Fergus County argus. [volume] (Lewistown, Mont.) 1886-1946, 1905-09-15

of Montana confer no title to water.
They permit locatOrs to use what
water they may be entitled to and
when such water is not in use it is
required to be turned back into it's
original source for the use of the next
legal appropriation. Therefore. any
agreement, such as is mentioned in
the testimony, pages 5l5 to $40, to
the effect that Cooper agreed when
not using the water he was emitted
to. to divert it to claimant, would be
an illegal agreement. as affecting pri-
or appropriations to claimant.
The best evidence as to claimant S
water supply is: Has he a legal right
TO the appropriation under the laws
of the State of Montana of sufficient
water to reclaim this land, and If so,
as to reclaim it from it's present des-
ert condition?
| 1t appears that claimants water
rights, filed as recorded water right
of the waters of Rock Creek, of $50
inches. filed upon April II, 1904, and
of one eighth interest in a recorded
water right of two thousand inches.
| filed December 16, 1904. in all four
hundred and sixty six inches, located
for the purpose of irrigating lands in
Sec. "a, T. IA N. r. 16 f., NJ. M.
| 1t is not alleged that claimant s
bitches are not of adequate capacity
to conduct sufficient water upon the
land to reclaim it, but that:
| No water has been conducted
thereon in manner calculated to re-
claim desert land"
| The size of the claimants bitches
has, however, been gone into, with
the usual contradictory evidence by
expert surveyors. 1t appears that
there are eight interests in the water
right and ditch irrigating the land
In contest, and 1920 acres additional
in all 1880 acres large portion of
which is over four miles from the
point of diversion.
The testimony of the witness Sur.
veyor Wasmansdorff is that at the
point marked &c" in Exhibit A" (the
point Of diversion from the Cooper
ditch,) the size of the ditch is 18x9
inches, with carrying capacity OF
60 miners inches.
The witness Surveyor Hogeland
testifies, page All, that at the same
point the size of the ditch is 3Ox17
inches, and at point 200 feet fur
ther down the ditch the smallest
measurement was 36x21 inches, carry
ing 255 inches. with an overflow OF
240 inches. which overflow runs down
a cOulee and flows back into the
ditch further down, fed by box from
the main Cooper ditch of a capacity
OF 800 inches, making a capacity OF
| 495 inches in the trails and ditch.
1t is hardly conceivable that there
should be such difference in the
estimated carrying capacity and size
of the ditch as this shows between
these two witnesses. and it certainly
seems improbable that eight mer
would construct ditch to carry
sufficient water to rrigate 1880 acres
and only make it 1Sx9 inches in size
with a carrying capacity of 60 inche.
, at the intake.
The only testimony introduced a:
to the amount of water flowing ir
Rock Creek at the intake of the Thorn
as Cooper ditch is his testimony, page
212 to 221, wherein he places the flow
In ordinary seasons during the ir
rigating season, at $500 inches, or, as
; he described it, from early spring tt
july" then decreasing to 500 inches
or the witness Barney who has
seen sufficient water in Rock Creel
during June freshets to almost swim
a horse, (page 258), and that the
actual size of the creek in July i:
about 1,5O0 inches, page 261, there
, being very little water in the creek il
August. page 262), and, upon cross