BüRNETT, J.
1. The Western Company traces all its claims to operations under the Act of February 18, 1891, codified in Chapter 1 of Title XLIII, L. O. L., which provided that a corporation desiring to divert water for irrigation purposes should post in a conspicuous place at the point of diversion a notice in writing containing a statement of the name of the ditch, canal, or flume, and of the owner thereof, the point at which its headgate was proposed to be constructed, a general description of the course of the conduit, the size thereof in width and depth, and the number and amount of water by miner’s measurement to be appropriated, together with the number of reservoirs, if any: Section 6528, L. O. L. It was also required that the appropriator should file a map showing the general route of its ditch, canal, or flume. The manifest intention of the law was to demand a definite limitation of the scheme of the concern desiring to appropriate water so that others contemplating a like enterprise might be advised of how much of the stream was available for further projects. As to the appropriation of water in the arid and semi-arid portions of the United States the rule well supported by court decisions and crystallized into statutory form by the Act of February 27, 1913, Chapter 279, is that “beneficial use shall be the basis, the measure, and the limit of all rights to the use of water ’ ’: Simmons v. Winters, 21 Or. 35 (27 Pac. 7, 28 Am. St. Rep. 727); Hindman v. Rizor, 21 Or. 112 (27 Pac. 13); Hough v. Porter, 51 Or. 318 (95 Pac. 732, 98 Pac. 1083, 102 Pac. 728); Mann v. Parker, 48 Or. 321 (86 Pac. 598); Caviness v. La Grande Irr. Co., 60 Or. 410 (119 Pac. 731); In Re Schollmeyer, 69 Or. 210 (138 Pac. 211). To the extent that water is wasted or is used extravagantly [381]*381appropriation in its true sense is vitiated. Priority attaches only to what is reasonable and necessary for a beneficial purpose. Excessive greed and avarice in the appropriation of water cannot be countenanced or gratified.
2. As a source of title prior to the appropriation initiated by its immediate grantee, the Western Company claims (1) under a notice filed by the Umatilla Meadows and Butter Creek Canal Company posted March 8,1891, proposing to appropriate 10,000 miner’s inches of water; (2) under a notice of J. M. Jones et al., posted March 25, 1891, claiming 50,000 miner’s inches; and (3) under the notice of the Columbia Valley Land & Irrigation Company posted October 24, 1891, declaring its design to take out 80,000 miner’s inches in addition to the amount specified in the preceding notices which it claimed to have purchased. These three rights, whatever they amounted to, were acquired by the Hinkle Ditch Company which posted its notice for 225,000 miner’s inches on March 14, 1903. Concerning them we adopt the statement made by the Western Company in its brief, giving a history of the operations of the Columbia Valley Land & Irrigation Company after it acquired the rights of the first two appropriators mentioned: ‘ ‘ The headgate was washed out in the winter of 1894 and no further use was made of the ditch until the advent of the Hinkle Company, which succeeded to the Hunt rights.” Notwithstanding this admission, amply supported by testimony as it is, the Western Company maintains that nonuser will not work abandonment of water rights unless it has continued for ten years and hence that the period between the destruction of the headgate in 1894 and the initiative of the Hinkle Company on March 14, 1903, [382]*382was not sufficient to bring about that result. It is true that the courts have decided that an absolute nonuser of a water right for ten years conclusively amounts to an abandonment, but it does not follow that a result of this sort may not be accomplished in less time. Indeed, a water user could abandon his project instantly. Formerly the difficulty was in the proof of the- abandonment. However, to set such matters at rest, the Act of February 18, 1891, supra, to which the Western Company traces all its rights, established a rule in Section 22, codified as Section 6546, L. O. L., in this language:
“The right to appropriate money (water) hereby granted may be lost by abandonment; and if any corporation constructing a ditch or canal or flume under the provisions of this act shall fail or neglect to use the same for the period of one year at any time, it shall be taken and deemed to have abandoned its appropriation, and the water appropriated shall revert to the public, and be subject to other appropriations in order of priority; but the question of abandonment shall be one of fact, to be tried and determined as other questions of fact.”
