and diversion subsequently made are claimed to have been in pursuance of those notices.

To recapitulate: The notices for the appropriation of water from Salmon river by construction of the Harrell ditch were filed, the first in 1892, and the second in 1899. In 1897 McClellan ran the survey for the ditch throughout its entire length. The first construction was to build a ditch from the river to the Roland slough. The next construction was to capture the water from the slough some distance below by means of the ditch, which was extended 77 chains in the fall of 1897. The next extension was to the San Jacinto lane. This was in the main completed in 1904. It was related that the terminus of the ditch was the same in 1909 as in 1904, and further that there was a strip of sagebrush land all along the canal, extending up to near its head. This was the case still in 1911. There was an extension in 1909 to the big bend, and in 1910, 1911, and 1912 the ditch was extended to its present terminus. In 1911, 1912, 1913, and 1914, large areas under the ditch were reduced to cultivation, and presumably water was applied thereto from the ditch.

The inquiry is, to what extent was there an appropriation of water prior to the plaintiffs' appropriations, the first of which was made in 1906?

There can be no doubt that, if all this extension of the High Line canal had been made and the water applied to the lands under the canal prior to plaintiffs' appropriations, defendant would have had the better right. The defendant and its predecessor, however, have been dilatory in maturing their appropriation, and, if they have not acquired a superior right, it is because of their lack of diligence in applying the water to the soil. Five years elapsed before the construction of the ditch for any considerable distance, after the project was entered upon by filing the notice of location and making survey of the line, and 7 years additional elapsed before its extension to the San Jacinto lane. No further extension was made until five years later, when the ditch was partially constructed to the big bend, and it was not finally completed until two years beyond that time. No considerable effort was made to apply the water to irrigation purposes on the sagebrush land lying under the ditch until 1911, which was about 19 years after the project was entered upon.

[3, 4] An appropriation of water from a public stream may be initiated by notice, now required to be given by law in some, if not all, of the arid states, or by actual diversion from the stream. Either process is evidentiary of the intent on the part of the person giving the notice to make an appropriation. In the former case, the notice would indicate the amount of the intended appropriation; in the latter, the capacity of the ditch or conduit by which the diversion is actually made would be indicative of the appropriator's thought as to the amount of water designed for use. These methods are only initiatory of the appropriation. Other steps must be taken before the appropriator's purpose can ripen into a completed appropriation. These first steps, however, will enable the appropriator to claim his right as

against subsequent appropriations until his scheme has been completed. It has been said that:

"The diversion of the water ripens into a valid appropriation only where it is utilized by the appropriator for a beneficial use." Hewitt v. Story, 64 Fed. 510, 12 C. C. A. 250, 30 L. R. A. 265; Walsh v. Wallace, 26 Nev. 299, 67 Pac. 914, 99 Am. St. Rep. 692; Nevada Ditch Co. v. Bennett, 30 Or. 59, 45 Pac. 472, 60 Am. St. Rep. 777.

See, also, Wiel on Water Rights in the Western States (3d Ed.) § 478.

[5] It is a principle of law, recognized by authorities, that an appropriator must exercise reasonable diligence, after he has initiated an appropriation, in applying the water to a beneficial use. If he fails in this, he will be held to have abandoned or forfeited his right, as it may affect appropriations acquired in the meantime. He cannot play the dog-in-the-manger act, and expect for all time to deprive other intended users of the benefits to be derived from appropriations regularly and legally instituted or made. The Ophir Silver Mining Co. v. Carpenter, 4 Nev. 534, 97 Am. Dec. 550.

[6] "Diligence," as here employed, is largely a relative term, and its proper application is to be determined by the facts in each particular case as they are made to appear. What would be accounted diligence under a particular state of facts might not be so accounted under different circumstances. Thus a person making an appropriation for the irrigation of a small tract of open land ready for the plow would be expected to apply the water to the beneficial use intended in a much. shorter time than one making a diversion for application upon a large tract, where it was necessary to clear the land of brush and shrubbery found thereon before it could be made adaptable to cultivation. And, again, the means that the intending appropriator has at hand, whether meager or ready, has an important bearing upon the situation, and will be taken into account as to whether proper diligence has been employed. [7] In the light of these observations, we may determine whether the defendant company and its predecessor, the Sparks-Harrell Company, had employed proper diligence in reducing their intended appropriation to a beneficial use prior to the time when the plaintiffs made their appropriations. From the time notice had been given by Sparks-Harrell Company of its intention of making its appropriation, namely, November 28, 1892, to the time of plaintiffs' appropriation, more than 14 years had elapsed, and yet the Big ditch had not been constructed from a point a quarter of a mile north of the San Jacinto lane. Some progress had been made before that time from the head of the ditch at its junction with the Roland East Side slough, but the ditch had been constructed only to the San Jacinto lane in 1904, which was 12 years after the notice was given, and 7 years after McClellan made his survey of the proposed High Line ditch. In the meantime, from 1904 up to the date of plaintiffs' appropriation, no attempt had been made to reduce the sagebrush land under the ditch to cultivation, although the water had been thrown out upon it for the purpose of producing in greater abundance the native grasses found among the sagebrush. The grasses there found were scanty and sparse; nor did irrigation serve largely to promote their growth. The employment

