The Goldfield news. [volume] (Goldfield, Nev.) 1904-1911, 1910-06-18
DUCKWA7ER CASE
DECIDED FOR
DEFENDANT

A decision has been handed down In
| the district court at Tonopah by Judge
Averill. in the case of Joseph &. Tog-
noni VS.. Louisa Irwin ct al. Inns Is
the famous "Duckwater case, winch
has been in the courts SO long that
some of the witnesses have died of old
age. and which has figured SOMEWHAT
in state politics.
1t will be remembered that Governor
| Diekerson alleged as one of the reasons
for his removal of State Engineer
Nicholas, the action of the latter In this
controversy. Nicholas took sides with
Tognoni, in an unwarranted manner ana
testified in his behalf and took pay,
contrary to the intent of the law and
the good repute of his office, according
to the governor. The opinion handel
down by Judge Averill sustains the de-
PENDANTS against Tognoni.
In a lengthy opinion handed down
by Judge Averill he arrives at the
following conclusions of law:
A. That Big Warm Springs is a part
of Duckwater creek, and that its wa
ters are subject to the DEGREES of this
court alloting water to users along said
creek.
! B. That all of said allotments are
prior in time and in right to the ap-
preparation mentioned in Finding IL,
and to any appropriation made or to be
made under engineers permit or other
wise hereafter from the Big Warm
Spring, it's channel, swamp, lake or
ponds.
c.. That the appropriation men
toned in Finding IL is prior to any
appropriation made or to be made Dy
the state engineers permit or other
wise hereafter from the bodies of water
on the Big Warm Spring plateau.
D. That the plaintiff shall not take
water from the Big Warm Spring or
any body of water formed thereby N
such manner as to occasion any loss OF
water to the users of water upon Duck
water creek as secured to them by form
err DEGREES of this court, or IN any
other manner than is herein provided.
Z. That any appropriation by the
plaintiff of the waters of the Big Warm
Spring or any body of water upon the
Big Warm Spring plateau shall be sub
ordinate to the rights of all users of
waters below him, and shall be confined
absolutely to previously unappropriated
water.
F. That, though there is unappro-
priated water in the supply upon the
Big Warm Spring plateau, the appro-
priation thereof is hereby declared to
be detrimental to the public welfare
and to invade or impair the rights of
other appropriations, unless works OF
control are constructed as hereinafter
set forth, under the control of this
court and under it's supervision. to be
exercised through an officer If this
court properly authorized.
G. That the plaintiffs herein shall
bear the expense of putting in all works
of control necessary to secure to .he
user of water below him their appre-
priations as fixed by DEGREES of this
court and to ascertain n secure 20
himself his own appropriation of water
of the Big Warm Spring and its neigh
boring bodies of water, as more fully
explained in the opinion filed herewith
and made a part hereof.
II. That the unappropriated water
of the Big Warm Spring and the other
bodies of water in the Big Warm
Spring plateau can be practically de-
termined only by the construction and
operation of works of control.
Inc court THEN soto out az ieiiStl VI
what the works of control shall consist,
and provides for the appointment Of a
water commissioner to properly dis
tribute the water to all settlers having
rights along the water course.
In conclusion, the decision says:
"The state engineers permit to the
plaintiff bearing date of September Il,
1908, is hereby modified to the extent
necessary to render it consistent with
this decision.
"The defendants are hereby given
Indictment for their costs and necessary