This excerpt is to be distinguished from Section 6571, L. 0. L., fixing the period of nonuser at two years, the latter being part of the Act of February 18, 1899, relating to the taking of water for the purpose of developing the mineral resources of the state and furnishing electrical power; while the former is embodied in the act of February 18, 1891, concerning the appropriation of water for irrigation and domestic use and for watering livestock. The two acts treat of different subjects and each provides its own limit of nonuser as a ground of forfeiture. They are not contradictory.
[383]*383Confessedly, as stated in the brief and as we think is manifest from the evidence, the predecessors of the Western Company utterly failed to make any use of their water conduit for more than one year. The statute mentioned draws but one conclusion from this established fact and that is abandonment, with the consequence that the water sought reverts to the public and is subject to other appropriations in order of priority. Under these circumstances the Circuit Court was right in refusing to recognize any of the Western Company’s predecessors in title earlier than the Hinkle Ditch Company which began operations March 14, 1903, and in fixing this as the date of the former’s rights.
3. The notice and map of the Hinkle Ditch Company is in evidence. After describing the point of diversion on the western bank of the Umatilla River the notice states:
“The general direction of said ditch and flume is to •be in a westerly direction from this point of diversion of water a distance of about 12 miles to Butter Creek. ’ ’
The accompanying map shows this same condition of a single ditch running from the Umatilla to Butter Creek. This notice marks the limit of the proposed enterprise, and activities beyond its scope constitute new ventures requiring additional notice complying with the terms of the statute as for the inauguration of a new appropriation: Andrews v. Donnelly, 59 Or. 138 (116 Pac. 569).
Using March 14, 1903, as a starting point for the Hinkle Ditch enterprise to which the Western Company succeeded, the Circuit Court ascertained the amount of acreage to which that appropriation of water might be beneficially and economically applied, [384]*384giving it the date of priority last above mentioned. In our judgment the testimony supports this conclusion of fact and defines the limit of the Hinkle Ditch Company’s appropriation under its original notice.
4. The general government acquired by purchase what is known as-the Minnehaha Ditch and the Maxwell Ditch.
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BüRNETT, J.
1. The Western Company traces all its claims to operations under the Act of February 18, 1891, codified in Chapter 1 of Title XLIII, L. O. L., which provided that a corporation desiring to divert water for irrigation purposes should post in a conspicuous place at the point of diversion a notice in writing containing a statement of the name of the ditch, canal, or flume, and of the owner thereof, the point at which its headgate was proposed to be constructed, a general description of the course of the conduit, the size thereof in width and depth, and the number and amount of water by miner’s measurement to be appropriated, together with the number of reservoirs, if any: Section 6528, L. O. L. It was also required that the appropriator should file a map showing the general route of its ditch, canal, or flume. The manifest intention of the law was to demand a definite limitation of the scheme of the concern desiring to appropriate water so that others contemplating a like enterprise might be advised of how much of the stream was available for further projects. As to the appropriation of water in the arid and semi-arid portions of the United States the rule well supported by court decisions and crystallized into statutory form by the Act of February 27, 1913, Chapter 279, is that “beneficial use shall be the basis, the measure, and the limit of all rights to the use of water ’ ’: Simmons v. Winters, 21 Or. 35 (27 Pac. 7, 28 Am. St. Rep. 727); Hindman v. Rizor, 21 Or. 112 (27 Pac. 13); Hough v. Porter, 51 Or. 318 (95 Pac. 732, 98 Pac. 1083, 102 Pac. 728); Mann v. Parker, 48 Or. 321 (86 Pac. 598); Caviness v. La Grande Irr. Co., 60 Or. 410 (119 Pac. 731); In Re Schollmeyer, 69 Or. 210 (138 Pac. 211). To the extent that water is wasted or is used extravagantly [381]*381appropriation in its true sense is vitiated. Priority attaches only to what is reasonable and necessary for a beneficial purpose. Excessive greed and avarice in the appropriation of water cannot be countenanced or gratified.
