(269 F.) We therefore take it, as a matter of course, that the order made by Judge Hunt July 18, 1919, and hereinbefore set out, was made "by stipulation between respective counsel." The question, however, remains: Were either of the orders so made of any validity? As to all of the plaintiffs in error except Fox, we think it clear that we are precluded from considering the bill of exceptions as a part of the record, for the reason that the term of the court during which both the verdict and judgment against them were rendered had expired prior to the signing of either of the orders undertaking to extend the time for the preparation, service, or settling of such bill. In support of this conclusion we need to do no more than refer to the very recent decision of the Supreme Court in O'Connell et al. v. United States, 253 U. S. 142, 40 Sup. Ct. 444, 64 L. Ed. 827 (Advance Sheets, May 17, 1920). In that case the trial in the lower court took place during its July term, 1917, and continued from September 12th to September 25th. The next statutory term of the court began November 15th. September 29th the defendants to the action, against whom a verdict of guilty was rendered, were granted 30 days for preparation and presentation of a bill of exceptions. October 23d an order undertook to extend the time to November 15th; on November 12th a like order specified November 27th; on November 26th an order specified December 15th; on December 14th a further order undertook to extend it to December 24th, when a still further extension was ordered to December 31st. On the latter date a proposed bill was presented. January 9, 1918, the United States attorney procured an order granting time in which to prepare amendments to the proposed bill which were thereafter presented. The Supreme Court said: "Under the statute the trial term expired November 15th; but, for the purpose of filing the bill of exceptions, a general rule extended it to December 4th-three months from the first Tuesday in September. The last order of court within the extended term designated December 14th as the final day for action" -and held that the power of the trial court over the case expired not later than the 14th of December, 1917, and that all the proceedings concerning the settlement of the bill, therefore, were coram non judice. Applying that decision to the facts of the present case, we think it impossible to hold that the court below had any jurisdiction to settle the bill of exceptions in question. As has been seen, the term of the court at which the case was tried expired April 13, 1919; and the rule of the court allowing three months for the preparation and settlement of such bill of exceptions expired the 7th of the same month. It was not until April 17, 1919, that the first of the orders undertaking to extend the time for the preparation and settlement of a bill of exceptions was made. But at that time the power of the trial court over the case as to all of the defendants as to whom it had not been transferred to the Southern Division of the District had expired, according to the express decision of the Supreme Court in O'Connell et al. v. United States, supra, and all proceedings subsequently undertaken, including the contested consent, were therefore coram non judice. It is entirely true that the consent of the opposite party, given during the term or any extension thereof, is as efficacious to extend the time for the preparation and settlement of such a bill as an order of the court or judge; but surely no such consent can at any time have any greater power in the matter than such an order. To so hold would, in effect, be to hold that consent can give jurisdiction to the judge, where, by law, his jurisdiction has expired. And so we find the Supreme Court declaring in the case of Waldron v. Waldron, 156 U. S. 361, 378, 15 Sup. Ct. 383, 387 (39 L. Ed. 453): "The signing of the bill of exceptions after the expiration of the term in which the judgment was rendered, was lawful if done by consent of parties given during that term." (Italics ours.) Respecting the plaintiff in error Fox-the judgment against whom sentenced him to six months' imprisonment in the county jail of the city and county of San Francisco, almost all of which he served before being admitted to bail pending the determination of his writ of error -it appears that that judgment was rendered June 18, 1919, during the March term of the Southern Division of the court, to which the case against him had been theretofore transferred. No order extending the latter's time within which to prepare or serve a bill of exceptions appears ever to have been made; that of July 18, 1919, having been made in behalf of the defendants in the case remaining pending in the Northern Division of the district, and not embracing the parties as to whom the case had been transferred to the Southern Division of the court. The March term of the latter division expired with the second Monday of July, 1919, and the three months' extension of the term, commencing to run, as it did, the first Tuesday in June of that year, expired September 3, 1919, 20 days previous to the time any bill of exceptions was ever delivered to the attorney for the govern ment. The judgments are affirmed. RAMSHORN DITCH CO. et al. v. UNITED STATES. (Circuit Court of Appeals, Eighth Circuit. November 15, 1920.) No. 5513. 