OPINION Bassett Creek, situate in Spring Valley, White Pine County, Nevada, insofar as the use of its waters is concerned, may be designated as a two-man creek. The ranch nearest the headwaters of said creek is now owned and cultivated by Richard Bate, and adjoining the land of said Richard Bate, to the east, is land owned and cultivated by B.H. Robison. The waters of Bassett Creek have been used by the predecessors in interest of Bate and Robison for many years. The question to be determined on this appeal is whether or not the waters so used by Robison and his predecessors were waste *Page 463 and surplus waters from the cultivated lands of Bate and his predecessors.
On or about the 16th day of December 1938 Robison petitioned the state engineer to determine the relative rights of the various claimants to the use of the waters of Bassett Creek, and on December 24, 1938, the state engineer's office made an investigation of the stream and made a preliminary report, wherein said state engineer recommended that proceedings be initiated to determine said relative rights. Thereafter proofs were submitted by the claimants, and the state engineer filed his preliminary order of determination on October 7, 1940. He found that the waters of Bassett Creek were first beneficially used in the year 1878, by predecessors in interest of claimant Richard Bate, the first diversion being in the SE 1/4 of the NW 1/4 of section 2, township 18 N., range 66 E., by means of a ditch running north from this point of diversion and being used to irrigate the alfalfa and grain fields belonging to Bate. The state engineer further found a waste water ditch on the easterly side of the alfalfa and grain fields now owned by Bate, which was used to capture waste and surplus water, and through which said waste water was conveyed to a channel called Garden Creek, said Garden Creek being a small stream that flows only during the spring months. From the point where the waste water enters Garden Creek it runs easterly and is spread out over the meadow or hay lands in the W 1/2 of the SW 1/4 of section 36, township 19 N., range 66 E. The state engineer further found that from the point of diversion of the North ditch, heretofore mentioned, the main channel of Bassett Creek flows in an easterly direction to the south of the Bate house and orchard, and divides into several parts, through which water reaches the meadow pasture land irrigated by Bate. The state engineer further reported that he failed to find any evidence that the main channel of Bassett Creek ever reached the lands of said B.H. Robison. Robison filed *Page 464 a map in support of his proof, which depicted Bassett Creek entering the SE 1/4 of the SW 1/4 of section 36, township 19 N., range 66 E., in three channels, but the state engineer reported that his field examination failed to disclose any such channels that could be called Bassett Creek, and concluded with the finding that the lands cultivated by B.H. Robison and his predecessors were dependent upon the surplus and waste waters running off the land of Richard Bate, in numerous small channels and by underground seepage.
After an extensive hearing and on August 31, 1941, the state engineer filed a final order of determination, in which he found that claimant Robison had acquired no right in the waters of Bassett Creek. The final order of determination was filed in the Seventh judicial district court.
1. We have set out at length the findings of the state engineer because, as stated by the attorney-general, they "are entitled to great respect as representing the opinion of an expert upon a matter within the range of his special knowledge and experience." In re Barber Creek, 43 Nev. 403, 182 P. 925; Scossa v. Church, 46 Nev. 254, 205 P. 518, 210 P. 563; Deepwater Railway Co. v. Honaker et al., 66 W. Va. 136, 66 S.E. 104, 27 L.R.A., N.S., 388, at p. 394.
Claimant Robison filed exceptions to the final order of determination, and a trial was held. The trial judge viewed the premises and the stream system in question, and thereafter rendered an opinion and decision modifying the order of determination of the state engineer wherein it denied Robison any vested rights. The decree gave Robison the right to irrigate seventy-one acres, with a priority of 1883. Bate was awarded 7.728 cubic feet per second to irrigate his acreage, while Robison was awarded 1.5618 cubic feet per second to irrigate his acreage. This appeal is from the order and decree modifying the final order of determination of the state engineer. *Page 465
At the hearing before the trial court the state engineer's office was represented by counsel for the appellant Bate. The state engineer has taken no appeal, but Attorney-General Alan Bible, as legal advisor of the state engineer, and the Honorable W.T. Methews, Deputy Attorney-General, have been permitted to appear in this court as amici curiae.