2. As a source of title prior to the appropriation initiated by its immediate grantee, the Western Company claims (1) under a notice filed by the Umatilla Meadows and Butter Creek Canal Company posted March 8,1891, proposing to appropriate 10,000 miner’s inches of water; (2) under a notice of J. M. Jones et al., posted March 25, 1891, claiming 50,000 miner’s inches; and (3) under the notice of the Columbia Valley Land & Irrigation Company posted October 24, 1891, declaring its design to take out 80,000 miner’s inches in addition to the amount specified in the preceding notices which it claimed to have purchased. These three rights, whatever they amounted to, were acquired by the Hinkle Ditch Company which posted its notice for 225,000 miner’s inches on March 14, 1903. Concerning them we adopt the statement made by the Western Company in its brief, giving a history of the operations of the Columbia Valley Land & Irrigation Company after it acquired the rights of the first two appropriators mentioned: ‘ ‘ The headgate was washed out in the winter of 1894 and no further use was made of the ditch until the advent of the Hinkle Company, which succeeded to the Hunt rights.” Notwithstanding this admission, amply supported by testimony as it is, the Western Company maintains that nonuser will not work abandonment of water rights unless it has continued for ten years and hence that the period between the destruction of the headgate in 1894 and the initiative of the Hinkle Company on March 14, 1903, [382]*382was not sufficient to bring about that result. It is true that the courts have decided that an absolute nonuser of a water right for ten years conclusively amounts to an abandonment, but it does not follow that a result of this sort may not be accomplished in less time. Indeed, a water user could abandon his project instantly. Formerly the difficulty was in the proof of the- abandonment. However, to set such matters at rest, the Act of February 18, 1891, supra, to which the Western Company traces all its rights, established a rule in Section 22, codified as Section 6546, L. O. L., in this language:
“The right to appropriate money (water) hereby granted may be lost by abandonment; and if any corporation constructing a ditch or canal or flume under the provisions of this act shall fail or neglect to use the same for the period of one year at any time, it shall be taken and deemed to have abandoned its appropriation, and the water appropriated shall revert to the public, and be subject to other appropriations in order of priority; but the question of abandonment shall be one of fact, to be tried and determined as other questions of fact.”
This excerpt is to be distinguished from Section 6571, L. 0. L., fixing the period of nonuser at two years, the latter being part of the Act of February 18, 1899, relating to the taking of water for the purpose of developing the mineral resources of the state and furnishing electrical power; while the former is embodied in the act of February 18, 1891, concerning the appropriation of water for irrigation and domestic use and for watering livestock. The two acts treat of different subjects and each provides its own limit of nonuser as a ground of forfeiture. They are not contradictory.
[383]*383Confessedly, as stated in the brief and as we think is manifest from the evidence, the predecessors of the Western Company utterly failed to make any use of their water conduit for more than one year. The statute mentioned draws but one conclusion from this established fact and that is abandonment, with the consequence that the water sought reverts to the public and is subject to other appropriations in order of priority. Under these circumstances the Circuit Court was right in refusing to recognize any of the Western Company’s predecessors in title earlier than the Hinkle Ditch Company which began operations March 14, 1903, and in fixing this as the date of the former’s rights.
3. The notice and map of the Hinkle Ditch Company is in evidence. After describing the point of diversion on the western bank of the Umatilla River the notice states:
“The general direction of said ditch and flume is to •be in a westerly direction from this point of diversion of water a distance of about 12 miles to Butter Creek. ’ ’
The accompanying map shows this same condition of a single ditch running from the Umatilla to Butter Creek. This notice marks the limit of the proposed enterprise, and activities beyond its scope constitute new ventures requiring additional notice complying with the terms of the statute as for the inauguration of a new appropriation: Andrews v. Donnelly, 59 Or. 138 (116 Pac. 569).
Using March 14, 1903, as a starting point for the Hinkle Ditch enterprise to which the Western Company succeeded, the Circuit Court ascertained the amount of acreage to which that appropriation of water might be beneficially and economically applied, [384]*384giving it the date of priority last above mentioned. In our judgment the testimony supports this conclusion of fact and defines the limit of the Hinkle Ditch Company’s appropriation under its original notice.
