supplemental decree determining the continuous flow necessary to the full protection of the riparian interests of the parties to the suit. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 4392; Dec. Dig. § 1106.*] 31. WATERS and Water COURSES (§§ 7, 19*)— APPROPRIATION-PRIORITIES.

The surplus waters remaining after the domestic and stock demands of riparian owners on all lands entered subsequent to March 3, 1877, are subject to appropriation, and rights thereto vest in the order of time in which the water has been diverted and applied to a beneficial use.

[Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. §§ 2, 11; Dec. Dig. §§ 7, 19.*]

32. WATERS AND WATER COURSES (8 24*)"INCH."

The word "inch." as used with reference to water for irrigation purposes, is estimated on the basis of 40 inches to one "second foot." [Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 16; Dec. Dig. 8

24.*

For other definitions, see Words and Phrases, vol. 4, p. 3492.]

33. WATERS AND WATER COURSES (§ 24*) — "DUTY OF WATER."

The term "duty of water," as used with reference to water for irrigation purposes, means the quantity essential to the irrigation of any given tract.

[Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 16; Dec. Dig. § 24.*]

34. WATERS AND WATER COURSES (§ 24*) – "HEAD OF WATER."

The term "head of water," as used with reference to water for irrigation purposes, is the quantity entering the intake of any canal or ditch.

[Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 16; Dec. Dig. § 24.*

For other definitions, see Words and Phrases, vol. 4, p. 3233.]

35. WATERS AND WATER COURSES (§ 33*)—IRRIGATION-APPROPRIATION

Testimony as to duty of water examined, and held, that from one-third to two-thirds of an inch per acre, estimated on basis of 40 inches to one "second foot," is ample for the irrigation of the lands involved.

[Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 24; Dec. Dig. § 33.*]

36. WATERS AND WATER COURSES (§ 12*)-APPROPRIATION-METHOD.

No certain method is essential to a valid appropriation of water. An effective diversion may be made, without ditches, by construction of dams in the slough or other channels, thereby subirrigating the lands, or by overflowing them, or by any process which may result in the successful application of the water to a beneficial use.

[Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 5; Dec. Dig. § 12.*] 37. WATERS AND WATER COURSES (§ 24*)-APPROPRIATION-METHOD OF USE.

The water must be used in such manner, and such economical methods must be adopted in its application to uses desired, as will secure the greatest duty available, even though it becomes necessary to change at considerable expense the old methods, which had their origin when there was but little demand and the supply correspondingly abundant.

38. WATERS AND WATER, Courses (§ 24*)—APPROPRIATION-LIMIT OF RIGHT.

Beneficial use by and needs of the appropriator, and not the quantity originally diverted, nor the capacity of ditches constructed for the purpose, determines the limit of his rights.

[Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 16; Dec. Dig. § 24.*]

39. WATERS AND WAter Courses (§ 18*)—APPROPRIATION-TACKING.

The right of an appropriator of water cannot be tacked to that of a mere squatter upon public lands, who, while he may have applied the water in the irrigation of the land subsequently owned by such subsequent appropriator, has abandoned it.

[Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 10; Dec. Dig. § 18.*]

40. WATERS AND WATER COURSES (§ 18*)-APPROPRIATION-TRANSFER OF RIGHT.

But a mere squatter upon public lands may acquire such an interest in the right to the possession thereof that he may, even by parol, event the rights of the purchaser thereof, claimtransfer his rights therein to another, in which ing under the doctrine of prior appropriation, relate back to the time of the original diversion.

[Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 10; Dec. Dig. § 18.*]

41. WATERS AND Water Courses (§ 31*)—APPROPRIATION BY SQUATTER-CONVEYANCE OF INTEREST.

A mere claim of right to the land held by a squatter, if accompanied by a diversion and application of the water in the reclamation thereof, is sufficient to entitle him to convey to another his interest in the water right, together with such interest as he may have in the land to which the water may be appurtenant.

[Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 159; Dec. Dig. § 31.*]

42. WATERS AND WATER COURSES (§ 10*)—IRRIGATION.

The fact that lands may have originally been swamp lands, and reclaimed, and title ac quired thereto as such, does not preclude the owner from acquiring a water right for the irrigation thereof.

[Ed. Note.-For other cases, see Waters and Water Courses, Dec. Dig. § 10.*]

43. WATERS AND WATER COURSES (§ 10*)—IRRIGATION-RECLAIMED SWAMP LANDS.

When lands are shown to be swamp, and reclaimed as such, it will be presumed that prior essary; but when, once reclaimed, if in an arid to its reclamation no irrigation thereof was necdistrict, it comes within the same rule and the same law respecting irrigation and riparian rights as applies to other agricultural lands in the vicinity.

[Ed. Note.-For other cases, see Waters and Water Courses, Dec. Dig. § 10.*]

44. WATERS AND WATER COURSES (§ 27*)—AP

PROPRIATION-PRIORITIES.

A party claiming as an appropriator cannot, for the purpose of establishing a right prior ed for drainage, unless it appears that such to another, avail himself of a ditch constructditch was, at the time of and prior to the inception of other rights, intended for irrigation purposes as well.

[Ed. Note. For other cases, see Waters and Water Courses, Cent. Dig. § 19; Dec. Dig. § 27.*]

45. WATERS AND WATER COURSES (§ 18*)-APPROPRIATION-PRIORITIES.

RIGATION-CHANGE OF METHOD.

[Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 10; Dec. Dig. 18.*]

46. WATERS AND WATER COURSES (§ 29*)—APPROPRIATION-FAILURE TO USE WATER DI

VERTED.

Where an appropriator fails to use the full amount of water diverted, and for an unreasonable time delays increasing his use, any subsequent increase in either a diversion or use thereof is made subject to the intervening rights. [Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 16; Dec. Dig. § 29.*]

47. WATERS AND WATER COURSES (§ 30*)—APPROPRIATION-CHANGE IN METHOD.

Where water has been appropriated and ap; plied in the irrigation of a tract of land, and after, and during a long period of use in a certain manner in a certain locality, other rights in the stream attach, such a change in the appropriation may not be made, either of the point of diversion or of the place of its use, where to make such change will substantially prejudice the interests of such other appropriators.

[Ed. Note. For other cases, see Waters and Water Courses, Cent. Dig. § 20; Dec. Dig. 8 30.*]

48. WATERS AND WATER COURSES (§ 18*)-AP

PROPRIATION.

When, for the purpose of diverting water for a beneficial use, a ditch is commenced, and within a reasonable time the work thereon is prosecuted to completion, and water turned into it and applied to the use therein, the right to the appropriation, to the extent of the quantity diverted and applied, relates back to the commencement of the work.

[Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 10; Dec. Dig. 8 18.*]

Parties owning the right to the use of water may change the method of conveying it to the point of use, if such change does not materially prejudice others' rights; and in doing so any dry ravine, gulch, or hollow, as well as the natural channel of a stream, may be used by the appropriator of water in its transmission to the place of use.

[Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 20; Dec. Dig. § 30.*]

52. WATERS AND WATER COURSES (§ 23*)—APPROPRIATION-METHOD OF USE.

Where water is conveyed through any natural channel or water course, the user or users may, when practicable to do so without substantial prejudice to others' rights, let the water thus diverted commingle and take it out at some other point.

[Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 15; Dec. Dig. § 23.*]

53. WATERS AND WATER COURSES (§ 30*)-DIVERSION CHANGE OF METHOD: LOSS BY EVAPORATION.

Where a right to the use of water is acquired through and by the construction of a ditch tapping any source of water supply, and

the users thereafter elect to take the water thus allowance must be made for loss by evaporation, diverted from other points on the stream, due including such loss as may occur under different methods of use and distribution, which loss deducted from the quantity awarded under the must, so far as practicable of ascertainment, be original diversion and method of use.

[Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 20; Dec. Dig. § 30.*]

54. WATERS AND WATER COURSES (§ 13*)—ApPROPRIATION-BENEFICIAL USE.

A bona fide intention to devote water to a beneficial use may comprehend the use to be made by or through other persons and upon lands other than those of the appropriator.

