants who have filed exceptions or objections to the final order of determination of the state engineer as provided in section .35 of this act, and all claimants or water users who have; not filed exceptions or objections to said final order of determination or appeared in the cause by an attorney, shall be served with a copy of notice of intention to move for a new trial by the service of a copy thereof on the attorney-general of the State of Nevada as their process agent." Robison, the only user of the Bassett Creek system besides Bate, was the only claimant in the case at bar who filed exceptions to the state engineer's final order of determination. The notice of intention was served upon his attorney. Under said section 36(d) it was not necessary in this case that the notice of intention be directed to or served upon either the state engineer or the attorney-general because there were no water users, except appellant Bate himself, who had not filed exceptions to the final order of determination, nor was there any claimant who had not appeared in the cause by attorney.
It is further contended by respondent that appellant is not an aggrieved party, and therefore has no right to appeal, either from the judgment or from the order denying his motion for a new trial. In the state engineer's final order of determination Bate was awarded the use of water to irrigate 420.24 acres with a priority of 1878, and 49.77 acres with a priority of 1896. In said order of determination the State Engineer decided that Robison has no vested rights in or to the use of any of the waters of the Bassett Creek stream system. The decree of the trial court awarded Bate the same rights as were given him by the final order of determination, but instead of denying any vested rights to Robison, said decree awarded him the right to irrigate 95 acres, with a priority of 1883. The effect of this is to put Robison's 1883 priority for 95 acres ahead of Bate's 1896 priority for 49.77 acres. If in a dry year there should be insufficient water to irrigate all the lands of both parties, Bates could not irrigate any of his 1896 priority until sufficient water has been permitted to go down to Robison with which to irrigate his 1883 priority. Bate, therefore, is clearly an aggrieved party.
As the motion to strike the bill of exceptions and the record on appeal are based upon grounds already considered herein, no discussion with respect to that motion is required.
January 29, 1945.
155 P. (2d) 324.
The motion to dismiss the appeal from the decree, the motion to dismiss the appeal from the order denying the motion for a new trial, and the motion to strike the bill of exceptions and record on appeal are, and each of them is, denied.