get water if any comes. The Nevada users are really decreed half the water. They get more than half if the decree is obeyed fully, for they get the drainage from the California lands.

When, however, it is taken into consideration that at least twice as much land in Nevada is irrigated from the West Carson as is the case in California, the decree seems to do but scant justice to their rights.

This long drawn out and expensive case resulted in no determination of priorities as between the plaintiffs and the defendants, and of course no such definition of rights as between the plaintiffs themselves or the defendants themselves. It was the first interstate water suit and, indeed, the only one concerning rights on an interstate stream ever tried in this state. It was watched with great interest by students of irrigation law everywhere. The result, while affording to Nevada irrigators a certain measure of needed relief, was a disappointment in that it left still unsettled the actual rights of each party as against all the others; it apparently put no value upou priority of appropriation and use; the basis of apportionment was not proportional to even the present appropriations. The vexed questions as to what law shall constitute the basis of division of water of interstate streams, when the laws of the two states differ radically in principle, are no nearer solution by reason of this decision than they were before.

LITIGATION IN LYON COUNTY.

Ophir Eilver Mining Company vs. Carpenter et al.

This was a suit between two mill companies over the alleged wrongful diversion of the waters of Carson River. As the papers cannot be found among the county records, the exact date of the beginning of the action has not been ascertained, but the case was appealed to the Supreme Court and an opinion (4 Nev., 534) deliv ered in January, 1869.

The opinion is one often cited on account of its able discussion of "reasonable diligence." A few of the favorite extracts are as follows:

Where the work necessary to complete an appropriation of running water is not prosecuted with diligence, the right to the use of the water does not relate back to the time when the first step was taken to secure it; but dates from the time when the work is completed or the appropriation is fully perfected.

The law does not require any unusual or extraordinary effort, but only that which is usual, ordinary and reasonable.

Illness of the appropriator and his want of pecuniary means to prosecute the work, being matters incident to the person and not

the enterprise, are not such circumstances as will excuse great delay in the work.

Cardelli and Cardelli vs. Pfeifer.

On July 23, 1898, the above action was brought to recover the waters of Six Mile Canyon Creek and $1,500 damages for the wrongful diversion of the same. The jury rendered a verdict for the plaintiffs and fixed the damages at the sum of $1, August 4, 1898.

Gotelli et al. vs. Cardelli and Cardelli.

This suit was instituted March 24, 1899, to determine the rights of the plaintiffs to maintain a dam in the Carson River, and a ditch, both of which are on lands of defendants, to enjoin defendants from allowing waste water to damage said ditch; and for $600 damages and costs. On June 10, 1899, the District Court decreed in favor of the plaintiffs and ordered the recovery of $325 damages, and the costs of suit taxed at $257.70.

Gotelli et al. vs. Cardelli et al.

This case was between the same parties as the preceding. The cause of the action was alleged wrongful diversion by the defendants. The trial began November 15, 1900, and on November 17, 1900, the jury found for the plaintiffs, granting a prior right to the full capacity of their ditch and allowing $775 damages and costs of suit taxed at $421.15.

Cardelli et al. vs. Comstock Tunnel Company et al.

The plaintiff's claimed to have used the waters flowing from Sutro Tunnel by and with the consent of the Sutro Tunnel Company (predecessor of Comstock Tunnel Company) since 1879. The suit was brought on August 13, 1900, to enjoin the defendants from preventing the waters from the tunnel entering plaintiff's ditch. The District Court ordered that the injunction applied for be refused, December 19, 1900.

The case was carried to the State Supreme Court and the judgment of the lower court was affirmed, December 17, 1901. In the opinion delivered by the Supreme Court in this case the subject of natural water courses was discussed. The following extract is well worthy of publication.

Where all the waters flowing through a tunnel are derived from drainage of a mine and of the country between the mine and the mouth of the tunnel, and from pumping into the tunnel from lower levels, and the water which has been used in the mine for electrical purposes, such tunnel is not a natural stream, and its waters are not subject to appropriation.

LITIGATION IN CHURCHILL COUNTY.

As far as contests over water rights are concerned, Churchill County has yet to experience its first.

Two cases are cited in the records of the county as water suits. One is known as the case of Bailey vs. Cushman et al. This was really a damage suit resulting from the alleged overflow of lands. The defendants moved for a non-suit and a judgment was entered accordingly, July 7, 1891. The defendants were allowed their costs.

L. Allen vs. Thomas Tourney and Charles Kaiser.

This was a suit to secure a division of the water in a certain ditch that plaintiff and defendants held in common. The result was an order of the Court for the construction of a suitable division box that should give to the plaintiff two-thirds of the water and the defendants the other third.

There are in Nevada a large number of creeks watering the lands of two or more users. The rights upon the creeks have been in some instances defined by Court decrees. Notable among the number mentioned above are Duck Creek, Steptoe Creek, and Ill-i-pah Creek in White Pine County, and Duckwater Creek in Nye County.

The suit that brought about the adjudication of the rights on Duck Creek is known as the case of Thomas M. Dick vs. D. W. Ogden, et al. This suit was tried at Hamilton in June, 1877, and concerned the rights of nineteen different irrigators upon the stream.

