Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1906-02-21

! at the tine t is suit as D35>- Il
appears that the plaintiffs had not
materially increased their opprop ia
uOn IN IT, ear ale
( Theodore winters admitted upon the
stand that during the last ten or fif-
, teen years he had been using twice as
much water from Ophir Creek in ad-
dition to thai 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 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 Twaddle
| ditch which is the old square fiume
near the Bowers Mansion and grave,
he measured the flow at 1S4 inches
and the water lacked mere than two
inches of reaching the top. A sur
veyor had testified fer the plaintiffs
that its capacity WIS 1872 inches at
this point. and that the capacity cf
| 100 feet of old flume remaining up
nearer the head Of the ditch which
| had been impaired by age and aban-
| doned, and supplan ed by a new Y
| flume built above the old one by the
plaintiffs in 1900. was $50 inches. At
this point the judge found that 12t
! inches Of water which he had meas
ured below about filed the new Y
| f1ume and he estimated that the Old
| fiume would carry from 200 to 900 IN
ches From his examination of the
premises and the character of the sell
the court was of the opinion that the
plaintiffs required. end were entitled
to at least the amount of water they
| had flowing in the fiume at the time
he made the examination, and he de-
creed them prior right to 1S4 miners
I inches running under a fOur inch
pressure or 3 $3.50 cubic feet per sec
| ond from April 18th 20 Nov. 18th ri
each year. and 90 inches OF 2-5 Of one
cubic foot per second for domestic
use and watering stock at Other
times It is claimed the cmount a.
lowed is not warranted by the evi-
dence because more than the caDaci-
" of the upper Twaddle ditch as
shown by the testimony mentioned
| fixing it at 1S2 inches at the point
above the mansion and at $50 inches
along the 100 feet of old f1nme
through which the water flowed prior
to 1900.
1t is not Necessary to determine
whether the court on itc own exam n
alton and measurement may allow
quantity beyond the range of the
evidence. nor whether the surveyor
could actually estimate the capacity
of the 100 feet of cid f1ume without
knowing the volume and velocity O
the water that entered it, nor wheth
er the variation Of one part in NINETY
one or the difference between 1S2 III
. ches in his measurement and that o
, 1S4 by the Judge should be DISREGARD
. ed as too trifling to be material am
as a slight discrepancy to be expecte
for the Judgment for TIE "a inche!
, which defendants claim SHOULD be de
Quoted because in excess CT the ca =
acity of the upper ditch and f"me he
fore the construction of the Y t1um,
in 1900 is snporte5 by the ,,ding o
the court that he plaintiffs ant
their grantors had for more thai
thirty-one years before the commence
ment Of this suit used portion @
the water through the lower Twad
, die ditch. 1t is urged that 1874 inche
. is more than. required for the irrigc
, ton of plaintiffs ranch and that thi
~ T. - 4, -
) I170.45 acres of cultivated land lie
! above; the un Fse9s,- ditch Nv from Oph:
' Creek and "a small portion is natdra'I
swampy The quantity Of water a
lowed by the decree seems very liz
| eral.- both for irrigation and for d.
) nestle use and watering stock Eli
!, gipeers.; and, Qthe5Ssrttestified that on
/ half and. ,&hree tfhs ~ an inch 9
sf water per acre NaA sufficient, whit
tec,, the plaintiffs, farmers from tn
: vicinity varied In tkeif estimates q
|. the amount necessary from one an
, one half to three and one half inche
The evidence, indicated that tn
:. plaintiffs had used as much water a
, that awarded TO them and more, an
had uniformly Sfoduced good crop
|, Much q. their 1anaais sandy with, CO:
= Siderable slope Hitter examining tn
: ksoil and Yiewing the quantity Of waite
! as ii ran on He premises, the con
= : | agreed, with, the testimony of .,th
= p1aiptiffs, that that amount was he
= essary, and adopted. a mean betwee
= the highest and. lowest estimate
The quantity Of water requisite va
! less greatly with the soil, season
: crops, and conditions, and We cannt
say that the allowance is excessive.
s alexander Twaddle testified tn.
, there we're times during the summe
!; evidently short periods after the lar
had been irrigated, when it was NJ
- necessary to use as much as the u
! per ditch full or water. On such q
4 casions. and whenever it is rot nee
' ed by the plaintiffs it should be tur
n ed to the defendants, If they ha,
b any beneficial use for it, and not DC
n mitted to waste. It may be impli,
n by the law, but it is better to ha,
- DEGREES specify, and especially so
y this case, in view of the testino,
a LStated and Of tho nernatna1 in ;,o.4;o