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Salmon River Canal Co., Ltd. v. Bell Brand Ranches, Inc.

Citation: 8 ELR 20067
No. No. 75-2462, 564 F.2d 1244/(9th Cir., 11/21/1977)

Reversing the district court's granting of defendants' motion for summary judgment, the Ninth Circuit remands a suit brought to enforce a 1953 judgment which had allocated the rights to the waters of the Salmon River. Although the 1953 judgment had declared the river and its tributaries fully appropriated, the State Engineer subsequently granted defendants' application to pump water from a proposed nearby well, and plaintiff sued to enjoin such use. It was error for the district court to construe the State Engineer's action as a conclusive finding that water from the well in question was not tributary to the Salmon River; such findings are for administrative use only and shall not be given conclusive effect in court absent the presentation of sufficient proof. Under Nevada law, the granting of such a permit cannot create rights superior to existing judicially approved rights on the source. The permit establishes only a public record of a claimed right and will not be read to upset prior judicial determinations.

Counsel for Plaintiff-Apellant
Lloyd L. Webb
Webb, Burton, Carlson & Pedersen
P.O. Box 33, Twin Falls ID 83301
(208) 738-4450

C. James Georgeson
Wait, Shamberger, Georgeson & McQuaid
P.O. Box 719, Reno NV 89504
(702) 329-9291

Counsel for Defendants-Appellees
Milton Manoukian
Manoukian, Scarpellow & Alling Ltd.
303 E. Proctor, Carson City NV 89701
(702) 322-4081

Irwin Aarons
Reed & Bowen
290 S. Arlington Ave., Reno NV 89501
(702) 322-4081

Robert List, Attorney General
Supreme Court Bldg., Carson City NV 89201
(702) 885-4170

John C. Miller
530 Idaho St., Elko NV 89801
(702) 738-4031

Before KILKENNY and ANDERSON, Circuit Judges, and SCHWARZER,* District Judge.