ditch; the next is the Old Channel ditch, or Pitt ditch; the third is called the Irish-American; the fourth is the Southwest; the fifth is the Rogers ditch, and the sixth is the Union Canal.

Each of these ditches has sought jealousy to guard and protect its rights as against the others. The Young ditch is a comparatively small ditch and diverts but a small amount of water. All the other ditches are fairly large and capable of carrying a much larger amount of water than they are usually able to obtain.

The Pitt, or Old Channel, ditch is a later ditch than any of the four ditches below it. It is, at the same time, a large ditch and it has consequently been jealously watched. Suits have been brought against the Pitt ditch by Rogers in the Federal Court. This suit was brought in 1898. It came to trial in 1902 and judgment was rendered in 1903. By this judgment and decree Rogers was given a priority over the Old Channel Ditch Company for 3,500 miner's inches of water to irrigate the lands of the plaintiff, amounting to 4,500 acres of irrigated land. It was shown that other lands amounting to approximately 1,000 acres were watered by the Rogers' ditch, but the owners of these lands were not parties to the suit and the judgment did not, therefore, take into account the water necessary for the irrigation of these lands. The judgment is, therefore, in favor of Rogers simply and not for the Rogers Ditch Company. It gives him a preferred right for water amounting to 3,500 inches for the irrigation of his lands, and the fact that this water is taken through the Rogers Ditch Company's ditch is of no particular advantage to the other users of water from that ditch.

Users of water under the Southwest ditch also brought suit against the Old Channel Ditch Company in the District Court of Humboldt County. This suit came to trial in 1903 and judgment was rendered in favor of the plaintiff's by giving them a priority over the Old Channel Ditch Company for 1,250 inches. Suit was also brought in 1891 by the Union Canal Company against the Old Channel Ditch Company in the District Court of Humboldt County. Judgment was rendered in favor of the plaintiff for 1,650 miner's inches of water as against the defendant. In each of these cases injunctions. were granted against the defendant restraining him from diverting water from the stream whenever there is not sufficient water to supply the respective defendants. In no case was a complete adjudication of all the rights of the users of water on the stream even in Lovelock Valley sought or obtained, and in no case was any provision made by the Court for the selection each year of a person to divide or distribute the water in accordance with the decree.

These suits in this valley alone probably cost not less than thirty thousand dollars, and their utter futility is by now probably recognized by all the contending parties. It would, of course, require fifteen such suits between the different ditch companies to adjudicate the rights of these companies in this manner and by the time they were tried through so many new interests would have arisen as to require a new adjustment of rights all around. More serious, however, than even this objection to this course of procedure is the fact that Lovelock Valley being at the lower end of the stream, and while the settlers here have been supposedly litigating their rights more and more new land has been brought under cultivation by the settlers on the tributaries perhaps two hundred miles away. Less and less water has come down the river to Lovelock Valley and the valley faces a perilous future. The settlers in Lovelock Valley have absolutely no means of defending themselves against a gradual, stealthy but certain encroachment upon their rights by the upper appropriators. No man can be familiar with the irrigation conditions from one end of the river to another. He does know that here a little and there a little along each tributary men are enlarging their irrigated acreage, but the growth is so gradual, and scattered over such an immense area that, if inclined to bring suit to protect himself, he does not know whom to sue. Year by year he sees his rights invaded, stolen from him and appropriated by others but by whom in particular he cannot tell. The litigation so far indulged in has been absolutely fruitless of any results to him except the engenderment of unending bitterness between himself and his near neighbors, and the entailment upon them and himself of a heavy and useless expense. I know of no subject of so much importance to the people of Nevada as the proper determination and protection of the water rights of the irrigators of the state. It should receive first place in the considerations of the Courts, the Legislature and the Executive officers of the State.

LITIGATION IN THE CARSON RIVER BASIN.

For the most part the litigation over water rights in the Carson River basin has been confined to the small streams rising in the canyons on the eastern slope of the Sierras. The courts have done their most effective work upon these mountain streams, because every appropriator was made a party to the suit and an adjudication of all the rights upon a creek was accomplished at the same time. Few, if any of these creeks have a flow during the summer months of more than three cubic feet per second and their waters are much coveted.

The decrees have, for the most part, provided for the division

of the waters of the creeks in but two different ways. First, by allotment of the use of the entire flow for a certain number of days or hours, as on Genoa Creek and Jack's Valley Creek; and second, by apportionment of fractional parts of the flow for all time, as on King's Canyon Creek and Clear Creek. In one case only, that of Hartshorn Creek, is the division based upon a unit of measurement. The most important suit ever tried concerning the water rights in the Carson River Basin was that known as the

Union Mill and Mining Company vs. H. F. Dangberg et al. This action was brought in the United States Circuit Court on September 11, 1889, by the complainant as the owner of seven quartz mills situated along the banks of the Carson River in Ormsby and Lyon Counties, Nevada, against II. F. Dangberg and about one hundred and twenty-five other respondents, comprising all of the farmers residing in Carson Valley in Douglas County. The complaint charged the respondent with unlawful diversion of the waters of the river in July, 1889, and alleged "that complainant, in August, 1871, commenced eleven suits in this Court against about forty of the respondents herein, and that judgments therein were entered for complainant, some on the 8th of August and some on the 18th of August, 1873, and it was there adjudged that complainant was entitled to the rights of a riparian proprietor in the waters of the Carson River."

