                                                     132 Nev., Advance Opinion 25
                         IN THE SUPREME COURT OF THE STATE OF NEVADA


                JERALD R JACKSON, TRUSTEE OF                        No. 67289
                THE JERALD R. JACKSON 1975
                TRUST, AS AMENDED; AND IRENE M.
                WINDHOLZ, TRUSTEE OF THE IRENE                           FILE
                M. WINDHOLZ TRUST DATED
                AUGUST 11, 1992,                                          APR 0 7 2016
                Appellants,                                                    E K. LINDEMAN
                                                                      DLO* 4:IFADWFVEMEC ID1
                vs.
                EDWARD H. GROENENDYKE,
                TRUSTEE OF THE GROENENDYKE
                FAMILY TRUST; AND THE NEVADA
                STATE ENGINEER,
                Respondents.



                            Appeal from a district court decree determining vested water
                rights. Ninth Judicial District Court, Douglas County; David R. Gamble,
                Judge.
                            Affirmed.


                Woodburn and Wedge and Gordon H. DePaoli, Reno,
                for Appellants.

                Adam Paul Laxalt, Attorney General, and Bryan L. Stockton, Senior
                Deputy Attorney General, Carson City,
                for Respondent the Nevada State Engineer.

                Kaempfer Crowell and Severin A. Carlson and Tara C. Zimmerman, Reno,
                for Respondent Edward H. Groenendyke, Trustee of the Groenendyke
                Family Trust.




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                 BEFORE DOUGLAS, CHERRY and GIBBONS, JJ.

                                                   OPINION

                 By the Court, CHERRY, J.:
                             The parties disputed who had rights to certain spring waters
                 and the State Engineer adjudicated those rights, entering a final order of
                 determination under NRS 533.160. The matter was then set for a hearing
                 in district court as required by NRS 533.170. NRS 533.170 allows a party
                 aggrieved or dissatisfied by the State Engineer's final determination to file
                 a notice of exceptions in district court, setting forth the exceptions taken to
                 that determination and the relief sought. In this appeal, we consider
                 whether a party who timely files exceptions may later supplement those
                 exceptions to include property access claims arising from its water rights.
                 We hold that a party may so supplement. NRS 533.170(5) provides that
                 proceedings on exceptions to the State Engineer's order of determination
                 shall be held in accordance with the Nevada Rules of Civil Procedure, and
                 those rules allow amended pleadings. Thus, the district court properly
                 considered the notice of supplemental exceptions in affirming the State
                 Engineer's order of determination, as modified, including respondent
                 Edward H. Groenendyke's supplemental request that the district court's
                 judgment and decree confirm Groenendyke's right of access to certain
                 property for purposes of repairing and maintaining the facilities necessary
                 to convey water, the rights to which were adjudicated in his favor by the
                 State Engineer. Additionally, although Jackson challenges the district
                 court's determination that the Green Acres properties had a vested water
                 right to the waters from Spring A, we conclude that its findings were
                 supported by substantial evidence in the record. We therefore affirm the
                 district court's judgment and decree.
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                                       FACTS AND PROCEDURAL HISTORY
                                  The rights implicated in this appeal pertain to water from an
                      unnamed spring known as "Spring A." Spring A originates in California,
                      but its water flows into Douglas County, Nevada. Spring A has been
                      improved with pipes leading water south and east into Nevada with a
                      valve that allows the water to either travel south towards Jerald Jackson
                      and Irene Windholz's (collectively Jackson's) property and eventually to
                      Edward Groenendyke's property, or east towards a set of properties known
                      as the Green Acres properties.
                                  Arising from a water determination action that dates back to
                      1987, the State Engineer issued a final order of determination of water
                      rights in 2008. The parties affected were then allowed to file exceptions to
                      the State Engineer's final order. Both Jackson and Groenendyke filed
                      exceptions. Due to the sheer number of claims in this final order, the
                      portion involving the Spring A water was not heard in the district court
                      until November 30, 2012.
                                  With no direct evidence regarding who installed the pipes to
                      convey Spring A's water or when the installation took place, the district
                      court observed aerial photography and geological maps. The court also
                      heard testimony from the State Engineer's expert and Jackson's expert
                      before concluding that the properties to the south (Jackson's and
                      Groenendyke's properties) and the east (Green Acres) each had vested
                      rights to the water from Spring A.
                                  In September 2012, Groenendyke filed a supplement to his
                      earlier filed exceptions. In that supplement, Groenendyke moved the
                      district court to allow him access to Jackson's property for the limited
                      purpose of repair and maintenance of facilities on the waterway because

