Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1903-09-05

of the child before solouapA, Ne wss
not willing to turn it TO the opposing 1
claimant. 20 that the test could be |
made This conduct of the parties, |
viewed IN connection with the undis- |
puted testimony that 1t run through.
leads to the suspicion that the defend |
ants, who were in a good situation 10 |
Anow. had worse faith that the water |
wOuld flow to the springs, than the |
plaintiff had that it would not. Whe. !
Their the court ought to have granted |
the continuance for the purpose indi- |
Gated, need not longer be considered, |
because the defendant furnished ample
testimony on the trial, which was I'M
|contradicted to establish the fact as
they desired.
It, is apparent that the evaporation
would be more in the flow to defend |
ants than to plaintiffs lands, but
whether the seepage, or the combined
seepaIge and evaporation would be
more or less, is not clear. Plaintiff
claims his land gravelly and requires
large quantity Of water II his ditch
runs q long distance through SINH
lar formation, the absorption may be
greater than over q compact soil
running swiftly through the ravine.
AS the distance from the plaintiffs
dan to the springs is fully twice as
long as plaintiffs ditch and it spreads
more on the longer course, we may as
sumo that the amount lost by seepage
and evaporation together is larger in the
How to defendants premises. II con-
|ceded or established that this loss
lis much greater than that through
the plaintiffs ditch, that ought not
Ito deprive the defendants of their
water acquired by prior diversion. nor
should their earlier appropriation he
taken from them because the water
spreads and a larger proportion of it
sinks and evaporates in the fiat above,
or in the swamp below Shipiey
Springs. The andisputed evidence
shows that the water came from
well defined creek and channel and
ran through in the irrigating season
TO where it increased the volume in
defendants bitches. Many streams
came out Of the lakes fed by seepage,
melting snow or springs and not I'M
frequently in their course, they spread
out ponds, swamps and level places,
again running into channels from
; which they have been diverted. and
are held by right Of prior appropria-
ton as securely as if they had fol-
lowed narrow courses or creek beds
all the way or did not flow from lakes.
On the same principal are the cases
holding that the prior appropriation
} secured a right TIC waste water run
ming from bitches, fields, tailings and
: other reservoirs. A contrary rule would
unsettle every right on the stream
with a lake as its course, or where
water had been diverted after it hal
passed through swamps, or prairies
or had spread over level depressions
: The conservation of the waters in this
: State is the order of the day and will
increase the population and wealth
l and is for the public good.It should
be encouraged by all legitimate means
but not to the extent Of depriving the
v owner of water already acquired by
4 prior application to beneficial use
If waste by seepage and evaporation
! can be prevented by draining swamps
Z and depressions, or by substituting
y ditcnes, fumes or pipes for wide
e sandy and numerous channels or by
g other means, let this desired improve
{ ment and economy be at the expensf
q of the late claimant who is desirOu;
: of utilizing the water thereby to X
: saved CT at least without detrimen
u to existing rights, whether up Or dowI
= the stream. Although water is to.
y precious thing to be wasted in thest
ii arid regions where it is SO necesSar,
for the support of the homes AMI
IS prosperity Of a large part Of our popu
Is latiCn and for the production Of TIL
4 food stuffs and agricultural product
y necessary to sustain the life and pre-
o mote the happiness of all and although
II every ownershould be restricted to a.
y economical and beneficial use from
ID his point of diversion, we cannot sane
'e ton policy which inevitably woul
ar result in depriving the prior and lowe
appropriation for the benefit of the lat
IS ter claimant nearer the head of tn
or stream, because the latter would hav
N greater quantity of water and cor
&c seQuently more benefit, and would saw
ii the seepage and evaporation occasion
Id ed by the flow further down to tn
re lands of the early settler. The e,
FL forcement of such doctrine wOul
e1 overthrow the long, well establishe
as and just principles Of the law and r.
ne suit in legal confiscation. 1t woul
ei deprive prior appropriations down tn
er stream of their equities and veste
vi lands and divert from the heads
ne streams water already in use by lowe
IN appropriators- whose farms would 1
or dried and destroyed.
Sc The finding of the court that tt
IS 81 Hansen Creek water would not 70
al to Shipley Springs in the irrigati'
cd season, and the refusal to find TIL
ne it did so flow and that it had bee
lid used by the defendants in the bene
,te cial irrigation of their lands prior
ny any diversion by the plaintiff and tt
as rendering of the decree in his fav
an when the evidence does not suppo
ne it, require that the judgment be 7
70 versed and we need not determine Il
~ objection asserting failure to she
Tor plaintiffs necessity for his ditch fl
ng Of water in addition to that comb
ter to his place from Dana creek, n
de- the one relating to the refusal of Il
ars court to strike out the hearsay t.
an timOny on which the calculation of Il