concurring in the order in Case No. 2115; dissenting in Case No. 2107:
I concur in the order, as made applicable to case No. 2115, entitled Anderson, et al., v. Wm. M. Kearney, in so far as its force extends, but, inasmuch as it only partially affirms the order of the lower court, I contend that it should go farther to the extent of a complete affirmance of that order. But it must not be understood that I concur in the opinion leading up to the order made.
The question of the constitutionality of the several sections of the water law of 1918 was, in my judgment, submitted to this court for its interpretation and decision.
Under the notices published by the engineer and served upon the several claimants, as set forth in case No. 2115, the engineer sought to proceed to the determination of relative rights, and therein he sought to conduct his proceedings under provisions of the several sections contained in the water law of 1913, and which were directly questioned in the lower court and directly questioned in this court, and I hold that it was our duty to meet those questions squarely and answer them, inasmuch as they were directly involved.
I dissent from the order dismissing the proceedings in case No. 2107, entitled Ormsby County, et al., v. Kearney. An order, at least equal in effect to that made in case 2115, should have been made in case 2107.
An opinion, which follows, presents my reasons for dissenting from the order as made in case No. 2107 and my reasons for concurring in the order so far as made in case No. 2115, also my reasons for contending that the order made in the latter case should extend farther and be more comprehensive.
The appeal in case No. 2115 is from an order of the *359district court of Humboldt County, refusing an order to vacate a temporary injunction granted by that court against appellant, as the state engineer of the State of Nevada. The respondents in this action, plaintiffs in the court below, assert the appropriation and application to a beneficial use of certain waters of the Humboldt River, between the years 1874 and 1902. It is also asserted, by respondents in their complaint that they and their grantors have continuously, and ever since said water was first diverted from the Humboldt River, used the same for the purpose of irrigation of their lands lying along and adjacent to the Humboldt River, and that the waters have been used for the watering of stock and domestic purposes. They allege that the plaintiffs, and each of them, and their grantors, and each of them, appropriated a quantity of water so diverted and applied, and that the appropriation became, was, and is a vested property right.
On the 21st day of May, 1913, W. M. Kearney, as state engineer of the State of Nevada, caused to be served upon respondents, and also caused -to be published in local newspapers, the following notices:
"State of Nevada.
"In the Office of the State Engineer.
"In the Matter of the Adjudication of the Relative Rights to the Waters of the Humboldt River and Its Tributaries.
" Order.
"It appearing to me, W. M. Kearney, state engineer of the State of Nevada, from an investigation made of the Humboldt River and its tributaries, one of the most important stream systems in the State of Nevada, that the relative rights to the use of water of the various claimants upon the said Humboldt River and its tributaries in the counties of Humboldt, Lander, Eureka, and Elko, State of Nevada, should be determined: Now, therefore, it is hereby ordered, that the Humboldt River and its tributaries, situated within the counties of Humboldt, Lander, Eureka, and Elko, State of Nevada, is hereby selected for the determination of relative rights to the *360use of water of the various claimants thereon. It is further ordered, that the proceedings for. the determination of the relative rights to the waters of the said Humboldt River and its tributaries, situate in Humboldt, Lander, Eureka, and Elko Counties, State of Nevada, shall begin on the 26th day of May, A. D. 1913. All claimants to rights in the waters of said stream system are required to make proof of their claims in the manner prescribed by law.
"Dated and entered at Carson City, State of Nevada, this 21st day of May, 1913.
" [Signed] W. M. Kearney,
" [Seal. ] State Engineer. ”
"Notice of Order and Proceedings to Determine Water Rights Before the State Engineer of Nevada.
"In the Matter of the Determination of the Relative Rights to the Waters of the Humboldt River and Its Tributaries.
"To whom it May Concern: You are hereby notified that the state engineer will begin the proceedings for the determination of the relative rights to' the waters of the Humboldt river and its tributaries, situate in Humboldt, Lander, Eureka, and Elko Counties, State of Nevada, on the 26th day of May, A. D. 1913. All claimants to rights in the waters of said stream system are required to make proof of their claims in the manner prescribed by law.
" By order of the state engineer.
"W. M. Kearney, State Engineer.
"Dated at Carson City, Nevada, this the 21st day of May, A. D. 1913.”
The notices heretofore set forth were given by the state engineer, pursuant to the act of the legislature of the State of Nevada, approved March 22,1913.
It is the contention of respondents, plaintiffs in the court below, that sections 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, and 58 of *361said act, and each, of said sections, are unconstitutional: First, as being in violation of the fourteenth amendment to the constitution of the United States; second, as being in violation of article 1, sec. 8, of the constitution of the State of Nevada, and article 3, sec. 1, article 4, sec. 20, article 4, sec. 21, article 6, sec. 1, and article 6, sec. 6, of the constitution of the State of Nevada.
The act in question starts out by declaring that the water of all sources of water supply within the boundaries of the state, whether above or beneath the surface of the ground, belong to the public.
Section 2 is: "Subject to existing rights, all such water may be appropriated for beneficial use as provided in this act and not otherwise.
"Sec. 3. Beneficial use shall be the basis, the measure and the limit of the right to the use of water. ”
The act proceeds by providing for standards of measurement, creating the office of state engineer, maximum amount of water to b'e allowed, and prescribing the duties of the state engineer and his assistant.
Section 18 prescribes as follows: "Upon a petition to the state engineer, signed by one or more water users of any stream or stream system, requesting the determination of the relative rights of the various claimants to the waters thereof, it shall be the duty of the state engineer, if upon investigation he finds the facts and conditions justify it, to enter an order granting said petition and to make proper arrangements to proceed with such determination; provided, however, that it shall be the duty of the state engineer, in the absence of such a petition requesting a determination of relative rights, to enter an order for the determination of the relative rights to the use of water, of any stream selected by him; commencing on the streams in the order of their importance for irrigation. As soon as practicable, after said order is made and entered, it shall be the duty of the state engineer to proceed with such determination as hereinafter provided. A water user upon or from any stream or body of water shall be held and deemed to be *362a water user upon the stream system of which said stream or body of water is a part or tributary. ”
Section 19 provides for the preparing of notices, setting forth that all claimants to rights in the waters of the stream system to be determined are required to make proof of their claims. The section further provides: "Which notice shall be published for a period of four consecutive weeks in one or more newspapers of general circulation within the boundaries of said stream system. ”
Section 20 provides for the making of investigation by the state engineer, such investigation to be with reference to ditches diverting waters and the lands irrigated therefrom.