4. The general government acquired by purchase what is known as-the Minnehaha Ditch and the Maxwell Ditch. It is enough to say of these that the finding of the Circuit Court that the right under one of these is completely vested as to % second-foot as of date November 14, 1894, and under the other for 25 second-feet for 2000 acres of land as of date February 25, 1904, is well grounded in evidence. The remainder of the claim of the United States is based upon the Act of February 27, 1905, which so far as applicable here is found in Chapter 5, Title XLIII, L. O. L. Section 2 of that act, Section 6588, L. O. L., reads thus:
“Whenever the proper officers of the United States, authorized by law to construct works for the utilization of water within the state, shall file in the office of the state engineer a written notice that the United, States intends to utilize certain specified waters, the waters described in such notice and unappropriated at the date of the filing thereof shall not be subject to further appropriation under the laws of this state, but shall be deemed to have been appropriated by the United States; provided, that within a period of three years from the date of filing such notice the proper officer of the United States shall file final plans of the proposed works in the office of the state engineer for his information; and provided further, that within four years from the date of such notice the United States shall authorize the construction of such proposed work. No adverse claims to the use of the water required in connection with such plans shall be acquired under the laws of this state except as for such amount of said waters described in such notice as may be formally released in writing by an officer of the [385]*385United States thereunto duly authorized which release shall also be filed in. the office of the state engineer. In case of failure of the United States to file such plans or authorized construction of such works within the respective periods herein provided, the waters specified in such notice, filed by the United States, shall become subject to appropriation by other parties. Notice of the withdrawal herein mentioned shall be published by the state engineer in a newspaper published and of general circulation in the stream system affected thereby, and a like notice upon the release of any lands so withdrawn, such notices to be published for a period not exceeding thirty days.”
We find in the record a notice addressed to the state engineer signed by John T. Whistler, United States district engineer, who, in turn derives his authority from the Secretary of the Interior under the provisions of the act of Congress of June 17, 1902, informing the state engineer that “the United States intends to use all the surplus and unappropriated waters of the Umatilla River and its tributaries in connection with the reclamation of certain arid lands as provided (for under said act of Congress and requests that said waters be withdrawn from further appropriation as provided under the laws of this state.” No question is made but what the United States complied with the statutory rules promulgated by the legislature of this state respecting the manner in which the general government could appropriate water in Oregon. The procedure under this act vested the United States with title to all the then unappropriated water of the Umatilla River with priority dating from September 6, 1905, above noted. The Circuit Court gave priority to the Western Company as of March 14, 1903, for 4109.68 acres of land and as of July, 1907, for 12,747.48 acres, thus making it secondary to the United States [386]*386as to the larger area. We may well doubt if there was any water left which could be applied to this 12,747.48 acre tract after the appropriation by the United States, for its notice demanded all the then unappropriated waters of the Umatilla River, and the statute in question expressly stated that waters “unappropriated at the date of the filing thereof shall not be subject to further appropriation under the laws of this state but shall be deemed to have been appropriated by the United States.” Under the provisions of the act it would seem that the decree was more favorable to the appellant than it could ask, but the general government has not appealed from the decree and hence no further notice will be taken of that feature.
The Western Company complains of the court’s finding, Number 25, which is here quoted:
“That in all cases where any person, firm or corporation has a right under this decree to supply and deliver water to others and charge for the same, or may hereafter acquire such right, it is the duty of such person, firm or corporation to supply water to any and all persons, firm or corporation, or who can be reasonably supplied with water from said works under reasonable and uniform contracts and for reasonable and uniform charges up to the limit of the capacity of said works, so long as said person so taking such water complies or is ready to and able to comply with the terms of such contract. Such contract may provide for any reasonable and uniform method of pro rata distribution of water, and such person, firm or corporation may make such reasonable and uniform rules and regulations as may be necessary to facilitate such distribution. In case such contract does not provide for such distribution of water then such water shall be supplied to the water users in the order of, and according to the date of priority of use upon the land, or at' the place upon which such water is to be used, and sub[387]*387ject to rotation as in this decree generally provided; provided, that no contract shall be made to deliver water to lands or places not theretofore supplied, to such an extent as to deprive any land or place of water which has been previously supplied, and provided further, that no contract shall be made to deliver water for irrigation or power unless the land or place where said water is to be used be entitled to such use under a right granted by this decree, or a permit of the state engineer, or by a water right certificate.
“All contracts for the use of water giving any preference other than as herein stated, are against the public policy and laws of the state of Oregon, and void.”
There is nothing in this portion of the decree inimical to principles applicable to all public service corporations in their dealings with the public and there is no just ground of complaint against its terms.