We first inquire whether the decree of the court modifying the final order of determination of the state engineer finds legal support in the evidence. The trial court, basing its findings on the evidence taken before it and the view which it had of the premises, became satisfied that at some former time Bassett Creek, after it left the mouth of the canyon, flowed down a channel some distance north of the present channel of said creek, referred to in these proceedings as the old channel; that the water spread out over certain lands of the Bate ranch, then passed over or percolated through said lands and was then collected in a natural channel and flowed along said natural channel through a cut in a natural levee which was found on the Bate land; that the said last-mentioned channel flattened out in the field or meadow belonging to Bate and became all but obliterated there. The trial judge found a swale which indicated to him the probable course of the waters during the earlier years, and also found a living spring, from which spring a well-defined channel runs into and across the Keegan meadows on to the desert land below. The court also found that Bassett Creek, after it emerged from the mouth of the canyon, has been changed from what it once was and has run for approximately sixty years in its present channel south of the orchard and house on the Bate land, through what is known as the Corkscrew ditch. It will be noted that the trial judge perceived certain conditions which did not meet the trained and practiced eye of the engineer.
If the evidence sustains the finding made by the state engineer that the channel running to the south of the *Page 466 Bate house and orchard and down to the Bate land below is the main channel of Bassett Creek and the only water which is conveyed on to the Robison land is through the so-called North ditch, taken from the said channel, and which conveys water used in the irrigation of the alfalfa and other cultivated land of Bate, and flows over said land as the same is being irrigated, seeps through the said land into the waste water ditch, and is then conveyed through said waste water ditch into the so-called channel of Garden Creek, thence upon the Cleveland meadows, where it flattens out after use in irrigating the said meadows and flows over and seeps through the said Cleveland meadows onto the land of Robison, then there is no question but what it is waste water as defined in the case of Gallio v. Ryan, 52 Nev. 330,286 P. 963, and no rights could be initiated by Robison and his predecessors in interest. Binning v. Miller, 55 Wyo. 451,102 P.2d 54.
2. It is admitted by Robison that where one takes water from the ditches or laterals of another he does not obtain a right to control such ditches or laterals as against the owner thereof, nor can he compel the owner to continue the waste of water. "It is just as necessary to the creation and preservation of a water right, to provide means for the continual diversion of the water from its natural channel and for conducting it to the place where it is applied to some beneficial purpose, as it is to apply it to a beneficial purpose." One cannot "arbitrarily seize and use another's ditch, or interest in a ditch, for that purpose." McRae v. Small, 48 Or. 139, 85 P. 503, at page 505; Smithfield West Bench Irr. Co. v. Union Central Life Ins. Co. et al., Utah,142 P.2d 866.
3, 4. In determining the point of whether or not there is substantial evidence to sustain the finding of the trial court as to the probable course of Bassett Creek, we do not feel that it is necessary to resort to conjecture as to what may have been the probable conditions at a time beyond the memory of any person who *Page 467 was able to testify at the hearing. We do have an established condition which has existed for more than sixty years, a condition which was existent at the time Patrick Keegan, a predecessor of claimant Robison, first settled on the land now claimed by Robison. At that time the waters of Bassett Creek were contained in its present channel and ran to the south of the house and orchard now on the Bate land, the water used to irrigate the land now owned by Bate was conveyed thereon by the North ditch, and the water which Keegan, predecessor of Robison, first used flowed over the Bate lands, being used there for irrigation purposes, and seeped through said land, and after such use and such seepage reached the said Keegan land. Keegan accepted the conditions as he then found them, and made no attempt, then or afterwards, nor have any of his successors in interest made any attempt, to make a diversion direct from the channel of Bassett Creek as it then existed and has existed for more than sixty years. No matter what conditions may have anciently prevailed, the fact remains that the old channel has been dry for that length of time, with the possible exception of periods during flood conditions when the banks of the main channel overflowed. Such a condition is not sufficient to justify a requirement that water be permitted to flow in the old channel during the irrigation season. Robison and his predecessors, having acquiesced in the situation as it existed over so long a period of years, cannot be heard at this late date to say that the situation should now be changed and the channel of Bassett Creek diverted so as to conform to some probable condition that may have existed in the distant past, so that a legal means of diversion be provided Robison, a means which has never had any real basis in fact insofar as available evidence is concerned. The testimony of John Yelland, who first became acquainted with the property in 1883 and who has the earliest knowledge of said creek, stands uncontroverted that conditions then were as