Section 22 provides: "Upon the filing of such measurements, maps and determinations, the state engineer shall prepare a notice setting forth the date when the said state engineer is to commence the taking of said proofs, as to the rights in and to the waters of said stream system, and the date prior to which the same must be filed; provided, however, that the date set prior to which said proofs must be filed shall not be less than sixty days from the date set for the commencement of the taking of said proofs, which notice shall be deemed to be an order of the state engineer as to its contents, and which notice the state engineer shall cause to be published for a period of four consecutive weeks in one or more newspapers of general circulation within the boundaries of the said stream system, the date of the last publication of said notice to be not less than fifteen (15) days prior to the date fixed for the commencement of the taking of proofs by the said state engineer. At or near the time of the first publication of said notice it shall be the duty of the said state engineer to send by registered mail to each person, or deliver to each person, in person, hereinafter designated as claimant, claiming rights in or to the waters of said stream system, in so far as such claimants can be reasonably ascertained, a notice equivalent in terms to the said published notice setting forth the date when the said state engineer will commence the said taking of proofs, and *363the date prior to which said proofs must be filed with the state engineer. Said notice must be mailed at least thirty (30) days prior to the date fixed for the commencement of the taking of said proofs.”
Section 23 deals with the question of the state engineer mailing to claimants certain printed forms for proofs.
Section 24 provides for the making of such statements by the claimants under oath.
Section 25 is as follows: "It shall be the duty of the state engineer to commence the taking of proofs on the date fixed and named in the notice provided for herein for the commencement of the taking of proofs, and he shall proceed therewith during the period fixed by him and named in the said notice, after which no proofs can be received by or filed with the said state engineer; provided, however, that the state engineer may, for cause shown, in his discretion, extend the time in which proofs may be filed. Any person who shall fail to appear herein and make proof of his claim or rights in or to the waters of said stream system, as required by this act, prior to the expiration of the period fixed by said state engineer during which proofs may be filed, shall be deemed guilty of a misdemeanor, and if an individual person, shall upon conviction, be punished by a fine of not less than two hundred and fifty dollars ($250), and not exceeding one thousand dollars ($1,000), or by imprisonment in the county jail for a term of not less than ten days and not exceeding six months, or by both such fine and imprisonment in the discretion of the court, and if a corporation, each and every officer and director thereof shall be amenable to said punishment hereinbefore in this section provided; provided, however, that the state engineer may, in his discretion, accept and. use as a proof of claim any instrument purporting to be a record of a water right, recorded in the county or counties in which such stream system lies, and render a finding for a water right for the number of irrigated acres of land as found by his observation; provided further, that a finding rendered by the state engineer on a water claim, the holder of which is in *364default, shall be given a later priority than the rights of claimants whose proofs were filed in accordance with the provisions of this act.”
Section 26 provides for the intervention of interested parties.
Section 27 has to do with the fees to be paid by claimants to the state engineer.
Section 28 provides for the assembling of all proofs filed with the state engineer, and further provides that as soon as possible the state engineer shall prepare a notice fixing and setting the time and place when and where the evidence taken by or filed with him shall be open to the. inspection of all interested persons; said period of inspection to be not less than ten days, which notice shall be deemed to be an order of the state engineer as to the matters contained therein.
Section 29 provides for the manner of instituting contests.
Section 30 has to do with the conduct of hearing the contests.
Section 31 empowers the state engineer to make rules governing contests.
Section 32 provides for the payment of fees by the contestants.
Section 33 is as follows: "As soon as practicable after the hearing of contests, it shall be the duty of the state engineer to make, and cause to be entered of record in his office, an order determining and establishing the several rights to the waters of said stream; provided, however, that within sixty days after the entry of an order establishing water rights, the state engineer may, for good cause shown, reopen the proceedings and grant a rehearing. Such order and determination shall be prepared, and, after certification by the state engineer, printed in the state printing office. A copy of said order and determination shall be sent by registered mail, or delivered in person to each person who has filed proof of claim, and to each person who has become interested through intervention or by having entered a contest *365through having received a permit from the office of the state engineer, as herein provided. The determination of the state engineer shall be in full force and effect from and after the date of its entry in the records of the state engineer, unless and until its operation shall be stayed by a stay bond as provided for by this act.
Section 34 provides: "Any party, or any number of parties acting jointly, who may feel themselves aggrieved by the determination of the state engineer may have an appeal from the order of the state engineer to any district court of the State of Nevada in which any part of such stream system involved in such determination may be situated. All persons joining in the appeal shall be joined as appellants, and all persons having interests adverse to the parties appealing or either of them shall be joined as appellees; provided, however, that such appeal must be taken within six (6) months of the date on which said party or parties appealing have received a copy of the order of the state engineer determining said rights.”
Section 35 provides: "The party or parties appealing shall, within six (6) months after the receipt of a copy of the order of the state engineer determining the rights to the use of water, file in the district court to which appeal is taken, a notice in writing stating that such party or parties appeal to such district court from the determination and order of the state engineer; and upon the filing of such notice, the appeal shall be deemed to have been taken; provided, however, that the party or parties appealing shall, within the six (6) months mentioned, enter into an undertaking, to be approved by the district court or judge thereof, and to be given to all the parties in the said suit or proceeding, other than the parties appealing, and to be in such an amount as the court or judge thereof shall fix, conditioned that the parties giving their said undertaking shall prosecute their appeal to effect and without unnecessary delay and will pay all costs and damages which the party to whom the undertaking is given, or either, or any of them, may sustain in consequence of such appeal. ”
*366Section 36 provides the manner in which notice is served upon the state engineer as to the pendency of the appeal.
Section 37 provides: "The appellant or appellants shall within sixty days after the appeal, as provided for, is perfected, file in the office of the clerk of the district court a certified transcript of the order of determination made by the state engineer, and which is appealed from, a certified copy of all records of the state engineer relating to such determination, and a certified copy of all evidence offered before the state engineer, including such measurements, maps, and determinations as herein provided to be made of record by the state engineer, together with the petition setting out the cause of the complaint of the party or parties appealing, to which petition all parties joined as appellees shall be served with notice by the issuance of a summons out of the office of the clerk of the district court, within the time and in the manner provided by law for the issuance and sérvice of summons in actions of law.”
Section 38 provides that the proceeding on appeal shall be conducted in the manner in which appeals are taken from the district court to the supreme court.
Section 39 provides the manner in which the judgment of the district court may be transmitted to the state engineer.
Section 40 provides that the costs on the appeal proceedings shall be paid by the losing party.
Section 41 provides for the manner of staying the order or decree appealed from, providing in that respect that an undertaking with good and sufficient sureties may be filed with the district judge in such amount as that officer may prescribe, conditioned that the appallent will pay all damages that may accrue to the appellee or appellees by reason of such order or decree not being enforced, should the proceedings and appeal be decided against the appellant.
Section 42 provides that hearings in these classes of cases shall have precedence over all civil causes.
*367Section 43 provides that the civil practice act of the State of Nevada shall govern in appeals from the decree of the district court for rehearings in the supreme court.
Section 44 provides: " The final orders or decrees of the state engineer, in the proceedings provided by law for the adjudication and determination of rights to the use of the waters in this state, shall be conclusive as to all prior appropriations, and the rights of all existing claimants upon the stream or other body of water lawfully embraced in the adjudication, subject, however, to the provisions of law for appeals, rehearings and for the reopening of the orders or decrees therein.”
