Department One of this court filed its opinion in this case August 3, 1942, in which it affirmed the judgment of the trial court. The opinion states that,
"If, however, the respondent should convert the acre of ground into a truck garden, or use it for producing crops of any kind for the market, a different question would be presented, upon which we express no opinion."
The appellant's petition for a rehearing was granted.
This is an equitable action, and one in which the court granted an injunction. In order that the relief be complete, and in view of representations of an excessive use of water for irrigation purposes, it is deemed advisable, in reaffirming the judgment, to clarify further respondent's rights to the use of free water.
[4] While we are unable from the present record to do this in terms of the number of gallons of water, we will state the rule by which they may be determined. The clause in the contract which defines respondent's rights is as follows:
"It is also reserved and excepted to first parties the present pipe lines to their buildings and the water that would flow therein to be used only for domestic purposes and watering of stock and garden and lawn purposes. And first parties shall not be charged therefor; but shall maintain the same at their own cost." *Page 433
We will construe this language in the light of the circumstances existing at the time the contract was drawn, and find that the following limitations were intended by the parties: The pipes intended to be used for respondent's benefit were those then in the ground or those replaced and maintained by the respondent; the buildings to be served were the then existing buildings or their replacements; the domestic purposes provided for are the equivalent of household purposes; the garden for which water is to be furnished free must be grown exclusively for the use of the occupant householder; the extent of the lawn must be reasonably limited by the standards of the community and prior use; the stock to be watered must be grown or maintained upon the premises.
In short, respondent may not convert the water furnished by the appellant from private to commercial, industrial, or irrigation uses.
The case is remanded to the trial court for the purpose of ascertaining the amount of water which respondent may use and amending its final decree in conformity with its findings. *Page 434