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Show 526 INTERSTATE ADJUDICATIONS kept lower. Now, he said, the cut-off made this diversion negligible and of course added to the flow into the Lake. The weight of the evidence, however, is that it has only been when the level of the Mustinka River at the confluence with the Twelve Mile Creek exceeds the height of 998 feet above the sea, that it has flowed into the Rabbit River, that it reached this height during the summers of 1915 and 1916, and that then the same amount of water flowed over into the Rabbit Creek as formerly. While in a general way Ralph was corrob- orated by Dean Shenehon and Professor Chandler, another expert witness, neither of these attached much importance to the part played by the diversion into the Rabbit River from the Mustinka either before or after the state ditching works. The case for North Dakota was much weakened by the weight of evidence showing that the great detaining basin in the so-called Delta Zone was non-existent. The testimony of three engineering experts and a geologist called by Minnesota, who examined the watershed, as well as the numerous farmers and oldtime residents who lived on, and successfully cultivated, all of the Delta Zone, was convincing to show that the land was ordinary prairie land with an inclination to the north and northwest of five feet in a mile down to the Mustinka, and without any rim or rising border to make a detaining basin. The slope of the Zone was said by one competent witness to be greater than that of much of the fertile prairie lands of Illinois. There were only two places in the neighborhood which could be described as possible detaining basins. One was the Redpath Slough which yields wild hay in a dry season and covers an area of six or seven square miles. The other was Tintah Slough, a basin of like character, already referred to as one of the sources of the Rabbit River and not in the Mustinka watershed. The testimony adduced by the defendant State tended to show that the new cut-on5 which had been constructed to avoid floods in this region in high water was not regarded as effective by those who had pressed for its construction, because in times of flood their lands were overflowed apparently as much as before. There was substantial evi- dence that the cut-off did not run full in times of the highest water, because of the obstruction from the onrush at such times of the Twelve Mile Creek at right angles across the union of the old and new ditches. The Twelve Mile Creek thus dominated the ditches to such an extent . that it carried much of its water north to its old confluence with the . Upper Mustinka, and round the old bend of that stream of six or seven miles. The result, as estimated by Minnesota's witnesses, was that the old bend at the crest of the flood carried twice as much water as the cut-off. Professor Bass for Minnesota testified that at the time of flood it took nine hours for the water by way of the cut-off from Twelve Mile Creek to reach the Lake and thirteen hours by way of the old Bend, and his estimate was that before the cut-off was "built it would have taken eighteen hours. This would seem to indicate that the difference in speed of flow into the Lake made by the new cut-off in a flood which lasted all summer would be negligible in effect. Doubtless the ditches of the Mustinka helped to carry the water into the Lake faster than |