Section 45 provides: "In any suit which may be brought in any district court in the state for the determination of a right or rights to the use of water of any stream, all persons who claim the right to use the waters of such stream and the stream system of which it is a part shall be made parties. When any such suit has been filed, the court shall by its order duly entered, direct the state engineer to furnish a complete hydrographic survey of such stream system, which survey shall be made as provided in section 20 of this act, in order to obtain all physical data necessary to the determination of the rights involved. The cost of such suit, including the costs on behalf of the state and of such surveys, shall be charged against each of the private- parties thereto in proportion to the amount of water right allotted. In the case of any such suit now pending or hereafter commenced the same may at any time after its inception, in the discretion of the court, be transferred to the state engineer for determination as in this act provided. ” Section 46 has to do with the appropriation of $5,000 to constitute a hydrographic fund.
Sections 47, 48, and 49 have to do with the definition of certain words used in the act.
Section 50 makes provision for the state engineer to formulate rules requiring claimants to furnish blue-prints of particular parcels of land.
Section 51 provides: "Upon the final determination of *368the relative rights in and to the waters of any stream system, it shall be the duty of the state engineer to issue to each person represented in such determination a certificate to be signed by such state engineer, and bearing the seal of his office, setting forth the name and post-office address of the owner of the right, the date of priority, extent and purpose of such right; and if such water be for irrigation purposes, a description of the land, by legal subdivisions when possible, to which said water is appurtenant. * * *”
Three primary questions are involvéd in the determination of the matter at bar:
First — By the water law of 1913 and its provisions, authorizing adjudication and determination, set forth from sections 18 to 51, inclusive, is the state engineer vested with powers in contravention to the provisions of the constitution of the United States and the constitution of the State of Nevada?
Second — By the act of 1913, is the state engineer empowered to adjudicate and determine the right of plaintiffs to the use of the waters appropriated, inasmuch as it is admitted in these proceedings, and for the purpose of these proceedings, that these rights became vested, prior to the creation of the office of state engineer, by the act of the water law of 1913?
Third — By section 84 of the water law of 1913 are legal appropriations of water, made and acquired prior to the operation of the water law of 1913 exempt from the operation of that act?
[1] The first of these questions, while perhaps the most important, although not necessarily the most significant, requires for its solution careful consideration of the prescriptions and provisions of the organic law of this state, keeping in mind the "due process” guaranty extended by the fourteenth amendment to the constitution of the United States. Article 1, sec. 8, of the constitution of the State of Nevada, provides, inter alia,: "Nor be deprived of life, liberty, or property, without due process of law.”
*369As to the due process provision, this court has held in Gibson v. Mason, 5 Nev. 302: " Evidently nothing further was intended by it than to secure to the citizens the usual and ordinary means or course of judicial proceedings generally followed or observed in similar cases at the time it became a part of the fundamental law.”
Further it is stated in that-case: "By 'due process of law,’ as used in the constitution, is simply meant such general legal forms and course of proceedings as were known either to the common law or as were generally recognized in this country at the time of the adoption of the constitution.”
See Wright v. Cradlebaugh, 3 Nev. 342; State v. Millain, 3 Nev. 466.
Due process of law not only requires that the party shall be brought into court, but that he shall have opportunity in court to establish any facts which, according to the usages of common law, or the provisions of the constitution, will be a protection to himself and property.
Article 3, sec. 1, of the constitution of the State of Nevada, provides that: "The powers of the government of the State of Nevada shall be divided into three separate departments, the legislative, the executive, and the judicial; and no persons charged with the exercise of powers properly belonging to one of these departments shall exercise any functions appertaining to either of the others, except in the cases herein expressly directed or permitted. ”
Article 6, sec. 1, of the constitution of Nevada, provides: "The judicial power of this state shall be vested in a supreme court, district courts, and in justices of the peace. The legislature may also establish courts, for municipal purposes only, in incorporated cities and towns. ”
Article 6, sec. 6, of the constitution of the State of Nevada, provides: "The district courts in the several judicial districts of this state shall have original jurisdiction in all cases in equity; also, in all cases at law which involve the title or the right of possession to, or the *370possession of, real property, or mining claims, or the legality of any .tax, impost, assessment, toll, or municipal fine, and in all other cases in which the demand (exclusive of interest) or the value of the property in controversy exceeds three hundred dollars. * * * They shall also have final appellate jurisdiction in cases arising in justices’ courts and such other inferior tribunals as may be established by law. ”
It may be well to observe here that the subject under consideration is one which deals with real property, in the strictest sense of the word. (Hough v. Porter, 51 Or. 318, 95 Pac. 732, 98 Pac. 1083, 102 Pac. 768.)
Mr. Kinney, in his work on Water Rights, 2d ed. vol. 2, sec. 768, says:
"The distinct, exclusive, usufructuary estate acquired by an appropriator to the use of water,-by its lawful appropriation, is property of the highest order and oftentimes of the highest value. The water right is protected by the law as such, and is subject to all the usual incidents of property. This property right in water is as important, as valuable, and as extensive as the use to which it is applied. The land is comparatively valueless without the water to irrigate it. * * * The property in a water consists, not alone in the amount of water claimed under an appropriation, but also in the priority of the appropriation. And it very 'often happens that the chief value of an appropriation consists in its priority over other appropriations from the same stream. Hence, to deprive one of his priority to appropriate would be to deprive him of a most valuable property right. A perfected water right is a vested property right and its value capable of estimation in money, and one which the law protects. A water right is such a property right that it comes clearly within the constitutional provisions that property shall not be taken or damaged for public or private use, except upon due process of law and upon just compensation.”
The courts of many .of the western states have announced a similar doctrine; in fact, it is one almost universally accepted. (Waha v. Lewiston, 158 Fed. 137; Mohl *371v. Lamar Canal Co., 128 Fed. 776; Town of Sterling v. Pawnee Co., 42 Colo. 421, 94 Pac. 339, 15 L. R. A. n.s. 238; Fisher v. Bountiful City, 21 Utah, 29, 59 Pac. 520; Dalton v. Bowker, 8 Nev. 190; Nielson v. Parker, 19 Idaho, 727, 115 Pac. 488.)
The power to determine relative rights sought to be conferred by this statute upon the state engineer has, in our judgment, been very properly termed a power to quiet title. (Rickey Land Co. v. Miller & Lux, 152 Fed. 11, 81 C. C. A. 207.)
