No. 66933 

FILED 

APR 2 1 2016 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

RAND PROPERTIES, LLC; JOHN 

CARRINGTON; TAMI CARRINGTON; 

AND JOHN E. CARRINGTON AND 

VIRGINIA G. CARRINGTON 

DECLARATION OF TRUST DATED 

FEBRUARY 19, 2003, 

Appellants, 

vs. 

DANIEL FILIPPINI; EDDYANN 

FILIPPINI; AND JULIAN TOMERA 

RANCHES, INC., BATTLE MOUNTAIN 

DIVISION, 

ResDondents. 

ORDER OF REVERSAL AND REMAND 

This is an appeal from a district court decree, an order 

regarding administration of the decree, and an order granting attorney 

fees and costs in a water rights action. Sixth Judicial District Court, 

Lander County; Richard Wagner, Judge. 

BACKGROUND 

Respondents Daniel and Eddyann Filippini (collectively 

Filippini) filed a complaint against Julian Tomera Ranches, Inc., Battle 

Mountain Division (Tomera), and Rand Properties, LLC (Rand) on June 7, 

2011 to adjudicate conflicting claims to stock and irrigation water rights 

near Trout Creek. On March 6, 2012, Filippini's counsel mailed to 

property owners near Trout Creek notice that water rights were subject to 

final adjudication. After receiving notice, John Carrington; Tami 

Carrington; and John E. Carrington and Virginia G. Carrington 

Declaration of Trust joined the action. All parties stipulated to the 
Carrington parties' dismissal after determining that the Carrington 

parties' water rights were not in dispute. The action proceeded to 

adjudication on April 8, 2013, wherein the district court established 

priority dates for each of the remaining parties' stock and irrigation water 

rights. The district court later issued an order awarding attorney fees 

pursuant to NRS 533.190(1) and NRS 533.240(3), which required all 

parties, including the previously dismissed Carrington parties, to share 

the expense. Rand and the Carrington parties now appeal. 

DISCUSSION 

On appeal, this court reviews de novo a district court's legal 

conclusions. Keife v. Logan, 119 Nev. 372, 374, 75 P.3d 357, 359 (2003). 

However, we "will not disturb a district court's findings of fact if they are 

supported by substantial evidence." Id. "[E]vidence that a reasonable 

mind might accept as adequate to support a conclusion" is substantial 

evidence. Winchell v. Schiff, 124 Nev. 938, 944, 193 P.3d 946, 950 (2008) 

(internal quotation omitted). 

Irrigation water rights 

Rand's priority date (claim V02678) 

The district court rejected Rand's claim of a vested irrigation 

water right beginning in 1869, after concluding that the first diversion of 

water to Rand's Trout Creek Ranch was in 1901 by Walter Dobbs: 

The credible evidence shows that the first 

diversion of water onto the Trout Creek Ranch 

was in 1901 by Dobbs. This court finds that Rand 

has only established a vested water right for 52.5 

acres of irrigation; there was no actual diversion 

and application of Trout Creek water at Rand's 

Trout Creek Ranch until 1901. Rand has not 

established an earlier right by a preponderance of 

evidence. Rand claims that Dobbs' use at Trout 

SUPREME COURT 

OF 

NEVADA 

2 

'(0) 1947A 
Creek Ranch in 1901 relates back to an earlier 

appropriation by Roth, Pankey, Blossom or 

Hoffman; however, there is no evidence that the 

use at Rand's Trout Creek Ranch was pursued 

with reasonable diligence from 1869 (Roth) or 

1871 (McBeth). 

While there is statutory authority that may allow 

one to change the place or manner of use of a 

water right, there is no authority that would allow 

one, prior to the enactment of statutory water law, 

to change the place of use without creating a new 

appropriation, and in turn, a new priority date. 

Claim V02678 has been established for irrigation 

of 52.5 acres on Trout Creek Ranch with a priority 

date of 1901. 

On appeal, Rand argues that the district court erred as a 

matter of law in determining its priority date because a change in the 

place of use of a water right does not disrupt the chain of title. Filippini 

argues that the dispositive question on appeal is whether Rand is able to 

establish a chain of title from 1869; Filippini claims that Rand cannot. 

