Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1906-02-28

OppSdIS HUNS udu HJt
material err opprop ia
ton =
Theodol Pl- itted upon the
stand that C"r.ng the last ten or fif-
teen yea 6 81 &c using twice IS
much wa, er rom OphiT Creek in al
dition # t { her streams. rs
he used ng The first ten years that
he cultiva "a his lands. As he claims
and uses move than the plaintiffs, We
conclude that This large increase in
his diversion Of the waters Of the
streams since the completion of their
appropriation VIII oh has remained
stationary ray account for the short
age and dispute.
! By cons o. + @ parties IN omen
court TIE district Judge, accompanied
/ by a civil engineer who had testified
as a witness for the defendants, view
i ed the premises end made measure
ments At The point Of least carrv-
! ing capacity of the upper TwaGdle
/ ditch, which is the old square f1ume
near the Bowers Mansion and grave,
/ he measured the Cow at 1S4 inches
and the water lacked more than two
! inches of reaching the top sur
voyor had testified fer the plaintiffs
! that its capacity was. 1872 inches at
p. this point, and tat the capaoity cf
! 100 feet of old f'ume remaining up
neorer the head Of the ditch which
had been impaired by age and aban-
doned, and suND'an ed hv new Y
fuTne huilt ahove the old one hv tn
plaintiffs in 1900. was $50 inches At
this point the JUDGE found that To-
, inches Of watar which he had meas
ured he'ow about filed the new V
fume and he eStiratod that the Oil
fume would carrv from 900 to 3an in
/ ches. From his examination Of the
premises and the character of the soil
the court was Of the opinion that the
plaintiffs rAruirea and wore entitled
to at least the omnrnt Of water thew
had flowing N the eume at the tir,,,
! he made the r'innti0n and he )
creed then, = Drior right to Isl minors
i inches rlnrin~ undn- 9 fcur incl,
pressure or 3 24-5N cubic feet per sa,-
Ond from Anri' 1-th - 70 1-th -
each year and % inches or % &C ono
cubic foot nor second for aone1t'c
uea end watching stock at o+he~
times It is claimnd the ornn,t a.
lowed is not warranted by the ev;-
tv Of the upper Twaddle ditch as
shown by the testimony mentioned
! fvine IL at V2" inches At tho roint
above the mansion and at 15n inches
along tho 100 feet of old f1un'a
through which the water flowed prior
| to 1900
| It is not necessary to determine
! whether tho court on its own eyamin-
| alton and rneaSuranent NAV allow
a nuan+itv hnvord the range of the
! evidence. n"r whether the surveyor
could actua'1v estimate the cana civ
| IF the 100 fent of cid f1ume with ont
] knowing the volume and velocity nt
! the water That entered it nor Wheth-
| err the variation of one part in ninet,-
: one CT the difference hetwann 100 II
chns in his NEE suranent and that IT
10a nv the Judge should be disreca I'll
ed as too trifling 70 be ~ate~ia' a-a
! as slight discrepancy TO be evnocte
| for 40 i-dc,>ent for tho % ;ro% :
which defendants claim shcnl' he de-
| drcted because in e~ceSS Of the ca y
| acity IF tho wiper 1i+ch ana en- -
| fore the conS+r-otiOr &C tho W hwy o
! in fonn ic er1~o~ter hv tho --ding re
! tho court that re paiutifTs and
their ~rantCrS .,ad for moe than
thirtv-ona wears before The Commence
nent of this suit used 2 no~t'nr Ct
tho water through the lower Twn7
die ditch II IS uread that 1874 inches
| is more than REQUIRED for tho irri"a
tiCn of n1airtiffs' rarch and tbat This
ie oenncial1v so heonrse a few Of thn'"
170.t5 cores Of cu'tiva' ed land lies
| above the unnn~ diton from, Onh y
| Creek and y small portion is natura'i,
! swamDv The ruantitv Of water p.
! lowed hv the decree seems very lio
era'- both for irrigation and for ID
nestle use and wate~ino stock. En-.
/ oirnerS and others testified thar ono
haIf and three fifths Of an inch nj
water per acre WIS sufficient while
for the plaintiffs. farmers from tn
vicinity varied iL their estimates oi
the ar'nunt necessary from 90 aD1
one hals to three and one half inches
per acre ..- Is ..--r...as .saa..r.- -rrs... .~ "a
The evidence indicated that the
n'aintiffs bad used as much water %
that awarded to them and more, ant
he'd uniformly produced good crOo>
Much Of their land is sandy with CO.,
siderable slone. After examining III.
soil and viewing the Guqntitv Of wat e,
as it ran on the premises, the cor
agreed with the testimony Of tn
plaintiffs that that amount was no,
essary and adopted mean betwesr
the highest and lowest estimate
The gravity Of wote~ requisite va
les greatly with the soil. seasons
crops. and conditions. and We cannu
saw that the allowance is excessive
Alexander Twadd'e testified tn
there wern times during the cumm o,
evidently short periods after,the lao.
had been irrigated when il was no
necesS"rv to usn ac much as The l1r
per ditch full of water On such or
casions and whenever if is not nna
ed by the plaintiffs it should be trrr
ed to the defendants. if they hay
any beneici9l use for it. and net ne,
nltted to waste It NAV be imnlia
hy the law, but it is better to hav
: recrees specify. and especially so j
THIS case, in view CT the testimor
stated and of tho IL,