The Goldfield news and weekly tribune. [volume] (Goldfield, Nev.) 1911-1947, 1914-08-15
new LIGHT ON
WATER RIGHTS
CHIEF JUSTICE TALBOT SHEARS
STATE ENGINEER OF JUDI
CTAL POWER

A special to the Reno Journal from
Carson City says:
The question of the constitutional
ity of the water law of Nevada re-
ceived another contribution today
when Chief Justice Talbot filed an
opinion supplementing his memoran-
dunn opinion given on the recent &C
ton in the case. The chief justice
concurs in both orders made in the
two cases, denying a writ of prohibi-
ton in the Ormsby county case and
limiting the injunction in the Hum
boldt county case, and he proceeds to
discuss the constitutional phases.
The opinion in general is to the eff
feet that power validity conferred on
the state engineer is limited to ad-
ministrative functions and does not
extend to judicial determinations.
This is based on a consideration of
two parts of the act, one apparently
giving the engineer power to record
DEGREES at variance with vested
rights, and another apparently giving
his status as a court from which an
appeal to the district court would
lie. The opinion fails to find au-
thority in the constitution for the
exercise of either of these powers.
Attorney Prince A. Hawkins, VINO
appeared for the compliments in the
Humboldt county case said today that
he considered that by the opinion of
Chief Justice Talbot and Justice Nc.
Carran the state engineer was linn
tied to administrative functions; that
he had no power to bar or disregard
the rights of claimants having vest
ed rights and that no forfeiture
would be worked through the action
of the state engineer in case persons
having vested rights failed to appear
at his summons. .
As to the power of the state engi-
neer, Chief Justice Talbot says the
state engineer may proceed by TAX
ing evidence and otherwise to deter
mine the relative rights of water
users and then he attacks the ques-
ton whether the engineers determin-
ations may have the force of final ad-
Indications. Concerning section A
of the act he says:
1T is attempted to make the de-
termination of the state engineer a
final adjudication If there is no re-
hearing or appeal, but it is not APP
parent the constitution will allow It
to have that effect y for it
would have the effect of comforting
judicial power upon Rim, something
the constitution does not permit
One another phase the opinion
says, go = = AS the constitution
limits the judicial power in this state
to the supreme, district, justice, city
and municipal courts, it follows that
it does not provide for an appeal to
the district court from the decision
of any tribunal not mentioned in that
document. The fact that the statute
provides for an appeal cannot make
the determination of the state engi-
neer binding, as a final adjudication
of water rights or endOw him with
judicial power to make a final deter
mination of rights, when the consti-
tuition directly limits that power to
the courts specified"
A further question is left undispos~
ed of. 1t is whether the state engi-
neer * y may allow, restrict
and regulate the use of water claim
ed under vested water rights, with
out impairing them sub.
ject to the right to apply to the
courts to restrain the state engineer
or the water commissioner from de-
priving the appropriation of any water
to which he may be entitled"
AS to this question the opinion
suggests counsel present their views
in a petition for a ~rehearing. /
The last question promises to be
the final bone of contention. The
district court is expected to modify
its injunction and the engineer is ex-
pected to proceed under it. Whether
his actions in the future shall be con-
sidered as impairing vested water
rights remains to be seen.