Being unable to concur in the conclusion reached by the majority opinion with respect to the interpretation and construction of the term "appropriation," I feel it my duty to express my views in this dissenting opinion.
The majority courts holds, notwithstanding the express provisions of the water laws of this state beginning with 1905, that before a person may appropriate water for beneficial use, such person must first make application to the state engineer for permit to so appropriate, that such person may acquire a water right by prescription, that is to say, by adverse use thereof for a period of five years. It is clear from the majority opinion that the majority court bases its conclusion upon the *Page 32 case of Authors v. Bryant, 22 Nev. 242, 38 P. 439, which case was decided some twenty years before the water law of 1905 was enacted.
It is clear from the majority opinion that it is thought that the legislature should establish the policy of this state with respect to the appropriation of water, and that it is also thought the legislature has not done so with respect to the paramount issue in this case.
The actual, mechanical and physical work of the appropriation of water is to construct a ditch from the stream and thus convey water on the land. The legislature has not changed the physical aspects of the appropriation of water. What the legislature has in effect done in the water laws of 1905, 1907, and 1913, is simply to provide an additional element with respect to the appropriation, and that element being to obtain a permit from the state engineer for the purpose of recording and providing documentary evidence of the appropriation of water. In brief, to bring order out of chaos. By so doing the legislature hasestablished a policy of this state, and that policy is that noperson may divert water from a stream system by the appropriationmethod without first making a documentary record thereof in theoffice of the state engineer. It is clear from the majority opinion that the court has viewed most favorably the theory of the respondents, and has cited with great approval the Wyoming case relied upon by respondents to sustain the proposition that a water right cannot be acquired by adverse possession. I concur most heartily with that portion of the majority opinion dealing with the theory of the respondents, and I concur with the majority court's apparent approval of such theory, as in my opinion the theory of respondents correctly presents the issue, and states the law upon the question.
It is a well-established rule of law that when a court has decided an important question and the legislature thereafter changes the law, even though not at the request of the court, and the legislative change declares *Page 33 a different policy from that found to be the policy and the law in the court's decision, then that particular decision of the court is deemed to be overruled by legislative action. Such is the condition of the case of Authors v. Bryant, supra. No doubt that case correctly stated the law as it existed at that time because no legislative act had changed the nature or modified the act of the appropriation of water. Such change was so made in the water law of 1905 and continued in the water law of 1907 and that of 1913. It is my considered opinion that such legislative acts firmly establish the policy of the state to be that applications to the state engineer for permits to appropriate water must first be made before the actual physical act of such appropriation could be had, and such application must be made in every instance by any person desiring to appropriate water.
The judgment of the lower court should be affirmed.