50 Nevada Lawyer July 2016

SHORTFALL IN WATER RIGHTS DESTROYS TOWN

suit and could not be bound by that ruling. The Supreme Court decided in Bernard v. Metropolis Land Co., 40 Nev. 89 (1916) that although Metropolis did not explicitly argue preclusion, it still applied. The court reasoned that, despite a lack of “such terms as ‘res judicata,’ ‘former adjudication,’ or ‘estoppel’… the plea …adequately set forth the existence of the earlier judgment as a bar.”10 In a way, preclusion law flowed from water related litigation in Nevada.11

Metropolis’ small victory regarding Bishop Creek was short-lived. The drought, litigation, and other tragedies had taken their toll. The population dwindled until the town was abandoned. Some structures can still be seen there today—perhaps a visual reminder that the Nevada frontier played a vital role in shaping today’s legal precedent.

1. McFarlane, G. “The Metropolis That Wasn’t” Nevada Magazine, March/April 2014.

2. Gamboa, R. Humboldt River Litigation History, 2014.3. Bishop Creek is a tributary of the Humboldt River. The dam is still

standing today and makes up the Metropolis Irrigation Restoration Project. See https://ndep.nv.gov/bffwp/metropolis.htm.

4. McFarlane, supra note 2.5. See State ex rel. Pac. Reclamation Co.v. Ducker, 35

Nev. 214 (1912).6. State v. Ducker, 35 Nev. 214 (1912).7. State v. Dist. Ct., Sixth Jud. Dist., 38 Nev. 323 (1915)

(citing State v. Ducker).8. Gamboa, supra note 3.9. Demurrers have been abolished in civil practice.10. Estate of Barrett v. Comm’r, 56 T.C. 1312 (1971).11. See Wright v. Carson Water Co., 22 Nev. 304 (1895) (one of

the earliest mentions of the preclusion doctrine in Nevada).

JENNIFER RICHARDS, a fourth-generation Nevadan, is licensed to practice in Washington and Nevada. Before entering practice, she clerked for Judge Stefany Miley, Eighth Judicial District Court. Richards resides in Reno and can be reached at MsJenniferRichards@gmail.com.

Unlike most other ghost towns, “Metropolis was never a mining center. It was built instead on farming, proselytism and hope.”1 An entrepreneur filed for water rights along the Humboldt. In 1910, the Pacific Reclamation Co. (PRC) was founded and acquired acreage in Elko County. Though PRC was granted only about half of the water rights it had sought,2 a dam was built on Bishop Creek.3 An impressive city center soon developed, boasting an amusement hall, school, church and post office.4 The centerpiece of the town was a grand hotel, equipped with all the modern amenities, including an electric generator. Settlers began farming and the population grew.

However, in 1912, downstream water-users claimed they had superior water rights. Union Canal Ditch Co. filed suit in Humboldt County, seeking injunctive relief.5 Judge Ducker granted the relief, holding that PRC could not, “use any waters from the Humboldt River [or tributaries] during irrigation season,” and ordered the dam’s removal.6 PRC appealed, arguing an injunction was immediately appealable and the judge could not deny a supersedeas bond. The appellate procedure for writs of mandamus was, at that time, vague. The Nevada Supreme Court reconciled the law and held that “An order refusing to set aside the injunction becomes at once appealable.”7 Thus, a water rights suit in a remote town laid the groundwork for appellate procedure now codified in NRS 2.090.

PRC continued to litigate, despite insolvency in 1913.8 Ultimately, Ducker held PRC had rights to Bishop Creek Reservoir, but was restrained from other creeks under the prior appropriation doctrine. None of this really mattered at first—the settlers used dry-farming techniques that were moderately successful due to an unusual wet season—but soon drought, a swarm of Mormon crickets, and more litigation descended on Metropolis.

A man living downstream sued Metropolis, asserting superior rights to Bishop Creek. Metropolis argued the issue was decided in State v. Ducker. Plaintiff demurred9 the answer and then appealed, arguing that he had not been a party to that

BY JENNIFER RICHARDS, ESQ.

Significant litigation arose over the Humboldt River in the late 19th and early 20th centuries, contributing to the ruin of Metropolis, Nevada, and setting precedents for injunctive relief and principle of res judicata in this state.

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