Appropriations of Water-Eights—Rules of Priority and Diligence —Relation.—As between appropriate™ of water-rights, the one first in time is first in right, unless the prior appropriator has failed to prosecute his right with reasonable diligence. If he has used reasonable diligence, his completion of the work relates to and protects his notice of appropriation.

Id.—Reasonable Diligence—Interruption in Forest Reservation— Permit from Government—Code Provision.—Where the work under the prior appropriation was prosecuted with reasonable diligence, until it was stopped in a forest reservation by the supervisor of forestry, until a permit was obtained from the government, under section 1422 of the Civil Code as enacted in 1903, the prior right is-protected until sixty days after such permit, and the prosecution of the work thereafter with reasonable diligence, to completion, preserves such prior right.

Id.—Construction of Code Provision—Location in Forest Reservation—Showing in Notice of Appropriation—Government Survey —Judicial Notice.—Under section 1422 of the Civil Code, protecting water-rights until after authority is obtained from the government, where any part of the work lies within a “forest reservation,” if it “be so shown in the notice of appropriation of said water,” it is sufficiently “so shown” in the notice when the land is so described by legal subdivisions of the government survey, that this court must take judicial notice that the same lies within and is a part of'the “Sierra Forest Reserve,” though the notice does not so state in terms.

Id.—Form of Notice of Appropriation Unchanged.—It was no part of the design of section 1422 of the Civil Code to change the rule as to the form of the notice of appropriation. That was a matter wholly covered by section 1415 of the Civil Code, which, so far as the form of the notice of appropriation is concerned, has not been changed since its adoption in 1872.

Id.—Object of New Section—Protection of Claimants Pending Permit.-—The sole object of section 1422 was to protect claimants who were unable to proceed with the work necessary to protect their claims, because the place of intended diversion or part of the route of intended conveyance of the water was within and part of a national forest reservation, pending the procurement with due diligence of the essential authority from the government of the United States.

Id.—Object and Import of “Showing in Notice.”—The provision in section 1422 of the Civil Code that the fact of location within a forest reservation shall he “shown” in the notice of location, was evidently intended simply for the purpose of requiring the notice itself to furnish evidence of that fact. It does not import or require that the notice shall “state” that fact; but the object of the provision is accomplished when the facts stated therein are such as to enable the court to declare judicially that it is so located, and is part of such reservation.

Id.—Evidence—Application and Permit—Letter from Local Land-Office Excluded—Error not Shown.—Where the application and permit .were received in evidence, the exclusion of a letter from the local land-office transmitting the application is not shown to be erroneous, where the contents of such letter are not in the record.

Id.—Harmless Evidence.—In view of the legal effect of section 1422 of the Civil Code, evidence of the prior locator as to his interview with the forest supervisor, when he declared the work stopped, that he could not proceed without a permit from the government, and evidence of a letter from the supervisor to the general land-office, and of another from the acting commissioner ordering the work stopped till a permit was obtained, if immaterial, was harmless.

Id.—Whole Becobd of Application fob Permit Admissible.—The whole record of the application of the defendant for a permit from the government was admissible, not only to show the fact of such application, and its determination, but also as hearing upon the diligence of the defendant in making and presenting the same, in face of the plaintiff’s opposition, and also upon the resumption of work within the requisite time after the issuance zof the permit.

Id.—Evidence—Acquisition of Prior Bight by Defendant.—Evidence of a contract, under which the defendant acquired all rights initiated under the prior notice was admissible to show such acquisition.

Id.—Proof of Absence of Further Interest of Prior Locator.— Evidence of the prior locator that he had received all that he was to receive under the agreement to sell his interest to the defendant, and that he had no interest in any manner in the property of the defendant, was sufficient to negative any pecuniary interest in the result of the action on the part of such prior locator, as a witness.

Id.—Absence of Prejudicial Error in Evidence.—It is held that there is no prejudicial error in the admission or exclusion of evidence, or in the cross-examination of witnesses for the defendant.