Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1906-02-22

at the time this suit was begun 1t
appears that the plaintiffs had not
materially increased their Oppropria
! ton in thirty-tnree years, While
| Theodore winters admitted upon the
stand that during the last ten or f1f-
/ teen years he had been using twice as
much water from Ophir Creek in al
| dition to thai 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 civil engineer who had testified
as a witness for the defendants, view
ed the premises and made measure
ments. At the point Of least carry
| ing capacity Of the upper Twadd'e
ditch. which is the old square fiume
near the Bowers Mansion and grave,
he measured the flow at lS4 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 49, inches at
! this point. and that the caDaoity Of
| leo feet Of old fiume remaining W
| nearer the head Of the ditch which
| had been impaired by age and ahan-
| dOned. and supplan ed by a new V
fiume built above the old enc by the
plaintiffs in 1900. was $50 inches. -
| this point the judge found that 1Si
! inches Of water which he had meas
rred below about fled the new y
| fume. and he estimated that the oil
| fume would carry from 300 to 300 in
ches. From his examination of the
psemises and the character Of the soil
! the court was of the opinion that the
plaintiffs required. and We're enti+lnA
! to at least the amount Of water they
| had flowing in the fiume at the time
he made the examination. end he d.
creed them y pricr right 20 1St mner%
/ inches running under fCur inch
pressure or 3 34-5n cubic feet per se,-
! Gnd from ADri' 18th 20 Nov. 17-h NJ
! each year and % inches or % cf one
| cubic foot ner second for DOR eSt'"
use and Watering stock at othe~
| tines It is claimed the anourt a.
| lowed is not warranted bv the ev;-
| dence because more than the raDaci
tv Of the upper TwaddIe ditch az
shown by the testimony mention Ell
FIXING il at TS2 inches at the noint
above the mansion. and at $50 inches
| along the 100 feet of old funn
through which the water flowed prior
to 1900.
II is not necessary to determine
! whether the court on IT'S own eNamin-
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 f1ume without
knowing the volume and velocity OF
ithe water that entered it. nor wheth-
err the voriation of one part in niret'.-
one or the difference between 1S2 III
| ches in his measurement and that IF
1874 hv the Judge should be disreca-''-
ed as too trifling to be material and
as a slight discrepancy to be expecteT 7.
for the judgment frr the - inch aS
which defendants CLAIM shcula he de-
| @""tod ho"anso in e~cess If the can
acity Of the upper ditch and f1ume be
fore the construction of the Y a','--" .
in 1910 is sv~c~teH nv tho r-Hing ~
ne court that 10 niaiutifs and
their grantors had for moro than
thirtv-one wears before the coTr-rencn
ment of this suit used portion of
the water through the lower TuaS
die ditch. 1t is urged that 1874 inches
is more than required for the irriga
tion Of nIaiutiffs' ranch and that this
is especially so beca'se few of their
170.45 acres of cultivated land lies
above the unpe- ditch from Oph:!
Creek and small portion is natural,
swampy. The quantity Of water a.
lowed bv the decree seems very lib
eral- both for irrigation and for do
nestle use and watering stock. En-
hgineers and Others testified that; one
haf and rthree ffths Of an inch o
Exater.iper acre vas suffsient while
fer The plaintiffs: tYkmsgs fEgn -. IL !
the amount necessary from one ant
one half to, three and one half inches
. per acre.
The evidence indicated that tn,
plaintiffs had used as much water a
that awarded to, them and mere. an'
had uHniformly preduced good crop
Mach ,nt their land Us sandy With COZ
aderasAes slope AFTER examining tn
lsoit and viewing the, quantity of waite
,, as it,ran ON the, premises, the. ,cou-
= | agreed with i ithess,testimony. of th
plaintiffs that that amount was mex
.. essarys aud. adopted. a mean betwee
the highest. and; lowest estimate.
The quantity II water requisite va:
: les greatly with the soil. season:
: crops. and conditiopsa and We canno
! say. that the allowance is excessive
!. Alexander Twaddle testified tha
there were times during the summe
; evidently short periods after the Ian
had been irrigated when it was M
> necessary to use as much as the u,
! per ditch full of water. On such O
, + casions3 and whenever it is not nee
: ed by the plaintiffs it should be tur
ed to the defendants, if they hay
Z any beneficial use for it. and not pc
mitted to waste 1t may be implif
n by the law. but it is better to ha,
= DEGREES, specify. and especially so
7 this case, in view of the testimor