render a final decree approving and confirming, pending on local conditions. This circular all of the said proceedings. * * [7] A judgment of the district court in affirming the proceedings of the irrigation district in entering into a contract with the United States to supply water to irrigate lands within the district and to provide for the joint construction of a drainage system is not res judicata, so far as the assessment of benefits to the lands within the district is concerned, and does not preclude statutory proceedings for such assessment. [8] The dominant purpose of our irrigation district law is to facilitate the economical and permanent reclamation of our arid lands, and it must be the constant aim of judicial construction to effectuate that purpose so far as consistent with the whole body of our law. The continued existence of an irrigation district depends upon its ability to furnish water to landowners within the district. The stability and efficiency of the district as a quasi municipal, corporation also depends upon the power to construct proper drainage within its limits. In the absence of either the right to furnish an adequate water supply or to construct an effective drainage system, the very purpose and object of the district would be thwarted, and the growth and development of the state retarded to its serious detriment. The contract in question provides, among other things, that: "The district agrees to distribute the amount of water delivered to it by the United States under this contract in full compliance with the provisions of said Reclamation Act of June 17, 1902, and the rules and regulations thereunder, and to use and distribute the same only upon the lands within the District, and in compliance with the provisions of section 2 of the Act of Congress of February 21, 1911 (36 Stat. at L. 925 [U. S. Comp. St. 1913, § 4739]), known as the Warren Act." Section 5 of the Reclamation Act of June 17, 1902 (U. S. Comp. St. 1913, § 4704), supra, among other things, provides: also restricted the right to the use of water obtained from a government project by any one landowner to 160 acres of irrigable land. The act of Congress of February 21, 1911, known as the Warren Act (36 Stat. at L. 925), in section 2 (section 4739) provides: "That in carrying out the provisions of said reclamation act and acts amendatory thereof_or supplementary thereto, the Secretary of the Interior is authorized, upon such terms as may be agreed upon, to co-operate with irrigation districts, water users' associations, corporations, entrymen or water users for the construction or use of such reservoirs, canals, or ditches as may be advantageously used by the government and irrigation districts, water users' associations, corporations, entrymen or water users for impounding, delivering and carrying water for irrigation purposes: Provided further, that water shall not be furnished from any such reservoir or delivered through any such canal or ditch to any one landowner in excess of an amount sufficient to irrigate one hundred and sixty acres. * The act of Congress passed August 13, 1914, known as the Reclamation Extension Act (section 7), provides: "That the Secretary of the Interior is hereby authorized, in his discretion, to designate and appoint, under such rules and regulations as he may prescribe, the legally organized water any reclamation project, as the fiscal agent of users' association or irrigation district, under the United States to collect the annual payments on the construction charge of the project and the annual charges for operation and maintenance and all penalties. "38 Stat. 688. It will therefore be observed that the act of Congress of February 21, 1911, known as the Warren Act, and the subsequent act of Congress passed August 13, 1914, known as the Reclamation Extension Act, make no provision for residence upon the lands to be irrigated from the waters of a government project. The acts of June 17, 1902, and of that water shall not be furnished from any February 21, 1911, both provide, however, such reservoir or delivered through any such canal or ditch to any one landowner in excess of an amount sufficient to irrigate 160 acres. Consequently any owner of land within a government project or an irrigation district cannot secure the use of water from a govern "No right to the use of water for land in private ownership shall be sold for a tract exceeding one hundred and sixty acres to any one landowner, and no such sale shall be made to any landowner unless he be an actual bona fide resident on such land, or occupant thereof residing in the neighborhood of said land. ***"ment project in excess of an amount sufficient Section 10 of said act (section 4708) provides: "That the Secretary of the Interior is hereby authorized to perform any and all acts and to make such rules and regulations as may be necessary and proper for the purpose of carry; ing the provisions of this act into full force and effect." The Secretary, in order to carry out the purposes of the reclamation act and in pursuance thereof, issued a general reclamation circular during the year 1909, and reissued said circular from time to time, the last being on February 6, 1913. In this circular the Secretary of the Interior fixed a limit of residence in the neighborhood of said land at a maximum of 50 miles, and further provided that this limit of distance may be varied de than that amount of acreage in such district to irrigate 160 acres, whether he owns more or not. The regulations of the Secretary of the Interior, heretofore referred to, contain the following provision: "Holders of more than 160 acres of irrigable land within a reclamation project must sell or dispose of all in excess of that area before they can receive water." The contract proposed to be entered into between the United States and the Nampa & Meridian irrigation district, as before