It is ordered that the judgment of the supreme court set forth in the opinion filed March 24, 1922, be amended to read as follows:
It is ordered that the judgment of the superior court entered in case S. F. No. 9748 he modified by striking therefrom the whole of paragraph numbered 6 thereof, and by amending paragraphs numbered 4 and 5 thereof, respectively, so as to read as follows:
4. As part and parcel of said tract 3, defendant Swett is entitled as against plaintiff to take of the water of said Chase Creek a reasonable share, but no more than a reasonable share, for use upon said tract 3 and not elsewhere, and for the reasonable use of said tract 3 but for no other purpose.
5. Except as in the preceding paragraph (numbered 4) stated, plaintiff is the owner of, and he and his heirs and assigns are entitled to the use of the right, as part and parcel of said Thompson ranch, to have said Chase Creek flow naturally and undiminished to said 1890 point, where plaintiff, for use upon his said Thompson ranch, has the right to take one-half (1 1/2) of said flow.
As so modified, the judgment is affirmed. Neither party to recover costs on this appeal therefrom. The court below is directed on the going down of the remittitur to re-enter the judgment as thus modified.
Shaw, C. J., Shurtleff, J., Richards, J., pro tem., and Lawlor, J., concurred.
Rehearing denied.
*Page 489All the Justices concurred.