No. 67289 

FILE 

APR 0 7 2016 

E K. LINDEMAN 

DLO* 4:IFADWFVEMECID1 

132 Nev., Advance Opinion 25 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

JERALD R JACKSON, TRUSTEE OF 

THE JERALD R. JACKSON 1975 

TRUST, AS AMENDED; AND IRENE M. 

WINDHOLZ, TRUSTEE OF THE IRENE 

M. WINDHOLZ TRUST DATED 

AUGUST 11, 1992, 

Appellants, 

vs. 

EDWARD H. GROENENDYKE, 

TRUSTEE OF THE GROENENDYKE 

FAMILY TRUST; AND THE NEVADA 

STATE ENGINEER, 

Respondents. 

Appeal from a district court decree determining vested water 

rights. Ninth Judicial District Court, Douglas County; David R. Gamble, 

Judge. 

Affirmed. 

Woodburn and Wedge and Gordon H. DePaoli, Reno, 

for Appellants. 

Adam Paul Laxalt, Attorney General, and Bryan L. Stockton, Senior 

Deputy Attorney General, Carson City, 

for Respondent the Nevada State Engineer. 

Kaempfer Crowell and Severin A. Carlson and Tara C. Zimmerman, Reno, 

for Respondent Edward H. Groenendyke, Trustee of the Groenendyke 

Family Trust. 

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BEFORE DOUGLAS, CHERRY and GIBBONS, JJ. 

OPINION 

By the Court, CHERRY, J.: 

The parties disputed who had rights to certain spring waters 

and the State Engineer adjudicated those rights, entering a final order of 

determination under NRS 533.160. The matter was then set for a hearing 

in district court as required by NRS 533.170. NRS 533.170 allows a party 

aggrieved or dissatisfied by the State Engineer's final determination to file 

a notice of exceptions in district court, setting forth the exceptions taken to 

that determination and the relief sought. In this appeal, we consider 

whether a party who timely files exceptions may later supplement those 

exceptions to include property access claims arising from its water rights. 

We hold that a party may so supplement. NRS 533.170(5) provides that 

proceedings on exceptions to the State Engineer's order of determination 

shall be held in accordance with the Nevada Rules of Civil Procedure, and 

those rules allow amended pleadings. Thus, the district court properly 

considered the notice of supplemental exceptions in affirming the State 

Engineer's order of determination, as modified, including respondent 

Edward H. Groenendyke's supplemental request that the district court's 

judgment and decree confirm Groenendyke's right of access to certain 

property for purposes of repairing and maintaining the facilities necessary 

to convey water, the rights to which were adjudicated in his favor by the 

State Engineer. Additionally, although Jackson challenges the district 

court's determination that the Green Acres properties had a vested water 

right to the waters from Spring A, we conclude that its findings were 

supported by substantial evidence in the record. We therefore affirm the 

district court's judgment and decree. 

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FACTS AND PROCEDURAL HISTORY 

The rights implicated in this appeal pertain to water from an 

unnamed spring known as "Spring A." Spring A originates in California, 

but its water flows into Douglas County, Nevada. Spring A has been 

improved with pipes leading water south and east into Nevada with a 

valve that allows the water to either travel south towards Jerald Jackson 

and Irene Windholz's (collectively Jackson's) property and eventually to 

Edward Groenendyke's property, or east towards a set of properties known 

as the Green Acres properties. 

Arising from a water determination action that dates back to 

1987, the State Engineer issued a final order of determination of water 

rights in 2008. The parties affected were then allowed to file exceptions to 

the State Engineer's final order. Both Jackson and Groenendyke filed 

exceptions. Due to the sheer number of claims in this final order, the 

portion involving the Spring A water was not heard in the district court 

until November 30, 2012. 

With no direct evidence regarding who installed the pipes to 

convey Spring A's water or when the installation took place, the district 

court observed aerial photography and geological maps. The court also 

heard testimony from the State Engineer's expert and Jackson's expert 

before concluding that the properties to the south (Jackson's and 

Groenendyke's properties) and the east (Green Acres) each had vested 

rights to the water from Spring A. 

In September 2012, Groenendyke filed a supplement to his 

earlier filed exceptions. In that supplement, Groenendyke moved the 

district court to allow him access to Jackson's property for the limited 

purpose of repair and maintenance of facilities on the waterway because 

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Jackson's land was upstream from his own. Although the issue of land 

access was not part of the State Engineer's final order, or either party's 

original exceptions, the district court granted Groenendyke's request. 

DISCUSSION 

On appeal, Jackson argues that (1) the district court was 

without jurisdiction to grant Groenendyke access to Jackson's property to 

maintain and repair the pipeline; (2) if so, Groenendyke's request for 

access to the property was untimely; and (3) the district court erred in 

finding that the Green Acres properties had a vested right to the Spring A 

water. We disagree. Pursuant to the Nevada Rules of Civil Procedure, a 

district court may allow a party to add a later claim when that later claim 

arises out of the same transaction or occurrence as the existing action. 

