Petition for rehearing denied January 24, 1933 ON PETITION FOR REHEARING (18 P.2d 814) Defendants, Juan Jaca and Joe Bankofier, have each filed a petition for rehearing.
Defendant Jaca complains because we did not hold that he had a water right equal to that of plaintiff in and to one-half of the waters of Ten Mile creek by adverse use for more than the prescriptive period. The evidence on behalf of Mr. Jaca is unconvincing and incomplete. We held that his right, if any, is subsequent and subordinate to the rights of plaintiff and the other defendants, whose rights were declared in the original opinion. We adhere to that holding.
Defendant Bankofier calls attention to the failure of the writer to indicate when the use of the waters of Ten Mile creek, by the parties adjudged to have rights to the use thereof, shall begin. It is therefore ordered that the defendant, Joe Bankofier, shall begin the exercise of his right, with a priority of 1873, at the beginning of the spring run-off of Ten Mile creek; using the same continuously for 60 consecutive and successive days thereafter, plaintiff shall begin the use of the said waters at the expiration of 60 consecutive and successive days of use by said Bankofier and use said waters for an additional period of 60 consecutive and successive days pursuant to her rights thereto with a priority of 1880, and that, at the expiration of said additional period of 60 days, said defendant, Joe Bankofier, may begin the use of said waters pursuant to his right thereto with a priority of 1884, it being expressly decreed that the extent of the right, with a priority of 1884, held by said Bankofier, may be made more definite *Page 439 by an order subsequent hereto of any court having jurisdiction and that this order made hereby and herein is without prejudice to the rendition of such subsequent order. It is further ordered that the foregoing provisions be incorporated in the decree entered by the circuit court. Except as above amplified, the former opinion is adhered to.
The petitions for rehearing are denied. *Page 440