We conclude that the district court erred by relying on an 

erroneous conclusion of law to establish Rand's priority date. In 

particular, the district court concluded that changing the place of use of 

water creates a new appropriation, and in turn a new priority date. As 

Rand argues, "[t]he right to water acquired by prior appropriation is not 

dependent upon the place where the water is used. A party having 

obtained the prior right to the use of a given quantity of water, is not 

restricted . . . to the use or place to which it was first applied." Union Mill 

& Mining Co. v. Dangberg, 81 F. 73, 115 (C.C.D. Nev. 1897). So long as 

the rights of others are not affected, a person entitled to a given quantity 

of water from a stream may take it at any point of the stream, and may 

SUPREME COURT 

OF 

NEVADA 

3 

(0) 1947A 
change the character of its use at will. Id. (citing Hobart v. Wicks, 15 Nev. 

418, 421 (1880)). Thus, so long as Rand has not appropriated more than 

the quantity of water to which he is entitled, his priority date need not be 

reset. 

Despite the district court's erroneous legal conclusion, 

Filippini argues that there is substantial evidence in the record 

demonstrating that Rand cannot link itself by chain of title to 1869. 

Filippini references expert testimony to support its argument. However, 

we conclude, notwithstanding the expert evidence presented, that the 

district court did not make findings as to ownership links in the chain of 

title; rather, it concluded that it could not establish a chain of title due to 

the change in the place or manner of use.' We further conclude that the 

district court's findings as to ownership in the chain of title are 

insufficient for this court to properly review the matter. See Dickinson v. 

Am. Med. Response, 124 Nev. 460, 471, 186 P.3d 878, 885 (2008) 

(concluding that failure to make explicit factual findings prevented this 

court's review). Accordingly, we vacate and remand this issue for further 

proceedings regarding Rand's connection to the chain of title. 

Filippini's priority date (claim V01563) 

The district court determined that "Filippini is entitled, 

through [James] Hughes, to 100 acres of irrigation on the Badger Ranch 

with an 1871 priority." On appeal, Rand argues that the district court's 

decree did not explain how Hughes was connected by title to Filippini, and 

'The extent to which the district court relied on its limited finding 

that there was no proof of beneficial use to reach its ultimate finding of a 

1901 priority date is unclear. 

SUPREME COURT 

OF 

NEVADA 

4 

(0) 1947A < 
that there is no evidence showing any conveyance between 1891 and 1897. 

Filippini contends that his expert testified to the existence of tax records 

that establish the chain of title from 1891 through 1897. We conclude that 

the district court's ruling, which specifies neither the intermediate 

ownership linking Hughes and Filippini, nor the evidence relied upon to 

reach its determination, is insufficient for this court to review the matter. 

See id. Thus, we also vacate and remand for further proceedings on this 

issue. 

Stock water rights 

The district court found "that cattle of the J.R. Bradley outfit 

drank and diverted water from Trout Creek as early as 1862, thereby 

setting a domestic stock water priority date of 1862 for all three parties." 

On appeal, Rand contends there is no evidence supporting the district 

court's finding of an 1862 stock water priority date for any party because 

vested stock water rights, like all water rights, require an appropriator to 

prove a valid chain of title. Conversely, Filippini argues that proof of a 

chain of title is not required when seeking stock water rights in public 

land owned by the United States, as each of the parties to this case holds 

federal permits to graze on allotments within the Battle Mountain 

District. We disagree. 

In Nevada, stock water rights on public domains are passed by 

chain of title. See Steptoe Live Stock Co. v. Gulley, 53 Nev. 163, 169-176, 

295 P. 772, 773-776 (1931) (determining that plaintiff and its predecessors 

in interest for the past forty years had the exclusive right to stock water 

for 500 livestock on a public range). But Filippini and Tomera argue that, 

under the Taylor Grazing Act, 43 U.S.C. § 315, which granted grazing 

allotments on the same federal land where J.R. Bradley grazed cattle, 

SUPREME COURT 

OF 

NEVADA 

5 

(0) 1947A ) 
each of the parties owns permits to graze cattle and horses, settling the 

parties' rights. Where there is a conflict between federal and state law, 

federal law prevails under the Supremacy Clause of the United States 

Constitution. U.S. Const. art. VI, cl. 2. Thus, the instant question is 

whether a conflict exists between federal grazing law and Nevada's water 

law, providing that stock water rights pass by chain of title on public land. 

We conclude that Nevada law and federal law do not conflict. 

First, the Act, implemented in 1934, specifies that it does not invalidate 

any existing rights. 43 U.S.C. § 315. Second, the federal law concerns 

grazing rights, and although closely related to water rights, they are, even 

within the Act, considered separate issues. See 43 U.S.C. § 315b. 

Because state and federal law do not conflict, the stock water 

rights passed by chain of title properly reflect the party's current rights to 

the disputed stock water. However, as stated, the district court's findings 

as to chain of title preclude this court's review. Dickinson, 124 Nev. at 

471, 186 P.3d at 885. Therefore, we also vacate and remand this issue. 

