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This witness has not included in his maps nor in his testimony the Hubbard ranch. In making a résumé of the irrigated lands, he says:

"The total area watered from Salmon river was 2,265 acres; from Shoshone creek (Bridge ranch), 160 acres; from Jake's creek, 143 acres."

For comparison, we should add to this estimate the Hubbard lands, comprising, as shown by defendant's Exhibit 11, by a calculation of the subdivisions alleged to be irrigated, 920 acres, making a total of 5,331.8 acres. If this amount be deducted from defendant's estimate of 10.240.5, it shows a discrepancy between the figures of the parties of 4,908.7 acres.

E. C. McClellan, testifying in rebuttal for defendant, shows that the total acreage under irrigation in the year 1889 from Bird's Nest to Boar's Nest was 4,178.4 acres, and on the Vineyard ranch 814.4 acres, aggregating 4,992.8 acres, and that the total irrigation in 1904 amounted to 5,981.2 acres. These statements are discredited by certain maps which the witness himself prepared, namely, defendant's Exhibit 4, purporting to show the area under irrigation on the Vineyard ranch, and plaintiffs' Exhibit 32, exhibiting the lands under irrigation extending from Bird's Nest to Boar's Nest. The coloring on these maps shows an irrigation in solido of all lands within the delineations. The representation as to the latter district is disproved by Beason's map, defendant's Exhibit 12, and as to the former is plainly disputed by other testimony in the case.

Pursuing the inquiry further, relating to lands under irrigation elsewhere, according to Beason's testimony, defendant's Exhibit 7 covers lands on Trout creek, which are, as estimated, 50 acres of hay and 170° acres of pasture; defendant's Exhibit 14, being of the Nall ranch, shows hay 53.4 acres, and pasture 104.3 acres; defendant's Exhibit 15, Shoshone Basin ranch, 127.0 acres of hay, and pasture 914.7 acresa total of 1,419.4 acres. This enlarges the discrepancy to 6,328.1 acres, for the plaintiffs' testimony takes no note of these lands.

Resting the deduction here for the present, particular reference will be made to the testimony of Darlington given in rebuttal, he having produced a composite map, plaintiffs' Exhibit 33, on which irrigated lands are designated in red and lands not irrigated in green. Speaking from the map, he says:

“On that part of plaintiffs' Exhibit 33 showing the Vineyard ranch, colored in green, the land was very largely in sagebrush, rye grass and partly incrusted with alkali. We could find no evidences of irrigation. We searched for it. A strip on the east side of Jake's creek and running down the west boundary of the tract was covered with sagebrush. It is the tract lying between the field colored red and the Tunnel ditch. It is the land shown on defendant's Exhibit No. 4 as being irrigated.

Where it is hatched in red has since been cleared.”

Referring to a photograph taken near the crossing of the Tunnel ditch and Jake's creek, the witness continues:

"The sagebrush land in the foreground of this picture shows the land that was excluded. That land didn't bear any evidences of having been irrigated. I didn't find any ditches on it. I walked over it, just observing general conditions. I didn't make any special search for ditches at that time. I made observations with the view of finding any sources of irrigation and the land that was being irrigated. The land at the north and east of the field in red on plaintiffs' Exhibit 33 down the river and which is colored in green on that exhibit, was grown up to willows and is not irrigated so far as I could find. There are no evidences of any irrigation or ditch lines. The land from the northerly limit of what is colored green on plaintiffs' Exhibit 33, as part of the Vineyard ranch, and the little strip of green which appears at the southern line of section 20, 45 north, is a narrow canyon overgrown with willows in the bottom. There are no ditches along there. The land in sections 20 and 21, 45 north, and 17 and 16, 46 north, colored in green on plaintiffs' Exhibit 33, is overgrown with willows and cut up with sloughs. There was no evidence of artificial irrigation. There is evidence of overtlow by the river during high water season. The land in township 45 north, at the east of the strip colored red on plaintiffs' Exhibit 33, and colored green on that exhibit, claimed by the defendant to be irrigated, is overgrown with willows and cut up with sloughs. I could discover no evidences of any ditches there. A large part of it would overflow during high water of the river. There are sloughs through it, which in 1911 were overgrown with wil. lows and sagebrush. I could see no signs of any systematic use of them for irrigation. By systematic I mean artificial use, where water had been directed and controlled. I think those lands have not been cut over; they are covered with sagebrush and willows. The land in section 34, between the two fields colored red on plaintiffs' Exhibit 33, colored in green on that exhibit, is overgrown with willows and other brush, and cut up by sloughs. The land in sections 22, 23, and 14, township 46 north, colored in green on plaintiffs' Exhibit 33, is very largely in willows, rabbit brush, and some sagebrush. I couldn't find any that had been irrigated. The island south of the lane is largely sand bars and gravel bars. The lane is represented by the white strip not colored, extending through section 14. South of that was sand and gravel bars and sagebrush. The island north of the lane, colored in red, is cut up by sloughs and willows; not so much sagebrush north of the lane. On the entire ranch from Bird's Nest to Boar's Nest, I would say there are between 500 and 1,000 acres covered with willows. In some places they widen 'out into wide strips and in other places there is just a fringe along the bank. The river bank throughout this entire ranch from Bird's Nest to Boar's Nest is low relative to the surrounding country. The river overflows and floods a large part of it at certain times of the year. It would overflow a considerable part of it without dams in the river. The land I have colored green and hatched in red represents land that has not been either cleared or in cultivation since the extension of the High Line ditch beyond the lane. The explanation I have made as to the condition of the land that is colored green and not included as irrigable land, extends to other parts of the map and to which my attention has not been particularly called.”

