Petition for rehearing denied October 6, 1931 ON PETITION FOR REHEARING (3 P.2d 534) In a petition for rehearing attention is called to the matter of the duty of water pertaining to the right of plaintiff, William Skinner, which was fixed in our former memorandum opinion for 258.5 acres of land, as one-eightieth of a cubic foot of water per second of time, measured at the head of plaintiff's service lateral or ditch for each acre of said land. The quantity of water was further limited by the length of the irrigation season. *Page 497
As stated in our former opinion, the duty of water, under the contract dated February, 1918, between Skinner and the Jordan Valley Land and Water company, was to be fixed by the contract between the construction company and the desert land board.
To fully carry out the intent of our former opinion, the paragraph pertaining to the duty of water, in the latter part thereof, will be modified so as to read as follows:
The trial court fixed the duty of water for plaintiff as three acre-feet for the season, while, as we have noted, the contract provided that the plaintiff should receive the same amount of water per acre for the irrigation of his lands as fixed by the state engineer and desert land board in the construction contract. There may be a slight difference between one-eightieth of a second-foot per acre for the season and three acre-feet. This provision, however, has sometimes been changed by the desert land board in carrying out the Carey Act project, but we are not aware of any change in the present instance. In this respect we think that the decree of the circuit court, as to the duty of water, should be modified to conform to the contract. It will be so ordered, making the duty of water for plaintiff's 258.5 acres of land one-eightieth of a cubic foot of water per second of time, measured at the head of plaintiff's service lateral or ditch for each acre of said land; provided that water shall not be wasted and that no water user shall receive more water than is actually required for the proper irrigation of his land, and in no event more than two and one-half acre-feet per acre during the irrigation season and one-half acre-foot per acre for domestic and stock purposes during the nonirrigating season. *Page 498
This additional provision is contained in article VII, section 1 of the contract mentioned with the desert land board.
We have carefully considered the brief on petition for rehearing in all other respects, and after digesting its contents we find that it seeks to place plaintiff, William Skinner, who owns land outside of the irrigation district, in the same position as the owners of land within the irrigation district who have made contracts subsequent to the plaintiff's contract, which substantially superseded their former contracts. The plaintiff refused to enter into an additional contract, and, as we have already indicated, he should not be compelled to make such contract. The fact that the construction company failed to carry out their contract with Skinner was not the fault of the plaintiff. They had constructed works and a reservoir with considerable water therein, and, in common parlance, the matters pertaining to plaintiff's water right were left somewhat "in the air."
It is the duty of a court of equity to construe the construction company's contract with plaintiff, broken on the part of the construction company, under the conditions as we find them expressed in the various contracts, which we have endeavored to do.
With the above-mentioned modification, the petition for rehearing is denied. *Page 499