Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1906-02-27

at the time this suit was begun. it
appears that the plaintiffs had not
materially increased their opprop ia
ton in rJy-.AIe ear 49,.
Theodore winters admitted upon the
stand that during the last ten or fif-
teen years he had been using twice is
much water from Ophir Creek in adj
dition to that from other streams, as
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 open
court the district judge, accompanied
bv 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 Twaddle
ditch, which is the old square flume
near the Bowers Mansion and grave.
he measured the flow at 1874 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 cana city Of
| 100 feet of old fiume remaining 10
nearer the head of the ditch which
had been impaired by age and aban-
! doned, and supplanfed by new Y
| fiume built above the old one by the
plaintiffs in 1900, was 150 inches. At
! this pCirt the Judge found that -
| inches Of water which he had meas
ured below about flied the new V
| flume and he estimated that the Oil
| fume would carry from 200 to goo ~
! ches. From his examination Of the
! premises and the character of the soil
| the court was Of the opinion that the
| plaintiffs required, and were entitln.
! to. at least the amount of water they
| had flowing in the fiume at the time
he made the examination and he q =
| creed them a prior right 10 1S4 miners
I inches running under four inch
pressure or $3.50 cubic feet per Sec
ond from hn~i7 18th 70 Nov. 18th -
! each vnar and 90 inches or % Of ono
cubic foot rer second for domestic
| vsa and watering stock at Other
| times. 1t is claimed the amount al
lowed is not warranted by the ev:-
dence because more than the caDaci-
" of the upper Twaddle ditch as
shown by the testimony mentiOne
fixing it at 1S' inches at the point
above the mansion and at $50 inches
along the 100 feet of old fumo
through which the water flowed prior
to 1900
It is not necessary to determine
whether the court on its own eyamin
alton and measurement may allow
a ouantitv beyond the range of the
evidence. nor whether the surveyor
could actually estimate the cana citv
Of the 1nh feet of cid f1ume without
knowing the volume and velocity oi
the water that entered it. nor wheth
err the variation Of one part in ninet~
one or the difference between 100 ~
rNeS in his measurement and that u
1e4 hv the nudge should be disreca III
ed as too trif1ing to he material arf
as slight discrepancy to be expec.e I
! fo~ tho ind ~r, ont fO- tho % inch -
which defendants claim shoulf he de-
Quoted because in excess of the cap
| acity Of tho INNER ditch a,a Hrr y \
| fore tho c0nstrr,otir- Of tho " 7',,-,c
in 1900 is s,,nrrteI by The t,,ding a
the court that ne plaintiffs ant
their crantcre .,ad for r>c-e tha-
thirty-one wears before the commence
rent. of this suit used nc~+ion O
the water through The lownr Tr-a ,
die ditch, It is urged that 1874 inche:
is more than required for the irrie1
tion of nloirtiffS' ranch and that thi.
IS especially so because A few of thoil
1905 ocreS Of cultiva. ed land lip>
above the unner Gitrn from Oph;'
| Creek and p small portion is natural,
swampv The Quantity of water .,
lowed bv the decree seems verv liz
eral. both for irrigation and for ID
nestle use and Watering stock En-
/ eineers and others Itestified that on
half and three fifths Of an inch q
water per acre WAS stuff cient. whift
: for the plaintiffs, farmers from tn:
vicinity varied in their estimates O
the amount necessary from c.,a -anf
one half to three and one hair inche'
per acre
The evidence Indicated that thu
| plaintiffs had used as much water a:
that awarded to them and more. an,
had uniformly produced good crop.
MUCH u lneiT lduu Is SdIlUN with cor
siderable slope. After examining tn:
soil and viewing the quantity of waite
as it ran on the premises. the COW
agreed with the testimony Of tn
plaintiffs that that amount was me-,
essary and adopted a mean betwee,
the highest and lowest estimate
The quantity Of water requisite va
les greatly with the soil. seasons
crops, and conditions. and we canno
say that the allowance is excessive.
Alexander Twaddle testified thu
there We're times during the sumner
evidently short periods after the Ian,
had been irrigated, when It was no
necessary TO use as much as the ur
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 thew hav
any beneficial use for it. and not ne,
mltted to waste 1t may be impIie
by the law, but it is better to hav
: DEGREES specify. and especially so i
tnls case, in view of the testimor