[2] It is contended that the provisions of our water law of 1913 having been taken in substance at least from the statutes of Wyoming, and inasmuch as the Supreme Court of Wyoming has construed (Farm Investment Co. v. Carpenter, 9 Wyo. 110, 61 Pac. 258, 50 L. R. A. 747, 87 Am. St. Rep. 918) that statute, the rule of statutory adoption should apply to the effect that, in the adoption of a statute from the State of Wyoming we are bound by the interpretation and construction of the court of last resort of the state from whence the statute was taken. The correct rule, in this respect, is, in our judgment, laid down in the case of First National Bank of Butte v. Bell Co., 8 Mont. 46, 19 Pac. 403, in which it is said that when a particular statute has been adopted by a state from the statutes of another, after a judicial interpretation has been placed upon it by the parent state, the courts of the adopting state are bound by the interpretation or construction of the court of the parent state, unless the circumstances of the people of the adopting state are so different as to require the application of another rule. Moreover, it is fundamental and requires no citation of authorities that, where the organic law of the adopting state is totally different in some applicable particular from that of the parent state, the adopting state is not bound by the interpretation of. the parent state. Furthermore, it must appear that the statutes are identical. (Swofford v. Mills, 86 Fed. 556; Kirman v. Powning, 25 Nev. 378, 60 Pac. 834, 61 Pac. 1090.)
It is further contended by appellant that the view of *372the Wyoming court was adopted by the Supreme Court of Nebraska in construing a similar statute, and we are cited to the case of Crawford v. Hathaway, 67 Neb. 325, 93 N. W. 781, 60 L. R. A. 889, 108 Am. St. Rep. 647.
In approaching the subject, it may be well to compare the organic law of Nevada with that of Wyoming in the first instance, and, secondly, with that of Nebraska, and in our comparison to consider the grants and inhibitions of jurisdiction of the established courts in the respective states.
At the outset we find our own constitution lacking in any provision bearing directly upon the subject of public waters, or appropriation, or use of the same, except in so far as we may have adopted the common, law.
In the constitution of Wyoming a specific provision is found bearing at length upon the subject. Article 8 of the constitution of Wyoming is devoted entirely to the subject of irrigation and water rights, and, in order that my analysis may be more comprehensive, I quote it at length:
"Section 1. Water Is State Property. The water of all natural streams, springs, lakes, or other collections of still water, within the boundaries of the state, are hereby declared to be the property of the state.
" Sec. 2. Board of Control'. There shall be constituted a board of control, to be composed of the state engineer and superintendents of the water divisons; which shall, under such regulations as may be prescribed by law, have the supervision of the waters of the state and of their appropriation, distribution and diversion, and of the various officers connected therewith. Its decisions to be subject to review by the courts of the state.
"Sec. 3. Priority of Appropriation. Priority of appropriation for beneficial uses shall give the better right. No appropriation shall be denied except when such denial is demanded by the public interests.
" Sec. 4. Water Divisions. The legislature shall by law divide the state into four (4) water divisions, and provide for the appointment of superintendents thereof.
*373"Sec. 5. State Engineer. There shall be a state engineer who shall be appointed by the governor of the state and confirmed by the senate; he shall hold his office for the term of six (6) years, or until his successor shall have been appointed and shall have qualified. He shall be president of the board of control, and shall have general supervision of the waters of the state and of the officers connected with its distribution. No person shall be appointed to this position who has not such theoretical knowledge and such practical experience and skill as shall fit him for the position. ”
The constitution of Nebraska is silent upon the subject of irrigation and water rights, but in this respect it may be well to observe that the doctrine of riparian rights has at all times consistently been held in force in that state. (Crawford v. Hathaway, supra.)
In the case of Crawford v. Hathaway, supra, it must be observed that while the Supreme Court of Nebraska cited approvingly the decision of the Supreme Court of Wyoming in the case of Farmers’ Investment Co. v. Carpenter, supra, without a constitutional provision bearing upon the subject of irrigation or water rights, it premised the case largely upon the doctrine of riparian rights consistently maintained and applied in that state, and laid as a second premise the right of condemnation, declaring the same to be applicable as against riparian owners.
In our judgment, the constitution of the State of Wyoming, declaring, as it did, that all natural bodies of water are property of the state, and in giving to the board of control the power to supervise the waters of the state and the appropriation thereof, seems to have been adopted with the view of conferring ultimate powers of determination, whether they be termed judicial or quasi-judicial, on the board of control, and the statute of Wyoming, construed and interpreted in the case of Farmers’ Investment Co. v. Carpenter, supra, was enacted pursuant to this special constitutional authorization.
In discussing the case of Farmers’ Investment Co. v. *374Carpenter, supra, Mr. Kinney, in his work on Irrigation, says: "From a careful study of the constitution of Wyoming, we are of the opinion that the court might have better rested its decision squarely upon the proposition that, under the state constitution, the board was vested with judicial power to try and decide the existing rights to water. The state constitution seems to have been adopted with this very end in view. It is true that section 1 of article 5 provides that: 'The judicial power of the state shall be vested in the senate, sitting as a court of impeachment, in a supreme court, district courts, justices of the peace, courts of arbitration, and such other courts as the legislature may by general law establish for incorporated cities and towns. ’ But in the same instrument, by section 2 of article 8, upon the very subject under discussion, it is also provided: 'There shall be constituted a board of control, to be composed of the state engineer and superintendents of water divisions, which shall, under such regulations as may be prescribed by law, have the supervision of the waters of the state and of their appropriation, distribution, and diversion, and of the various officers connected therewith, its decisions to be subject to review by the courts of the state.’” (Kinney on Irrigation, 2d ed. vol. 3, pp. 2885, 2886.)
Whatever may be said by way of argument as to the decision of the Wyoming court, in the case of Farmers’ Investment Co. v. Carpenter, supra, and its application to the statute under consideration, this much is manifest at the outset: That, by specific declaration, the organic law of Wyoming laid the foundation for legislation upon the subject of water rights and contemplated a board of control with supervisory powers. Whether the Supreme Court of Wyoming, in its construction and interpretation of the Wyoming statute, rested its case upon the constitutional provision or not, it at least had the constitutional provision before it, expressly declaring the spirit and policy of the founders of the government of that state applicable to public waters.
But the constitution of Nevada, in my judgment, will not *375permit of any arbitrary method, such as that prescribed by the sections of the statute under consideration, for the adjudication of property rights.
The framers of our constitution, having in mind the all-important question of the protection of life and the security to the individual of the enjoyment of property, after guaranteeing these things, prescribed the avenues by which either might be taken from the individual, and in that respect they conferred upon the district courts in the several judicial districts of the state original jurisdiction in all cases in equity, and also conferred upon those courts original jurisdiction in all cases at law, which involved the title or the right of possession to or possession of real property. The founders of the organic law also prescribed the only avenues by which the district court should have appellate jurisdiction. In that respect article 6, sec. 6, prescribes that they shall also have final appellate jurisdiction in cases arising in justices’ courts and such other inferior tribunals as may be established by law. And the affirmative words in a constitution that courts shall have the jurisdiction stated naturally include a negative that they shall have no other. (Lake v. Lake, 17 Nev. 238, 30 Pac. 878.)
When jurisdiction is affirmatively conferred upon a given court, it is to be deemed exclusive, unless by constitutional provisions an exception is made, or the power is conferred upon the legislature to extend jurisdiction in certain cases. Original jurisdiction affirmatively conferred upon a given court in civil actions, without a stated exception, and without power expressly given to the legislature to either limit or increase this jurisdiction, the jurisdiction thus conferred is exclusive. (State v. Rising, 10 Nev. 97.)
