Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1903-09-05
SUPREME COURT DECISION
Continued from page 2

in three places divides into two or ;
three channels which unite at short
distances further down. Shipley
Springs are situated in the upper end |
Of defendants field about nine miles |
below the plaintiffs dam, and the
water flowing from there forms what
is designated by most Of the witnesses |;
as Shlpiey Creek, and from which !;
bitches lead the water. on to defend i
ants hay lands. The more specific tes-
timony indicates that less than one
half mile 1aboxe. Shipley SPRING. Petei
hanson Creek divides into several
channels. which becnme sha Hover AMI
disappear, according to some Of the
witnesses for the defendants within
three. hundred feet from Shipley
Springs, and according to other wit;
nesseq for tho Rlatntin a few hNndrs4j
feet fhrtheh WI and jpdgihg MoM fhel
Testimony it IL not improbable that III
former times, before large numbers ct
cattle and horses tramped the groun1
in going to and from water the chan
bel extended through, but if it did
not and tina water ran. to The Hpffnx$
and Fas dixertad by, the defendahEs
bitches and used in beneficial irriga-
ton Of their CROPS, they. ought TO be
protected in their appropriation. From
near the end of the Hanson Channel
to Shipley Springs is firm ground.
carrying clay. covered with sod and
having = considerable descent" The
valley is narrow. The most definite
witness estimated the fall at forty
feet for the two miles above Shipley
Springs, and that the land at right
angles, to the creek is nearly level
from twenty to two hundred feet on
the northwest side, and for about one
eighth of mile on the southeast side.
Plaintiff S ditch is about four miles
long. '- --E3
1t was started in November, 1895,
and completed in 1897 1t appears. and
is uncontradicted that many years
prior to these dates, the defendants
and their grantors used all the water
of Shipley Creek in the beneficial ir-
rigation of their lands, and if the
water of Pete Hanson Creek flowed in
to Shipley during the irrigating season
before H. was taken b. the plaintiff. it
enhanced the flow in their bitches,
end was appropriated by them prior
to any diversion by the plaintiff. There
was much conflict of testimony dis
cussion and dispute as to where the
Hansen Channel ends.We think it is
of little consequence whether it is a
few hundred feet or more further Ut
or down. On the other hand it is most
important to ascertain whether the
Hansen Creek water when undisturbed
by the plaintiff will in the irrigatine
season, run into Shipley Springs in
quantities sufficient to assist in the il
rigation Of defendants meadows, or if il
will, it was appropriated and became
the property of the defendants Ions
prior to it's diversion by the plaintiff
and if there is not sufficient to run
through in dry years, they would be
entitled to it's use when there is
enough to reach their irrigated lands
The finding of the court that ''fror
the point where it spreads out dowr
to the Shipley Springs, the quantit:
of water gradually lessons during CT
binary seasons until it is all lost b!
EVAPORATION and absorption by the
SOIL is not supported by the evidence
There is NO proof that the water dif
not run to Shipley, when not diverted
by the plaintiff: every year. exceptin:
1882 which was an exceeding dry one
Several witnesses stated that they hat
seen the Hansen Creek water in vary
uudutItiGS,
Springs in May and June. an
consequently during the irrigating sea
son Of different years, and there i
nothing to indicate that at these time
it was coming from coudbursts or Ut
usual freshets, as the findings imply
number of other witnesses testified t
seeing water on various occasions a
the road crossing above SIMPLE,
Springs in amounts large enough t
likely flow through. Referring to thos
parts of the record which might appea
without careful examination, to SUI
port the finding in question, witnesse
for the plaintiff testified that the waite
was running in plaintiffs ditch O
May q, 1900, fair, but not larg
head, that ON June first they fOuu
it had been turned down the creek an
they followed it on that day to whel
it ceased to flow about three hundre
or four hundred yards above Shiple
Springs. Another witness who wa
with them testified that at the san
time he followed another chann
further to the west and that the wat,
from it was running to the spring
Without his direct statement the e,
dence of the others that it had con
down the creek bed and channels
three days and possibly in one
two, nearly nine miles, and SO clo
to Shipley in that time, support
rather than cOntradicts the gener
testimony, indicating that it eow'
through One witness said that II
owned the defendants ranch he won
npt give four bit piece for the Pc
Hansen Creek water. This testimOl
was given under objection and W
improperly admitted. If the issue h,
been in relation to the value of Il
water right, he was not shown
have any knowledge that would quail
him as an expert. When pressed
his reason for placing such trifli
value, he admitted that more wat
was needed and would benefit the {
PENDANTS ranch, but he said in yea
when there would be enough in Hs
sen Greek to run Shipley, there wOl
be plenty coming from Kelly. Biz
and Willow creeks without it. It ,
veloped during his examination II
he had not been in the valley for
~r,o~ oh <hnf th<a ~