Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1906-02-20

materially increa e. their opprop ia
ton IN
Theodore winters admitted upon the
stand that during the last ten or fif-
teen yea lie had been using twice as
much water from Ophir Creek in al
dition to tina ftom other streams, as,
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 Twaddle
ditch. which is the old square flume
near the Bowers Mansion and grave,
he measured the flow at 1874 inches
and the water lacked more than two
inches Of reaching the top. A sur
| veyor had testified for the plaintiffs
lAdl us SdpdSlly was 1CS luCutS dt
this point, and that the canacitv Of
100 feet of old flume remaining up
| nearer the head of the ditch which
had been impaired by age and aban-
doned. and suppla by a new Y
fume built above the old one by the
plaintiffs in 1900, was $50 inches At
this point the judge found that 1et
inches Of water which he had meas
flume. and he estimated that the Old
flume would carry from 200 to 900 in
| ches. From his examination Of the
premises and the character of the soil
| the court was of the opinion that the
| plaintiffs required, and were entitled
| to, at least the amount of water they
| bad flowing in the fume at the time
| he made the examination. and he d.
| creed them prior right to 1874 miners
/ inches running under a -four inch
pressure or 1850 cubic feet per sec-
| ond from April 18th to Nov 18th of
each year. and 20 inches or 2-5 Of one
cubic foot per second for domestic
use and watering stock at other
times. It is claimed the amount a.
lowed is not warranted by the evi
dence because more than the capaci-
ty Of the upper Twaddle ditch as
shown by the testimony mentioned
fixing it at 49, inches at the point
above the mansion. and at $50 inches
along the 100 feet of old flnme
through which the water flowed prior
to 1900
1t is not necessary to determine
whether the court on it's own examin-
alton and measurement may allow
a quantity beyond the range of the
evidence nor whether the surveyor
could actually estimate the capacity
Of the 100 feet Of old flume without
knowing the volume and velocity o.
the water that entered it, nor wheth-
er the variation Of one part in ninety
one or the difference between 1872 III
ches in his measurement and that o!
1e4 by the Judge should be disregard.
ed as too trifiing to be material and
as slight discrepancy to be expecte /
for the Judgment for the "a inches
which defendants claim should be de-
Quoted because in excess Of the car
acity Of the upper ditch and f',ma he
fore the construction Of the y Hnre
in 1ann is surorte@ by tho riding ot
the court that The plaintiffs and
their grantcrs had for more than
thirty-one years before the commence
ment Of this suit used a portion c1
the water through the lower TwaS
Idle ditch. 1t is urged that 1874 inches
is more than required for the frriga
ton Of plaintiffs ranch and that this
is especially so because few Of their
17045 acres Of cultivated land lies
above the upper ditch from Oph;l
Creek and small portion is NATURALLY
swampy. The quantity Of water a!
lowed by the decree seems very lib
eral. both for irrigation and for do
nestle use and watering stock. En-
gireers and others testified that one
half and three fffths Of an inch Of
water per acre was sufficient while
for the plaintiffs, farmers. from ths
vicinity varied IN their estimates Of
the amount necessary from cae ant
one half to three and one half sfnrhe!
per acre.
The evidence Indicated that the
plaintiffs had used as much water a:
that awarded to them and more. ant
had uniformly produced good crop:
Much OF their hand is sandy wftif.eo.,
siderable Slope After examining tn
soil and viewing the tQhantity OF waite
as il ran on the premises. the cou-
, agreed with the testimony sof tn,
plaintiffs that that amount. was neg
essary and adopted mean betwee,
; the 4 highest .and lowest estimates
The Quantity Of Water requisite va.
les greatly with the soil, seasons
crops; and Conditions and we canno
sayfthat the allowance IL excessive.
Alexander Twaddle testified tina
there were times during the summe,
evidently short periods after the Ian
had sheen irrigated, when it was NO
; necessary tor 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 turr
!. ed to the defendants. if they hay
! any beneficial use for it, and not me
4 mitted to waste. It may be implfe
\ nv the law, but it is better to hay
! DEGREES specify, and especially so i
I this case, in view Of the testimon
1 | stated and If tho rornofuo1 - ;,,r>x:..