[Ed. Note. For other cases, see Waters and Water Courses, Cent. Dig. § 6; Dec. Dig. §

When parties claim their rights through the same diversion and from the same ditch, through which the appropriation was originally made by them or by their predecessors in interest, they are tenants in common; and where, in a suit with others on the stream involving rights thereon no issues are framed between such tenants in common, their relative rights may be left undetermined, and only their rights as against other parties to the suit will be decreed.

[Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 25; Dec. Dig. 8 33.*]

50. WATERS AND WATER COURSES (§ 18*)—DIVERSION-APPROPRIATION.

When tenants in common claim a water right by reason of the construction of a canal, and subsequently the water is permitted to flow down the channel and is elsewhere diverted, the inception as well as the limit of their rights, as against intervening appropriators, are determined by the capacity of the canal mentioned, and not by any subsequent diversion, either in place or in time.

[Ed. Note. For other cases, see Waters and Water Courses, Cent. Dig. § 10; Dec. Dig. 8 18.*]

PROPRIATION-METHOD.

Rights to the use of water may be initiated through a ditch heading upon and tapping the source of water supply upon the lands of another, from whom no easement has been acquired, but which may by the owner of such land be revocable.

[Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 17; Dec. Dig. § 26.*]

56. WATERS AND WATER Courses (§ 26*)—APPROPRIATION-EASEMENT.

serted through a ditch which crosses the lands Where a right to the use of water is asof another, for which no perpetual easement has been acquired, none but the owner of the premises across which the ditch is constructed are in a position to complain, and where such owner makes no issue and offers no proof thereon this feature will be disregarded.

[Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 17; Dec. Dig. § 26.*]

[Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 21; Dec. Dig. § 32.*

[Ed. Note. For other cases, see Waters and Water Courses, Cent. Dig. § 10; Dec. Dig. § 18.*]

vol. 1, pp. 4-13; vol. 8, p. 7559.] For other definitions, see Words and Phrases,

65. WATERS AND WATER COURSES (§ 32*) – WATER RIGHTS-FORFEITURE.

APPROPRIATION COMMON.

DITCHES TENANTS IN

Owners of a ditch, constructed for the purpose of dividing the waters diverted through it, are tenants in common.

[Ed. Note. For other cases, see Waters and Water Courses, Cent. Dig. § 19; Dec. Dig. § 27.*]

59. WATERS AND WATER COURSES (§ 152*)

ADVERSE USE-EVIDEnce.

Under a plea of title by adverse user, a showing of a continuous application of the water for a beneficial use by an upper proprietor for more than 10 years makes a prima facie showing under such claim, to defeat which it is incumbent upon the person questioning such right by competent evidence to overcome the showing thus made.

[Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 156; Dec. Dig. 8 152.*]

60. WATERS AND WATER COURSES (§ 152*) · ADVERSE USER-EVIDENCE.

Where a prima facie claim by adverse user is established by continuous use and application for the required time prior to suit, the onus thus thrown upon the party contesting such claim is fully met by proof that within the statutory period the shortage in the water supply below the adverse claimant was not sufficient to substantially prejudice the interests of other appropriators from the source of water supply from which the appropriation is made. [Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 156; Dec. Dig. § 152.*]

61. PLEADING (§ 93*) -INCONSISTENT DE

FENSES.

Adverse possession and prior appropriation are not inconsistent defenses, and both may be asserted in the same pleading.

[Ed. Note.-For other cases, see Pleading, Cent. Dig. § 189; Dec. Dig. § 93.*]

62. WATERS AND WATER COURSES (§ 152*) · ADVERSE POSSESSION-APPROPRIATION.

Where the pleader relies on adverse possession only, and in his proof fails to sustain such defense, and the evidence offered is sufficient to establish an appropriation, it may be considered, and his rights under the doctrine of prior appropriation may be established in accordance with the showing thus made.

[Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 156; Dec. Dig. § 152.*]

63. WATERS AND WATER COURSES (§ 32*)—APPROPRIATION-NONUSer.

The right to the use of water cannot be deemed forfeited on account of nonuser alone, short of the period prescribed by the statute of limitations for real actions.

[Ed. Note. For other cases, see Waters and Water Courses, Cent. Dig. § 21; Dec. Dig. § 32.*]

64. WATERS AND WATER COURSES (§ 32*) WATER RIGHTS-"ABANDONMENT.'

To constitute an "abandonment" of a water right, there must be a concurrence of the

[Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 21; Dec. Dig. § 32.*]

66. WATERS AND WATER COURSES (§ 30*)— LOSS OF LANDS-CHANGING WATER USE.

Water rights initiated in the reclamation of lands lost to another, who had inaugurated a

right to water for irrigation, cannot change the use thereof to other lands; but he will be treated as having abandoned such right, where not to do so would work to the prejudice of other appropriators.

[Ed. Note. For other cases, see Waters and Water Courses, Cent. Dig. § 20; Dec. Dig. § 30.*]

67. DISMISSAL AND NONSUIT (§ 75*)—DISMISSAL WITHOUT PREJUDICE.

When one of the parties to the suit has not offered proof as to his rights, and it does not appear that he is claiming a right to the use as against others whose interests are involved, the court may, in its discretion, dismiss without prejudice to him.

[Ed. Note. For other cases, see Dismissal and Nonsuit, Cent. Dig. § 169; Dec. Dig. § 75.*]

68. DISMISSAL AND NONSUIT (§ 52*)-DISCRETION OF COURT.

Where the trial court properly orders ail claiming an interest in matters before it to be made parties, and they appear, it may, in the exercise of its sound discretion, refuse to grant a motion for nonsuit, in which event their failure to further proceed may result in a decree against them on the merits; but the court may, if it deems proper, grant such motion, and, if granted, their rights will not be determined.

[Ed. Note.-For other cases, see Dismissal and Nonsuit, Cent. Dig. 8 104; Dec. Dig. § 52.*] 69. APPEAL AND ERROR ($1119*)—APPEAL IN EQUITY-DECREE.

While it is the general rule that, as to the interest of the parties to a suit in equity who do not appeal, a decree more favorable than entered in the trial court will not be entered, such general rule may not always be invoked, where their appearance is not voluntary in the first instance, but made in response to an order of the court requiring all interested in the subject-matter of the suit to be made parties.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 4415; Dec. Dig. § 1119.*] 70. WATERS AND WATER COURSES (§ 23*) — WATER RIGHTS.

As between the parties whose rights are adjudicated, at all times that the water in con troversy is not required by one or more, it should, when needed by others, remain uninterrupted and subject to their use.

[Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 15; Dec. Dig. § 23.*]

71. WATERS AND WATER COURSES (§ 30*) — WATER RIGHTS-APPLICATION.

All water rights are limited in their ap plication to the number of acres and to the land for which acquired, except when the increase in the acreage or change in place of use will

72. PARTIES (§ 50*)-NECESSARY PARTIES.

Where the statute gives to the trial court the power to require all interested in the result of litigation before it to be made parties, it carries with it all the power essential to the making of such order effective.

[Ed. Note. For other cases, see Parties, Cent. Dig. 76; Dec. Dig. § 50.*]

73. JUDGMENT (§ 98*)-DEFAULT OF APPEARANCE-CODEFENDANTS.

Where under section 41, B. & C. Comp., the court directs all interested to be made parties, and pursuant thereto summons is served upon parties who, disregarding the summons, fail to appear or plead, it is not necessary that inquiry be made into their interests; but a decree may be entered against them in favor of all parties appearing therein.

[Ed. Note. For other cases, see Judgment, Cent. Dig. 156; Dec. Dig. § 98.*]

74. WATERS AND WATER COURSES (§ 33*) — WATER RIGHTS JUDGMENT.

Water suits are sui generis, concerning which all questions of practice are not provided for either by statute or precedent, for which reason courts of equity are not necessarily bound in all cases by the rules of practice ususually invoked; and where parties are served with summons and by order of the court required to interplead with reference to each oth er, and any of them directly or indirectly act in disregard of the spirit of the order, the court, in the exercise of its sound discretion, may either enter a decree affecting their interests, or not, as it may deem just and equitable.

[Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 25; Dec. Dig. § 33.*]

75. PLEADING (§ 232*)—AMENDMENT BY COURT. If, in violation of the spirit of the court's order requiring all interested to be made parties, for the purpose of avoiding the effect of such order, any parties neglect to frame issues, or in framing them between themselves make admissions in their pleadings which, to recognize and to follow, makes a decree impracticable of enforcement, the pleadings may be deemed amended to conform to the proof, thereby being within the general purview of the order of the court, and all admissions not in harmony with the proof and inimical to the enforcement of a decree may be disregarded.

[Ed. Note.-For other cases, see Pleading, Cent. Dig. § 593; Dec. Dig. § 232.*] 76. APPEAL AND ERROR ($ 899*)-APPEAL IN EQUITY-TRIAL DE Novo.

Since, under the Code, suits in equity are tried de novo on appeal, the court, except where limited by the statute, has the same discretionary power in reference thereto as the trial court. [Ed. Note.-For other cases, see Appeal and Error, Dec. Dig. 899.*]

77. WATERS AND WATER COURSES (§ 33*)

CONFLICTING CLAIMS-ENFORCEMENT.

Owing to the difficulties usually encountered in the enforcement of decrees, where there are many conflicting interests, in water suits, the trial court has the power when deemed advisable, to enter such supplemental decree, not inconsistent with the decree of the appellate court, as may be necessary to make the decree of the appellate court effective.

[Ed. Note.-For other cases, see Waters and Water Courses, Cent. Dig. § 25; Dec. Dig. § 33.*]

taxed against him in favor of the parties directly injured thereby; but where it appears that parties to the proceeding are benefited by the general result arising from an adjustment of all conflicting claims on the stream, the court may, in the exercise of its discretionary powers under the Code in such matters, adjudge that each pay his own costs.

[Ed. Note. For other case, see Costs, Cent. Dig. § 20; Dec. Dig. § 12.*] (Syllabus by the Court.) Supplemental opinion.

For former opinion, see 95 Pac. 732.

E. B. Watson (W. J. Moore, on the brief), for appellants. J. C. Rutenic, for respondents Hough and others. Lionel R. Webster, for respondents Buick and others. Coovert & Stapleton, for respondent Geo. H. Small. Roscoe R. Johnson, amicus curiæ.

KING, C.1 The principal contention of appellants as first urged was that the court acted without jurisdiction in directing that all persons interested in the lands bordering on Silver creek, its tributaries and channels, be made parties to the suit, and that such action on the part of the court constituted reversible error. These questions of practice with matters incidental thereto, were determined adversely to counsel's contention (95 Pac. 732), and the cause was set down for further argument on the main points involved, principal among which is that of riparian rights, as affected by Act Cong. March 3, 1877, c. 107, 19 Stat. 377 (U. S. Comp. St. 1901, p. 1548) known as the "Desert Land Act." 95 Pac. 752. This question and the points formerly determined were fully discussed at the reargument. After a reconsideration of the questions of practice presented we find no reason to depart from the conclusions announced in our former opinion.

We come, then, to a consideration of the desert land act, as to its effect upon the parties hereto owning lands upon the streams involved, the rights of each of whom have attached since the passage of the act. This confronts us with the legal problem as to whether any are riparian owners, and, if so, to what extent and what bearing their claims as such have upon the water rights in question. It has become a matter of history that prior to any laws upon the subject the

use of water was exercised under a custom

permitting any person to go upon a stream, or other source of water supply upon the public domain, and divert water therefrom wherever and whenever needed, provided the use thereof did not interfere with the prior rights of others. In other words, priority in the diversion and use determined the rights of all conflicting claimants. This procedure was encouraged and acquiesced in by the gov ernment for many years throughout the Pacific Coast states, until in recognition there