1. Waters and water courses 142-Appropriator can conserve appropriated waters, regardless of seepage law. An appropriator of waters for irrigation is entitled to save, and use for the beneficial irrigation of the lands under its canal, water which had escaped therefrom by seepage, independent of the legislation of the state in relation to seepage waters. 2. Waters and water courses 151-Appropriated water, allowed to return to river, is subject to new appropriation. Where an appropriator of water permits a portion thereof, which had seeped from its canal, to return to and mingle with the waters of a river from which it had been taken, such returned waters are to be considered part of the water of the river, as though never diverted therefrom, and For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (269 F.) inures to the benefit of the appropriators on the river in the order of their appropriations. 3. Waters and water courses 151-Intent is essential to abandonment of appropriated waters. Seepage and waste water, allowed to return to its natural channel, with no intention by the appropriator to recapture it, is abandoned; but the intention to abandon is essential, and it must be determined as a question of fact from the evidence in each particular case. 4. Waters and water courses 151-Abandoned water may be reclaimed, if there are no intervening rights. An appropriator, who has abandoned his rights to water, may at any time resume possession and exercise all such rights, if no new rights have intervened. 5. Waters and water courses 145-Appropriation cannot be transferred to new source with old priority. The Nebraska board of irrigation, highways, and drainage had no authority to transfer an appropriation from a natural stream to a channel deriving its waters from seepage from another canal, and to give the appropriation of such seepage waters the priority of the old appropriation from the natural stream. 6. Waters and water courses 151-Appropriator has reasonable time to reclaim seepage. Appropriated water is not deemed abandoned as soon as it seeps from the canal in which it is being conveyed; but the appropriator must be allowed a reasonable time in which to save and use water escaping by seepage and waste from his canal or ditch. 7. Waters and water courses 133-State statute authorizes reclaiming seepage water without appropriation. Rev. St. Neb. 1913, § 3426, authorizing the owner of an irrigation canal to collect seepage water thereunder to apply to the irrigation of land covered by the original appropriation of such canal, gives the right to the use of such water without formal appropriation proceedings, since the objects of the state laws regulating proceedings for appropriation to provide water for as many owners of land as possible, and to decide priority between the different claimants, do not apply to the use of seepage water by the original appropriators. 8. Waters and water courses 140-Change of appropriation of seepage waters from a canal cannot be given date of original appropriation. Even if the seepage waters flowing in the channel not the original and natural stream are public waters, subject to appropriation under Rev. St. Neb. 1913, § 3427, an appropriation of such waters by a former appropriator from the natural stream cannot be given the date of the original appropriation from the stream, so as to take priority over a diversion of the water by the appropriator from whose canal it had escaped, which diversion was made before the change of appropriation. 9. Waters and water courses 144-Lands irrigated from reclaimed seepage held within original project. Where the original application by the United States for appropriation of water stated an intention to irrigate all the lands shown on the accompanying plats, and to irrigate all lands on the north side of the river, supplementing those with an adequate supply, and furnishing full rate to all others, an approval of the application as one for the irrigation of lands described therein, not covered by prior existing rights, did not exclude lands under the other existing canals intended to be covered by the new project, so that the United States could reclaim seepage waters from its canals to irrigate such lands with the provisions of Rev. St. Neb. 1913, § 3426. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 269 F.-6 10. Waters and water courses 222-Warren Act authorized contract between United States and a land company for irrigation by reclaimed seepage waters from canal of reclamation project. Under the Warren Act (Comp. St. 88 4738-4740), and Laws Neb. 1911, c. 151, passed in aid thereof, a contract between the United States and a land company for the delivery to the latter of water which escaped by seepage from the canal of a reclamation project was a valid contract, which gave the United States the right to conserve and deliver water thereunder. 11. Waters and water courses 222-Reclamation appropriation having source in another state is valid. In view of Reclamation Act (Comp. St. §§ 4700-4708), the Warren Act (Comp. St. §§ 4738-4740), and the legislation of Wyoming and Nebraska, an appropriation by the United States Reclamation Service for the irrigation of lands in Nebraska is valid, though the source of the supply is in Wyoming. 