stated, provides that the district will distribute the water to the purchasers of water rights under the acts of Congress and the regulations of the Secretary of the Interior, supra. This provision of the contract is strenuously title to lands in excess of 160 acres receives no benefits, or that his benefits would be limited to only 160 acres or less of land, the objection so strenuously urged against this provision of the contract would be untenable. That being true, it necessarily follows that the objections raised at this time to the authority of the irrigation district to enter into the contract with the government by reason of the fact that possibly a serious injustice may be done to landowners within the district who own lands in excess of 160 acres before the assessment of benefits have been made cannot be considered in this proceeding. There are other objections than those we have discussed urged by counsel for appellants in opposition to the contract sought to protested against by appellants for the reason, as they contend, that a landowner within the district who owns land in excess of 160 acres would be forced to dispose of all the lands he possesses in excess of 160 acres, or suffer the consequences of being taxed for all his lands, yet be denied water for the same in excess of 160 acres. The restriction under the above regulation is to the use of the water. The landowner who has land in excess of 160 acres may permit the whole thereof to be assessed with a government water right, rather than insist that only 160 acres be so assessed, as, although he might be able to secure only enough water to irrigate 160 acres for his own use, the balance of his land would be provided with a permanent water right which he might dispose of within a reasonable time; or, | be entered into between the Nampa & Meridupon the apportionment of benefits, it may be determined that none of his land would be liable to assessment of benefits for a water right, or that no greater portion of his land than 160 acres would be susceptible of irrigation and to the assessment of benefits. [9] There can be no doubt that Congress has the power to restrict the right to the use of water furnished from government projects to 160 acres standing in the name of an individual, but we do not think that body would assume the authority to control the benefits which might be assessed to lands within an irrigation district organized under the laws of this state. ian irrigation district and the United States. However, although we have carefully considered each and every objection urged, we find that many of them are immaterial so far as this case is concerned, and are not properly before us for determination at this time. This case was tried in the district court upon the theory that this was a special proceeding brought for the express purpose of having the proceedings authorizing the Nampa & Meridian irrigation district to enter into the contract under consideration examined, approved, and confirmed by the district court. Counsel for appellants have taken the position, and we think erroneously, that this action was brought not only for that purpose, but also for the purpose of the apportionment of benefits under section 2399, Rev. Codes; and in order to raise this question they alleged in their answer affirmative matters involving it which were wholly immaterial and which should have been The cross-comstricken from the answer. plaint and the answer to the cross-complaint were likewise immaterial, and were subsame motion. ject to the The district court did not find upon any of these matters, for the reason that they were immaterial in this proceeding. We think that this conclusion reached by the trial court was correct. The judgment of the lower court is affirm The United States, through the reclamation service, has at a great expense constructed the Boise project, whereby it acquired for sale and distribution ample water for the proper irrigation of the lands under said project, as well as a surplus sufficient in amount to properly irrigate the arid lands and supplement the now inadequate supply of water within the Nampa & Meridian irrigation district, and has offered to the irrigation district the right to the use of said surplus water under the stipulations contained in the proposed contract. Having the authority under the law to dispose of the right to the use of water thus acquired, it is in a position to fix the terms and conditions of its use, subject to the power of the court to assess benefits within the district. Weed. Costs are awarded to respondent. are, however, aware of no valid reason why we should anticipate the final action of the district court in assessing the benefits to landowners within the irrigation district who own land in excess of 160 acres. To do so would, in effect, require the district court in this proceeding to definitely fix the benefits to be assessed at a stipulated sum, and thus deprive each owner of the land within the district of the right which he has under the statutes of this state to prove that his particular lands would not be benefited by reason of the application of water under the contract. Should the district court reach and which is thus stated at the commence SULLIVAN, C. J., concurs. MORGAN, J. (concurring specially). While I am in accord with the conclusion reached by the majority of the court, I am not in accord with this doctrine announced in the opinion: the power to restrict the right to the use of wa"There can be no doubt that Congress has ter furnished from government projects to 160 acres standing in the name of an individual * ་ By an act of Congress known as the "Idaho Admission Bill," approved July 3, 1890 (c. 656, 26 Stat. 215), this state was admitted to the Union. The preamble to that act is as follows: "Whereas, the people of the territory of Idaho did, on the 4th day of July, 1889, by a