Eureka weekly sentinel. [volume] (Eureka, Nev.) 1887-1902, 1901-05-04
rONKuz-wrxxELL DECISION.
Plaintiff IL Awarded the waters oi
Pete Hansen Greek.

H"hoch Ofcchs Stsuatcoi IA VIC sous.i
end of Pine Valley, this county, has been
decided in favor Of plaintiff, Tonkin, the
decree Of Cour. having been fled last Mon
day, April 20. Plaintiff sued for 81, 200
damages, claimed by him to have been oc-
casioned by the breaking Of his dam by de-
PENDANTS and the loss Of q large portion of
his hay crop; also praying the Court to de-
cree him the owner of the waters Of Pete
Hansen Creek, and further asking that the
defendants be enjoined from interfering
with his right thereto. Defendants denied
having caused the damage, claimed owner
ship Of the said waters by right Of prior ap-
preparation, and prayed for q decree estab-
fishing their right thereto. Asthe case has
aroused considerable interestin this section,
both by reason of the prominence Of the
parties and the Importance Of the question
involved, we give below q verbatim copy Of
the findings Of fact and conclusions of law,
filed In the Clerks office:
In the Third Judicial District Court of
the State Of Nevada, in and for the
County of Eureka.
W. j. Tonkin, Plaintiff,
vs..
Maggie Winzell ct al, Defendants.
This cause having been called regularly
for trial before the Court, a jury trial hav-
ing been expressly waived by counsel for
the respective parties, Peter Breen and
Thomas Wren, Esqrs., appeared as attor-
neys for the plaintiff, and Z. s. Earring.
ton and George A. Bartlett, Esqrs., as at.
torneys for defendants. And the Court
having heard the proofs Of the respective
parties and considered the same, and the
records and papers in the case and the
argument Of the respective attorneys
thereon, the Court now finds the following
facts:
First-That Pete Hansen Creek has its
source in q very high mountain and is fed
exclusively by melting SHOWS and occa'
sional rains in the Spring and early Sum-
mer; except a couple Of springs, the one
afording about an inch and a half of water
and the other one inch, and both sinking
and disappearing during the Summer and
Fall within a mile or a mile and a half of
their source; that for several miles from its
source it flows down through a steep can
yon and affords for about two months or
two months and a half during the melting
of the SHOWS sufficient water to irrigate
thirty or forty acres of land. That from
what is known as the Tonkin dam in said
canyon to the Shipley Springsi is a distance
of about nine miles; about six miles Of this
distance the descent is considerable, but
not as great as in the canyon above.
Within about three miles of the Shipley
basin the land is comparatively level: from
the mouth Of the canyon down to this
comparatively level ground the volume Of
the water gradually decreases until at the
point where it spreads out over the ada.
cent land the volume, at all times when
there is water, except in times of extraoi'
binary freshets, is comparatively small,
and from the point where it spreads out
down to the Shipley Springs the quantity
of water gradually lessons during ordinary
seasons, until it is all lost by evaporation
or absorption by the soil; from the mouth
Of the canyon down to the point where the
water spreads out the channel Of the
stream gradually lessons in size and is di.
vided up at different places into numerous
channels. until at the point where it
spreads out it ceases to have any substan.
tial existence, and from this point to near
the Shipley Springs il is difficult and near.
ly impossible to determine from the evi.
dence whether there is any channel at all,
and before IL reaches the Shipley Springs
there Is no appearance of a channel at all
for several hundred feet.
Second-That Pete Hansen Creek, for
all beneficial purposes, ends at the point at
which it spreads out over the adjacent
land; that from that point to the Shipley
Springs it has no substantial existence and
is neither well defined by a channel nor by
a flow of water in a sufficient quantity to
make it useful or beneficial during ordi.
nary seasons.
Third-That the plaintiff appropriated
all Of the waters Of Pete Hansen Creek by
means of a dam and ditch in Pete Hansen
Canyon on the day Of November, 1895,
and ever since said date has used said water
for necessary irrigation on his land.
Fourth-That neither the defendants mol
their grantors nor predecessors in interest
ever appropriated the waters Of Pete Han
sen Creek.
Fifth-That on the days of April
and May, 1900, the defendants broke a dam
of plaintiff at the head of the ditch on said
creek and diverted the waters of said creek
from said ditch and the land Of plaintiff,
without plaintiffs consent, to the damage
of plaintiff in the sum of twenty dollars.
As conclusions of law from the foregoing
facts the Court now hereby finds and de-
cides:
First, that the plaintiff Is the owner of
and entitled to the use of sufficient of the
water Of Pete Hansen Creek, at all seasons