Itcaina v. Marble , 56 Nev. 420 ( 1936 )

On this appeal we are not permitted to base a decision upon our own independent ideas of what would be most just and equitable in view of the facts and circumstances disclosed by the record. We are confronted with and bound by certain statutory enactments, particularly the water law of March 22, 1913, as amended, sections 7890-7978 N.C.L., the livestock watering law of April 1, 1925, Laws 1925, c. 201, sections 7979-7985 N.C.L., and the public lands grazing act of March 30, 1931, Laws 1931, c. 226, sections 5581 to 5581.06 N.C.L. This court has heretofore decided that the first two of the above-mentioned acts are constitutional. The constitutionality of the grazing act of 1931 as a whole is not attacked on this appeal, though appellant does contend that the legislature was without power to authorize any court to issue an injunction as provided in section 4 of said act (section 5581.03 N.C.L.). We are clearly of the opinion that this contention is not sound.

I agree with appellant that the trial court was not authorized to divide the range or create a right of way. As I view the 1931 act, one either has or has not an established customary use for grazing livestock on public lands, exclusively or in common. If at the time this suit was instituted defendant had established a customary use in common for the grazing of his sheep on the public lands described in the complaint, the trial court could not deprive him of or make any change or modification in such customary use, either as to the areas involved or the extent and character of his use. In other words, if defendant had established such a use, he was entitled to be fully protected therein, both as respects its nature and extent. I do not say whether it would have been wiser for the legislature to provide, as in Colorado, that the courts may divide the range, or, as in Idaho, that "the priority of possessory right between cattle and sheep owners to any range, is determined by the priority in the usual and customary use of such range, either as a cattle or sheep range" (Code Idaho 1932, sec. 24-1607); but, as our legislature has not seen fit to include such provisions in any of our statutes, it is my opinion that trial courts cannot, under the provisions of the 1931 grazing act, divide the range or provide rights of way on any theory of economic use, priority in use, or on any general theory of public welfare.

If, however, at the time this action was commenced, defendant had not, within the meaning of the act of 1931, established himself as a customary user, the action of the trial court in dividing the range and providing a right of way, though erroneous, was not prejudicial to defendant, and therefore not ground for reversal.

Whether defendant was an established customary user depends, among other things, upon whether his use was peaceable. I have found the following authorities to be of some assistance in construing the meaning of the word "peaceable," as used in the first section of the 1931 grazing act: Hazas v. State, 25 Ariz. 453,219 P. 229, at page 231; Lawson on Usages and Customs, sec. 31; Clarke's Browne on Usages and Customs, sec. 20; 27 R.C.L. sec. 3; 17 C.J. sec. 32. And see Union Mill Min. Co. v. Dangberg, 2 Sawy. 450, 24 Fed. Cas., p. 590, No. 14370. As the textbooks above cited are not in many private or county law libraries, I quote the following sentences from Lawson, loc. cit.: "A custom must have been peaceable, and acquiesced in, and not disputed at law or otherwise; for customs owe their origin to common consent, and this cannot be intended in disputed cases. If it has been the subject of contention and dispute it has not recommended itself as expedient to all, and the fact that it has proved a convenience to some, is counteracted by the fact that it has also proved an inconvenience to many. But the non-consent of these is as powerful as the consent of those; and as customs, to be valid, owe their efficacy to common consent, the fact that they have been immemorially disputed proves that universal consent was wanting. * * *" Section 20 of Clarke's Browne, above cited, reads the same as the second and third sentences just quoted from Lawson, and for that reason need not be set forth here. Some of the testimony of plaintiff's witnesses, James Russell, William Murdock, William H. Woody, and William B. Wright, and defendant's witnesses, R.W. Anderson, Pete Chevalier, and Pete Olabarria, convinces this court that the trial court was clearly wrong in impliedly finding that defendant's use of the range in question was "peaceable" within the meaning of that word as used in section 1 of the 1931 grazing act (section 5581 N.C.L.).

The bearing of the general water law of 1913 upon the question of the respective water rights of the parties, and the operation of the livestock watering law of 1925 as protecting plaintiff in his range and water rights in the Hanks creek basin, are discussed in the opinions of my associates.