Section 33 of the act of 1913 empowers the engineer to make and cause to be entered of record in the office an order determining and establishing the several rights to the waters of a given stream.
Reading sections 18, 25, and 33 in conjunction with section 44, the act makes conclusive the orders of the *376state engineer made pursuant to his determination as to all prior appropriations and the rights of all existing claimants upon streams or other bodies of water lawfully-embraced in the adjudication.
What is involved in the determination of the state engineer ? The right to the use of water for beneficial purposes. Upon what does this right depend? Prior appropriation and beneficial application. Are these questions of law as well as of fact? Manifestly they are. Are they questions which may involve the law and the adjudication and decrees of courts? These questions must all be answered in the affirmative.
It is claimed that these sections, and the policy of the law generally, merely confers upon the state engineer ministerial powers, and that even though the powers of the state engineer, as sought to be conferred, are quasi-judicial, the claimant is not deprived of due process of law, inasmuch as the statute prescribes that he may appeal to the district court. These contentions, in my judgment, are untenable, under a strict reading of the statute. By section 44 it is provided that the determination of the state engineer shall be conclusive as to all existing claimants upon the stream. Section 55 emphasizes the conclusiveness of the state engineer’s determination, and the constitution precludes appeal.
It is suggested that the provisions of these sections are only to confer upon the state engineer ministerial powers in order to carry out a scheme of water supervision and regulation. But .how can this be seriously contended for, when by section 44 the final determination of the state engineer is termed "a decree,” and the proceeding is termed "an adjudication and determination,” and the decree of the state engineer is by that section made conclusive as to the existing rights of the claimants upon the stream? Conclusive decrees made by a ministerial officer upon a matter involving the title and the right of possession to propertythat subject with reference to which the fundamental law of this state declares "the district courts of the several judicial districts of the state *377shall have original jurisdiction.” But it is contended that, inasmuch as the right of appeal to the district court is prescribed for any person deeming himself aggrieved by these final decrees of the state engineer, the courts, by the act of 1913, have not been ousted of that which the constitution declares is for them alone to determine. But the answer to this is that the only appellate jurisdiction given by the constitution to the district court is that which is prescribed specifically by section 6, art. 6, in which it is declared: "They shall have final appellate jurisdiction in cases arising in justices’ courts and such other inferior tribunals as may be established by law. ”
It is unnecessary for me to say, I apprehend, that the state engineer is not "an inferior tribunal,” as contemplated by the provision of the constitution. (Meagher v. County of Storey, 5 Nev. 249.) This being disposed of, the only appellate jurisdiction which the district court is possessed of is in cases arising in justices’ courts.
This last observation makes the provisions of the water law of 1913 even more drastic than its words imply, for it confers upon a ministerial officer powers of final determination on matters inyolving the right of the possession to property, and fixes the only avenue of redress for a party aggrieved to a court, which, by constitutional prescription, is precluded from assuming appellate jurisdiction. This provision of the water act of 1913 is a nullity. A law which is in conflict with the fundamental law of the state is not a law at all. (Meagher v. Storey Co., 5 Nev. 249; Lake v. Lake, 17 Nev. 230, 30 Pac. 878.) Furthermore, the only appellate jurisdiction which the district court takes under the constitution is a final appellate jurisdiction, one from which there is no appeal to the highest court of the state. (Floyd and Gutherie v. Sixth Judicial District Court, 36 Nev. 349; Bancroft v. Pike, 33 Nev. 80, 110 Pac. 1; State v. Rising, 10 Nev. 101; Leonard v. Peacock, 8 Nev. 157.)
Hence it follows that unless we read into section 6 of article 6 of our constitution a different appellate jurisdiction for the district court from that which the constitution *378prescribes, and which has been settled by the various decisions of the court, the appeal that might be taken by an aggrieved party from the final order or decree of the state engineer, even were such an appeal contemplated by the constitution, would be terminated by a decree of the district court, and this court would be prescribed from hearing or determining the controversy.
I have already mentioned that the water law of 1913 is dissimilar to the Wyoming act, construed in the case of Farmers’ Investment Co. v. Carpenter, supra, and it may be well to observe here that, while those portions of the water act of 1913 adopted from the Wyoming statute might be applicable under the constitutional provisions of Wyoming, they are inapplicable under the constitutional provisions of this state. This is especially true when we consider the constitutional conference of jurisdiction extended to the several courts in the respective states. The constitutional authorization of appellate jurisdiction of the district court in the States of Wyoming and Nebraska differs most materially from that conferred upon the district court in this state.
Article 5, sec. 10, of the constitution of Wyoming, provides: "They shall have such appellate jurisdiction in cases arising in justices’ courts and other inferior courts in their respective counties as may be prescribed by law. ”
Article 6, sec. 17, of the constitution of Nebraska, provides: "Appeals to the district court from the judgments of county courts shall be allowed in all criminal cases, on application of the defendant; and in all civil cases, on application of either party, and in such other cases as may be provided by law.”
Article 6, sec. 6, of the constitution of Nevada, in this respect, provides: "They shall also have final appellate jurisdiction in cases arising in justices’ courts and such other inferior tribunals as may be established by law. ”
The constitutional provisions of the States of Wyoming and Nebraska, conferring appellate jurisdiction upon the district courts and county courts, do not make that jurisdiction final, and I am unable to find an expression of the *379courts of last resort of the states mentioned in which the appellate jurisdiction of the county court or the district court has been declared to be final. On the contrary, the Supreme Court of Wyoming, in passing upon this very subject, said: "An appeal to the district court from a decision of the board is merely a continuation of those proceedings in an appellate tribunal.” (Willey v. Decker, 11 Wyo. 548, 73 Pac. 210, 100 Am. St. Rep. 939.)
As has already been stated, the constitution limits the appellate jurisdiction of the district court to those cases appealed from justices’ courts and such other inferior tribunals as may be established by law, and hence it follows that unless we read into this provision of the constitution either that the state engineer is an inferior tribunal, established by the water law of 1913, or that the district court will take appellate jurisdiction in cases other than those conferred upon it by the organic law, it necessarily follows that the provision of the water law of 1913, as to appeals from the orders and determinative decrees of the state engineer, are unconstitutional, and the district court would be without power to assume such jurisdiction. If we view the contemplated final orders or decrees of the state engineer and his determinations in the light of these conclusions, it unanswerably follows that, there being no appeal from the determinations of the state engineer, they are therefore final determinations, and these final determinations are in matters in which the right of possession to property is involved, and the party aggrieved is cut off from access to the civil courts, and the constitutional guaranty is nullified. My reasoning, in this respect, might not be applicable under the laws and constitution of Wyoming or Nebraska, inasmuch as different provisions are there made as to the original and appellate jurisdiction of the several courts from that which is found in our organic law.