.C. B. Stocking, another witness adduced for the plaintiffs, testifies referring to plaintiffs' Exhibit 33:

“Taking the land north of the lane between the border of the red line and the east line of the river, there is a strip of land north of the lane, and partly south of the lane, of 1,117.4 acres; it extends north about a mile. I have included that as pasturage not irrigated. It evidently is inundated in high water, but the main part of it is covered with sagebrush and willows. The willows are very thick in places and very wide in places; at the upper end they cover practically the entire strip from the east channel of the river over to the boundary of the irrigated land. North of that ï have an area of 414 acres, classified as hay, not irrigated, on the island. There

were willows lining the banks of the stream and scattering willows across the Island. There were no ditches at that time. I looked the island over quite carefully and found no indications that there had been any ditches. The river in high water evidently overflowed. The land that is east of the east fork of the river, which would now lie under the Big ditch as constructed, was at that time entirely covered with sagebrush. It was not under any ditch that was then carrying water, and the acreage was computed as lands that could be brought under the ditch. Going south of the San Jacinto lane, up as far as Middle Stacks, is an area which was included in this 1,117.4 acres as pasturage not irrigated. The land that is south of the San Jacinto lane, Included between the branches of the river, is land that is covered with sagebrush, gravel bars and willows. Over towards the west fork of the river there are large gravel bars and in sections down in the bottom the sagebrush is very thick, making walking difficult. On the land south of the lane and east of the west branch of the river, marked or corrugated on plaintiff's' Exhibit 33, is sagebrush and rabbit brush. There was no grass that I could find in the sagebrush, with the exception of right along the river bank. There was a strip probably 300 feet wide of rye grass that was quite tall in places; it grew in bunches. From the looks of it, it had not been cut that year, because it interfered with the sights of our transits. Between the Upper Middle Stack and what is known as the Big ditch, I have marked a strip designated as brush, containing 57 acres. I could find nothing in it but brush; no grass whatever; practically bare. In the strip that is green going from the Lower Middle Stack to the Upper Middle Stack, and the strip in green composed of the river and willows, I could see nothing that had been irrigated; nothing but brush, no rye grass to speak of. That is the condition all the way up through the Upper Middle Stack, I traversed the west side of the river, and the southern part is included in pasture designated as being irrigated, but which is more than 50 per cent. covered with sagebrush. It is very rough and some rye grass grows down towards the river banks. On the east side of the river there was nothing that I could find but sagebrush, and no more grass than would ordinarily grow in the sagebrush. From the head of the Bird's Nest ditch, going over to the east branch of the river, there is a mass of willows that is almost impenetrable. We had to keep watch of the boys going through to see that they did not get lost. That is the condition to Contact and above. At the place marked green here the river is in a narrow, rocky bottom, with willows on the bottom and I think a little grass between the clumps, such as you would ordinarily see down on the river bottom. At the upper end of the Vineyard ranch, going up towards the mouth of what we call the old Vineyard ditch, is a strip of green of 42.3 acres, marked as pasture not irrigated. That lies down below the bluffs right next to the river and is fringed with willow clumps scattered through it, used as pasture, and in my judgment would be overflowed when the river got to a little lower than its highest mark. There are no ditches there. The section lying north of the Vineyard and between the boundaries of the Tunnel ditch, was grown up to sagebrush and rye grass. On the east side of this border of grass is sagebrush and rabbit brush and rye grass scattered through. From the appearance of it it had not been cut. It was in bunches and where you find bunches you will find rye grass up probably two or three feet high. The north end of the Vineyard is what is known as Starvation field. There was no grass to be found. It was willows, sagebrush and bare ground. It is alkalied. Down below Starvation field, as far as it is colored, is simply willows. Sagebrush comes down to the willows. The willows bordered the river for a distance on each side, and there was no grass."

[1] Now, it must be admitted that there is a wide difference between these estimates on the part of plaintiffs and defendant; but if the real facts were known as of the time of plaintiffs' appropriation, it is believed that the difference would be, in great measure, reconciled. Plaintiffs' surveys and estimates were made three years earlier than those of the defendant, and the space of time intervening would, if