convention of delegates called and assembled for that purpose, form for themselves a Constitution, which Constitution was ratified and adopted by the people of said territory at an election held therefor on the first Tuesday in November, 1889, which Constitution is republican in form, and is in conformity with the Constitution of the United States; and, "Whereas, said convention and the people of said territory have asked the admission of said territory into the Union of States on an equal footing with the original states in all respects whatever: Therefore, "Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, that the state of Idaho is hereby declared to be a state of the United States of America, and is hereby declared admitted into the Union on an equal footing with the original States in all respects whatever; and that the Constitution which the people of Idaho have formed for themselves be, and the same is hereby, accepted, ratified and confirmed." Rev. Codes Idaho, vol. 1, p. 53. It will be observed that the Constitution of the state of Idaho, which had theretofore been adopted by the people of the territory, was by Congress expressly accepted, ratified, and confirmed. Section 1, art. 15, of that Constitution is as follows: "The use of all waters now appropriated, or that may hereafter be appropriated for sale, rental or distribution; also of all water original ly appropriated for private use, but which after such appropriation has heretofore been, or may hereafter be sold, rented, or distributed, is hereby declared to be a public use, and subject to the regulation and control of the state in the manner prescribed by law." There is no room for question that it was the intention of the people of Idaho in framing and adopting the Constitution, and of Congress in accepting, ratifying, and confirming it, that the sale, rental, and distribution of all the waters within the state theretofore appropriated, or thereafter to be appropriated, should be and remain subject to the regulation and control of the state, and not subject to the regulation or control of the United States. This question appears to have been prematurely raised in this proceeding, and was not properly before the district court, nor is it properly before this court for decision. My concurrence in the conclusion reached by the majority of the court with respect to this point is therefore based upon the view expressed in the following portion of the opinion: "We are, however, aware of no valid reason why we should anticipate the final action of the district court in assessing the benefits to land Owners within the irrigation district who own land in excess of 160 acres." (39 Nev. 105) PACIFIC LIVE STOCK CO. v. MASON VALLEY MINES CO. (No. 2176.) (Supreme Court of Nevada. Dec. 11, 1915.) APPEAL AND ERROR 781-"Mooт Case”— DISMISSAL. Where, pending appeal from judgment sustaining demurrer to the complaint in an action to enjoin a nuisance, defendant built its plant and operated it for three years, without any perceptible harm to plaintiff's lands, the appeal would be dismissed as embodying a "moot case," one seeking to determine an abstract question which does not rest upon existing facts or rights, since the cause of action of plaintiff's complaint, if any was alleged, was based upon a threatened injury to its lands from proposed action which did not in fact follow such action. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 63-80, 3122; Dec. Dig. 781. For other definitions, see Words and Phrases, First and Second Series, Moot Case.] Appeal from District Court, Lyon County; T. C. Hart, Judge. Action by the Pacific Live Stock Company against the Mason Valley Mines Company. Judgment for defendant, and plaintiff appeals. Appeal dismissed. Edward F. Treadwell, of San Francisco, Cal., for appellant. Brown & Belford, of Reno, for respondent. NORCROSS, C. J. This is an appeal from a judgment following an order sustaining a demurrer to plaintiff's complaint. The complaint is in the form of a bill in equity to enjoin an alleged threatened injury to plaintiff's agricultural land by poisonous fumes, which it is alleged will be discharged from defendant's smelter. The demurrer was general, and upon the grounds that the complaint "does not state facts sufficient to constitute a cause of action" or "to entitle the plaintiff to the injunctive relief prayed for." The complaint, after alleging that plaintiff and defendant are corporations, the former organized under the laws of California, and the latter under the laws of Maine, and that plaintiff is the owner of a certain tract of agricultural and grazing land comprising about 20,000 acres and situate in Mason Valley and embraced within townships 13, 14, and 15 north, range 25 east, and sections 14 and 15 north, range 26 east, proceeds to allege in substance as follows: The ownership by the defendant of certain other tracts of land in township 15 north, range 25 east, therein described, upon which it is building, and threatening to build, a smelter for the treatment of copper and other ores from the various mining centers of Nevada, including Tonopah, Goldfield, and Mason, and that upon the completion of the smelter it will be operated to smelt such ores as may be brought to it for that purpose. That the operation of the smelter will result in discharging into the atmosphere fumes contain ing sulphur dioxide and arsenious acid and For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes contends that the judge's decision went too far in holding that there could be any liabil ity for damage upon the part of defendant smelter company in the absence of negligence, no matter what injury it caused. The contention of counsel for defendant is substantially correctly stated in appellant's opening brief as follows: "First. That in the state of Nevada mining and smelting have been declared a public use. and the paramount