Certificate 12160 (permit 39377) and easement 

In 1979, Leroy Horn possessed grazing preferences for 600 

cattle on the Argenta Grazing Allotment. He secured certificate 12160 

(permit 39377), and built the Trout Creek pipeline to water his cattle. In 

1989, Horn, Tomera, and Filippini entered into a three-way contract of 

sale wherein Horn agreed to sell his grazing preferences to Tomera, but 

sold the Badger Ranch to Filippini. The contract specified that it included 

federal grazing privileges and "all waters, water rights, rights to the use of 

water, dams, ditches, canals, pipelines, reservoirs and all other means for 

the diversion or use of waters appurtenant to the said property or any part 

thereof, or used or enjoyed in connection therewith, and together with all 

SUPREME COURT 

OF 

NEVADA 

6 

(0) 1947A 
stockwatering rights used or enjoyed in connection with the use of any of 

said lands." Tomera does not dispute Rand's assertion that Tomera did 

not record its rights under the contract. 

In 2009, Rand purchased Trout Creek Ranch from Jack and 

Loretta Broughton. Among other conveyances, the deed purported to 

convey certificate 12160. In 2010, Rand cut off the flow of water to the 

Trout Creek pipeline, and prohibited Tomera's access to the diversion 

structure. 

Consequently, Tomera filed a cross claim in the district court 

arguing that it owned stock water certificate 12160, and an easement or 

irrevocable license on Rand's property to access the pipeline. The district 

court concluded that Rand could not own certificate 12160 because it did 

not possess a grazing preference for 600 cattle at the place of use, and 

therefore could not put the water to beneficial use. The district court 

explained that the purpose of NRS 533.503 "is to ensure that stockwater 

rights follow the livestock that are lawfully permitted to use stockwater on 

the public range." With regard to the easement, the district court 

concluded that "Tomera is entitled to an easement by necessity for the 

access, operation, maintenance, repair, and use of the Trout Creek 

pipeline and its point of diversion that lie across Rand's private 

property. . . ." 

On appeal, Rand argues that pursuant to NRS 533.382's 

requirement that water rights be conveyed by deed, Tomera cannot be the 

proper owner of certificate 12160, and that it is a bona fide purchaser 

nonetheless. Tomera argues that it is the rightful owner of certificate 

12160, that NRS 533.503 prohibits Rand from holding the certificate 

because he does not own livestock, and that Rand's bona fide purchaser 

SUPREME COURT 

OF 

NEVADA 

7 

(0) 1947A 
defense is not properly before this court because Rand did not assert it in 

the district court. 

We conclude that the district court erred in determining that 

NRS 533.503 prohibited conveyance of certificate 12160 to Rand. NRS 

533.503(2)(b) provides that the State Engineer shall not issue a stock 

water appropriation certificate unless: "The forage serving the beneficial 

use of the water that has been beneficially used is not encumbered by an 

adjudicated grazing preference recognized pursuant to law for the benefit 

of a person other than the holder of the permit." Although the statute 

prevents issuance of a certificate from the State Engineer, it does not 

prohibit conveyance of a certificate by a private party. Here, the 

Broughtons purported to convey certificate 12160 to Rand. Thus, NRS 

533.503 does not apply. 

Further, Rand's argument that Tomera does not properly hold 

certificate 12160 pursuant to NRS 533.382's requirement that water 

rights be conveyed by deed lacks merit. Tomera purchased certificate 

12160 from Horn in 1989. The requirement that conveyances of water 

rights be made by deed was not added to NRS Chapter 533 until 1995. 

1995 Nev. Stat., ch. 265, §§ 1,3, at 434. Thus, at the time of Tomera's 

purchase, Tomera was not required by statute to obtain title by deed. 

However, Rand also argues that it is a bona fide purchaser. 2 

"In order to be entitled to the status of a bona fide purchaser without 

2Rand raised its bona fide purchaser defense at a hearing on May 

30, 2013. Thus, the bona fide purchaser issue is properly before this court. 

See Arnold v. Kip, 123 Nev. 410, 416, 168 P.3d 1050, 1054 (2007) (noting 

that even arguments not raised in the district court until a motion for 

reconsideration may be properly before this court). 