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                 Jackson's land was upstream from his own. Although the issue of land
                 access was not part of the State Engineer's final order, or either party's
                 original exceptions, the district court granted Groenendyke's request.
                                                DISCUSSION
                             On appeal, Jackson argues that (1) the district court was
                 without jurisdiction to grant Groenendyke access to Jackson's property to
                 maintain and repair the pipeline; (2) if so, Groenendyke's request for
                 access to the property was untimely; and (3) the district court erred in
                 finding that the Green Acres properties had a vested right to the Spring A
                 water. We disagree. Pursuant to the Nevada Rules of Civil Procedure, a
                 district court may allow a party to add a later claim when that later claim
                 arises out of the same transaction or occurrence as the existing action.
                 Because Groenendyke's supplemental exception, in which he asked the
                 district court to order that he be allowed access to the pipeline located on
                 Jackson's property, arises from the same dispute adjudicated by the State
                 Engineer in its final order of determination, the district court had
                 jurisdiction to consider Groenendyke's supplemental exception. Further,
                 the district court's findings regarding Green Acres' vested water rights
                 were not clearly erroneous, and they were based on substantial evidence.
                 Standard of review
                             In a water rights case, the district court must make its own
                 findings and draw its own conclusions in an appeal of the State Engineer's
                 final order. Scossa v. Church, 43 Nev. 407, 410, 187   P. 1004, 1005 (1920);
                 see also NRS 533.170; NRS 533.185. Appeals from the decree of the
                 district court are taken to this court "in the same manner and with the
                 same effect as in civil cases." NRS 533.200.
                             This court reviews a district court's factual findings for an
                 abuse of discretion and will not set aside those findings unless they are
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                clearly erroneous or not supported by substantial evidence.          Sowers v.
                Forest Hills Subdivision, 129 Nev., Adv. Op. 9, 294 P.3d 427, 432 (2013).
                Substantial evidence is evidence that a "reasonable mind might accept as
                adequate to support a conclusion."      Mason-McDuffie Real Estate, Inc. v.
                Villa Fiore Dev., LLC, 130 Nev., Adv. Op. 83, 335 P.3d 211, 214 (2014)
                (internal quotations omitted). This court accords "deference to the point of
                view of the trial judge since he had the opportunity to weigh evidence and
                evaluate the credibility of witnesses—an opportunity foreclosed to this
                court." Harris v. Zee, 87 Nev. 309, 311, 486 P.2d 490, 491-92 (1971).
                            When reviewing questions of law, however, including issues of
                statutory interpretation, this court applies de novo review.     State, Dep't of
                Motor Vehicles v. Taylor-Caldwell, 126 Nev. 132, 134, 229 P.3d 471, 472
                (2010).
                Groenendyke's access to Jackson's land
                            Jackson argues that whether one party in a water rights
                dispute may enter onto another party's property to exercise vested water
                rights is not appropriate for adjudication under NRS Chapter 533.'
                Jackson argues that NRS 533.090-.200 do not expressly provide
                jurisdiction to adjudicate land entry claims. However, nothing in Chapter


                       'Jackson also argues, for the first time in his reply brief, that even if
                the district court could grant land access, Groenendyke should have
                sought this relief in his initial exceptions to the State Engineer's final
                order rather than seeking to file a supplement to his exceptions after the
                deadline had passed. Because Jackson failed to raise this claim until his
                reply brief in this court, it is waived. Francis v. Wynn Las Vegas, LLC,
                127 Nev. 657, 671 n.7, 262 P.3d 705, 715 n.7 (2011); see also Carrigan v.
                Comm'n on Ethics, 129 Nev., Adv. Op. 95, 313 P.3d 880, 887 n.6 (2013)
                ("Arguments not raised. . . in district court normally cannot be raised for
                the first time on appeal.").

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                533 prevents a court of general jurisdiction, such as a district court, from
                hearing related claims. Further, because NRS 533.170(5) requires that
                these proceedings accord as much as possible with the Nevada Rules of
                Civil Procedure, and those rules allow a district court to hear related
                claims arising out of the same transaction or occurrence, we conclude that
                a district court in a water rights action may hear directly related claims,
                so long as those claims arise out of the same transaction or occurrence.
                            NRS 533.170 sets procedures for filing exceptions to the State
                Engineer's final order of determination. NRS 533.170(5) provides that
                district court proceedings on the State Engineer's final order of
                determination shall be held in accordance with the Nevada Rules of Civil
                Procedure to the extent possible. The rules of civil procedure allow parties
                to amend their prior pleadings. NRCP 15(a). Amended pleadings arising
                out of the same transaction or occurrence set forth in the original
                pleadings may relate back to the date of the original filing. NRCP 15(c).
                "NRCP 15(c) is to be liberally construed to allow relation back of the
                amended pleading where the opposing party will be put to no
                disadvantage."   Costello v. Casler, 127 Nev. 436, 441, 254 P.3d 631, 634
                (2011). When the original pleadings give "fair notice of the fact situation"
                giving rise to the new claim, it relates back.   Nelson v. City of Las Vegas,
                99 Nev. 548, 556, 665 P.2d 1141, 1146 (1983). Where there is no statutory
                authority preventing a district court from hearing related claims, the rules
                of civil procedure are intended to allow the court to reach the merits of
                claims, rather than dispose of claims on "technical niceties." Costello, 127
                Nev. at 441, 254 P.3d at 634. Thus, we conclude that NRS 533.170 allows
                additional related claims because amended pleadings accord with the
                Nevada Rules of Civil Procedure. So long as the new claim arises out of