5. It was again assigned as error that the court was mistaken in determining that in all cases where the diversion is at the rate of 1/40 of a second-foot per acre it shall include all loss by seepage and evaporation, but when the rate is 1/80 of a second-foot per acre an increase of not to exceed twenty per cent may be allowed for loss by seepage and evaporation, and that the court should have made a distinct and separate finding upon that question. The court classified the lands involved in the projects under consideration according to the nature of the soil, whether previously irrigated or not, and whether arid lands, or those which had been reduced to cultivation by the application of water. It was ascertained as a fact, which we deem to be supported by the weight of the testimony, that 1/40 of a second-foot per acre was sufficient for some classes of land and one-half of that amount for other kinds and under other conditions. The matter [388]*388of seepage and evaporation was merely incidental to this finding of fact and was properly treated as such.
Lastly, the appellant complains that the effect of the court’s decree was to postpone its rights as to 12,747.48 acres and make it subordinate to the right of the Furnish Ditch Company. This latter concern dates its appropriation from March 8, 1905, and it is so tabulated in the decree of the trial court. As already shown the Western Land Company dates from March 14, 1903, as to 4109.68 acres and the court so determined. . As to that, the priorities are preserved between it and the Furnish Ditch Company. The record shows that as to all additional appropriations beyond the original announced intention of the Hinkle Ditch Company they were not inaugurated until July, 1907. We cannot disturb the legal effect of these well-founded facts.
6. Without having appealed from the decision of the Circuit Court the Dillon Irrigation Company has appeared in this court by new counsel and has filed a motion, supported by an ex parte affidavit, asking for some material modifications and amplifications of the decree of the Circuit Court. The original jurisdiction of the Supreme Court is confined to cases of mandamus, quo warranto, and habeas corpus: Article VII, § 2 of the Constitution. Injunction has been employed in ancillary fashion to preserve the status of the subject of litigation during the pendency of an appeal: Livesley v. Krebs Hop Co., 57 Or. 352 (97 Pac. 718, 107 Pac. 460, 112 Pac. 1); Lais v. Silverton, 77 Or. 434 (147 Pac. 398, 150 Pac. 269, 151 Pac. 712); Kollock & Co. v. Leyde, 77 Or. 569 (143 Pac. 621, 151 Pac. 733); Coopey v. Keady, 81 Or. 218 (139 Pac. 108).
[389]*389Aside from this, we have decided many times that our appellate jurisdiction is acquired only by service of notice of appeal and have constantly declined to hear causes in which it was either not served at all or served out of time. Despite all this, however, by the motion in hand we are called upon to go into a new investigation involving the consideration of testimony presented now for the first time in the form of affidavits and so to revise the decree of the Circuit Court as upon an original proceeding to impeach it. We have no jurisdiction to proceed in that manner. The practice is marked out by Section 6650, L. O. L., as amended by Chapter 97, Laws of 1913, stating that in cases of this soft “appeals may be taken to the Supreme Court from such decrees in the same manner and with the same effect as in other cases in equity.” If the movant disdained to employ this appellate remedy, we cannot supply its place with an original proceeding in this court. Moreover, supplementing the power lodged in every court to make its records speak the truth as against mere clerical misprisions, the Water Code has afforded relief in Section 6651, L. O. L., reading thus:
“Within six months from the date of the decree of the Circuit Court determining the rights upon any stream, or if appealed within six months from the decision of the Supreme Court, the board of control, or any party interested, may apply to the Circuit Court for a rehearing upon grounds to be stated in the application. Thereupon, if in the discretion of the court it shall appear that there are good grounds for the rehearing, the Circuit Court, or judge thereof, shall make an order fixing a time and place when such application shall be heard. The clerk of the Circuit Court shall, at the expense of the petitioner, forthwith mail written notice of said application to the board of con[390]*390trol and to every party interested, and state in such notice the time and place when such application will be heard.”
Under these circumstances the motion of the Dillon Irrigation Company must be denied. •
A careful examination of the voluminous record fails to disclose error in the determination of the Circuit Court and it is therefore affirmed.
Affirmed. Modified on Rehearing.
Mr. Justice Bean took no part in the consideration of this case.
Modified .on rehearing April 16, 1918.