Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1906-02-25

materially increased their oppropria-
ton N j-ITty-Lnree years, WnLe
Theodore winters admitted upon the
stand that during the last ten or fif-
teen years be had been using twice as
much water from Ophir Creek in ad-
dition to that from other streams, rs
he used during the first ten years that
he cultivated his lands. AS he claims
and uses more than the plaintiffs, We
conclude that this large increase in
his diversion Of the waters of the
streams since the completion of their
appropriation which has remained
stationary may account for the short
age and dispute.
! BY consent of the parties in open
court the district Judge, accompanied
by a civil engineer who had testified
as witness for the defendants, view
: ed the premises and made measure
ments. At the point Of least carry
/ ing capacity of the upper Twaddie
/ ditch, which is the old square fume
near the Bowers Mansion and grave,
he measured the flow at 1874 inche'
and the water lacked more than tw'
! inches of reaching the top a sur
veyOr had testified for the plaintiffs
that its capacity was 1872 inches at
! this point, and that the caDacitv Of
! 100 feet of old f1ume remaining uo
! nearer the head of the ditch which
| had been impaired by age and aban-
! d0ned. and supplanted by a rev V
| lure built above the old one hv the
plaintiffs in 1900. was $50 inches. At
! this point the Judge found that 7Qi
! inches of water which he had meas
ured below about flied the new "
! fume, and he estimated that the oil
| fume would carry from 2A0 to 600 IN
! ches From his examination Of the
+, premises and the character Of the soil
! the court woS of the opinion that the
! plaintiffs required and were entitled
to- at least the amount Of water they
, had flowing in the fu~e ~ thu tim,
he made the eXanination, and ho q =
creed them prior right 20 1S4 miners
{ inches running UndNr a fCur incl
| pressure or 1850 cubic feet nor SEE
Ond from Anri' 18Th 20 Nov. T-th -
each year and 2n inches ar . e ono
cubic foot ner second for dnmoe-;c
rsn and Watering stock Of other
times. 7 is claimed the amornt a,
lowed is not warranted by the ev;
derce because more than -ho canaci.
ty Of the upper Twaddle ditch &c
shown by the testimony mentioned
fixing i AZ $50 inches at +ha point
above the mansion. and at $50 inches
along the loo feet of old flumn
through which the water flowed prio,
to 1900
Il is not necessary to determine
, whether tho court on its own nXanlin
alton and measurement may allow
a quantity beyond the range of the
! evidence. nor whether the surveyor
could actually estimate the cana cit
cf the 100 feet. Of old fiume withou
knowing the volume and velocity o
the water hat entered #, nor wheth
err the variation Of one part n rinet'
one or the difference hetween 1872 N
/! ches in his mea surement and that q
: 1St nv the Judge should be disregard
ed as TOO triiing 70 he material on
as 4 sight discrepancy TO be eyrn"te
for tho iuarr'nnt fOr the - incha
, which defendants claim shCulf be de
Quoted because in excess Of the ca J
acity Of tho rnner ditch cn1 h"r1o h.
fore the construction of tho N'--',
~ 1000 is s"nortad by tho radine q
the court that ne plaintiffs an,
thor crantCrS sad for nn~e thu
thirty-one wears before he commence
went Of this suit used norton .
the water through the lower Two
!, de ditch II is urged that 1S4 incho
is more than required for the irrige
ton of nla'r+iffs' rorch ard .hat Nj
s especially so because few Of the'
170.t5 acres Of cultivated land lie
Oh =. .
, Creek and q small portion is natural
swamp. The QUANTITY Of water .
lowed by the decree seems very Iii
eral. both for irrigation and for d
; mestic use and watering stock Fir
, | gineerS and others testified that on
half and three fifths Of an inch 0
: water per acre WIS stuff Will
for the plaintiffs, farmers. from tn
, vicinity varied in their estimates @
. the amount necessary from Gle an
, per acre
The evidence Indicated thai tn
! plaintiffs had used as much water q
, that awarded to them and more. an
| had uniformly produced good CROP
, | Much Of their land is sandy with co,
. | siderable slope. After examining III
; soil and viewing the quantity of waite
J as it ran on the premises the cow
q agreed with the testimony of tn
, plaintiffs that that amount was ne,
: essary and adopted a mean betwee
the highest and lowest estimate
;. The Guantitv of water requisite va
, les greatly with the soil. season
, crops. and conditions. and We cannc
= say that the allowance is excessive.
!, Alexander Twaddle testified tn.
:, there were times during the summe
evidently short periods after the Ian
had been irrigated, when it was NJ
> necessary to use as much as the u
:, per ditch full of water On such O
, casions and whenever it is not nee
!, ed by the plaintiffs it should be tur
. ed to the defendants, if they ha,
, any beneficial use for it. and not ne
u mitted to waste 1t may be implie
u by the law, but it is better to ha,
- DEGREES specify. and especially so
;. this case, in view of the testimOr
!. stated and of the perpetual injunctio