ON PETITION FOR REHEARING.
(March 5, 1913.)
SULLIVAN, J.— A petition for rehearing and modification of the original opinion in this case has been filed by the respondents Joyce, and it is contended that that part of the decision in regard to the water flowing from a spring situated on the Joyce land is susceptible of two constructions.
*312After quoting from the finding of the court in regard to said spring, we stated in the opinion as follows:
“It is clear from the finding that the respondents Joyce are not entitled to the water flowing from said spring in addition to the water decreed to them, but that the amount of the flow of said spring must be deducted from the total number of inches of water awarded to the respondents Joyce. They are not entitled to the number of inches awarded to them at the head of their ditch and in addition thereto the flow of said spring. They are entitled only to the amount awarded to them at the head of their ditch less the flow of said spring. From the record it appears they have about 50 acres of land below where said spring rises, and certainly can use the water from said spring in the irrigation of said land, so the decree in that regard must be amended in conformity with the views herein expressed. ’ ’
The intention of the court was to give said respondents the amount of water decreed to them at the head of their ditch less the amount of the flow of said spring which could be used in irrigating respondents’ land. If there were fifty acres of land which the water from the spring could be used to irrigate, the number of inches of water which could thus be used should be deducted from the amount awarded to the respondents at the head of their ditch. And if there is sufficient flow from said spring to irrigate said entire fifty acres, so much of the water flowing from said spring as can be beneficially used on the lower end of the Joyce ranch is to be deducted from the amount required to be turned to the said respondents at the head of their ditch. In other words, the respondents Joyce are not to have what water they can use from the spring and also have turned in to them at the head of their ditch all of the water that they were awarded by the decree, and the land lying under the spring is to be irrigated entirely from the water of such spring, and should have no other water unless the spring is insufficient to irrigate such land. A rehearing on said petition is therefore denied.
Counsel for the appellant, the Murphy Land & Irrigation Company, has also filed a petition for rehearing, and con*313tends that the respondents Bennett were awarded 610 inches of water for 162.65 acres of land, and that the court having found that said respondents are entitled to no more than three inches of water per acre for said 162.65 acres, which would be 488 inches, and the court having allowed them by the decree 610 inches, it allowed them 122 inches of water more than the findings of fact would warrant or support.
On a re-examination, we ascertain that the court found, among other things, in its 24th finding of fact, that the 162.65 acres of the 320 acres of land owned by the Bennetts is supplied with water from their ditches, and by the 26th finding of fact, the court found that it required “approximately three inches” per acre to properly irrigate said land. If it only requires three inches per acre, it would require but 488 inches to properly irrigate all of the land that the Bennetts had properly irrigated or reclaimed. By the 26th finding the court finds that the defendants have applied to a beneficial use in the irrigation of said lands 610 inches. If it required only three inches per acre and the Bennetts had only reclaimed 162.65 acres, all the water they would be entitled to would be 488 inches, and we are satisfied, on a re-examination of the. evidence, that that is all they are entitled to; hence the original opinion in this ease will be modified to the extent of allowing the Bennetts 488 inches instead of 610 inches, and the judgment of the trial court will be modified to the extent herein indicated.
It is next contended that the court erred in granting to respondents Bennett a priority over the appellant, the Murphy Land & Irrigation Co., for said 162.65 acres; that 66 acres of said land was not irrigated until 1907 or 1908, and that the appellant’s right to the water attached from December, 1906. On a review of all of the evidence in regard to the Bennett’s right, we are satisfied that they are entitled to three inches of water per acre for said 162.65 acres.
With the above-noted modifications, the petition for rehearing will be denied and the cause remanded, with diree*314tions to the trial court to make the.changes indicated in this and the original opinion.
Stewart, J., concurs. Ailshie, C. J., did not sit at the hearing and took no part in the decision.