The answer of the respondents alleged that complainant's injury. if any, was not due to respondents' acts but was occasioned by the unprecedented drouth of 1889, that some of the respondents are riparian proprietors and entitled to water under former judgments, some are entitled by prior appropriation and some by prescription. They alleged that the agricultural interests of Carson Valley were of paramount importance as compared to those of the mill owners on the Carson River.

In answer to the argument of the respondents that the agricultural interests of Carson Valley are of paramount importance to those of the mill owners on the Carson River, the judge wisely asked, “But of what general use, independent of the wants and necessities of themselves and their families, would the products of their farms be unless the other industries which furnish a market for the crops were equally protected in their rights?"

After an able discussion on the "general doctrine advanced as to the superiority of rights acquired for the purpose of irrigating arable lands as against rights acquired for mining or milling purposes," the Court concluded by quoting from Gould on Waters, Sec. 233, as follows:

Whether the appropriation is for mining, as originally it was solely, or for mills, for irrigation, or for agricultural, horticultural, domestic or municipal purposes, the rights thereby acquired now stand upon the same footing, and an appropriation or use of water for one of these purposes is not justifiable when it interferes with a prior appropriation or location for another purpose.

In speaking of the results of earlier cases on the Carson River, the Court stated:

The former decrees in this Court settled but one question, viz: The respective parties thereto were riparian proprietors, and as such were equally entitled to make a beneficial use of the waters. The Court declined to pass upon any other question.

After a consideration of the effect of such decrees, and of the variable flow of the stream at different seasons and the resulting insufficiency to supply all demands, it was declared that

A court of equity ought to have power by its decree to reach the needs of justice. In many cases where similar facts existed, the Courts, in the application of riparian rules, have solved the difficulty by decreeing that inasmuch as both parties require the full flow of the stream at certain periods of time in order to make a reasonable use of the water, their rights could be declared, preserved, and made beneficial by decreeing to the respective parties the use of the full flow of the stream during different periods of time.

After elaborating upon the above argument, the Court continued:

In view of all the facts, my conclusion is that the complainant is entitled to a decree against all of the respondents, perpetually enjoining them and each of them from diverting the waters of Carson River upon their lands, or elsewhere, so as to prevent complainant from having the full and free flow of 6,000 inches of water, miner's measure, under a 4-inch pressure, for use at its mills, except from July 1 to October 1 of each year, and should be enjoined from making any other than an economic, beneficial and reasonable use of the water without waste from July 1 to October 1 of each year, and be required to return the surplus of the water after such use back into the river whenever the complainant can make a beneficial use of such surplus.

Subject to these rights of the complainant, the respondents are entitled to a decree allowing them at all times to make an economic, beneficial and reasonable use of the water, without any waste, and from July 1 to October 1, to the extent of taking all the water in the river when, and only when, all of it is absolutely required, owing to the scarcity of water in the river, to enable them to make such use of the water in irrigating their riparian lands without waste. (The word "riparian" is omitted in the final decree.) The decree

*

*

#

**

*

against unnecessary and unreasonable waste should be made strong, clear and positive. The respondents are also entitled to a decree

The decree requires the construction of drain ditches for the return of surplus water to the river.

allowing them, and each of them, at all times to take and use a sufficient quantity of water from the river for their household and domestic purposes and for watering their stock.

Each of the respective parties was ordered to pay his own costs. The decree was filed September 20, 1897.

The effect of this decree was, in a measure, to protect the interests of both sides to the controversy. From July 1 to October 1 the mills are not always able to procure water enough to run their wheels. They are, however, protected in their rights through nine months of the year, and since the mines which formerly supplied these mills with ore have many of them closed down, all the ore the mills can get can be easily milled in nine months of the year.

On the other hand, through six months of the year the farmers do not need the water at all for irrigation, and through April, May and June there is water enough for both interests. It is difficult, indeed, to conjecture any other manner in which the Court could have decided this contest that would have at the same time so well protected the real and substantial interests of both sides.

LITIGATION IN ORMSBY COUNTY.

The first water suits in the Carson River Basin were brought in Ormsby County. The reason is patent. The overland trails made Carson City a very desirable location; and, as nothing could be raised without irrigation, rights to the few small streams were zealously guarded. Kings Canyon Creek and Gregory Canyon Creek flowed through the town. The purposes to which their waters were put by the townspeople is quaintly stated in the abstracts of the first suit.

Perkins et al. vs. Eureka Mining Company et al.

The first contest over the ownership of the waters of Kings Canyon Creek was started by a complaint filed by the citizens of Carson City, on July 28, 1864, against two mining companies and forty farmers on the streams above the town. The case was tried by the judge of the fourth judicial district by request of the judge of the second judicial district. Plaintiffs claimed the use of 9-10ths of said stream "for the purpose of protecting said town against destruction by fire, for the purpose of washing, cooking, irrigating the ground on which said town stands, and thereby supplying the wells. of the town with pure and plentiful water; also for the purpose of