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                 the same facts and circumstances of the original action, namely the
                 determination of water rights, the district court has jurisdiction to
                 consider those claims.
                             Groenendyke timely filed his exceptions. Although the
                 exceptions did not address land access for maintenance and repair on the
                 pipe, they did concern vested rights to the water from Spring A, the same
                 water that travels through the pipe in question. The issue of land access
                 for pipe maintenance and repair arises from the same transaction or
                 occurrence as the vested right to receive water from that pipe because the
                 quest to assert water rights necessarily includes reasonable action to
                 ensure the continued flow of that water. Jackson responded to
                 Groenendyke's supplement when he filed his points and authorities
                 opposing Groenendyke's motions. Therefore, Jackson has not been
                 prejudiced by the district court's consideration of Groenendyke's motion
                 for access in his supplement, and the requirements in NRCP 15(c) are
                 satisfied. See Costello, 127 Nev. at 441, 254 P.3d at 634.
                             Jackson additionally argues that Groenendyke failed to add
                 necessary parties because there are many pipe facilities that are not on
                 Jackson's property and, therefore, the district court was without
                 jurisdiction to grant Groenendyke the access he sought. This argument is
                 without merit. Groenendyke did not ask for access to the other properties,
                 nor are the other property owners necessary to determine access to the
                 facilities on Jackson's property. Although the district court was unable to
                 grant access to other properties because the respective owners were not
                 joined to this action, the district court had the necessary parties before it
                 to grant access to Jackson's property.



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                            We conclude that because the issue of repair arises out of the
                same transaction or occurrence as the vested water rights, the district
                court had jurisdiction to consider the issue of limited land access to
                conduct reasonable maintenance and repair. Accordingly, we affirm the
                district court's judgment and decree on this ground.
                Green Acres' vested water rights
                            Regarding the vested water rights themselves, the State
                Engineer determined that the Green Acres properties, along with both
                Jackson and Groenendyke, had vested water rights to the water from
                Spring A. Jackson and Groenendyke challenged this finding in their
                exceptions. The district court agreed with the State Engineer, finding that
                the Green Acres properties had a vested water right. Only Jackson
                challenges that finding on appeal.
                            Jackson argues that the district court relied only upon
                circumstantial evidence and that the circumstantial evidence does not
                support the district court's conclusion that Green Acres also diverted the
                water. He claims that the Green Acres properties receive their water from
                numerous other sources. 2 Having considered the arguments and
                appendix, we conclude that the district court's determination regarding
                Green Acres is supported by substantial evidence.
                            In Nevada, Ibleneficial use shall be the basis, the measure
                and the limit of the right to the use of water." NRS 533.035. "The concept
                of beneficial use is singularly the most important public policy underlying



                      2In this appeal, Jackson raised, for the first time, an issue of
                whether he has a prescriptive right to the water. Jackson withdrew this
                claim in his reply brief. Therefore, we will not consider it.

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                  the water laws of Nevada and many of the western states."             Desert
                  Irrigation, Ltd. v. State, 113 Nev. 1049, 1059, 944 P.2d 835, 842 (1997).
                  Vested water rights are "water rights which came into being by diversion
                  and beneficial use prior to the enactment of any statutory water law,
                  relative to appropriation." Waters of Horse Springs v. State Eng'r, 99 Nev.
                  776, 778, 671 P.2d 1131, 1132 (1983) (internal quotations omitted).
                              Here, the State Engineer made factual findings regarding the
                  Green Acres properties' use of water from Spring A. First, the State
                  Engineer found that the natural channel of Spring A water flowed directly
                  to the Green Acres properties. The State Engineer also found that water
                  flowed through the six-inch pipe to the Green Acres properties. The State
                  Engineer concluded that the water which flows through the pipe and
                  reaches the Green Acres properties was diverted and put to beneficial use,
                  irrigating the Green Acres properties; therefore, the Green Acres
                  properties had a vested right.
                              In its answering brief on appeal, the State Engineer argues
                  that he and the district couri relied upon expert testimony and culture
                  maps showing homogenous vegetation to reach the conclusion that
                  although water from Spring A had been diverted towards Jackson's
                  property by his predecessors in interest, some was allowed to continue
                  along its more natural path to the Green Acres properties. The district
                  court, after visiting the site with the parties and holding a hearing with
                  expert testimony, affirmed the State Engineer's conclusions.
                              Jackson seeks to have us reweigh the facts and conclude in his
                  favor; however, the record supports that the district court's findings are
                  not clearly erroneous •and are based on substantial evidence, even if
                  Jackson disagrees with the ultimate findings. We will not substitute our

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                   judgment for that of the district court unless the district court's findings
                   were clearly erroneous, which they were not.
                                                 CONCLUSION
                                Accordingly, for the reasons set forth above, we order the
                   judgment and decree of the district court affirmed.




                                                                                      J.



                   We concur:




                         OP, 0
                                                   J.
                   GibliOns




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