SUPREME COURT 

OF 

NEVADA 

8 

(0) 1947A 
notice . . . [Rand] was required to show that legal title had been 

transferred to [him] before [he] had notice of the prior conveyance to 

[Tomera]." See Berge v. Fredericks, 95 Nev. 183, 188, 591 P.2d 246, 248 

(1979). Unfortunately, this court cannot properly review Rand's bona fide 

purchaser defense because the district court did not make findings 

regarding whether Rand had notice. See Dickinson, 124 Nev. at 471, 186 

P.3d at 885. Thus, we vacate and remand the district court's rulings 

concluding that Tomera owns certificate 12160 and an easement for 

further proceedings on whether Rand had notice of the conveyance to 

Tom era. 

Attorney fees 

The district court ruled that pursuant to NRS 533.190(1) and 

NRS 533.240(3), each party to the adjudication must share in the: 1) costs 

and fees associated with notice and service; 2) costs and fees associated 

with preparation of the general and administrative provisions; and 3) costs 

associated with preparation of the hydrographic survey. For the costs 

associated with service, the district court ordered that Tomera, Rand, 

Filippini, and the Carrington parties split the cost equally. As to 

preparation of the general and administrative provisions, the district court 

ordered Rand and Tomera to share the cost. With regard to the cost of the 

hydrographic survey, the district court ordered that they be shared 

equally among the parties. The district court explained that the claim 

adjudicated relative rights, and that each of the parties benefited from the 

action. 

The Carrington parties and Rand argue that the district court 

abused its discretion by awarding attorney fees pursuant to NRS 

533.190(1) and NRS 533.240(3) because neither statute provides for an 

SUPREME COURT 

OF 

NEVADA 

9 

(0) 1947A 
award of attorney fees. Filippini argues that, pursuant to NRCP 71, an 

order may be enforced against the Carrington parties although they were 

dismissed from the adjudication. 

We generally review a district court's decision regarding "costs 

and attorney fees for an abuse of discretion." Gunderson v. D.R. Horton, 

Inc., 130 Nev., Adv. Op. 9, 319 P.3d 606, 615 (2014). Under Nevada law, 

"the district court may not award attorney fees absent authority under a 

statute, rule, or contract." Albios v. Horizon Cmtys., Inc., 122 Nev. 409, 

417, 132 P.3d 1022, 1028 (2006). Here, the district court concluded that 

NRS 533.190(1) and NRS 533.240(3) permitted an award of attorney fees 

to Filippini's counsel for service of Trout Creek property owners and 

preparation of the general and administrative provisions. 

NRS 533.190(1) provides: 

At any time in the course of the hearings, the 

court may, in its discretion, by order assess and 

adjudge against any party such costs as it deems 

just and equitable or may so assess the costs in 

proportion to the amount of water right standing 

allotted at that time, or the court may assess and 

adjudge such costs and expenses in its final 

judgment upon the signing, entry and filing of its 

formal findings of fact, conclusions of law and 

decree adjudicating the water rights against any 

party as it deems just and equitable, or may so 

assess the costs in proportion to the amount of 

water right allotted and decreed in the final 

judgment. 

NRS 533.240(3) provides: 

The cost of the suit, including the costs on behalf 

of the State and of the surveys, shall be charged 

• against each of the private parties thereto based 

on a determination by the court of the relative 

merits of the claims made by each of the private 

parties. The court may assess and charge against 

SUPREME COURT 

OF 

NEVADA 

10 

(0) I947A 
any party at any time during the suit an equitable 

amount to pay the costs of the survey upon its 

approval of an itemized statement therefor 

submitted by the State Engineer. 

These statutes specifically provide for an award of costs, but 

under Nevada law, attorney fees are not considered costs. See Smith v. 

Crown Fin. Services of Am., 111 Nev. 277, 287, 890 P.2d 769, 776 (1995) 

("Although we affirm the award of costs, we must remand the case because 

the district court did not segregate the amount awarded as costs from the 

amount awarded as attorney fees."). Moreover, attorney fees are not 

mentioned anywhere in the statute. Therefore, the district court's award 

to Filippini's counsel of attorney fees, intermingled with costs, cannot be 

sustained under NRS 533.190(1) or NRS 533.240(3). Accordingly, we 

reverse the award of attorney fees. 

SUPREME COURT 

OF 

NEVADA 

11 

(0) 1947A 
Based on the foregoing, we 

ORDER the judgment of the district court REVERSED AND 

REMAND this matter to the district court for proceedings consistent with 

this order. 

cc: Hon. Richard Wagner, District Judge 

Marvel & Kump, Ltd. 

Parsons Behle & Latimer/Reno 

Fallon City Attorney's Office 

Schroeder Law Offices, P.C. 

Gerber Law Offices, LLP 

Lander County Clerk 

12