ON REHEARING.
RICE, J.A rehearing was granted in this ease, and the matters involved therein have been re-examined. This is an original application in this court for a writ of mandate to compel the Twin Falls Salmon River Land & Water Company and the Salmon River Canal Company to issue shares of water stock to plaintiff Robert Rayl for water to be used in the irrigation of state school lands purchased by said Rayl in accordance with the terms of a certain contract entered into between the defendants and the state of Idaho.
Upon the argument on rehearing of the case it was admitted by counsel for the state that the state by its contracts had not reserved any preference rights for its lands, and that purchasers of state land occupied no better position by reason of having purchased such land than any other person making application to purchase water rights from the defendants, except *76that the state’s contract with the Construction Company was prior in time to any contract between the Construction Company and a settler. It was also admitted that the available water supply is not sufficient to properly irrigate the lands for which contracts are already outstanding. The plaintiffs contend, however, that according to the terms of the contract the water supply becomes immaterial; that the plaintiff Robert Rayl, as a purchaser of state lands under said contract, is entitled to a “proportionate interest in said canal and irrigation works, together with all rights and franchises therein, based on the number of shares finally sold in said canal.”
The provisions of the various contracts involved in the consideration of this application are very fully set out in the opinion of Chief Justice Sullivan, and it will be unnecessary to repeat them here. It would probably be sufficient to state that the contract between the state of Idaho and the defendant Construction Company was entered into under a mutual mistake of existing conditions, and upon the assumption that certain facts with reference to the water supply existed, which as a matter of fact do not exist. Under such conditions the court will not by its writ in effect decree specific performance of a contract which neither party thereto contemplated when the agreement was executed.
However, the settlers who had purchased water rights from the Construction Company are entitled to consideration in this matter upon their petition in intervention. The contract between the state of Idaho and the Construction Company not only provided that the settlers should be entitled to receive their proportionate interest in the canal and irrigation works, together with all rights and franchises therein based on the number of shares finally sold in said canal, but also that each share should represent a carrying capacity in said canal sufficient to deliver one-hundredth of a cubic-foot of water per acre per second of time. Said contract also provided, in the tenth paragraph thereof, that the certificate of shares of stock in the Salmon River Canal Company, Ltd., should be made to indicate and define the interests thereby represented in the said system, to wit: A water right of one-hundredth of a *77cubic-foot per second for each acre of land irrigated as provided in paragraphs IV and VIII of the contract and a proportionate interest in the said canal and irrigation works based upon the number of shares ultimately sold therein.
The contract between the Construction Company and the settlers on the project in effect provided that the owner of a certificate of stock should be entitled to receive one-hundredth of a cubic-foot of water per acre per second of time upon the land described in the certificate, in accordance with the terms of the contract between the state of Idaho and the defendant Construction Company, and that the certificate should also entitle the owner to his proportionate interest in the dam, canal, water rights and other rights and franchises of the Twin Falls Salmon River Land & Water Company, based upon the number of shares finally sold in accordance with the said contract between the said company and the state of Idaho. It would be an unwarranted construction to hold that by reference to the contract between the state and the Construction Company all that was intended was to state that the owner of the certificate of stock in the Salmon River Canal Company, Ltd., should be entitled only to his proportionate interest in the canals, water rights, etc., of the company based upon the number of shares finally sold to settlers. If carried to its ultimate conclusion, by such construction the settler might be deprived of any water right whatever.
It should be noted that the provisions of the statutes of the state are expressly referred to and made a part of the contract between the Construction Company and the settler. By sec. 3293, Rev. Codes, it is provided that no person entitled to the use of water from any ditch or canal must, under any circumstances, use more water than good husbandry requires for the crop or crops that he cultivates. By reading this law into the contracts, it would follow that the settler is entitled to receive the amount of water specified in his contract to the extent necessary to irrigate the crop or crops which he cultivates in accordance with the usages of good husbandry. He would not be entitled to receive a greater amount than is *78necessary to irrigate his crops, nor in any event a greater amount than that specified in the contract.
It being conceded that the actual water supply is wholly insufficient to furnish the settlers with the amount of water to which they are entitled under their contracts, it necessarily follows that the plaintiff Robert Rayl could not possibly obtain what his contract would entitle him to receive. Moreover, if a writ should issue, its effect would be to defeat the intervenors to a still further extent in obtaining the rights to which they are entitled under their contracts. It cannot be held that the defendants owe a duty to the state of Idaho to make the contract prayed for in the petition.
Upon consideration of the ease on rehearing this court is of the opinion that the state in dealing with a Carey Act project acts by virtue of its sovereignty and not in the capacity of a private owner, and that the doctrine of estoppel cannot be invoked against a sovereign state.
With reference to the question of the finality of the action of the state and the Department of the Interior in determining that sufficient water supply existed and its bearing upon the right of the state to receive patents for the public land segregated from the public domain upon the application of the state, it should be noted that since the argument upon rehearing was had, the circuit court of appeals for the ninth circuit has rendered its opinion in the case of Twin Falls Salmon River Land & Water Co. v. Caldwell (C. C. A.), 242 Fed. 177, upon appeal from the United States district court for Idaho, in which it held that the action of the Secretary of the Interior in approving the proposed plan for the irrigation of public lands applied for by the state, and in making an order segregating those lands from the public domain, was not a conclusive determination against the United States that the state of Idaho was entitled to a patent therefor for the benefit of the settlers. Although this question was presented upon the argument, it is not involved in the matter before the court.
The alternative writ will be quashed and the peremptory writ denied. Costs awarded to defendants.
Budge, C. J., and Morgan, J., concur.