It has been asserted that the hearing and proceeding before the state engineer is neither a matter at law nor in equity. Assuming, for the time, the correctness of this assertion, the property subject to determination and *380the property rights subject to the adjudication of the state engineer, in the contemplation of the water act of 1913, are matters which, by our constitutional provisions,can only be determined by tribunals having jurisdiction in law and equity, as contemplated in that organic act. Moreover, the question is not as to whether the power exercised by the state engineer, under the provisions of the water act of 1913, is judicial. The question is: Is the matter involved (i. e., the possession or right of possession to property) one which can only be determined by the exercise of judicial functions? In other words, is the ultimate fact to be determined, the right to be granted or denied, one which can only be granted or denied by the judicial branch of the government?
Water being a property right, and its enjoyment arising primarily on appropriation and priority, each of these elements is essential to the right under the doctrine of first in time first in right. Yet, if we give to section 25 of the water law of 1913 the full meaning of the words there used, it is within the power of the state engineer, moreover, it is made mandatory, that the state engineer shall render a finding in case of the claimant who defaults in making proof that the claimant, regardless of his actual priority, shall be given a later priority than that of others whose proofs were filed in accordance with the provisions of the act.
The very acme of severity, if not absurdity, is reached by section 25, wherein it is prescribed that any person who shall fail to appear and make proof of his claim or right in and to the waters of a stream system, as required by this act, prior to the expiration of the period fixed by the state engineer during which proof may be filed, shall be deemed guilty of a misdemeanor and, if an individual person, shall be punished by a fine of not less than $250 and not exceeding $1,000 or by imprisonment in the county jail for a term of not exceeding six months, or by both such fine and imprisonment, in the discretion of the court. Section 25, as it stands, reads that a defaulting claimant shall be divested of his property rights, and, *381moreover, he shall be subjected to the indignity of fine or imprisonment for having given up that right. It has been said by a learned text-writer on the subject of water rights in western states that the laws of Wyoming were adopted in part from the laws of Italy and India. This provision, although not found in the statutes of Wyoming, may have been taken from the laws of India, but we find no sanction for such provision in a government such as ours.
Mention of section 25 is unnecessary in the matter at bar, except in so far as it goes to refute the assertion that the acts of the engineer are only ministerial. Section 25 carries out the spirit of the law which is to make final the decrees rendered by the engineer. This is absent in the laws of the other states.
Mr. Kinney, in his work on Irrigation and Water Rights, in discussing the subject of state control, under a system similar to the Wyoming law, says: "It was evidently the intent to give him (the state engineer) or board of control, over which he presides, the exclusive jurisdiction in the determination of existing water ¡rights within the state, and the power to enforce his or its decisions, in the distribution of the water. In other words, as far as this phase of the subject is concerned, it was to be a government by engineers. But the constitutional convention and the legislature, departing from the original conception of the framer of the bill, gave the right of appeal to the courts. And, further, the supreme court of the state, by its decisions in construing the law after its enactment, has also modified what was undoubtedly the intent of the framer of the bill by holding that an appropriator who had not even presented his claim to the board of control, even after notice of the proceedings, was not estopped from afterward asserting his rights in the district court, and further by holding that a water right' cannot be made an inseparable appurtenance to a certain tract of land, as was attempted by the act, but which feature was held to be unconstitutional, and that, too, even after the 'views’ of the engineer in question *382and the framer of the bill had been presented to the court. It is true that such an arbitrary method as designed might prevent litigation. But it is also true that, if the citizens of this country cannot settle their disputes peaceably, they should be given the right to resort to the courts for their adjudication as to their respective rights.” (Kinney on Water Rights, 2d ed. vol. 3, p. 2901.)
In the case of Thorp v. Woolman, 1 Mont. 168, the Supreme Court of Montana, in' passing upon the constitutionality of an act providing for the appointment of three commissioners empowered by the act of the legislature to apportion in a just and equitable proportion the waters of certain streams, without dwelling upon the subject at length, said: "The powers given this commission by the act under which they conducted their proceedings are clearly judicial. They are empowered by it to apportion the waters in a just and equitable proportion. This required them to determine what was just and equitable between these parties. In the next place, the apportionment was to be made with a due regard to the legal rights of all. This required of them to determine what these legal rights were. The organic act of this territory, which is its fundamental law, limits the powers of legislation, vests judicial power in a supreme court, district courts, probate courts, and in justices of the peace. No tribunal which does not belong to one of these classes is legal. As this commission cannot claim to belong to either one of these, it was a tribunal exercising judicial authority without legal warrant, and its acts are void.”
The decision in the case of Thorp v. Woolman, in this respect, was reannunciated by the same court in the case of Thorp v. Freed, 1 Mont. 656.
In view of my analysis heretofore set forth, it is unnecessary for us to dwell on the hardshipful and expensive means, set forth in the water law of 1913, by which appeals may be perfected. It is not a question as to whether or not the respondents in this case are *383financially able to comply with the requisites of the law as they are set forth. The policy of this state, from its earliest day until the present time, has been to invite the home builder, and in most instances the people who have heretofore settled in our valleys and builded homes and tilled our soil have been people of limited means, unable to afford the money necessary to meet the requisite expenses demanded of them in an act of this character to protect their rights, so that, even if the right of appeal was afforded and not prohibited by the constitution, the expensive method provided by the act for perfecting an appeal from an order and decree of the state engineer would become prohibitive.
It may be contended that we are not called upon to construe or interpret many of the sections herein referred to, but this contention is untenable, inasmuch as sections 18 to 51, taken as a whole, constitute a proposed scheme for investigation, determination, and adjudication on the part of the state engineer, and the entire plan whereby the state engineer’s determination is to become final, and the entire arrangement whereby the courts are ousted of jurisdiction, is to be found within those sections of the act.
It will not do to say that the claimant may relieve himself of the action of the engineer by an action in court, by the ordinary proceeding, independent of the provisions of the act. This would be to declare that hardshipful litigation is to be promoted by this act. It would in effect say that the action of the engineer, however arbitrary and unjust, must stand against a claimant’s property, unless by good fortune he be possessed of the means to carry on litigation.
The notice of the engineer in this case declares that he will determine relative rights of the water claimants on the Humboldt River system within the several counties named. The scope of the term “relative rights” may at first thought fail to receive due appreciation. It is not a question of the engineer determining the appropriations and priorities for his own guidance and supervision, or *384for ministerial purposes. The matter embraced within the term “relative rights” means the right of every claimant on the Humboldt River system in relation to every other claimant. It means that every appropriator of water becomes a contestant for his priority and for his appropriation against every other claimant, and the engineer, by his notice, assumes to investigate, adjudicate, and finally determine, not only for ministerial purposes, not only for purposes of supervision, but for purposes of final adjudication, the legality of every appropriation from a standpoint of application to beneficial use and priority, and from his determination, as we have already disclosed, the constitution of this state precludes the possibility of appeal to the courts, in so far as the provisions of this act, under which the engineer seeks to operate, is concerned.
