ON PETITION FOR REHEARING.
AILSHIE, J.— Appellant has filed a petition for a re-bearing, and insists that the court has invoked against it the rule of waiver and invited error, under a misapprehension, of the full extent of the order appellant requested the trial court to make in this case. This contention seems to be made chiefly upon the following statement contained in the original opinion: “The only change as made was that the sum so paid in should be subject to the order of the court, and leaving out the provision that in case the defendant failed, neglected, or refused to pay said sum into court he should be restrained and enjoined from flooding said land.” It appears,' however, that in fact the order made by the trial court also omitted the fourth paragraph from the requested order. That paragraph reads as follows:
“It is further ordered that the defendant shall not be prejudiced by said payment into court and that it shall not thereby be prevented from further taking or prosecuting any appropriate action or proceeding relating to any question involved in this action.”
That provision of the order was considered by the court, but no mention was made of it in the written opinion. The only theory upon which that provision could have any bearing or effect would be in event it should receive the construction that, even though this reference should be made, it should have no effect if it proved unsatisfactory to the defendant in .the action, and that defendant might take any other action it saw fit to take in the case or in referénee to the matter in controversy, however inconsistent it might be with the reference requested. While this paragraph of the order is capable of such a construction, the court is not going to give it a construction that would be inconsistent with good faith on the part of the litigant who requested the order. To give it such a construction would be in effect saying that the appellant was trifling with the court in submitting such an order and asking such a conditional reference. *140While the proceeding in this ease is open to that construction and might subject appellant to the charge that it was endeavoring to take a short cut to condemn respondent’s land and also avoid submitting the question of damages to a jury, and at the same time reserve all legal and technical defenses that it might have as to the validity and extent of respondent’s title and right of possession and occupancy, still we are inclined to give it the construction that the appellant was at the time acting in good faith.
A proceeding in condemnation is an admission of ownership of the property and right sought in the person against whom the condemnation is prosecuted. Condemnation was accordingly in conflict and inconsistent with the defense set up by appellant that it had already acquired from Frederick W. Post, by and with the consent of” the United States government, the right to perpetually flood this land. If it had such right, then respondent had nothing to condemn. Appellant clearly and unmistakably led the court into the procedure adopted in this case and the theory of condemnation as embodied in this order. After it had invoked this procedure and converted the respondent’s action for damages and injunction into an action in condemnation on the part of the appellant, and after the evidence had all been taken by the referee, and a report had been made, and the money had been paid into court, the court then properly refused to allow defendant to withdraw the payment and proceed upon another theory of the case that it had impliedly waived in the first instance.
If the appellant has been deprived of any of its property or property rights in this case, it has been done by its own initiation. It impliedly waived the defense it now urges and should not be heard at this time to change its theory, of the case. We have examined the evidence in the record for the purpose of ascertaining if it is sufficient to support the finding of the referee and judgment of the court in awarding damages. We think the evidence is abundantly sufficient to support the judgment in that respect, and so held in the original opinion. The petition is denied.
Sullivan, C. J., and Stewart, J., concur.