Tonopah daily bonanza. [volume] (Tonopah, Nev.) 1906-1929, 1910-06-17
COURT RENDERS
AN OPINION IN THE FAMOUS
DUCKWATER CASE
Judge Averill Clearly Defines Situation
That Exists in Eastern Part of This
County Over Water Rights.

On Monday Mark X. AVerlll rem
dered his decision in the famous
Duckwater case, which has been be-
fore the courts of this and adjacent |
counties for the last twenty-five |
years. Owing to the press of time !
Judge Averill was not able to hand
down his opinion with the decision
and the former was rendered yes
terday. The opinion clearly de-
fines the situation that exists and
owing to the Importance of the case
it is reproduced in full. The title
of the case was Joseph c. Tognini,
versus Louisa Irwin ct al, and
Judgment was rendered in favor of
the defendants. The opinion reads
as follows:
The purpose of the decision in
the above entitled case is to con-
firm to the users of wafer on Duck
water Greek the appropriations
made to them by various DEGREES
of this court, and in SO doing to
treat the Big Warm Spring as
part of that stream; bat yet to en-
able the plaintiff to appropriate and
use any water there may be in the
supply unappropriated, without loss,
injury, or expense to prior appro-
priators on Duckwater Greek.
The doctrine of stare decisis'
was strongly urged in this case by
the defendants, and refers in this
instance to a previous adjudication
of this court to the erect
that the Big Warm Spring
is source of supply OF
Duckwater Creek. lii this matter
| have given the doctrine little con-
sideration for three reasons: First
that viewing the previous case as
whole, it left room for the con
sideration of the question whether
there is unappropriated water IL
the Big Warm Spring supply; ant
If there is any at all, under thu
principles that have become estab
lished in the arid states general,
and in. Nevada in particular, /
may be appropriated and used, /
this can be done so that it will no
invade or impair the rights of 9th
er appropriations and lis not detri
mental to the public welfare" sec
ond, that this doctrine should no
be too strongly pressed, q Ken
47O; and third, that the deci
sion in the former case was predi
Gated upon conditions that hav
changed somewhat and upon evi
dence that to some extent was Ell
roneous. The final decision in tina
case clearly indicates that the judg
went to an extreme altogether con
trary to his former decision in tn
same case, probably because of tn
views of the supreme court in re
versing him.
The verdict of the jury on tn
first trial of the case, taken as
whole, sureley did not declare tha
all the water of the Big War;
Spring flows into Duckwater creel
The fact seems to be that tn
spring is the principal source c
supply of the creek, but this woul
be true if only half of its waite
reached that stream, and the RI
mainder were lost by evaporatio
and seepage. Judge Mckinney
last decree contains this language
1.-The Hot Spring is the principi
source of Duckwatep Creek, an
the waters thereof constitute an
are a part of said stream Tn
can only be true to the extent tn;
the waters of the spring reach n
stream and at that time there W;
no surface connection at all-nor
at least that the court took al
cognizance of. Even nature has r
fused TO abide by the former col
dItions. for now there Is su
face connection of the Big war
Spring with Duckwater valley pro
err gradually Increasing Quito
from the lake.
u Il absolutely impossible at ~
time 90 say what the loss by see
age Is, but there must be som
The loss By evaporation Is ssEio1
WITH the exception Of a part
the swamp eoatainlng a srowsa
takes. the lake and pads are
sn 10 the sun3 their beds are 90
considerable sxtsat ot ught col
and thsy are veEy shallow Tn
may be- compared 10 yellow cart
eaware saucer, saeh a saucer
sin and eas-half inches in diams'
hy ave-ssghths eg an laeh d~ee a