The question of relative rights, as between water claimants on a stream.system, is a matter between the several claimants, one to be determined by the courts, and one with which the engineer has no concern.
“These executives,” says the Supreme Court of Colorado, “may, and indeed should, prevent waste and insist upon economical use; but, where there is a real and bona fide dispute as to the relative rights to the use of water * * * between several claimants, these officers are not called upon to inject themselves into the controversy and decide between them.” (Boulder & Left-Hand Ditch Co. v. Hoover, 48 Colo. 343, 110 Pac. 77.)
It follows that the acts of the engineer, even if intended to be ministerial, become final because of constitutional provisions as to the jurisdiction of courts prohibiting review by the process suggested by the act.
May I suggest the query: What difference is there between a decree rendered by a court, as to the right to enjoy property, and a decree rendered by a ministerial officer, as to the right to enjoy property, if either or both are final? The former is by that department of the government invested by the organic law with powers to decree on that subject; the latter is, by a ministerial *385officer, expressly divested by the organic law of such powers. It makes no difference whether we term the act of adjudication, under this statute, “ministerial” or “judicial”; the distinction is in the word, not in its significance. By reason of the peculiarity of our constitution, the avenue suggested by the statute as one of redress affords no relief, because the courts cannot take jurisdiction by the way suggested. Hence the acts of the engineer become final. The courts are ousted of jurisdiction. The fact that other laws may give the courts power to act in redress of wrongs committed under this act will not relieve this one of its unconstitutional features.
“The test of its unconstitutionality is whether it operates to deprive any person of a right guaranteed or given him by the constitution. If it does, it is a nullity, whatever may be its form.” (Davies v. McKeeby, 5 Nev. 372.)
Being final, they effect the subjects of which the courts have exclusive original j urisdiction. Hence, the provisions of the act in this respect are contrary to the constitution. The conclusions reached by the courts of Wyoming and Nebraska are not binding on this court, first, because the act in question is different in its provisions from the water act of Wyoming, construed in the case of Farmers’ Investment Co. v. Carpenter; second, in the case of Farmers’ Investment Co. v. Carpenter, the Supreme Court of Wyoming had before it, whether it rested its case upon it or not, specific provisions in the constitution of Wyoming providing ab initio for the enactment of such a law as that found in the statutes of Wyoming; third, the constitution of Wyoming, applicable to its judicial department, does not limit the appellate jurisdiction of the district court as does the constitution of Nevada. Moreover, it does not make final the judgment of the district court on matters of which it takes appellate jurisdiction.
[3] The second and third questions may be properly determined together.
It is admitted in this action that all of the plaintiffs *386were appropriators of water from the Humboldt Ri\er system prior to the enactment of the water law of 1913, and, in dealing with this question, the history of our water legislation in this state may have some bearing. It was not until 1903 that the legislature of this state sought to enact a comprehensive water law, and therein sought to create the office of state engineer.
The act of 1903 (Stats. 1903, c. 4) followed closely the enactment of the national irrigation act, sometimes known as “the Newlands Act,” and it was at the instance and suggestion of the author of that bill that the legislature of 1903 passed the enactment.
The act of 1903 was superseded by the act of 1905 (Stats. 1905, c. 46), and both of these statutes were made applicable only to future and not past appropriations.
The act of 1905 was superseded by the act of 1907 (Stats. 1907, c. 18), in which act we find the provision: “All existing rights to the use of water, whether acquired by appropriation, or otherwise, shall be respected and reserved, and nothing in this act shall be construed as enlarging, abridging, or restricting such rights.”
The act of 1907 by its terms applied specifically to unappropriated waters. The act of 1907 was superseded by the act of March 22, 1913. Section 2 of the act of 1913 provides: “Subject to existing rights, all such water may be appropriated for beneficial use as provided in this act and not otherwise.”
Section 84 of the act of 1913 is as follows: “Nothing in this act contained shall impair the vested right of any person to the use of water, nor shall the right of any person to take and use water be impaired or affected by any of the provisions of this act where appropriations have been initiated in accordance with law prior to the approval of this act. * * * ”
The original law of this state applicable to the use of water in the natural streams of the state was governed by the doctrine of riparian ownership, as known at common law, and many appropriations were made and *387rights acquired under this doctrine, and it was not until the doctrine of prior appropriation was initiated by this court, as being applicable to the conditions existing in this state, that the riparian doctrine was abdicated. (Vansickle v. Haines, 7 Nev. 249.)
The various legislative acts applicable to the subject of public waters and the appropriation thereof clearly disclose that it was the intent of the legislature in each instance to recognize existing rights, and the same intention and spirit are manifest in the act of 1913.
It might be said that under a system of water control, such as that contemplated by the acts of the various states in the arid region, and in fact under the act of 1913 of this state, the engineer might determine, for his own administrative purposes, and for the purpose of admitting future appropriations, the exact extent of each appropriator’s right, but this is not the object nor the scope of the proposed action of the state engineer as declared by his notices, upon which the complaint in this case was founded, because by these notices he assumes the province of declaring relative .rights, and draws each claimant into open contest with every other claimant on the river system upon the two important subjects; i. e., amount of appropriation and priority. And acting under the statute of 1913 and under his notices, given pursuant thereto, he seeks to make final orders and decrees as to their respective relative rights, and thereby he declares his intention to make such orders and decrees as will necessarily impair and affect, to the extent of his determination and judgment, at least the vested rights of persons whose appropriations have been initiated in accordance with the customs or laws of this state prior to the act of 1913.
By section 84 of the water law of 1913, the legislature, in my judgment, merely sought to carry out that same declaration and purpose and intention which had been a feature in former legislative acts upon the same subject; i. e., to recognize appropriations made under former laws or legislative acts, and to keep those appropriations free *388from being affected or impaired by anything contained in the water law of 1913.
The determination of individual rights upon a river system must not be confused with the determination of relative rights. The determination of relative rights in this instance is one affecting the rights of one individual as against another or a number of others, while the determination of individual rights is one which does not correlate the comparative rights of any other person. The latter might properly be said to be essential under a system of state control in order that the controlling power might supervise and determine the availability of future appropriations, but the former has no place in' the contemplation of such a system, but belongs primarily to the courts. (Weil on Water Rights in Western States, vol. 2, p. 1103, and authorities there cited.)
The act of Congress of July 26, 1866, enacted for the purpose of dealing with the rights of miners who had theretofore, without objection, mined in the public lands, provided: “That wherever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right of way for the construction of ditches and canals for the purpose aforesaid is hereby acknowledged and confirmed.” (Act July 26, 1866, c. 262, sec. 9, 14 Stat. 253.)
In construing this act, the Supreme Court of the United States, speaking through Mr. Justice Miller, said: “We are of the opinion that the section of the act which we have quoted was rather a voluntary recognition of a preexisting right of possession, constituting a valid claim to its continued use, than the establishment of a new one.” (Broder v. Water Co., 101 U. S. 276, 25 L. Ed. 790; Platte Water Co. v. Northern Colo. Irr. Co., 12 Colo. 533, 21 Pac. 711.)
