Lyon County times. [volume] (Silver City, Nev.) 1874-1907, 1905-11-04

be presumed except from clear
evidence. But while mere non.
user does not amount to abandon
ment, that fact is competent evil
dence ON the question of abandon
ment, and if continued for an
unreasonable period, it may indi-
cate an intention to abandon, and
may warrant the deduction of the
fact of abandonment. This pre-
sumption, however, is not conclu-
sive and may be overcome by
other satisfactory evidence. Mere
non user, if continued for FIVE
years or more, may, however, re-
suit in a forfeiture of the right by
prescription, as hereinafter de-
fined.
(e) The notorious, exclusive,
adverse and continuous use under
claim of right, of water claimed to
have been appropriated by another
at a point lower down on the
stream, gives to such adverse user
title to such water by limitation
or prescription, if such adverse
use has been continued for a per-
iod of FIVE years or more after
such prior appropriation had OBJ
tanned complete right of action
therefor against such adverse user.
60 Where an appropriation of
water has prosecuted the work of
appropriation with reasonable dill
igence and brought it to compile
ton within a reasonable time, his
right of appropriation relates back
to the time when the first step
was taken to secure it; but if the
work of appropriation is not pros
ecuted with reasonable diligence
and brought to completion within
reasonable time, his right of ap-
preparation does not relate back
to the time when the work of ap-
preparation was commenced, but is
to be deemed to have been acquir-
ed only at the time the work of
appropriation was completed and
the water actually diverted from
the stream and put to beneficial
use. The appropriation must have
exercised that degree of diligence
which will indicate the constancy
and steadiness of purpose and la
Dor usual with men engaged in
like enterprises who desire and
intend a speedy accomplishment
of their designs.
g. No party shall be entitled to
present, on the hearing of any
protest, any evidence other than
through sworn witnesses or COM
petent documentary evidence. No
ex parte affidavit, or other ex parte
statement, shall be received on
such hearing except as against the
person making the same, or his
successor in interest. The said
Henry Thurtell may, in his des-
cretion, certify to the Court the
question of the admissibility of
any evidence objected to; and
thereupon further proceedings
upon such objection shall await
the action of the Court thereupon.
If the said Henry Thurtell shall
improperly admit or reject any ev-
idence objected to, the said Court,
upon its review of the findings of
the said Henry Thurtell, shall ad-
nit such evidence, if the same
ought to have been admitted, or
exclude the same if the same
ought to have been excluded, and
said Court shall thereupon correct
said findings, or make new find
ings, according to the facts and
without returning the matter to
said Henry Thurtell for any fur
ther action by him.
9. This stipulation shall have
no force or effect until signed by
all the parties to this suit and
their solicitors; provided, however,
that the same may be put in force
and become binding, as between
the parties subscribing the same,
if an endorsement to that effect
be made hereon and signed by w.
B. Treadwell, Cheney & Massey,
and Mack & harrington.
10. This stipulation is made
subject to the approval of the
Court, and the findings and decree
L -. II