the act of 1913 (sec. 11(d) of the act of 1917) were undoubtedly intended to prescribe a method for the representation of minors and incompetents before the commission in addition to and in default of any method adopted by the commission under the authority conferred by the subsequent sections of the act. It is clear, therefore, that the word "may" is not permissive as regards the right to appear with or without representation by a guardian, but is intended as an enabling provision for the purpose of giving the guardian provided for by the section a standing before the commission in default of or supplementary to any other method designated by the commission.

[7] The employee, being under twenty-one at the time of the first application and hearing, was, therefore, a minor for the purpose of the enforcement of rights acquired under the terms of the act. As an incident to her status of minority she possessed the right of disaffirming the award of the commission, which deprived her of a right to which she was entitled, and the fact that she became twenty-one before the award was rendered would not defeat her right of disaffirmance if exercised within a reasonable time after reaching majority. (Childs v. Lanterman, 103 Cal. 387, [42 Am. St. Rep. 121, 37 Pac. 382].) She exercised this right by filing her disaffirmance and second application within six months after becoming twenty-one and within one month after the rendition of the first award. The finding of the commission that this was a reasonable time, and that there was no unequivocal act on the part of the employee affirming the decision prior to the disaffirmance proceedings, cannot be disturbed. (Walker v. Industrial Acc. Com., 177 Cal. 737, [L. R. A. 1918F, 212, 170 Pac. 954].)

[8] The commission failed to specifically pass upon the motion of the employee to set aside the first award, which motion was made at the time of the filing of the second application and, upon stipulation, heard and considered together with and at the time of the hearing of the second application. Inasmuch as the second judgment and award itself, by virtue of the findings on which it was based, in effect set aside and superseded the previous decision, the failure of the commission to enter a separate order setting aside the first award is an informality which does not operate to invalidate the award under review. (Stats. 1915,

c. 607, scc. 77a, p. 1102; Stats. 1917, c. 586, sec. 60a, p. 871.)

The second award is therefore affirmed, and the cause remanded with directions to the commission to correct the irregularity above indicated by entering an order setting aside the first award.

Shaw, J., Olney, J., Lawlor, J., and Sloane, J., concurred.

ANGELLOTTI, C. J., Dissenting.-I dissent.

To my mind the section of the Workmen's Compensation Act here involved does not purport to make a woman who has reached the age of majority by attaining the age of eighteen years a minor until she attains the age of twentyone, for the purposes of the act, or debar her from prosecuting a claim under the act without the interposition of a guardian. It simply purports to authorize the appointment by the commission or a commissioner of a guardian ad litem or trustee for anyone under twenty-one years of age, or incompetent, and provides that no limitation of time provided by the act shall run against any person under twentyone years of age or incompetent until a guardian or trustce is appointed.

In this case the first judgment was given in a proceeding brought by the woman herself. She was then nearly twentyone years of age. She became twenty-one years of age two days after the termination of the hearing. Judgment was not given until four months after she had attained the age of twenty-one. I think the judgment was a valid and binding one, not open to disaffirmance, and subject to review only in the manner and within the time provided in the act.

Wilbur, J., concurred.

[Sac. No. 2880. In Bank.-December 3, 1920.]

HERBERT HAIGHT, Respondent, v. MARION C. COSTANICH, Appellant.

[1] WATERS AND WATER RIGHTS-RIPARIAN OWNERSHIP-PARAMOUNT RIGHTS UNDER PRIOR DIVERSION.-The rights of a land owner to the waters to which his land is riparian are subject to those rights to divert and use the waters which have vested and accrued, as the result of diversion prior to the vesting of his rights as a riparian owner under government patent, and to such rights as have been subsequently acquired by purchase and grant, or by prescription.

[2] ID.-PATENT-TIME OF VESTING OF RIPARIAN RIGHTS.-The granting of a patent to a settler on public lands relates back to the filing of the entry of the land in the United States land office and confers the rights of a riparian owner from the date of entry.

[3] ID.-PARAMOUNT RIGHTS UNDER LOCAL LAWS.-The rights of a riparian owner under government patent are subject to water rights which, under the California law of possessory rights, have vested prior to entry, since the federal statutes provide for the protection of those rights to waters upon the public domain, acquired by diversion, which are recognized and acknowledged by the local customs, laws, and decisions of the courts of the localities where such rights are claimed.

[4] ID.-APPROPRIATION

ACTUAL DIVERSION AND USE SUFFICIENT.— Compliance with the provisions of section 1410 et seq. of the Civil Code by posting notices is not essential to the acquisition of rights by appropriation, since actual diversion and use was sufficient. [5] ID. QUANTITY OF WATER DETERMINATION OF AMOUNT.-The quantity of water to which an appropriator becomes entitled under a diversion made under the law of possessory rights is not determined by the capacity of the diverting ditch, but is limited to the amount applied to a beneficial use, which is the amount actually used and reasonably necessary for the useful purpose to which the water has been applied.