of water for this purpose can scarcely, in this day of agricultural progress in the arid states, be classed as a beneficial use. Further, it does not appear but that the defendant's predecessors had means at their command for constructing this ditch and applying the water to the lands under the ditch in a very much shorter time. Indeed, when the present company once entered upon the work in earnest, it appears that it not only constructed the High Line ditch to its terminus, but reduced the greater part of the lands under it to cultivation in the space of 4 years, from 1911 to 1914.

We conclude, therefore, that because of the want of diligence on the part of the defendant and its predecessor in constructing the High Line ditch and the application of the water through it to a beneficial use, defendant has lost whatever initiatory rights it may have acquired to an appropriation, in so far as it affects the plaintiffs' appropriations, and must be relegated to their superior and paramount rights.

[8] We come now to the subject of the duty of water. The law in Nevada respecting the same seems to be fairly well settled:

* *

"No person can, by virtue of a prior appropriation, claim or hold any more water than is necessary for the purpose of the appropriation. * It must be exercised with reference to the general condition of the country and the necessities of the people, and not so as to deprive a whole neighborhood or community of its use, and vest an absolute monopoly in a single individual." Barnes v. Sabron, 10 Nev. 217, 243, 244.

An appropriation does not extend in a legal sense to any water except such as is used beneficially. Dick v. Caldwell, 14 Nev. 167.

An appropriator is entitled only to the amount of water he needs, economically and reasonably used, and when he has that he cannot prevent others from using the surplus. Roeder v. Stein, 23 Nev. 92, 42 Pac. 867, 868.

"The law is that an appropriator is only entitled to so much water, economically used, within his appropriation, as is necessary to irrigate his land. The necessary amount of water varies with the seasons." Gotelli et al. v. Cardelli et al., 26 Nev. 382, 69 Pac. 8.

"Cutting wild grass produced by the overflow of the river, or, as expressed by the witnesses, by the water of Reese river coming down and spreading over the land, was not an appropriation of that water, within the meaning of that term. Neither was the grazing of the land an appropriation of the water, under the facts." Walsh v. Wallace, supra.

See, also, Union Mill & Mining Co. v. Dangberg (C. C.) 81 Fed. 73. The statutes of the state on water rights and irrigation promulgate a like policy, and are in harmony with these views.

Other states have adopted the same principle. The Supreme Court of Idaho has this to say on the subject:

"In determining the duty of water, reference should always be had to lands that have been prepared and reduced to a reasonably good condition for irrigation. Economy must be required and demanded in the use and application of water. Water users should not be allowed an excessive quantity of water to compensate for and counterbalance their neglect or indolence in the preparation of their lands for the successful and economical application of the water. One farmer, although he has a superior water right, should not be allowed to waste enough water in the irrigation of his land to supply both him and his neighbor, simply because his land is not adequately prepared for the economical application of the water." Farmers' Co-operative Ditch Co. v. Riverside Irrigation Dist., 16 Idaho, 525, 102 Pac. 481.

Of like effect is Hough v. Porter, 51 Or. 318, 95 Pac. 732, 98 Pac. 1083.

[9] The trial court, by a careful analysis, having in mind, no doubt, the Herrington report, which was not introduced in evidence but referred to by counsel and stipulated that it might be considered, has concluded that 12,500 acre-feet was sufficient to answer the needs of the defendant under its appropriations, which seems to us to be a fair and equitable estimate. It is unnecessary to follow the reasoning here. Some observations pertinent to the inquiry may be indulged in, how

ever.

