1. Waters and Water Courses <@=>247(1) — Prior Appropriations — Evidence — Weight.

That surveys and estimates of plaintiffs claiming under the Carey Act (Act Aug. 18, 1894, c. 301, § 4, 28 Stat. 422 [Comp. St. 1916, § 4685]) were made three years earlier than those of defendant renders plaintiffs’ testimony as to the amount of water appropriated the more reliable, because speaking of a time much nearer the time of plaintiffs’ appropriation.

2. Waters and Water Courses <@=>247(1) — Prior Appropriation — Evidence —Sufficiency.

In a suit between appropriators of water from an interstate stream, under the Carey Act, evidence held to support the court’s estimate that 5,500 acres comprised all the lands which defendant had under irrigation at the time of plaintiffs’ appropriation.

3. Waters and Water Courses ©=>210 — Appropriation—Mode.

An appropriation of water from a public stream, under the Carey Act, may be initiated by notice or by actual diversion from the stream, either process being evidentiary of the intent on the part of the person giving the notice to make an appropriation.

4. Waters and Water Courses <@=>240 — Appropriation—Extent.

In the appropriation of water from a public stream by notice, the notice would indicate the amount of the intended appropriation, while in appropriation by diversion the capacity of the ditch used for the purpose would indicate the appropriator’s thought as to the amount designed for use.

5. Waters and Water Courses <§=>249 — Appropriation—Beneficial Use— Diligence.

After initiating an appropriation, an appropriator must use due diligence in applying the water for a beneficial use or he will be deemed to have abandoned his rights as to appropriations by others in the meantime.

6. Waters and Water Courses 249 — Appropriation—Beneficial Use— “Diligence.”

Whether an appropriator of water from a public stream has used due diligence to utilize the water for a beneficial use must be determined upon the facts in the particular case, “diligence,” as employed in such case, being largely a relative term.

[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Diligence.]

7. Waters and Water Courses <@=>249 — Appropriation—Diligence—Evidence — Sufficiency.

The want of diligence of defendant and his predecessor in constructing the high-line ditch, and the application of the water through it to a beneficial use, hold, under the evidence, to deprive defendant of its initiatory rights in so far as affecting plaintiffs’ appropriations.

8. Waters and Water Courses <@=>249 — Appropriation—Amount Necessary.

An appropriator can claim no more water than is necessary for the purpose of the appropriation, and when he has that he cannot prevent others from using the surplus.

9. Waters and Water Courses <@=>254 — Appropriation—Amount Necessary —Evidence—Sufficiency.

In suit between appropriators of a public stream, held, under the evidence, that the court properly concluded that 12,500 acre-feet was sufficient to answer the needs of defendant under its appropriations.

10. Waters and Water Courses <§=254tT-Ap:prophiation — Beneficial Use— Amount.

In a suit to ■ determine conflicting rights to the waters of a public stream, 3 acre-feet per, acre for hay and grain land, and 1% acre-feet for pasture land, held a reasonable allowance to defendant, whose land was only slightly above the water in the streams.

11. Waters Ánb Water Courses @=247(1) — Rights as Between States— Parties.

The rights, as between states, to share in the waters of an interstate stream, is a matter for' adjustment between the states, and individual users cannot raise a question about the use of such water in another state out of the territorial jurisdiction of the court.

12. Waters and Water Courses @=247(1) — Prior Appropriations — Nature of ' Suit.

A suit to determine rights to the waters of a public stream between parties claiming by prior appropriation is essentially one to quiet title to real property and is local and not transitory.

13. Courts @=29 — Powers—Property outside of Jurisdiction.

The rem may not be affected by tbe direct operation of the decree where it is beyond the territorial jurisdiction of the court, but the court may, acting in personam, coerce action respecting such property.

14. Waters and Water Courses @=240 — Use—Restrictions.

Ordinarily one having obtained the right to use a given quantity of water from a public stream may change the place or character of its use and the point of diversion.

15. Waters and Water Courses @=247(1) — Regulation of Use — Territory Beyond Jurisdiction of Court.

The United States District Court of Idaho had the power, in a proceeding in personam, to restrict defendant’s use of the water to a circumscribed locality in Nevada, where a change in territory would result in less water flowing back into the stream, resulting in loss to plaintiffs.

16. Waters and Water Courses @=247(1) — Regulation of Use — Territory Beyond Jurisdiction of. Court.

It was also proper to impose upon defendant tbe obligation of installing measuring devices and keep a record of the amount of water diverted, ■ etc., and provide that plaintiffs should have the right of inspection.

17. Waters and Water Courses @=240 — Carey Act — Perfecting Appropriation-Time.

In a project, under the Carey Act of Congress, to impound all waters of the Salmon river, in Idaho, plaintiffs had 10 years within which to make diversion, and proof thereof, for a beneficial use, in view of Laws Idaho 1915, e. 94.