*389The reasoning, as set forth in the case of Broder v. Water Co., supra, is, in my judgment, applicable to section 84 of the water act of 1913. Statutes of this character are not to be viewed as retroactive, even if there were no declaration conveying a contrary idea. More especially is this true in view of an express declaration, such as set forth in section 84. (Palmer v. Railroad Comm., 138 Pac. 997.) It has been urged that this is progressive legislation, instituted for the purpose of state control of public waters, and that the system of adjudication and determination authorized by sections 18 to 51, inclusive, are essential to the carrying out of this policy. But it must be observed that a similar policy is sought to be carried out in the States of Oregon, Colorado, and Utah and Washington, and in each of these states the jurisdiction, for primary adjudication, is vested in the court of prescribed power. (Compiled Laws of Utah, 1907, sec. 1271; Lord’s Oregon Laws, vol. 3, sec. 6650; Mills, Ann. Statutes Colo. 1912, vol. 1, sec. 3801.)
While many of the provisions-of the water law of 1913 may have been adopted from the statutes of Wyoming, it ■is manifest that many of the provisions were taken from and are more nearly like the statutes of Oregon, but in •the latter state the court is looked to for adjudication.
The legislative plan of most of the western states for the regulation of the use of water, vesting adjudication in their courts, has been brought about by reason of their constitutional provisions and the holding of their courts to the effect that any adjudication of priorities within the meaning of the irrigation acts are judicial determinations. (Kinney on Irrigation, vol. 3, 2d ed. p. 1586; Sterling Irr. Co. v. Downer, 19 Colo. 595, 36 Pac. 687; Thorp v. Woolman, 1 Mont. 168.) Holding to the same effect upon analogous subjects are People v. Dunn, 157 N. Y. 528, 52 N. E. 572, 43 L. R. A. 247; In Re Dumford, 7 Kan. App. 89, 53 Pac. 92; State v. Blaisdell, 22 N. D. 86, 132 N. W. 769, Ann. Cas. 1913e, 1089; Bridge Co. v. Hogadone, 150 Mich. 638, 114 N. W. 917.
*390Under the codes of the states heretofore referred to, the uniform laws of procedure are resorted to, and j udgments and decrees are entered after the claimant has been afforded opportunity to avail himself of all that due process of law guarantees. He may meet the witnesses against him and cross-examine, a privilege most salient in all matters where either liberty or property is in course of determination; and he may offer his proofs in support of his own contentions in an orderly manner, and the judgment and decree entered thereon may be reviewed by the highest court of the state. All this is denied under the water law of 1913, by reason of our constitutional provisions as to original jurisdiction and appellate jurisdiction of the several courts. Mr. Kinney, in his work on Irrigation, in speaking upon this phase of the subject says:
“The more we study the workings of the laws of the state control as to the determination by governing boards in the first instance, of existing rights to the use of water, the more firmly we are convinced that all judicial or ‘quasujudicial’ powers should be taken from the state engineer and governing boards, and vested in the courts, as is the case in Colorado, where, under our form of government, that power properly belongs. And, fortunately, this is the rule in the most of the states which have recently adopted these laws. It is true that in Wyoming and Nebraska any party feeling himself aggrieved by the decision of the state engineer or governing board may appeal from such decision to the district court, but the first trial is before the board. And, furthermore, when an appeal is taken, it takes a double amount of time and expense upon the part of the contestants in attending the trials and getting their evidence properly before the board and court. Why is it not better for all parties concerned, in the first instance, to bring the action in court and to have the matter properly adjudicated and finally settled by a proper decree? If not satisfied with the decree and judgment of the trial court, a party may then *391appeal to the supreme court of the state.” (Kinney on Irrigation, 2d ed. vol. 3, p. 2902.)
The contention that the construction placed upon the Nebraska statute by the supreme court of that state in the case of Crawford v. Hathaway, supra, should be binding on this court is untenable, inasmuch as the Nebraska law was more nearly an exact copy of the Wyoming law than is our water law of 1913. The provisions of our statute, as they appear in sections 18 to 51, inclusive, are tantamount to the provisions of the Oregon law (sections 6635 to 6648), with the exception of section 25 of our statute.
The Nebraska court in the case of Crawford v. Hathaway, supra, based its conclusions upon the following assertion:
“The Wyoming statute, from which ours is borrowed, has been subjected to judicial construction, and is upheld by the supreme court of that state on the express ground that the powers authorized therein are not judicial but administrative. (Farm Investment Co. v. Carpenter, 9 Wyo. 110, 61 Pac. 258, 50 L. R. A. 747, 87 Am. St. Rep. 918.) With this authoritative construction of the statute, and a decision of the very question raised in the case at bar, upon reasoning quite convincing and satisfactory, it would seem that the question should be regarded as at rest.” (Crawford v. Hathaway, 67 Neb. 365, 93 N. W. 795, 60 L. R. A. 889, 108 Am. St. Rep. 647.)
In discussing the Wyoming and Nebraska decisions, supra, Mr. Weil, in his work on Water Rights in Western States, says: “These decisions are not consistent or clear among themselves; they are inconsistent with the weight of authority, * * * and are unsound upon principles, * * * as is_ shown by the general adoption in most states of a system of adj udicating rights by special proceedings in court and not by administrative officers.” (Weil, Water Rights in Western States, vol. 2, 1108, 1109.)
Speaking finally, the vital question in this case, regardless of what phase it may assume, is not as to whether the *392acts of the engineer were “ministerial” or “j udicial.” The question rather is, Does the law attempt to confer upon an officer, outside of the judicial branch of the government, powers to interfere in matters involving the possession of or right of possession to real property ? If it does, it violates the spirit and intent, as well as the specific provision of our constitution, wherein these powers are exclusively vested in the courts. The constitution is the creation of the people, and the legislature is the creation of the constitution. It follows that the people, speaking through their constitution, are superior to the legislature, and that the enforcement of. the constitutional limitations upon legislation is the execution of the people’s will, and not the execution of judicial edicts. Courts neither make laws nor constitutions, but should remain indifferent between them. Constitutions are for the protection of all and each for all time and not for now and then. They deal with principles which are paramount in their nature, and which derive their virtue from their stability. No such provisions as those found in the statute under consideration were contemplated by the framers of our constitution. No foundation was there laid for the enactment of any such legislation. Hence, when such statutes are enacted, they must by some means or another bring themselves into conformity with the provisions of the constitution, or, at least, they must not be in conflict with some specific constitutional inhibition.
It is my conclusion, from the anaysis heretofore set forth, that the provision of the act in question seeks to confer judicial powers upon a non judicial officer. Moreover, it seeks to take from the courts that which the organic law specified should be limited to the province of the courts — the right to determine matters involving the possession or the right of possession to property. Moreover, the act cannot be viewed as retroactive, and the specific provisions of section 84 speak for the legislative intent in that respect.
The order of the lower court in refusing to dissolve the inj unction should have been affirmed.