12. Waters and water courses 247 (2)-Injury to reclamation service, by taking seepage water which United States had a contract to sell, may be enjoined. The United States suffers injury, entitling it to an injunction, by the prevention of delivery of water which seeped from its irrigation canal to a corporation with whom it had a contract to deliver the water at a substantial price. Appeal from the District Court of the United States for the District of Nebraska; Robert E. Lewis, Judge. Suit by the United States against the Ramshorn Ditch Company and others. Decree for complainant (254 Fed. 842), and defendants appeal. Affirmed. Thomas M. Morrow, of Scottsbluff, Nev. (Clarence A. Davis, Atty. Gen. of Nebraska, and William Morrow, of Scottsbluff, Neb., on the brief), for appellants. Ethelbert Ward, Sp. Asst. Atty. Gen., of Denver, Colo., and Henry A. Cox, District Counsel for United States Reclamation Service, of Mitchell, Neb. (Thomas S. Allen, U. S. Atty., of Lincoln, Neb., on the brief), for the United States. Before SANBORN and CARLAND, Circuit Judges, and MUNGER, District Judge. CARLAND, Circuit Judge. Appellee brought this action against appellants for the purpose of restraining them from in any way interfering with the waters of Sheep creek, Neb., or the controlling works used by it in diverting said waters. The case was heard on pleadings and proofs, and a decree entered granting the relief prayed for. The appellants, who are the Ramshorn Ditch Company and officers of the state of Nebraska having to do with the distribution of water for irrigation between different claimants, appealed. The question for decision may be stated as follows: Has the Ramshorn Ditch Company the right to divert and apply for irrigation purposes 45*/ second feet of water, or any part thereof, flowing in the creek above mentioned or has appellee the right to economically save and to continue to economically use said water for beneficial irrigation? The material facts upon which the decision of the above ques For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (269 F.) tion depends are largely undisputed. The questions involved may be discussed under two heads, viz.: (1) Rights acquired under original appropriations. (2) Rights acquired under the seepage law of Nebraska. The source of the water is the Interstate Canal, which carries water previously impounded by appellee in the Pathfinder Reservoir, located in the state of Wyoming. Appellee claims that this water thus brought into the state of Nebraska in connection with this North Platte irrigation project, and which by seepage, drainage, and waste has developed into a flowing stream in Sheep creek, it has the right to economically save and continue to economically use for beneficial irrigation. Appellants claim that this water now flowing in Sheep creek, conceding its source to be in the Interstate Canal, is a part of the Platte river, from which it was originally taken, and subject to appropriation for irrigation purposes the same as the water of a natural stream, or if it is seepage water, and not public water of the state of Nebraska, that under the law and the evidence its rights as a prior appropriator of the water in question is superior to those of appellee. A very full and clear statement of the facts and the legislation of Congress and of the state of Nebraska was made by the learned trial judge and will be found in United States v. Ramshorn Ditch Co. et al. (D. C.) 254 Fed. 842. It would serve no useful purpose to again restate those facts, as they are fully sustained by the evidence and are quite voluminous. [1] The source of the water in controversy being conceded, it follows that it is a portion of the 1,600 second feet of water for which appellee has a valid appropriation, and which it is entitled to save and use for the beneficial irrigation of lands under the Interstate Canal, independent of the legislation of Nebraska in relation to seepage waters. Griffiths v. Cole (D. C.) 264 Fed. 369; McKelvey v. North Sterling Irr. Dist., 179 Pac. 872; Hagerman Irr. Co. v. East Grand Plains Drainage Dist., 25 N. M. 649, 187 Pac. 555; Lambeye v. Garcia, 18 Ariz. 178, 157 Pac. 977. [2] If appellee permits said water to flow unused back to the North Platte river, it is to be considered a part of the water of said river, as though never diverted, and inures to the benefit of the appropriators on the river in the order of their appropriation, when it becomes mingled with the water of the natural stream. Section 3427, Rev. Stat. Neb. 1913; Water Supply & Storage Co. v. Larimer & Weld Reservoir Co., 25 Colo. 87, 53 Pac. 386; Burkhart v. Meiburg, 37 Colo. 187, 86 Pac. 98, 6 L. R. A. (N. S.) 1104, 119 Am. St. Rep. 279; Lambeye v. Garcia, supra; Hill v. American Land & Live Stock Co., 82 Or. 202, 161 Pac. 403; Comstock v. Ramsay, 55 Colo. 244, 133 Pac. 1107; Durkee Ditch Co. v. Means, 63 Colo. 6, 164 Pac. 503; Trowell L. & I. Co. v. Bijou Irr. District, 65 Colo. 202, 176 Pac. 292. It may be stated here that there is no evidence in the record that any appropriator, including the Ramshorn Ditch Company, does not receive his full appropriation from the Platte river, notwithstanding the use by appellee of the water of Sheep creek. [3] Seepage and waste water may be said to have been abandoned by the original appropriator when it is returned or allowed to return |