Priest

Mr. Chief Justice Murray concurred.

This was an action to determine the right to the use of water, plaintiffs claiming by virtue of prior appropriation. The ease was tried below by a jury, and judgment rendered in favor of plaintiffs.

Exceptions were taken on the trial to the admission of testimony, to show that plaintiffs had, before the construction of defendants’ canal, bargained for lumber, and posted notices of their intention to enlarge their ditch, so as to appropriate all the waters flowing in the stream at its head. Whether this testimony was admissible or not, it is not necessary for the purposes of this case to inquire, for the reason that the verdict of the jury clearly shows, that defendants were not prejudiced by it, and where it is evident that no injury has been done, the admission of improper testimony is no ground for disturbing a verdict.

It is also contended, that the Court erred in allowing plaintiffs, after defendants had closed their evidence, to introduce a witness for the purpose of showing that defendants had, subsequent to the completion of plaintiffs’ ditch, extended their canal so as to carry off the water of the south branch of the canon, which had…