Wixon

This is an action to determine the rights of the parties to the waters of Kentucky Ravine and its east and west branches, located in Sierra County, California.

The court adjudged the plaintiff to be entitled to twenty-five inches of the waters of said ravine under a four-inch pressure. Defendant appeals from the judgment and order denying his motion for a new trial, and for grounds of reversal insists,—1. That certain evidence offered was improperly rejected; 2. The court erred in refusing to allow the defendant to amend his answer during the progress or the trial. Plaintiff claimed title to these waters by actual appropriation in 1883. Defendant claimed no affirmative relief in his answer, but, for the purpose of defeating plaintiff’s right, setup a *481 prior appropriation, of these waters by himself in 1877, and he also relied upon an adverse user for a period of more than six years before the commencement of this action.

During the progress of the trial, while the defendant was presenting his evidence to the court, he offered to prove “a prior actual appropriation and diversion of all the waters of Kentucky Ravine in the year 1865 by James Galloway; that he was the original…