Because Groenendyke's supplemental exception, in which he asked the 

district court to order that he be allowed access to the pipeline located on 

Jackson's property, arises from the same dispute adjudicated by the State 

Engineer in its final order of determination, the district court had 

jurisdiction to consider Groenendyke's supplemental exception. Further, 

the district court's findings regarding Green Acres' vested water rights 

were not clearly erroneous, and they were based on substantial evidence. 

Standard of review 

In a water rights case, the district court must make its own 

findings and draw its own conclusions in an appeal of the State Engineer's 

final order. Scossa v. Church, 43 Nev. 407, 410, 187 P. 1004, 1005 (1920); 

see also NRS 533.170; NRS 533.185. Appeals from the decree of the 

district court are taken to this court "in the same manner and with the 

same effect as in civil cases." NRS 533.200. 

This court reviews a district court's factual findings for an 

abuse of discretion and will not set aside those findings unless they are 

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clearly erroneous or not supported by substantial evidence. Sowers v. 

Forest Hills Subdivision, 129 Nev., Adv. Op. 9, 294 P.3d 427, 432 (2013). 

Substantial evidence is evidence that a "reasonable mind might accept as 

adequate to support a conclusion." Mason-McDuffie Real Estate, Inc. v. 

Villa Fiore Dev., LLC, 130 Nev., Adv. Op. 83, 335 P.3d 211, 214 (2014) 

(internal quotations omitted). This court accords "deference to the point of 

view of the trial judge since he had the opportunity to weigh evidence and 

evaluate the credibility of witnesses—an opportunity foreclosed to this 

court." Harris v. Zee, 87 Nev. 309, 311, 486 P.2d 490, 491-92 (1971). 

When reviewing questions of law, however, including issues of 

statutory interpretation, this court applies de novo review. State, Dep't of 

Motor Vehicles v. Taylor-Caldwell, 126 Nev. 132, 134, 229 P.3d 471, 472 

(2010). 

Groenendyke's access to Jackson's land 

Jackson argues that whether one party in a water rights 

dispute may enter onto another party's property to exercise vested water 

rights is not appropriate for adjudication under NRS Chapter 533.' 

Jackson argues that NRS 533.090-.200 do not expressly provide 

jurisdiction to adjudicate land entry claims. However, nothing in Chapter 

'Jackson also argues, for the first time in his reply brief, that even if 

the district court could grant land access, Groenendyke should have 

sought this relief in his initial exceptions to the State Engineer's final 

order rather than seeking to file a supplement to his exceptions after the 

deadline had passed. Because Jackson failed to raise this claim until his 

reply brief in this court, it is waived. Francis v. Wynn Las Vegas, LLC, 

127 Nev. 657, 671 n.7, 262 P.3d 705, 715 n.7 (2011); see also Carrigan v. 

Comm'n on Ethics, 129 Nev., Adv. Op. 95, 313 P.3d 880, 887 n.6 (2013) 

("Arguments not raised. . . in district court normally cannot be raised for 

the first time on appeal."). 

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533 prevents a court of general jurisdiction, such as a district court, from 

hearing related claims. Further, because NRS 533.170(5) requires that 

these proceedings accord as much as possible with the Nevada Rules of 

Civil Procedure, and those rules allow a district court to hear related 

claims arising out of the same transaction or occurrence, we conclude that 

a district court in a water rights action may hear directly related claims, 

so long as those claims arise out of the same transaction or occurrence. 

NRS 533.170 sets procedures for filing exceptions to the State 

Engineer's final order of determination. NRS 533.170(5) provides that 

district court proceedings on the State Engineer's final order of 

determination shall be held in accordance with the Nevada Rules of Civil 

Procedure to the extent possible. The rules of civil procedure allow parties 

to amend their prior pleadings. NRCP 15(a). Amended pleadings arising 

out of the same transaction or occurrence set forth in the original 

pleadings may relate back to the date of the original filing. NRCP 15(c). 

"NRCP 15(c) is to be liberally construed to allow relation back of the 

amended pleading where the opposing party will be put to no 

disadvantage." Costello v. Casler, 127 Nev. 436, 441, 254 P.3d 631, 634 

(2011). When the original pleadings give "fair notice of the fact situation" 

giving rise to the new claim, it relates back. Nelson v. City of Las Vegas, 

99 Nev. 548, 556, 665 P.2d 1141, 1146 (1983). Where there is no statutory 

authority preventing a district court from hearing related claims, the rules 

of civil procedure are intended to allow the court to reach the merits of 

claims, rather than dispose of claims on "technical niceties." Costello, 127 

Nev. at 441, 254 P.3d at 634. Thus, we conclude that NRS 533.170 allows 

additional related claims because amended pleadings accord with the 

Nevada Rules of Civil Procedure. So long as the new claim arises out of 

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the same facts and circumstances of the original action, namely the 

determination of water rights, the district court has jurisdiction to 

consider those claims. 

