ON PETITION POR REHEARING.
SULLIVAN, C. J.A petition for rehearing has been filed in this ease by the Capital Water Co., asking for a modification of the decision of this court in so far as the same affects said company.
In the former opinion, this court held that the evidence was sufficient to sustain finding No. 9, wherein it was found, among other things, by the trial court that the respondent, the Capital Water Co., had diverted and appropriated from Boise river 2,500 inches of water. On a re-examination of this matter we find that the evidence sustaining that finding is uncontradicted, and is amply sufficient to sustain the finding.
This court set aside finding No. 3, which finding is as follows:
“That the quantity of water required for the successful irrigation and cultivation of said lands, measured at the intake of the respective ditches under a four-inch pressure, is as follows:
“For bench lands, one inch per acre;
“For bottom lands, one and one-tenth inch per acre”; and ordered a new trial on the question there involved. That finding applies to the irrigation and cultivation of acreage tracts, and the former opinion of this court must be so modified as to make the new trial apply to acreage tracts and not to the irrigation of certain town lots, street sprinkling, parking purposes, sewerage, domestic and power purposes. On a re-examination of the record, we conclude that the judgment of the trial court should be affirmed except as to the question of the duty of water for the irrigation and cultivation of agricultural lands and acreage tracts. The question of the duty of water for acreage purposes is the only *540question to be determined in a new trial so far as the duty of water is concerned.
The former opinion of this court is modified to the extent above indicated, and as stated in the former opinion, “A new trial will be granted for the sole and only purpose of determining the duty of water on the two classes of lands» involved in this action, namely, bench lands and bottom lands.”
A rehearing is denied.
Counsel for the Eureka Water Co. has also filed a petition for rehearing in this case, and takes the position that the trial court has only fixed the maximum amount of water to which the respective parties are entitled, in the order of their priority, and that under the law it makes no particular difference what the court may fix as the maximum amount to which the parties are entitled, as they are only entitled to sufficient to supply their necessities in any event, and it is conceded by counsel that the questions he desires to present on a rehearing- were not presented nor argued to the court on the appeal.
Regardless of the court’s views upon several of the questions suggested by counsel in his petition for rehearing, the court considers the maximum amount of water established by the decree to which each of the respective parties is entitled a very important question. It certainly is important to all subsequent appropriators, whether prior appropriators be given an inch or a half inch of water to the acre. We are satisfied from an examination of the record in this ease that the maximum amount of water to be allowed each appropriator is too large and in excess of the amount that may in any event be necessary for the successful irrigation of the lands under consideration.
The court is not inclined to grant a rehearing on questions that were not presented on the appeal, and for that reason a rehearing is denied.
Ailshie, J., concurs. Stewart, J., took no part in the decision of the petition for a rehearing.