Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1906-03-04

appears that the plaintiffs had not
materially increased their opprop ia
ton IN ,alrty-JnreG ear, "Al41
Theodore winters admitted upon the
stand that during the last ten or fif-
teen yea he had been using twice as
much water from Ophir Creek in adj
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 TIE parties in opan
court the district judge, accompanied
by a 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 Twaddie
ditch. which is the old square fune
near the Bowers Mansion and grave,
he measured the fow at 1874 inches
and the water lacked more than two
inches of reaching the top. A sur
NPNOT Udu lPStlHeN III tut pidillllto
that its capacity was 1872 inches at
this point. and that the canaoitv of
100 feet of old fiume remaining 10
nearer the head Of the ditch which
had been IMPAIRED by age and aban-
doned. and S1lDD,an ed by a Now Y
fume built above the Old one by the
plaintiffs in 1905, vas $50 inches. At
this point the judge found that 18i
inches of water which he had meas
urad below about filed the now "
fume. and he estimated that the oil
fune would carry from 2Na TO 200 IL
ches. From his examination Of the
! premises and the Characte" Of the soil
! the court was of the opinion that the
| plaintiffs required, and were entitled
| to. at lnast the amount Of water t%2v
| had flowing IN the fune at the time
| he made he eva'nineticn. AMI he : =
| creed them prior right 20 124 miners
+ inches running under g f0ur inch
pressure or ; $50 cubic feet per snr-
! ond from Anri' 18th 10 N0v 18th VI
! each wear. and 90 inches or 2-5 Cf ono
! cubic foot per second for domestic
rSn and Watering stock Of n.hr~
| tines. It is claimed the amount a.
| lowed is not warranted by the evi-
| dence because moro than he aDaCi-
| ~ Of the unDer Twaddle ditch &c
| shown By the testimony mentioned
/ fxirg II at $50 inches at tho noint
above the mansion. and at $50 inches
| along the 100 feet Of old fnue
through which the water flowed prior
to 1900
It is not necessary to determine
, whether tho court on its OWL evarin-
alton and measurement may allow
q ouantitv havond the range of the
evidence. nCr whether the surveyor
could actually estimate the caracitv
If the 100 feet of old flume without
knowing the volume and velocity o.
1.-THE water that entered it. nor wheti
err the variation Of one part in ninet"
one or the difference between 100 VI
ches in his measurement anG that 81
1874 by the Judge should be DISREGARD
ed as too trfing to he material AM
as slight discrepancy to be expectel
| for TIE iudgr ont for tho - inch *
which defendants claim shou'e he de
Quoted because in excess of the cap
acity Of tho unper ditch and err.n ha
| fore the construction Of the v l'urrt
i, 1o0n & sr>crteT nv tho -rding q
INc court mat re DtdlNllHS All
their srant0rs -,ad for moro thai
thirty-one years before the commence
mert Of this suit used portion o
the water through the lower I'wa'
, die ditch It is urged that 1874 inche
is more than required for the irriga
. ton of plaintiffs ranch and that thi
ia especially so because a few of tt nj
, 170.45 acres of cultivated land lie
above the upper often from Oph;
y Creek and small portion is natura'l
| swampv. The quantity of water a
lowed bv the decree seems very lii
, eral, both for irrigation and for Il
: nestle use and watering stock. Er
, gineers and others testified that on
? half and three fifths of an inch G
, | water per acre WIS Efficient. Will
:, for the plaintiffs. farmers from tn
: | vicinity varied in their estimates c
, the amount necessary from ole an
!, one half to three and one half inche
, per acre
The evidence indicated tina. tn
plaintiffs had used as much water a
that awarded to them and more, an
had uniformly produced good crop
Much of their land is sandy with co,
i siderable slope. After examining til
soil and viewing the quantity of wat
!, as it ran on the premises. the COW
- agreed with the testimony of til
:, plaintiffs that that amount was ne
u essary and adopted a mean betwe5
i the highest and lowest estimate
The quantity of water requisite va
l les greatly with the SOIL season
: crops, and conditions, and We cam;
II say that the allowance is excessive.
5 Alexander Twaddle testified tn
, there We're times during the summe
. evidently short periods after the Ia,
+ had been irrigated, when it was n
y necessary to use as much as the U
Il per ditch full Of water. On such c
Is casiOns and whenever it is not nee
v ed by the plaintiffs it should be tu1
II ed to the defendants. if they ha
p any henefci"l use fer it. and not y,
a ! mitted to waste. IT may be impli
n by the law, but it is better to ha
II DEGREES specify. and especially SO
Il this case. in view of the testimo
y stated and of the nnrDetual in iupot;,