Summary
The Nevada Supreme Court held that extended nonuse of a vested underground water right, without additional evidence, does not establish clear and convincing evidence of intent to abandon the right. The court affirmed the district court’s reversal of the State Engineer’s abandonment finding because the State Engineer improperly presumed abandonment from nonuse alone. The court also declined to reach or rejected the State Engineer’s remaining procedural challenges.
Topics
Practice areas
Questions Presented
- Whether extended nonuse of an underground-water right, without additional evidence, establishes the prior owner's intent to abandon the right.
- Whether the State Engineer's abandonment finding was supported by clear and convincing evidence and substantial evidence.
- Whether the district court's order directing the State Engineer to grant the temporary change-of-diversion application presented a justiciable issue after the application expired.
- Whether the State Engineer preserved its challenge to the district court's expansion of the judicial-review record.
- Whether the district court violated NRCP 52 by adopting an order drafted by the prevailing party.
Holdings
- Extended nonuse of a water right does not, by itself, establish clear and convincing evidence that the owner intended to abandon the right.
- When a prior owner has taken actions consistent with abandonment, the prior owner's intent controls whether the water right was abandoned; a subsequent owner's efforts cannot revive a right already abandoned.
- The State Engineer's abandonment finding was unsupported by substantial evidence because it rested on nonuse evidence alone and lacked clear and convincing evidence of intent to abandon.
- The State Engineer's challenge to the district court's order directing it to grant the temporary application was moot because the application expired on June 10, 2017.
- The challenge was not properly before the Supreme Court because the State Engineer failed to timely preserve it in the district court.
- The district court did not violate NRCP 52 by adopting an order drafted by St. Clair after holding a hearing on the State Engineer's objections.
Key quotations
“Nevada law does not presume abandonment of a water right from nonuse alone.” (317)
“An extended period of nonuse of water does not in itself establish clear and convincing evidence that a property owner intended to abandon a water right connected to the property.” (318)
Factual background
Rodney St. Clair purchased Humboldt County property in 2013 and discovered remnants of a well. Historical documents showed that the property’s original owner, George Crossley, had applied for a land patent in 1924 and reported a drilled well, but the well was inoperable by 2013 and the land had not been irrigated for an unknown period. The State Engineer found a pre-1939 vested water right but concluded that a subsequent owner had abandoned it through nonuse. The district court found insufficient evidence of intent to abandon because the property had no improvements inconsistent with irrigation and property taxes had been continuously paid.
Procedural history
Rodney St. Clair purchased Humboldt County property containing remnants of an abandoned well and applied to the State Engineer for proof of a pre-1939 vested underground-water right and a temporary change in the place of diversion. The State Engineer found that a prior owner had appropriated the water but that the right was later abandoned through years of nonuse. On judicial review, the district court held that nonuse alone did not establish intent to abandon, overruled the State Engineer's decision, and ordered the permit granted. The State Engineer appealed, and the Nevada Supreme Court affirmed.