suggested for the first time in a petition for rehearing after judgment, it is not properly raised, so as to authorize the supreme court of the United States to review the decisions of the highest court of the state.' **** 148 U. S. 682; * 137 U. S. 48; * 138 U. S. 52; * 139 U. S. 462." Lamar C. Co. v. Amity L. & I. Co., et al., 26 Colo. 370-380, 58 Pac. 600. * * Sec. 35. Limitation on appeals. * Syl. "An appeal may be taken within two years from the time a decree is rendered in such proceeding, but not afterwards." Upper Platte & B. C. Co. v. Ft. Morgan R. & I. Co., et al., 27 Colo. 214, 60 Pac. 489. Sec. 36. Method of taking appeals. a. Statutory. The method of taking appeals is regulated by Sec. 2427 Mills. Daum, et al., v. Conley, et al., 27 Colo. 56-60, 59 Pac. 753; Upper Platte & B. C. Co. v. Ft. Morgan R. & I. Co., 27 Colo. 214, 60 Pac. 484; Napier v. Glenwood, 49 Colo. 208, 112 Pac. 323. Sec. 2427 Mills above cited is Sec. 3307 herein. b. Ex Parte. "On the presentation of a statement by those desiring an appeal, if the court or judge finds it fulfills the requirements, an order is made allowing it, and fixing the amount of the appeal bond." Daum, et al., v. Conley, et al., 27 Colo. 56-60, 59 Pac. 753. C. Time. The giving of time, in which to perfect an appeal, by a referee, is of no effect. Daum, et al., v. Conley, et al., 27 Colo. 56-60, 59 Pac. 753. Sec. 37. Parties entitled to an appeal. a. Those representing a ditch. "This provision (Sec. 3307 infra) does not contemplate that anyone interested in a ditch to which an award has been made, may have an appeal, but that the party or parties representing such ditch may exercise that right. The party representing a ditch means the owner or one controlling it, and not the different consumers." Randall, et al., v. Rocky Ford D. Co., et al., 29 Colo. 430-432, 68 Pac. 240. The consumers might be allowed to appeal in case fraud, in the adjudication proceedings on the part of the owner, could be shown. Randall, et al., v. Rocky Ford D. Co., et al., 29 Colo. 430-433, 68 Pac. 240. Sec. 38. Prejudicial error-Presumption on appeal. Syl. "An error must be prejudicial to justify the reversal of a judgment, but an error is presumed to be prejudicial to the party against whom it is made, unless it affirmatively appears that it was harmless." Buckers I. M. & I. Co. v. Platte Valley I. Co., 28 Colo. 187-188, 63 Pac. 305. Sec. 39. Public policy. Errors of record have been considered by the Supreme Court on appeal, although not urged by the parties, on the ground of public policy. Windsor Co. v. Lake Supply Co., 44 Colo. 214-216, 98 Pac. 729. Sec. 40. Remand for new trial-Res Adjudicata. Where a cause has been remanded for a new trial "no finding of fact made by the lower court on the former trial, or which the Appellate Court said was supported by the evidence, was res judicata of any fact upon which the rights of the parties to the waters of such stream depended.” Buck ers I. M. & I. Co. v. Platte Valley I. Co., 28 Colo. 187, 63 Pac. 305. Sec. 41. Rehearing and review does not waive right to appeal. "Appellants, by availing themselves of the provisions of (Sec. 3318 C. S. A.) * * * * in applying for a rehearing and review of the decree, have not waived their right to an appeal." Daum, et al., v. Conley, et al., 27 Colo. 56-61, 59 Pac. 753. An appeal is from a decree and not from an order denying a review. Sec. 42. Time for filing transcript. "The period within which appellants were required to lodge their transcript of record with the clerk of this court would begin with the date their appeal was granted. ****" Daum, et al., v. Conley, et al., 27 Colo. 56-60, 59 Pac. 753. Sec. 43. Transcript-Certification. "It is clear, however, that the transcript of the evidence heard below must be certified as containing all the evidence in any manner affecting the ditches named in the order allowing the appeal, and that a certificate to that effect must be signed and sealed by the trial judge." Kerr v. Dudley, et al., 26 Colo. 457-459, 58 Pac. 610. Sec. 44. Verification of statement for an appeal. "The statement is verified by two counsel for appellants, who state that the allegations therein are true of their own knowledge, and they make the verification on behalf of their respective clients, because they are more familiar with the facts than they are. This showing is sufficient." Daum, et al., v. Conley, et al., 27 Colo. 56-61, 59 Pac. 753. CAPTER IV. APPROPRIATION. Artificial Waters § 45. Water from springs § 47. Abandoned water § 48. Seepage, percolating or drainage water § 49. Water from tributaries § 52. (a) What is considered as a tributary. Holder of option to purchase land § 53. For cities and towns § 54. For domestic use § 55. (a) Priority. Milling purposes § 56. (a) Right to sell appropriation. (b) Subsequent appropriation, of returned water for irrigation. Reservoirs § 57. Speculative purposes-Allowed but limited § 58. From canon, not a running stream § 59. In Colorado for use in New Mexico § 60. On public land § 61. Act of Congress recognizing appropriations § 62. (a) Vested rights. (b) Act construed. (c) Recognition of existing rights. Act of territorial legislature § 63. Constitution regarding appropriation § 64. (a) Construed. Amount appropriated-Limited § 65. Beneficial use of water appropriated § 66. (a) Most important factor. (b) Decree-Referee's findings. (c) Excessive diversion is not to beneficial use. Change of purpose of use § 67. Change of character and methoduse § 68. Double Duty § 69. Enlarged use § 70. (a) Defined. (b) In general. (c) Proof. "First in Time First in Right" § 71. Fish lake § 72. Flood and surplus water may be appropriated § 73. Headgate-Tapping canal § 74. Intent to appropriate § 75. Map and statement act § 76. (a) Statements. Place of use. § 77. Priority § 78. (a) How acquired. (b) Measure of. (c) To ditches. (d) Different-from same ditch. (e) Mode of diversion-Unimportant. (f) Ownership, distinguished from ownership of stock in a corporation. Returned waters-Sufficient to satisfy appropriation § 79. Riparian rights-Distinguished from constitutional and statutory rights § 80. Right to water appropriated is a freehold estate § 81. Same quantity may be appropriated for use at different times § 82. Senior appropriators cannot enlarge rights to injury of junior appropriators § 83. Tenants in common § 84. Title to land on which water is used is not necessarily in the appro priator § 85. What does not constitute an appropriation § 86. (a) A mere diversion. (b) A grant. (c) An enlargement of a ditch. (d) Use by permission. (e) Use during high water. Waste waters-Appropriation of § 87. (a) Excess water flowing on surface of land. (b) From ditch. (c) From tunnel. (d) Return to stream. Sec. 45. Artificial waters. An appropriation of artificial waters, such as waters derived from the drainage of a mine, can be madc. Ripley, et al., |