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

Peter Breen,
Attorneys for
Respondent and Plaintiff.
DECISION.
Plaintiff brought this action to re-
cover the water of Pete Hanson creek
and one thousand dollars damages for
the diversion thereof from his crops
and the breaking of his dam, alleging
that he constructed his ditch in 1895
and has ever sine used the water for
the beneficial irrigation OF his lands,
excepting when prevented by the
wrongful acts of the defendants, and !
that his appropriation is prior and |
superior to any of them. After full |
denials the answer alleges that the
defendant and ther grantors ever
since time prior to October II, 1881,
have been the owners of the J. D. Ranch
and the land embraced in the Shipley
Place in Garden Valley, Eureka county
and that during all that time except
since the spring of 1897, when wrong
fully diverted by the plaintiff, they
have appropriated and used all the
water of Pete Hanson Creek in the
necessary irrigation of large crops Of
hay. The plaintiff was given judgment
for twenty dollars damages, the water
to the capacity of his ditch and per
petual Injunction against the defend
ants A part Of the findings of the
court are:
THAT Pete Hanson Creek has it's
source in a very high mountain and is
fed exclusively by melting snow and
occasional rains II the spring and
early summer; that tor several miles
from it's source it flows down through
a steep canyon ami affords for about
two months or two months and half
during the melting of the SHOWS, suf-
ficient water to irrigate thirty or
forty acres of land. That from what
is known as the Tonkin Dam in said
canyon to the Shipley Springs, 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 vol
ume of water gradually decreases ua
til at the point where it spreads out
over the adjacent land the volume at
all times when there is water except
in times of extraordinary freshets is
comparatively small, and from the
point where it spreads out down &c
the Shipley Springs, the quantity OF
water gradually lessons during Ordi
nary seasons until it is all lost by evap
Grafton or absorption by the soil
from the mouth of the canyon dOwI
to the point where the water spread!
out, the channel of the stream gra
dually lessons in size and is divides
I'D at different places into numerou
channels, until at the point where }
spreads out, it ceases to have an,
substantial existence, and from thi
point to near the Shipley Springs
is difficult and nearly impossible t
determine from the evidence whethe
there is any channel at all, and befor
it reaches the Shipley Springs ther
is no appearance OF a channel at al
for several hundred feet"
The defendants duly excepted t
these findings and to the failure {
the court to make others prepare an
submitted by them on the controllin
issues and they also took exceptiO
to the decision and decree on II
ground that 1t is not supported by th
evidence and is contrary thereto.
particular they specify as error tn.
the portion of the finding relating
the sinking and evaporating Of tt
water is not supported by, and is co
trary to the undisputed testimOr
The record is replete with except
ons. We will consider those more
rectly anecting the substantial RICH
of the parties.
The statements that "the volume
water was comparatively small al
that 1.-The land is comparatively level
would vary greatly in their signi
canoe according to the views, symp
thies and learnings Of the different W
nesses, and such terms in findings a
too indefinite and uncertain to ser
as foundation for awarding valuah
:. property. 1t would be equally uns'
isfactOry II the decree itself adjudg
to one Of the litigants a "comparatiy
II large quantity Of water" and
the other, "a comparatively SIM
amOunt The channel Of Pc
Hanson Creek at the head
plaintiffs ditch is in q ravine viii
70 sixty or seventy feet deep q
which extends down about four mil
to where the creek enters and RI
through the upper part Of the val
in . wellde0ned channel . few 4
deep. Then II becomes shallowef Z
Continued On paGo :