ON REHEARING.
AILSHIE, J.On petition of defendant, the Twin Falls Canal Company, a rehearing was granted in order that the case might be argued to the court with a full bench. Counsel have filed exhaustive briefs and made oral arguments, and we have again given the matter very careful consideration, and are satisfied that the writ should issue. The order for the writ is made on the following grounds:
1. The contract for the construction of the irrigation works and system specially provided that a proportionate share of *445the water appropriation of 3,000 second-feet was dedicated to sections 16 and 36 and such other lands as the state might own within the bounds of the segregation, and that the purchasers of such lands should be entitled to purchase a water right for ten dollars less per acre than would be charged to purchasers of government land.
2. The Twin Falls Canal Company was organized under and in conformity with the provisions of the contract between the state and the Twin Falls Land & Water Company, and is charged with the terms and conditions of that contract in so far as they provide for the sale of water rights.
3. The Twin Falls Canal Company having received and taken over the system and assumed the duty and obligation of operating the same and selling water rights cannot, in this proceeding, raise any question as to the failure of the construction company to comply with the contract in the manner of constructing the works and system or furnishing sufficient water to comply with its contract.
4. That where the Twin Falls Canal Company accepted and took over the canal system and undertook the operation thereof, it received the unsold shares of stock in the company amounting to 42,174.51, and agreed in writing “That the assignment and transfer by the second party of said 42,174.51 shares of stock as evidenced by said certificate No. 1319 in said Twin Falls Canal Co. is made by said second party and received by the first party with the understanding and agreement that the same shall be sold and disposed of and shall be subject to all of the terms and conditions set forth in that certain contract made and entered into between the said state of Idaho as first party and the said Twin Falls Land & Water Company as second party, bearing date Jan. 2, 1903, subject, however, to any amendments or modification of said contract as to the price of water rights under said system which have been heretofore made with the consent of the state board of land commissioners of the state of Idaho, or that may hereafter be so made, and provided that in no event shall said shares of stock be sold at a price less than $25 per share where the water right evidenced by the same is to be used *446upon Carey Act lands, and at not less than $15.50 where the water right evidenced by the sale is to be used upon state lands,” etc.
5. That the company is bound to employ the most economical method possible in the distribution of water from its canal and system, and if necessary adopt a system of rotation, and that it is not shown by the pleadings that under such a system of distribution there is not sufficient water to supply all consumers and furnish the plaintiff the amount demanded.
6. That the plaintiff West is a purchaser from the state of a portion of a section numbered sixteen, situated within the segregation covered' by this irrigation system.
The writ will issue in accordance with the prayer of the complaint. No costs awarded.
Sullivan, J., concurs.