Groenendyke timely filed his exceptions. Although the 

exceptions did not address land access for maintenance and repair on the 

pipe, they did concern vested rights to the water from Spring A, the same 

water that travels through the pipe in question. The issue of land access 

for pipe maintenance and repair arises from the same transaction or 

occurrence as the vested right to receive water from that pipe because the 

quest to assert water rights necessarily includes reasonable action to 

ensure the continued flow of that water. Jackson responded to 

Groenendyke's supplement when he filed his points and authorities 

opposing Groenendyke's motions. Therefore, Jackson has not been 

prejudiced by the district court's consideration of Groenendyke's motion 

for access in his supplement, and the requirements in NRCP 15(c) are 

satisfied. See Costello, 127 Nev. at 441, 254 P.3d at 634. 

Jackson additionally argues that Groenendyke failed to add 

necessary parties because there are many pipe facilities that are not on 

Jackson's property and, therefore, the district court was without 

jurisdiction to grant Groenendyke the access he sought. This argument is 

without merit. Groenendyke did not ask for access to the other properties, 

nor are the other property owners necessary to determine access to the 

facilities on Jackson's property. Although the district court was unable to 

grant access to other properties because the respective owners were not 

joined to this action, the district court had the necessary parties before it 

to grant access to Jackson's property. 

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We conclude that because the issue of repair arises out of the 

same transaction or occurrence as the vested water rights, the district 

court had jurisdiction to consider the issue of limited land access to 

conduct reasonable maintenance and repair. Accordingly, we affirm the 

district court's judgment and decree on this ground. 

Green Acres' vested water rights 

Regarding the vested water rights themselves, the State 

Engineer determined that the Green Acres properties, along with both 

Jackson and Groenendyke, had vested water rights to the water from 

Spring A. Jackson and Groenendyke challenged this finding in their 

exceptions. The district court agreed with the State Engineer, finding that 

the Green Acres properties had a vested water right. Only Jackson 

challenges that finding on appeal. 

Jackson argues that the district court relied only upon 

circumstantial evidence and that the circumstantial evidence does not 

support the district court's conclusion that Green Acres also diverted the 

water. He claims that the Green Acres properties receive their water from 

numerous other sources. 2Having considered the arguments and 

appendix, we conclude that the district court's determination regarding 

Green Acres is supported by substantial evidence. 

In Nevada, Ibleneficial use shall be the basis, the measure 

and the limit of the right to the use of water." NRS 533.035. "The concept 

of beneficial use is singularly the most important public policy underlying 

2In this appeal, Jackson raised, for the first time, an issue of 

whether he has a prescriptive right to the water. Jackson withdrew this 

claim in his reply brief. Therefore, we will not consider it. 

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the water laws of Nevada and many of the western states." Desert 

Irrigation, Ltd. v. State, 113 Nev. 1049, 1059, 944 P.2d 835, 842 (1997). 

Vested water rights are "water rights which came into being by diversion 

and beneficial use prior to the enactment of any statutory water law, 

relative to appropriation." Waters of Horse Springs v. State Eng'r, 99 Nev. 

776, 778, 671 P.2d 1131, 1132 (1983) (internal quotations omitted). 

Here, the State Engineer made factual findings regarding the 

Green Acres properties' use of water from Spring A. First, the State 

Engineer found that the natural channel of Spring A water flowed directly 

to the Green Acres properties. The State Engineer also found that water 

flowed through the six-inch pipe to the Green Acres properties. The State 

Engineer concluded that the water which flows through the pipe and 

reaches the Green Acres properties was diverted and put to beneficial use, 

irrigating the Green Acres properties; therefore, the Green Acres 

properties had a vested right. 

In its answering brief on appeal, the State Engineer argues 

that he and the district couri relied upon expert testimony and culture 

maps showing homogenous vegetation to reach the conclusion that 

although water from Spring A had been diverted towards Jackson's 

property by his predecessors in interest, some was allowed to continue 

along its more natural path to the Green Acres properties. The district 

court, after visiting the site with the parties and holding a hearing with 

expert testimony, affirmed the State Engineer's conclusions. 

Jackson seeks to have us reweigh the facts and conclude in his 

favor; however, the record supports that the district court's findings are 

not clearly erroneous •and are based on substantial evidence, even if 

Jackson disagrees with the ultimate findings. We will not substitute our 

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J. 

judgment for that of the district court unless the district court's findings 

were clearly erroneous, which they were not. 

CONCLUSION 

Accordingly, for the reasons set forth above, we order the 

judgment and decree of the district court affirmed. 

We concur: 

OP, 0 

J. 

GibliOns 

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