245 F.-2

the facts were absolutely known, in all probability account for much of it. It at least renders plaintiffs' testimony the more reliable, because the plaintiffs are speaking of a time much nearer the time of plaintiffs' appropriations. Furthermore, the testimony above specially alluded to goes very strongly to the discredit of defendant's estimates, so that one cannot say that they are in a reasonable measure reliable. We are impelled, therefore, considering also the entire testimony, to give the greater credit to the plaintiffs' estimates. In final conclusion on this phase of the case, taking the plaintiffs' estimates, there are included the two tracts of 414 and 1,117.4 acres respectively. Stocking says the former tract consists of wild hay irrigated; that "this is low-lying land along the river. The river flows on both sides of it, and it is covered with willows and wild grass. I never found any irrigating ditches on it.” The latter tract, which he mentions as containing 1,117.4 acres, he says is wild land; that “this is grown up with sagebrush and wild rye grass and willows and has never been irrigated.” If the aggregate of these tracts be deducted from the total of 5,361.8 acres, there would remain 3,830.4 acres. Or if the latter tract only be deducted, there would remain 4,244.4 acres. In one aspect or the other, these figures represent lands irrigated from the Bridge ranch to the Hubbard ranch, inclusive. This gives credit for the entire amount that defendant's maps show was irrigated on the Hubbard ranch, namely, 920 acres. Deducting these figures from the trial court's estimate of 5,500 acres, there is left in the one case 1,669.6 acres, and in the other 1,255.6 acres. This latter figure is in all probability quite sufficient to cover all irrigated lands comprised by the outside ranches.

[2] We concur with the trial court's estimate of 5,500 acres, as comprising all the lands which were under irrigation at the time of plaintiffs' appropriations.

The foregoing conclusion, it will readily be seen, is in anticipation of the inquiry as to the extent to which the appropriation of water by means of the Harrell or Big ditch is prior to the plaintiffs' appropriation. In reality, the two subjects are distinct one from the other, and require separate discussion and treatment.

The first construction of the Harrell ditch was to take the water out of Salmon river in the northeast quarter of section 9, township 45 north, range 64 east, and run it into Roland East Side slough, which was but a short distance. The next was to capture the water from Roland slough, in the southeast quarter of the northwest quarter of section 34, in township 64. "It extended along the east side of the bottom," says McClellan, “and up to 1904 had been carried about three miles in length, to a point opposite the San Jacinto lane, and for another quarter of a mile was partly constructed.” The present location of the ditch was made in 1892, after which McClellan relates he ran a line for the Harrell ditch throughout its entire length. This was done in September, 1897, and construction commenced immediately afterwards. That, he relates further, is the ditch which was constructed entirely down to the San Jacinto lane, and perhaps a little below, in 1904. On cross-examination of McClellan, it appears that the Harrell

ditch was constructed from the river to the Roland East Side slough in the fall of 1893. The next spring the slough was enlarged for a distance of perhaps a mile. Moore did some work on the ditch in 1894. In 1897 the ditch was started from the Roland slough. It was laid out 77 chains in length, and nearly, if not all, constructed that fall. That work carried it to a point "a good three miles and a half above the San Jacinto lane." The next September (1898) the extension of the ditch was laid out to a point opposite the San Jacinto lane, 330 chains in all. The terminus of the Harrell ditch in 1909 was the same as in 1904. The witness laid out some work in 1909. He surveyed from a point a quarter of a mile north of the San Jacinto lane to the point of crossing Trout creek, since which time he has had nothing to do with the ditch.

Darlington first saw the Harrell ditch in 1910. It then had been built to a point about 300 yards below the road in section 13. There was a strip of sagebrush land all along the canal until it got up near the head, and then wild hay meadows along the river. In 1911 most of the land on the San Jacinto ranch between the river and the Harrell ditch was still in sagebrush. At that time some land had been irrigated from the Roland slough, and a little strip from the Harrell ditch. During the year 1911 the Harrell ditch was built to a point probably a mile and a half further north, and somewhat east into section 7, and since that time has been extended almost to Shoshone creek. About 5,000 acres were brought in under the new construction.

Hugh McGuire relates that he did some work on the Harrell ditch in 1901, namely, extending the ditch from the lane to the old work, and that the first extension after that was in 1904, when it was constructed across the land about a quarter of a mile. That part was not used for irrigation while he was there, and it was in that condition to the end of 1906, when he left.

Adam Patterson testifies that he took charge of the defendant's properties November 1, 1908, and that they built the Harrell ditch from San Jacinto lane to a point north of where the ditch makes a big bend. This extension was made in the latter part of May or the first of June, 1909. McClellan had laid out the line. The big bend that the witness alludes to, probably, is in section 1, township 47,

ownship 47, range 65.

. Thomas R. Beason testifies that he went upon the defendant's property in 1910. At that time the Big or Harrell ditch was not completed; the upper end of it was used for irrigating land above the lane. There was work done on the Big ditch in 1910, 1911, and 1912, and it was completed to the present terminus in 1912. In 1911 they cleared 500 or 600 acres, and put a couple of hundred acres in grain in 1912. In 1913 the total cleared and broken was 1,700 acres, and in 1914 about that area was sowed to oats, and they broke up 1,200 acres additional. On November 28, 1892, the Sparks-Harrell Company filed notice of location and claim of water to be diverted from Salmon river sufficient to irrigate some 4,000 acres, which relates to the intended appropriation by the Harrell ditch, and on June 12, 1899, filed an amended notice claiming an appropriation of 200 cubic feet of water, and specifying more particularly the lands to be irrigated. The construction

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