[6] ID. RIGHT TO ADDITIONAL WATER.-The quantity of water to which an appropriator may become entitled under such a diversion is not necessarily limited to the amount actually used at the time of the original diversion, but an additional amount reason

1. Nature of riparian rights and lands to which they attach, notes, 9 Ann. Cas. 1235; Ann. Cas. 1913E, 709; Ann. Cas. 1915C, 1026.

ably necessary to meet increasing needs may be taken, provided the new use be within the scope of the original intent and that it be taken and put to such use within a reasonable time by the use of reasonable diligence.

[7] ID.-DIVERSION UNDER FEDERAL LICENSE · - RIGHT TO ADDITIONAL WATER-TIME OF EXERCISE.-Water rights acquired outright under license from the federal government and not by mere occupancy embrace the conditional right to take an additional amount of water to meet future needs within the scope of the original intent, within a reasonable time, and such time is not limited to the period of five years from the date of the original diversion provided by section 1411 of the Civil Code, but to a reasonable time under all the circumstances of the case.

[8] ID.-MEASURE OF RIGHTS OF DIVERSIONER.-The quantity of water to which one is entitled by right of diversion is the quantity actually used for beneficial purposes at the time of the original diversion, and which is reasonably necessary for such purposes, plus any additional quantity intended to be applied to future needs at the time of the original diversion, which has been actually put to use within a reasonable time, measured by all the circumstances of the case, after the original diversion, and which is reasonably necessary therefor.

[9] ID.-RIGHTS OF INTERVENING APPROPRIATOR.-The rule whereby the right of an appropriator to take at a later date water in excess of that which he diverted and put to beneficial use in the first instance may relate back to the inception of his work, although he has not complied with the code requirements, does not hold as against an intervening appropriator who has complicd therewith, in view of section 1419 of the Civil Code.

[10] ID.-PRESCRIPTIVE RIGHTS-LIMITATION OF AMOUNT.-A water right acquired by prescription is limited to the amount of water reasonably necessary for the beneficial purpose for which it is diverted, and no title by prescription can be acquired to that part of a diversion which is excessive of such needs. [11] ID.-ACTION INVOLVING WATER RIGHTS-CAPACITY OF DIVERTING DITCH AS MEASURE OF RIGHTS ERRONEOUS JUDGMENT.-In an action involving water rights, where it appeared that plaintiff constructed a ditch over the land of the defendant prior to defendant's entry thereon as government land, and diverted water through such ditch from a creek to which the land of defendant was riparian, a judgment based on the assumption that the capacity of the ditch at the time of original diversion and prior to defendant's entry was the measure of plaintiff's rights, irrespective of beneficial use, was erroneous.

[12] ID.-USE OF ADDITIONAL WATER-BURDEN OF PROOF.-Where it was shown in such an action that at the time the defendant be

came possessed of riparian rights under his government patent, plaintiff was using only enough water for stock, domestic purposes, and irrigation of six acres of land, if plaintiff had at the time of his original diversion planned to take additional water to irrigate newly cultivated land, but had not completed his preparations at the time of defendant's entry on the government land, but continued thereafter with due diligence to make preparation and use the additional water, the burden was upon plaintiff to prove such facts.

[13] ID.-ADVERSE USER-BURDEN OF PROOF.-In such an action, if plaintiff acquired a right to more water after defendant's entry by adverse use for a period of five years, the burden was upon plaintiff to show that fact.

[14] ID.-NUMBER OF ACRES ENTITLED TO IRRIGATION

EVIDENCE.

Where it was shown in such an action that only fifteen acres of plaintiff's twenty-two acre tract were under irrigation continuously for five years before the commencement of the action, and that the right to take water for the irrigation of the additional seven acres could not relate back to the original diversion because there was no reasonable diligence in their preparation, evidence as to the amount of water needed for the irrigation of the whole twenty-two acres was incompetent and irrelevant.

[15] ID. DETERMINATION OF QUANTITY OF WATER-AMOUNT BENEFICIALLY USED.-The mere fact that a ditch was full or carried a certain quantity of water throughout the season is of no consequence unless all of the water so carried was put to a beneficial use all of the time.

APPEAL from a judgment of the Superior Court of Shasta County. James G. Estoy, Judge. Reversed.

The facts are stated in the opinion of the court.

Carr & Kennedy and Chenoweth & Leininger for Appellant.

Christian F. Kimball, Charles H. Braynard, and Braynard & Kimball for Respondent.

LENNON, J.-Plaintiff and defendant, who are the owners of adjoining tracts of land in Shasta County, seek in this action an adjudication of their respective rights in and to the waters of a creek, known as the North Fork of Richardson Creek, to which defendant's land is riparian. In 1885, plaintiff's predecessor in interest made entry of plaintiff's land, which was then part of the public lands of the United