Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1906-02-24

appears that the plaintiffs had not
materially increased their opprOplia-
! ton IN 4rty -~nree years, while
! 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 ad-
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
J age and dispute.
| By consent OF tie 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 fiume
near the Bowers Mansion and grave.
! he measured the flow at 1S4 inches
and the water lacked more than two
| inches of reaching the top A sur
|
that its capacity was 1872 inches at
this point. and that the canacity CT
100 feet Of old flume remaining w
nearer the head of the ditch which
| had been impaired by age and aban-
/ doned. and supplan+ed by a new V
! flur,e built above the old one by the
plaintiffs in 1900 was $50 inches. Al
| this noint the Judge found that 1si
! inches Of water which he had meas
ured below about flied the new y
| fiume. and he estir ated that the Old
| flne would carry from 200 to 500 in
! ches. From his examination of the
! premises and the character Of the soil
4, the court was Of the opinion that the
plaintiffs required. and We're entitled
| to, at least the amount of water they
| had flowing in the f1ume at the time
he made the examination. and he & =
| creed them prior right to 1S4 miners
/ inches running under four incl
pressure or 3 $3.50 cubic feet per Sec
! ond from Anril 18th to Nov 18Th -
! each year, and 20 inches or % of one
| cubic foot per second for domestic
use and Watering stock at other
| tines. It is claimed the amount Al
lowed is not warranted bv the ev;-
! dence because more then the caDaci-
| tv of the upper Twaddle ditch as
shown by the testimony mentioned
| fvino It at 1S9 inches al the point
above the mansion. and at $50 inches
| along the 100 feet of old fume
through which the water flowed prior
to 1900.
It is not necessary to determine
whether the court on its own exar,in-
alton and measurement may allow
a nua ntitv beyond the range of the
evidence nor whether the SURVEYOR
could sctnallv estimate the canacitv
Of the 100 feet Of old flume without
knowing the volume and velocity o:
1.-THE water that entered it, nor wheth
er the variation Of one mart in MIN et'-
one or the difference between 100 III
ches in his measurement and that 0,
1S4 nv the Judge should he disregard
| ed as too triflirr 10 he material and
as slight discrepancy to he expecte !
for the judgment for the "a incha
which defendants claim shoulr he de-
| dI'"tod '>o"a"en in o-coSS IF tho CO =
acitv ~f tho urnnr ditch ar1 e-n1n ho
fore the construction Of the V t,'ne
~ 1oon is s,,norteG hy the t-dins OF
! we COuTt mat re DdluflHS 1NC
their erantors lad for moro thar
thirtv-ore wears hafnre the On; ar,anco
ment Of this suit used norton al
tho water through the lower Twa1
die ditch IT is urged that 1874 inches
is more than required for tho irroa
tiOn Of plnintiffs' ranch and tha+ +hi,
&c asneciallv so because A few of tt ell
170.45 acres of cultivated land lies
above the uDDe~ ditch from Onh'l
Creek and small portion IS NATURALLY
swampv The quantity of water 2,
lowed bv the decree seems verv LID
eral. both for irrigation and for do
nestle use and watering stock Fin
gireers and others testified that ono
half and three fifths of an inch ~
water. per acre was stuff Gent while
for the plaintiffs, farmers from tn:
vicinity varied in their estimates O.
the amount necessary from che anf
lone half to three and one half inche!
per acre. 49,.
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 CT their land is sandy with con
siderable slope. After examining tn:
soil and viewing the quantity Of waite
as it ran on the premises, the corr
agreed with theactestimony Of thu
plaintiffs that that amount was ne,
essary and adopted mean betwee,
the highesti and lowest estimate
The. quantity of water requisite wa.
les greatlys,~with the SOIL, seasons
crops, and conditions,' and we canno
say that the allowance is excessive
Alexander Twaddle testified tina
there; were times during the summer
evidently short periods after the Ian
had been irrigated, when it was no
> necessary tc use as much. as the ur
per ditch full of water On such or
casiona and whenever it is not nee
ed by theplaintiffs it should be turr
ed to the dafendants. if they hav
any beneficial use for it. and-not pei
mitted to waste oIt5 may be implie
! 4 by the law. but it is better, to. .hay
! DEGREES specify. and especially so i
this case. in view of the testimor