interest of the state, and the right to condemn private property under the process of eminent domain, has been granted in respect thereto. other noxious gases and substances, which by the atmosphere will be carried to the property of the plaintiff, .and by settling thereon will cause the vegetation to be damaged and destroyed. That the smelter is within three miles of a portion of the lands of the plaintiff and that the fumes will be carried 15 to 20 miles from the smelter and by reason of the destruction of vegetation will destroy the usefulness and value of the plaintiff's lands. That the defendant knows: (a) the character of the fumes to be discharged from its smelter; (b) that other smelters similarly constructed have killed "Second. That such a smelter may therefore be established in the midst of the most highly dethe vegetation surrounding them for a dis-veloped agricultural section of the state, and tance of from 15 to 20 miles; (c) that a there discharge in unlimited quantities sulphur smelter so constructed and at such a place dioxide and arsenious acids upon the adjacent will discharge poisonous substance upon the cultural products thereon, and for such destruclands, entirely destroying the same and all agriplaintiff's lands and destroy their vegetation, tion the owner has no redress, either by way of to the great and inestimable damage of the damages or by way of injunction." plaintiff and of its lands. That the damage caused by the defendant by reason of the matters and things alleged in the bill of complaint will exceed the sum of $200,000, and that plaintiff has no plain, speedy, or adequate remedy at law. Plaintiff then prays for the issuance of an injunction to restrain the defendant from carrying on or operating its smelter or from smelting ores therein or proceeding with the work of the construction thereof; that said smelter and its operation be adjudged to be a nuisance to plaintiff's lands and that the operation thereof may be forever enjoined and restrained. There is also incorporated in the bill of complaint a prayer for an injunction pendente lite to restrain the further construction of the smelter. The complaint was filed December 13, 1911, and the demurrer December 23, 1911. The order sustaining the demurrer was filed January 2, 1915. From the opinion of the trial judge, embodied in the transcript on appeal, we quote the following excerpt as expressing the views of the judge of the court below upon the law of the case: "It does seem to me therefore that before the complaint in this action can be held to be good, allegations of damage having occurred-not problematical damage-must be averred. Undoubtedly defendant corporation would be liable to plaintiff if it, defendant, created a nuisance which injured plaintiff's property. But this condition does not exist here. That which the law authorizes is not a nuisance, and the complaint here does not in any wise charge, either that the plaintiff has been injured at all, nor that defendant has committed any trespass or caused any injury." The briefs of counsel, both for appellant and respondent, disclose legal contentions in variance with the views expressed by the learned trial judge. It is the contention of counsel for appellant that the court below did not go far enough, and should have held that allegations of threatened injury were sufficient to constitute a cause of action and to entitle plaintiff to equitable relief by It thus appears that this court is asked to decide a question of law of the greatest importance, not only to the parties to this controversy, but to the entire people of this state. The two leading industries of the state-agriculture and stock-raising on the one hand and the mining industry upon the other-are tremendously interested in the sustaining of either of the legal contentions presented. If the contention of counsel for appellant is determined to be the law, owners of agricultural land which might be injured by poisonous fumes and gases emitted from a smelter may enjoin the threatened operation of a smelter in absence of the smelter company condemning the land alleged to be affected and paying to the owners the value thereof. Upon the other hand, if the contention of counsel for respondent is sustained in its entirety, a smelter may be placed anywhere that will best suit the convenience of its owners, and its fumes may completely destroy the richest agricultural section of the state, and there is no remedy for persons thus injured either by injunction or by way of damages for loss sustained. Commenting at length upon the importance of the legal questions presented upon the face of the record, counsel for respondent, in part, says: "The relief sought by the plaintiff will, at once, invoke the most earnest attention of the court because the importance of its granting, or refusal, is fraught with consequences whose far-reaching effect it is impossible to exaggerate. If the defendant were alone involved, or if the results of the decision in this case were to be confined to its immediate parties, we might approach the solution of the questions to be determined with a feeling of confidence, untempered by considerations of the great public interests actually affected. The vision of the court, however, must extend beyond the lands and smelters which are here in question, to those other lands and smelters which may be found to lie at the very foundation of the prosperity of a great people. The litigation embraces, not only the immense holdings of Miller and Lux and the mines and smelters of Mason Valley, but its ramifications include the principles which may hereafter be found to govern and control the in no such preventive suit can be maintained? If quite as much pleased as defendant, but we do no damages have or shall accrue, we shall be object to a judgment based on the ground that a suit to prevent an injury will not lie, and