[10] The court has allowed practically 3 acre-feet for 3,000 acres, and 11 acre-feet for 2,500 acres. Practically all the land to which the appropriations were applicable is low and nearly level, and lies at only a slight altitude above the water as it flows in the streams, and by reason of percolation from the streams and the sloughs which traverse the territory in some sections, and the nearness of the water table to the surface of the soil, must receive considerable subirrigation, the amount of which, of course, is not readily ascertainable. Such land, as reason suggests, does not require the same amount of surface irrigation as land lying at a higher level, or table-land, where its only source of irrigation is from the surface. It is argued that the measurements of water taken in 1914, which form the basis of the Herrington report, do not include the Hubbard, Nall creek, Upper Trout creek, Big creek, and the Shoshone Basin territory. True, that is the case. But in that year defendant was absolutely free to use all the water it cared to, and probably used it upon all the lands that it now claims were subject to irrigation in that year, on the Vineyard, San Jacinto, and Bridge ranches, which comprised a larger area than that which we now find, from a consideration of all the diversions upon all the ranches, the defendant is entitled to irrigate with prior right to that of plaintiffs. Further than this, the hay land claimed to be irrigated in 1914 on these ranches is small in area in proportion to the pasture land.

It is urged also that the irrigation season commences April 1st, and not May 1st as found by the court, and that the estimate of water suited to the needs of defendant should be increased proportionately by reason thereof. The witnesses who have spoken on the subject agree that irrigation in previous years began on defendant's ranches about April 1st, and to this there seems to be no contradiction. The system in that time of the year was evidently by simply flooding these hay and grass lands. The witnesses also seemed to think that kind of use was beneficial in producing an increased amount of hay and grass, but it is certainly not the highest use to which it may be devoted, at any rate as it respects the irrigation of pasture.

Mr. Bark, who has made a study of irrigation, says:

"Up to a certain point the more water the more pasture, and it will require fully twice as much as for grains. I don't think I ever found the point in the pasture lands after which the application of more water would result in no increase, or an actual decrease, of the crop, because we never put water enough on. We have put about 42 acre-feet on upland pastures and we still got more pasture."

The witness does not claim to have any scientific information as to the amount of water it would require for producing wild hay and pasture under conditions existing with respect to defendant's lands, where irrigation has been previously applied. He says, however:

"Under those conditions I think there is no method by which the amount of water so diverted upon the land could be measured, because it gets a lot of it by. capillary attraction, subirrigation laterally."

A table was produced showing the duty of water for alfalfa. It was put in evidence, and shows a constantly increasing yield, as the water was applied in six divisions, beginning with 1.18 acre-feet and ending with 3.78 acre-feet to the acre. It will be observed in the fourth division, with the application of 2.61 acre-feet, there was produced 5.6 tons to the acre, with 2.14 tons to the acre-foot. The fifth division shows the application of 2.99 practically 3 acre-feet, with a production of 6.59 tons to the acre, or 2.20 tons per acre-foot. The sixth application was of 3.78 acre-feet, with a product of 6.8 tons per acre, and 1.8 tons per acre-foot. There was a constantly increasing soil moisture left at the close of the season, running from 10.08 to 19.44 per cent., except that in the fourth division there was 17.12 per cent. against 16.92 per cent. in division 5: Thus it is shown that there is a point where the economic application reaches its maximum utility. It appears by the fifth division that, by the application of approximately 3 acre-feet, 6.59 tons were produced to the acre, being 2.20 tons to the acre-foot; while the sixth division shows an increase in tonnage per acre, there is a substantial decrease per acre-foot. We may test the economic utility by supposing the grower was buying the water with which to irrigate his land. Would he pay for the increased supply and take the larger yield, and the less percentage of yield per acre-foot, or would he be contented with the smaller yield, as indicated by division 5, and pay more than proportionately less for the water? He would probably do the latter, since the larger yield is only about 2/10 of a ton per acre above the smaller, while the increase of his water purchase would be about 78/100 of an acre-foot to the acre. This demonstrates that the allowance of 3 acre-feet to the acre for alfalfa is as much, probably, as could be economically applied.

The witness Bark says that the water required for the irrigation of hay is about the same as for alfalfa. The experiment whereby the table was produced was evidently on upland. He says further, in effect, that if you keep putting more water into the soil and leaving more thereon at the end of the season, unless you have excellent drainage, you will water-log your land in a short time, and render it valueless.

Following the witness further, he is of the opinion that pasture needs about 10 light irrigations per year, extending from about April 1st to September 30th, or possibly into October. He explains that pasture is of shallow-rooted grass, and there is no need to soak it deep, but that a light irrigation should be oftener applied. A light irrigation, he further explains, is about 3 acre-inches, which, if reduced to acre-feet, there being 10 irrigations per season, would amount to 22 acre-feet for that time.