Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1906-03-07


tlOn N ear VINE
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 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 tl g parties in one7
court tie district judge. accompanied
by civil engineer who had testified
as a witness for the defendants, view
ed the premises and made measure
merts At the point Of least carry
ing capacity of the upper Twaddle
ditch. which is the old square fiume
near the Bowers Mansion and grave.
he r~oasured 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 c9na"itv Of
100 feet of old flume remaining uo
nearer the head of the ditch which
had been imneired by age and aban-
doned and suoplan+ed hv new V
flume built above the old one bv tho
plaintiffs in 1905, vas $50 inches. Al
this point the iudce found that 12i
inches Of water which he had r,eas-
ured below about filed the now y
fume. and he estiroated that the old
f,me would carrv from 600 to goo ~
ches. From his examination Of the
premises an3 tho chsracte~ Of the sell
! the court was of the opinion that the
plaintiffs required. and We're entitled
to. at least the amount of water tho
| had flowing n the fUne at the tina
! be made the evar2;nntiOn end he d.
, creed them nriCr right 10 1S4 miners;
{ inches runnin" under q fou~ incl,
pressure or 3 $3.50 cubic feet per sec
! ond from Anvil t-th - No 1-th -
! each year. ana % inches or 2-5 of one
| cubic foot rer second for domestic
nen and watching stock AZ o+he~
times Y is claimed the e7nor-t a.
lowed IS not warranted BY the ev;-
! dence because rOrn than the capaci-
| tv CT the upper Twaddle ditch &c
| shown by the testimony mentioned
fvino i at $50 inches at thu point
above the mansion and AZ $50 inchn4
| along tho 1hn feet of old fumn
through which the water flowed prior
to 1900
It is not neoessarv 70 determine
whether tho court or its own exam,n
alton and measurement may allow
evidence. rrr whether the surveyor
could ac'ua1lv estimate the cana cit
Of the 100 feet of cid fume without
knowing the volume and velocity o
the water that entered it. nor wheth
er the variation Of one part in n;net"
one CT the difference between 80 II
| char in his noeo eurnraent and that y
1St by tho Judge should be disregard
, | ed as too t"iffing to he r'ate"ia1 IN
as slight diecrnnancv to he evnoc.e
for thn iudo~ort for thp 81 iro> \
which defendants claim shonlG be de
d"cted because in excess of the car
aritv Of tho '-nnor 1;tcl, ana H''n. ~
| fore tho ccrc+~'rn.;.rr Of tho v -'-'r>o
IN 10n0 ic cu0o~+n' by no tr1inr =
tho court that nn niairtiffs an
fhnir orant0re lad for mcro tho
thi"tv-one wears before the coihmencr
n'ent Of this suit used nn~+icr Q
tho water through the lower iva
/, die ditch II is urged that 1874 incha
is more than required for the irro'
tion of nlairtiffs' rcnnh and thai thi
is nenecia1lv so heoa"Se few Of tho
, 10 40 acres Of cu1tiva. ed land lie
above the unner often from Onh
= Creek ard small portion is natural
| swampv. The nu9ntitv of water p
lowed bv tho decree seems very lii
eral, both for irrigation and for 4
nestle use and watering stock Fl
, gineers and others testified that on
: half and three fifths of an inch Z
: | water per acre WIS sufficient. Will
:. for the plaintiffs, farmers from tn
; vicinity varied il their estimates c
, the amount necessary from CO an
, one hal2 TO three and one half inche
, per acre.
The evidence indicated that =,
plaintiffs had used as much water q
that awarded to them and more. an
had uniformly produced good cror
Much Of their land is sandy with co
Il siderable elope. After examining II
soil and viewing the eUantitv of wat,
:, as it ran on the premises. the con
- agreed with the testimony Of I'll
, plaintiffs that that amount was ne
q essary and adopted a mean hetwe5
~ the highest and lowest estimate
The quantitv of water requisite Va
: les greatly with the soil. season
:, crops. and conditions. and We cam
- saw that the allowance is excessive
> Alexander Twaddle testified I'll
y there were times during the summe
: evidently snort periods after the la
had been irrigated. when it was y
= neces42rv to use &c much as tho u
: per ditch full of water On such {
80 c1siC1C and whenever It is not nee
:, ed by the plaintiffs it should be tul
i ed to the defendants if thew ha
= any beneficial use fer it. and not NJ
4 | m!tted to waste L NAV be impli
Il by the law. but it is better to ha
"ecrees specify and especially so
| this case. in view Of the testimo
a stated and Of the perpetual iniunctie