dissenting:
I respectfully dissent from the majority’s holding that the district court exceeded its jurisdiction to hear respondent’s exceptions on the technical ground that they were tardily filed.
*307Petitioner G. & M. Properties had not filed a claim or proof of claim in the original proceedings, and apparently the exact situs of petitioner’s land was not known to either the State Engineer or respondents at the time the preliminary determination was made. From the record, it appears this uncertainty resulted in petitioners being awarded a priority to which they were not entitled. Respondents Bailey and Livingston did file timely objections to the preliminary order which, although not directed particularly to petitioners, asserted that no one claiming interest in certain property was entitled to an 1856 or earlier priority.
Bailey and Livingston requested their then attorney to protest all conflicting priorities. However, he did not do so, and withdrew from the case because of conflict of interest. Upon reviewing the record and observing that the State Engineer had erroneously allowed petitioner, G. & M. Properties, a 1856 pri-. ority, respondents and their substituted attorney held a conference on June 26, 1978, with personnel of the State Engineer’s office, and attempted to have the State Engineer correct his error. At that time the State Engineer pointed out no exception to the final order of determination had been filed. The State Engineer declined the request to change his determination at that stage of the proceedings, but agreed that he would not oppose respondents’ appearance at time of trial for the purpose of presenting their argument to the court.
On June 28, 1978, written notice of objections to the final determination was served on the State Engineer. Respondent’s attorney also served a copy on the attorney who he was informed represented G. & M. Properties. The principals of G. & M. Properties were also given notice of respondents’ intent to protest said priority by letter and petitioners, Gordon R. Thompson and Kathleen M. Thompson, were notified by a Deputy Attorney General of said respondents’ intent to protest said priority.
NRS 533.240.1 provides:
In any suit brought in the district court 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.
NRS 533.165 provides for the filing of the State Engineer’s order of determination with the clerk of the district court. NRS 533.160.1 declares that when filed, the order of determination “shall have the effect of a complaint in a civil action.” NRS 533.170.1 provides for the filing of exceptions to the order of *308determination with the clerk of the court and NRS 533.170.2 states that:
The order of determination by the state engineer and the statements or claims of claimants and exceptions made to the order of determination shall constitute the pleadings, and there shall be no other pleadings in the cause.
In addition to having authority to hear and resolve exceptions as provided by NRS 533.170.4, the court may take testimony at the time set for trial even in absence of exceptions, NRS 533.170.3, employ experts to investigate and report on controversies, NRS 533.175, and may refer the case or any part thereof to the State Engineer for further evidence or determination. NRS 533.180.
The Legislature, by enacting NRS 533.170.2, obviously intended that no rights would be overlooked in the adjudication process, and that the district court in effecting a final decree would have available to it all the claims and statements of all claimants, including those who did not file exceptions. It would appear from NRS 533.170.3, NRS 533.170.4 and NRS 533.175 that in affirming or modifying the order of the State Engineer, the district court has the power to entertain any matter previously considered by the State Engineer, as well as the evidence introduced by reason of exceptions to the final order of determination.
If the district court has jurisdiction to evaluate the parties’ rights de novo, I see no reason it should lack the power to allow an exception to be filed late in order to bring the matter before the court, particularly where, as here, the hearing had not yet been conducted and adequate time for discovery was allowed. In such a situation, I can perceive no prejudice or irreparable harm to be suffered by the opposing party.
The majority rely on Carpenter v. District Court, 59 Nev. 42, 73 P.2d 1310 (1937). However, in that case, we prohibited the district court from conducting new trials on an issue not previously raised in any manner by the parties filing exceptions. We noted that a new trial is a re-examination of an issue of fact and the issue to which the ordered new trials were limited had never been examined. In the case at bar, the court did not act beyond the pleadings. The priority issue had been raised before the State Engineer. The court merely extended the time within which respondents were allowed to satisfy the technical requirement of filing exceptions with the court. It should be noted that at the same time, the court did not allow respondents to file exceptions raising new issues.
*309Respondents were party to the proceeding and petitioners concede that, pursuant to NRS 553.240.1, the court had jurisdiction over the parties and subject matter involved. In my view, the equities of this case are analagous to those in State Engineer v. American Nat’l Ins. Co., 88 Nev. 424, 498 P.2d 1329 (1972), and that case should control. I would deny the requested relief.