November 13, 1940, appellants filed their petition for a rehearing, December 18, 1940, the petition was granted, and March 31, 1941, the cause was reargued at the regular Pocatello term.
After careful re-examination and consideration of the entire record, including the authorities cited in the briefs of the respective parties, as well as other authorities, we are unable to reach any other conclusion than the one heretofore expressed in the former opinion. Appellants, in their answer, specifically admit that respondent is the owner in fee of the reservoir site and, also, the land over which a portion of the ditch is constructed to the reservoir. Appellants are bound by their pleadings in this respect. (Knowles v. New Sweden Irr.Dist., 16 Idaho 217; State v. Thum, (on rehearing) 6 Idaho 331;Bloomingdale v. Du Rell, 1 Idaho 40; Page v. Geiser Mfg. Co.,17 Okla. 110, 87 P. 851; Southwestern Broom Warehouse Co. v.City Nat. Bank, 52 Okla. 422, 153 P. 204; Oregon Ry. Nav.Co. v. Dacres, 1 Wash. 195, 23 P. 415; Chase v. Van Camp SeaFood Co., 109 Cal. App. 38, 292 P. 179.)
There is direct and irreconcilable conflict in the testimony. There is, however, substantial evidence to support the trial court's findings and judgment, which *Page 482 being true, this court has no alternative but to affirm the judgment. I. C. A. 11-219 provides:
"Upon an appeal from a judgment the court may review the verdict or decision and any intermediate order or decision, if excepted to, which involves the merits or necessarily affects the judgment, except a decision or order from which an appeal might have been taken; provided, that whenever there issubstantial evidence to support a verdict the same shall not beset aside." (Italics ours.) See authorities supporting italicised portion of statute cited on page 626, Vol. 1 of I. C. A., which are too numerous to mention.
Realizing the necessity and the value of water to arid lands, the legislature wisely provided for the condemnation of reservoir sites. (I. C. A. 13-701, subsec. 3.) The legislature also provided for the condemnation of rights of way over private property, and for the construction of canals, ditches or other works by means of which water may be conducted to the place of use, or impounded. (I. C. A. 41-1006.)
To disturb the judgment in the instant case would be to violate the settled law of this jurisdiction. The judgment must, therefore, be sustained, and it is so ordered.
Givens, Holden and Ailshie, JJ., concur.