they are now; that the present *Page 468 channel of Bassett Creek was then its channel and at that time gave evidence of having been its channel for many years theretofore, because of the vegetation that had matured in and around it. There is evidence that during certain periods of the year, during high water, at a point near where Bassett Creek debouches from the canyon, certain water ran into the so-called old channel, and that in order to control it a dam was put in there and has been maintained. When that dam was put in or how long it has been maintained no one was able to say, and just how much water may have run over into the old channel or for what periods of time does not appear. Such indefinite, uncertain evidence certainly cannot be said to establish any right which the state engineer or anyone else could properly administer under the circumstances. Suppose the order of the trial court is allowed to stand and that some time during the irrigation season the amount of water decreed to Robison is not reaching his land, and a demand is made upon the state engineer to make provision for compliance with the decree. Could it be said that the state engineer would have the legal authority to go to the dam near the mouth of the canyon and change it so that the required amount of water would run into the old channel and thence to the westerly side of the Bate fields, where it would be blocked by the embankment of the North ditch? This North ditch, it appears, has been elevated through the low space in this section, hence, in order to permit the water turned into the old channel to continue its uninterrupted flow it would necessitate cutting this North ditch and destroying the means of conveying water onto the northerly portion of the Bate land. But, by way of illustration, let us assume that the state engineer had performed the acts mentioned; he is not yet through; he must then turn the water upon the cultivated fields of Bate, to flood over the same or cut a new channel — this notwithstanding such action might cause destruction of growing crops and render useless certain lands for future *Page 469 cultivation, to say nothing of flooding or cutting new channels in the Cleveland Meadows. To state the situation confronting the state engineer is to demonstrate the impossibility of administering the decree.
5. Claimant Robison, in his brief, states that the question raised here for determination is: Did Pat Keegan, as a matter of law, make an appropriation of the waters of Bassett Creek for use on certain meadow land in 1883? Taking into consideration all of the evidence in this case, we cannot find that he did, but do believe that the water which Pat Keegan and his successors have used for sixty years was waste water, and not the natural waters of Bassett Creek.
6. Claimant Robison further asks: "What difference does it make to Bate if the waters used by Keegan and his successors from 1883 down to the present time were waste or surplus waters which Bate did not use beneficially?" The difference is this: that should the court decree Robison a certain fixed amount of water to be used by him, it would then be compelled to further order that the ditches and lands of Bate be used as channels through which the water be conveyed to the Robison land. This the court has no power to do. To permit the use of the old channel for water to be conveyed to the Robison land, such water would not only cross the Bate fields and meadows by seepage and flooding and not by means of a well-defined or any channel, but the water would also cross cultivated land belonging to Bate, lying to the west of the so-called levee or bench as shown on the Millard map of 1912.
7. There may be surplus water in Bassett Creek. If so, the law provides the method by which it may be appropriated. That method has not been followed. Walsh v. Wallace, 26 Nev. 299, at pages 327, 328, 67 P. 914, 99 Am. St. Rep. 692; sec. 20, Water Law 1913, now sec. 7907, N.C.L. 1929.
Robison asks: "How is it possible as a matter of law for Bate to divert water from the channel of Bassett Creek and run it in such manner as to convert it *Page 470 into waste water, when he is entitled to only 7.728 cubic feet per second, and thus prevent other appropriators from making an appropriation of the balance of the water?" As we view the case, no attempt is being made to prevent appropriators other than Bate from making appropriations. What is being insisted upon is that such appropriators construct proper means of diversion of the surplus water, and not demand the use of facilities constructed and maintained by Bate and his predecessors, which he (Robison) admits has no legal sanction. Again the position of claimant Robison becomes untenable because it is predicated upon the false premise that the so-called "old channel" should be considered the main channel of Bassett Creek.
Claimant Robison has not placed himself in a position such as Justice DUCKER, in his dissenting opinion in the case of Gallio v. Ryan, supra, stated should be allowed to prevail. Robison makes no claim for, nor does he ask permission to take from Bassett Creek, as we find the channel to be, surplus water below the diversion made by Bate, after the amount allowed Bate has been diverted.
8. The evidence in this case, as we view it, leads us to the conclusion that the finding of the state engineer is correct, and that the order of the trial court in awarding to Robison a vested right to certain waters of Bassett Creek finds no substantial support in the evidence. It is therefore ordered that the order of the trial court be reversed and the case remanded with directions that the trial court enter a decree sustaining the findings of the state engineer.
ON PETITION FOR REHEARING May 4, 1945.