sought to be supported by the argument that, quential' and damnum absque injuria.” even if the damage did occur, it would be 'conse Ought this court to determine questions of | tain a judgment based on the proposition that the importance above indicated unless there is presented to the court a controversy between the parties, based upon facts actually existing or alleged to exist? This and other courts have frequently refused to determine questions presented in purely moot cases. Cases presenting real controversies at the time of their institution may become moot by the happening of subsequent events. Wedekind v. Bell, 26 Nev. 395, 69 Pac. 612, 99 Am. St. Rep. 704. "A moot case is one which seeks to determine an abstract question which does not rest upon existing facts or rights." Adams v. Union R. Co., 21 R. I. 134, 140, 42 Atl. 515, 44 L. R. A. 273. See, also, Duggan v. City of Emporia, 84 Kan. 429, 114 Pac. 235, 239, Ann. Cas. 1912A, 719; State v. Dolley, 82 Kan. 533, 108 Pac. 846; Ex parte Steele (D. C.) 162 Fed. 694, 701; 27 Cyc. 911. We think there is nothing before the court at the present time but a moot case. The complaint in question was filed at the time of or prior to the construction of respondent's smelter. The cause of action, if any was alleged (the controversy sought to be determined) was based upon a threatened injury to plaintiff's lands. Between the time of the institution of the suit and the decision upon the demurrer, the smelter had been completed and had been in actual operation for a period of nearly three years. According to the briefs of respective counsel, and it was so conceded during the oral argument of the case in this court, it was admitted in the court below, and has been so admitted in this court, that the actual operation of the smelter has occasioned no damage whatever to appellant. From the brief of counsel for respondent we quote: "At the time the demurrer was sustained, the smelter had been in operation nearly three years. If any damage resulted from its operation, counsel had a golden opportunity to point out, in an amended complaint, just what damage the smelter had inflicted upon his land. He then had a splendid chance to allege what had occurred, instead of what would occur; a chance to show the actual effect of the smelter's operations upon the land in question by actual results. In short, he was then in a position to allege facts which might constitute a cause of action, if he had one, instead of relying upon the choice collection of vague prophecies, recitals, and conclusions which are now before the court. But, in spite of actual experience, reinforced by definite knowledge of what the smelter had actually done, by its operations, which would show what damage, if any existed, counsel refused to amend or to set up a real cause of action, if he had one, but stood on his original complaint as to what would occur, but which evidently has not occurred." Counsel for appellant in his reply brief To constitute a real controversy requires something more substantial than a mere objection to a judgment because based on the ground that a suit to prevent an injury will not lie, or that the judgment is sought to be supported by an argument of opposing counsel which counsel for appellant deems fallacious. The mere fact that the court below held, whether rightly or erroneously, that to constitute a cause of action there must be an allegation of existing damage does not present a question affecting any existing rights of appellant, when it is conceded that the smelter is now a reality and has been in actual operation for a period of nearly three years without occasioning any damage whatever. It is conceded that plaintiff cannot establish the allegations of the complaint; that the allegations of threatened injury are completely overcome by the actual subsequent development of the real facts. Counsel for appellant, in effect, says that the defendant company may have so operated their smelter as not to produce the damaging fumes, by not smelting ores which would occasion them, and that this result may have been brought about by the bringing of this action. Counsel for appellant also expresses the hope that no injury will result in the future, and that this great industry may continue to develop the country without damage to his client's interests. This presents no argument why the court should speculate upon what may develop as a result of future operations in the fact of the admission that past operations have occasioned no injury. It may be that actual conditions may never arise requiring this court to apply the law to facts such as are alleged in this complaint. It is devoutly to be hoped that they never will. It will be time enough, however, to determine such a momentous question when an actual controversy arises between the parties to the present suit or other parties. We are unable to see where appellant could forfeit any right of action which might subsequently accrue by reason of a dismissal of the present appeal for want of an actual controversy. Counsel has cited cases in support of the view that if a landowner stands by and permits a smelter to operate for a long number of years without objection and without bringing suit, he loses his right to "Counsel twits us with not amending our com Whatplaint by alleging damages since the commencelater enjoin the operation thereof. ment of the action. Would it not be more rea- ever, if anything, there may be in this view, sonable for the court to infer that none had it could have no application to appellant, for occurred, and if the filing of this suit has pre- the appellant company instituted its suit vented the anticipated damage it has accomplish- promptly, and cannot be subject to a charge ed for the time all it was designed to accomplish, and why should defendant seek to main- of laches unless such charge of laches was says: 153 P.-28 |