The judgment of the Court is given in such terms that each user is given his respective priority upon the stream and as against all subsequent appropriators has judgment entitling him to use sufficient water to irrigate a certain definite acreage of grain or meadow land. Each party to the suit is perpetually enjoined from interfering with the stream in such manner as to prevent those persons having prior rights to themselves from receiving the supply of water allotted them by the Court.

The order of the respective priorities and their several amounts is as follows:

First Priority-N. Kinsley, 20 acres meadow land; 45 acres grain and vegetable land.

Second Priority-E. Caldwell, 10 acres meadow land; 45 acres grain and vegetable land.

Third Priority-Thomas Pick, Plaintiff, 250 acres meadow land; 100 acres grain and vegetable land.

Fourth Priority-William Horton, 200 acres meadow land. Fifth Priority-Bird and Fitzhugh, 60 acres meadow land; 10 acres grain land.

Sixth Priority-McGill and Wartick, 42 acres grain land.

Seventh Priority-William and John Bleckenschefer, 42 acres meadow land; 55 acres grain land.

Eighth Priority-D. W. Ogden, 6 acres grain land; Monroe, 160 acres grain land; Theodore Webb, 30 acres grain land; A. M. Hall, 25 acres grain land; Thomas Freehill, 12 acres grain land.

Ninth Priority-John Middleton, 6 acres grain land; L. Kalkourki, 45 acres grain land; P. A. Wagner, 150 acres grain land. Tenth Priority-J. B. Conger, undefined: William Denton, undefined.

This decree in this manner has defined the rights to water for about 1,300 acres of irrigated land upon this creek. The amount of water allowed by the Court per acre is defined to be that which is necessary to properly irrigate the same. It has been impossible to ascertain the cost to the litigants of this suit. The Court costs of the plaintiff were taxed against certain defendants by the Court and amounted to $263.65. If the cost to each defendant was as much as this, these costs must have been between three and four thousand dollars, beside the attorney fees and expenses. It is a significant fact, that of all the irrigators named in this suit in 1877 upon Duck Creek, there is but one now owning any land on that stream, and there are but two persons, who, in 1907, were farming land and raising crops where thirty years ago were twenty families. Practically all the rights had then concentrated into the hands of these two men. In answer to the query as to what had become of all the other litigants, an old resident replied briefly: "They all went broke at the time of the suit and soon sold out and moved away.'

The rights upon Steptoe Creek were adjusted in 1900. There were but four persons who were parties to the suit and the judgment and decree divided the water of the creek between them without preference or priority as follows:

Jacob Shallenberger..

H. A. Comins..

.4-9ths of the stream

3-9ths of the stream

Martin Guptil and S. F. Hilp..2-9ths of the stream

One of the litigants remarked last summer: "My expenses in that suit were about $6,500. I could have bought the other two ranches then for a litte less than that. I have always been sorry that I did not do so." Within the last two years the rights upon these two creeks have nearly all been acquired by mining and townsite companies and the water will be used for domestic, mining and concentrating purposes.

THE STATE ENGINEER.

The Act of the Legislature providing for the office of State Engineer was passed in 1903. The real incentive to the passage of

this act is clearly shown in the last clause of the preamble introductory to that act, which reads as follows:

"Whereas, it is the desire of the State of Nevada to co-operate in every way with the Secretary of the Interior in the construction, operation, management and maintenance of irrigation works in the State of Nevada under said act, and it is to the interest of the State of Nevada that every inducement should be held out to the Secretary of the Interior by co-operative and helpful state legislation to enter upon the work of construction, operation, management and maintenance as aforesaid, now, therefore, the people of the State of Nevada, represented in Senate and Assembly, do enact as follows:"

The important provisions of the law are:

(1) All natural water courses and natural lakes, not in private ownership, belong to the public, and are subject to appropriation for a beneficial use.

(2) The right to the use of water so appropriated for irrigation shall be appurtenant to the land irrigated and beneficial use shall be the basis, the measure, and the limit of the right.

(3) The maximum quantity of water which may be used for irrigation purposes shall not exceed three acre-feet per year for each acre of land supplied.

(4) The office of State Engineer is created.

(5) The State Engineer shall co-operate with the Secretary of the Interior in all work of construction, maintenance, operation and management of irrigation works constructed by the Secretary of the Interior in and for the benefit of Nevada, and shall, in every way, facilitate the work of the Secretary of the Interior in carrying out the provisions of the "Reclamation Act" in Nevada.

(6) The State Engineer shall prepare for each stream a list of the appropriations of water according to priority.

(7) The State Board of Irrigation shall divide the State or Nevada into water districts and may appoint water commissioners to divide the water according to the adjudications in each district.

The intent of the law was that the State Engineer should arrive at an actual determination of the rights on each stream with as much expedition as possible. These rights should be determined from the history of each case, ascertained through the sworn statements of the irrigators themselves. At the time of the passage of the Act it was believed to be the intent of the Director of the Geological Survey not to proceed with the construction of irrigation works upon any stream until the vested rights upon that stream effected by the new works had been defined in some satisfactory way.

Mr. A. E. Chandler was appointed the first State Engineer and served in that office until May 1, 1905. He was succeeded by Mr. Henry Thurtell, who served until August 1, 1907, and who was then succeeded by Mr. F. R. Nicholas, the present incumbent.