Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1906-02-23

| at the time this suit was begun 1t
appears that the plaintiffs had not
materially increased their oppropIia-
, ton in tnirty-.nree years, Wn1le
Theodore winters admitted upon the
stand that during the last ten or fif
! teen years he had been using twice as
| much water from Ophir Creek in al
| dition 10 tina 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 CT 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 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 f1ume
near the Bowers Mansion and grave.
he measured tt G flow at 1S4 inches
and the water lacked more than two
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 caracity Of
| 100 feet CT old flume remaining 10
nearer the head OF tie ditch which
had been impaired by age anl aban-
| dOned. and enpplan ed by 2 new Y
| fiume built above the old one hv the
! plaintiffs in 1900, was $50 inches. At
this point the Judge fCuGd thst 1Q'
inches Of water which he had meas
ured below bout flied the new y
flume. and he estimated that the oil
f7lme would carry from poe to goo IL
ches. From his examination C the
premises and the ch ~racter Of the sell
the court was Of the opinion that the
plaintiffs REQUIRED. and We're enti+lnl
to- at least the amount of water they
had flowing in the flume at the time
he made the examination. and he d !
creed them a prior right to Isl mines
inches running under q fCu~ inCh
! pressure or 3 1850 cubic feet per sec-
end from tnril 18th % No 18th -
each year and % inches or -, cf ora
cubic foot ner second for domestic
use and watering stock at other
times. It is claimed the omornt a.
|
| dence because more than the csraci
tv Of the upper Twaddle ditch as
shown by the testimony mentioned
fxing it at 1S9 inches At The noint
above the marsion and at $50 inches
along the 100 feet of old frmn
through which the water flowed prior
to 1900
| 1t is not necessary TO determine
whether the court on its own eXar'i.l
alton and measurement may allow
a Quantity beyond the range of the
evidence. nor whether the surveyor
could actually estimate the capacitv
Of the 100 feet of old flume without
knowing the volume and velocity ot
1.-THE water that entered it. nor whet',-
er the variation of one part in ninet"-
one or the difference between 1S9 NJ
ches in HE measurement and that Of
1e4 bv the Judge should be disreca-l-
ed as too trifiing to be material and
as slight discrepancy to be expecte l.
for the iudo-rent for the 81 inches
: which defendants claim shCnl' he da-
d"cteG because in excess IF the can
acity Of the upper ditch and Fun. ha-
fore the construction of. the V Juno
in 1900 is suportee by tho r-ding oe
their grantcrs Iad for poo tho,
thirtv-one wears before the Commence
ment of this suit used a. po~tior Of
the water through the lower Twa1,
die ditch. 1t is urged that 1874 inches
| is more than required for the irriga-
ton of plaintiffs ranch and that this
is especiallv so because a few of their
170.45 acres Of cultivated land lies
above the uDpe~ ditch from Onh'r
: Creek end small z triton is naturally
swarpv. The quantity of water a.
lowed bv the decree seems very lib
eral. both for irrigation and for do
, nestle use end watering stock En-
| gineers and others testified that one
half and three fifths of an inch of
water per acre wis sufficient. while
for. the plaintiffs. farmers from the
vicinity varied irA their estimates OF
the apaount necessary from che and
one hal! to three and one half inches
per acre ~->
The evidence indicated that the
plaintiffs had used as much water as
that awarded to them and more, and
had uniformly produced good crops
Much of their land is sandy with cor
. siderable. slope. After examining tn .
soil and viewing the quantity of water
as it ran on the premises. the coul t
, agreed with the testimony Of the
plaintiffs that that amount was nee.
essaryt and adopted 4 mean between
the highest and lowest estimates
The quantity of water requisite var
les greatly with the soil seasons
!, crops. and conditions, and we cannot
say that the allowance is excessive
Alexander Twaddle testified that
there were times during the summer
evidently short periods after the land
had been irrigated. when it was no,
; necessary to use as much as the up
per ditch full of water On such or
casions and whenever it is not nee /
ed by the plaintiffs it should be turn
ed to the defendants, if they have
any beneficial use foroit and not per
United to waste. 1t NAV be implie
! by the law, but it is better to have
l DEGREES Snpcifv and ocnoc;o11x, - :,