Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1902-02-28

seventies that one part of the ditch
made to mark the boundary of the
west line of the Ryan place was used
to irrigate part of the land The facts
regarding the first diversion of water
for the purpose Ci irrigating the Ma
estretti land formerly held by Birch
am and Wallace is of the most mea-
gre character. 1t appears that S. B.
Wallace, the former owner OF this
tract, after he and Bircham had di-
vided their holdings in 1859 construc-
ted two dams and turned water onto
his meadow land. but it is uncertain
whether this water had it's source
in the river Or in certain springs.
The date Of the first diversion up
on the Bircham land is left by the
evidence to be conjectured Some
time between 1868 and 1869, it ap-
pears that dam was constructed in
the so called West Fork of Reese Riy-
err above the Bircham house. Whe-
Their the diversion SO made was con-
tinued or abandoned is a matter also
of doubt, as it appeals from the tes-
timony OF the witness Campbell, that
for period Of twenty years or more
before the trial of this action water
to irrigate the Bircham land was di-
verted by dam in the river about II
miles above the Bircham ranch. 1t
is not necessary to fully state the
facts as to the diversions made by
the various appellants, but only such
facts as illustrate the questions dis
cussed and decided need be stated.
The appellant, Daniel T. Wallace,
purchaser the so-called McQuitty
place above respondents lands in
1870, and by means of dams and dit
ches diverted water for irrigation.
Whether these dams and bitches had
been made and so used before his
purchase of the land is uncertain In
1873 Wallace located another ranch
higher up on the river and started to
| construct ditch for the purpose of
irrigating this ranch. In 1877 he tran
sferred his diversion of water under
the advice of counsel, from the Nc
Guilty place to his upper ranch. as it
appears that the amount of water us
ed on the McQuitty ranch would irri-
gate much more land upon the upper
ranch.
Fred Alters, whose administrator
is one of the appellants settled up
on Reese River in 1864, and com
| menced farming that year. He made
diversions of the water of the river
for the purpose of irrigation, but the
dates OF such diversions and the a
| mounts of water SO diverted are not
shown by the testimony The appel
lantS, Charles Alters and Hess claim
rights through Fred Alters, deceased
Mcmahon started farming on Reese
River in 1864, and that year put un-
der cultivation eight acres, but the
dates and amounts of diversions made
! by him are not shown by the testi-
mony.
! The above facts are sufficient, as
above stated. to illustrate the ques-
toin considered and determined by
this court, and furnish a sufficient
basis for it's conclusion, It is well
to note here that tie record does not
disclose the quantity of water divert
ed at any time by any means, BY any
one or all of the parties to this &C
ton, neither does it show the quaint
the lands or any part of the lands of
respondents as found by the court.
Neither is there any showing in the
one of these facts, could be ascer-
talneQ ny any kuOWu process.
Counsel under the many assign
ments made have discussed in their
briefs nearly the entire subject mat
ter of the law of irrigation prevailing
in the arid and semi-arid states, but
as we view the matter it is necessary
to consider only such questions as
are plainly and sharply made under
the assignment that the findings an(
decision of the court are contrary tt
and not supported by the evidence
and contrary to law. The othel
questions, for various reasons appear
ing in the record, the presentation o
J which would unnecessarily lengthel
this opinion, have been considered
but will not be determined.
1t is evident from the facts recite'
that the findings of the court fixin
the date of the appropriation of res
: pondents on the 18th day of March
, 1868, is contrary to both the law ant
Continued on Sd page.