ON REHEARING.
MCCARTHY, J.— In the original opinion, we held that the judgment should be affirmed because appellants did not offer, in their complaint, to pay maintenance based on the actual cost of operation. In a petition for rehearing, they claim that the court has misconstrued the record in this regard. After re-examining the record, we are not convinced that we have misconstrued it. However, on re-argument, counsel for appellants stated, and counsel for respondents admitted, that appellants have been for some years paying the same maintenance as the contract holders who have been receiving the Jackson Lake storage water, i. e., maintenance based on the actual cost of operation. Regardless of the condition of the record, in the face of this admission we withdraw the last part of the original opinion touching appellants’ duty to offer to pay increased maintenance as a condition precedent to any relief.
Counsel for respondents, in a petition for rehearing, suggest that the court erred in saying:
“The 10,000 acre-feet was acquired in exchange for a right owned by the Kuhn'Company, known as the Perrine right, is used on the first segregation, and is not in question here, the controversy being solely as to the additional amount. ’ ’
This question not being in issue, and the facts not being exactly clear, we conclude that the original opinion should be modified by striking from the sentence above quoted the clause “is used on the first segregation.”
Respondents also contend that this court erred in concluding, first, that the second and third segregations are only entitled to 170,000 acre-feet of the Jackson Lake stor*87age,- and, second, that there exists a surplus of Jackson Lake storage water above that to which the second and third segregations are entitled. The amended complaint alleges that in July, 1920, there were 245,000 acre-feet of storage water available to respondents in Jackson Lake reservoir, of Avhieh 70,000 acre-feet were available for use on the first segregation. The answer admits that there were 245,000 acre-feet available, but denies that any of it was for the first segregation. The court found that the estimated amount of the Jackson Lake water available to respondents was 315,000 acre-feet (finding 26, page 286). It also found that the second and third segregations were entitled to a prior right to 170,000 acre-feet of the Jackson Lake storage water measured at the intakes of the Jerome and Wilson Lake reservoirs (finding 58, page 299). The same language is found in the third conclusion of law (page 302) and in the judgment (page 305). The court made no finding as to the amount of water remaining after satisfying the needs of the second and third segregations. The principal defense in the answer was that appellants could never be entitled to receive any of the Jackson Lake storage water because this was not contemplated under the contract. Judging from findings 26 and 50, conclusion of law No. 2, and paragraph 2 of the judgment, the trial court adopted and acted upon this theory. We rejected this theory, using the following language:
“The original appropriation made for the first segregation turned out to be insufficient, and if the company after-wards made another appropriation, and acquired a further water right, to which no other contract holders have a prior claim, it would follow that the contract holders under the first segregation could force the construction company to apply this new water right for the purpose of supplementing their original water right, to the extent necessary in order to bring about a compliance with their contracts.”
The greater part of the argument and brief of respondents on the original hearing was taken up with this theory. The further point was suggested, though not emphasized, that the *88court could not exercise jurisdiction without adversely affecting the rights of third parties who were not joined, to wit: the contract holders on the second and third segre-gations.
We were not unmindful of what we said in Sanderson v. Salmon River Canal Co., 34 Ida. 145, 199 Pac. 999:
“Mandamus is not a proper remedy to decide conflicting interests. If third parties have rights or interests adverse to those of plaintiff, mandamus is not the proper remedy.”
This applies with almost equal force to an action like the present which, though not a mandamms proceeding in form, yet seeks the same object, to wit: the delivery of water by an irrigation company. Since the court found that the prior right of the second and third segregations was to 170,000- acre-feet, and it was admitted that there were 245,000 acre-feet in the Jackson Lake reservoir, we assumed that the rights of the second and third segregations could no'; be adversely affected. This was, perhaps, because this aspect of the matter was not emphasized. It is strongly emphasized in the petition for rehearing.
■Bespondents point out that, under the contract by which the state permitted the construction company to substitute the Jackson Lake storage water for water originally planned to be stored m Wilson Lake and Jerome reservoirs, it is provided that an amount of water in excess of 170,000 acre-feet shall be delivered at the intake of Wilson Lake and Jerome reservoirs. (Bespondents’ Exhibit “C.”) It is apparent from the record and is a matter of common knowledge that there must be a considerable loss of water in transit. The contracts between the construction company and the water users on the second and third segregations provide that water shall be measured to them at the place of diversion from the main laterals of the irrigation system. (Bespondents’ Exhibits “A,” page 15, and “B,” page 8.) In deciding how much water is necessary to insure them their contract amounts, it is necessary to make allowance for some loss in transit between the outlet of Wilson Lake and Jerome reservoirs and the place of delivery. If the *89Water is stored in the last-named reservoirs for any length of time, there is bound to be some loss. The trial court did not find the amount of the loss by reason of any of the causes above mentioned, yet such a finding is necessary to enable this court to determine whether or not there is a surplus after delivering the required amounts to the second and third segregations.
In view of the provisions in the several contracts, the finding's, the judgment and the argument, we assumed, on the original hearing, that 170,000 acre-feet had been dedicated to the second and third segregations and constituted the extent of their priority. In view of the turn the ease took on rehearing, we conclude that there may be some question as to the correctness of this assumption. The court’s findings support it, but it must be remembered that they are not binding on the contract holders under the second and third segregations who were not parties. The purpose of the contract by which the state permitted the construction company to substitute the Jackson Lake project for the original project was to fulfill the provisions of the original contracts. It is provided that the company shall procure in excess of 170,000 acre-feet. The water users on the second segregation are entitled, under their contract, to one-eightieth of a cubic foot per second for each acre, and those on the third segregation are entitled to one one-hundredth of a cubic foot for each acre. (Respondents’ Exhibit “A,” page 15.)
Questions arise as to whether the priority of the second and third segregations is confined to 170,000 acre-feet, or whether they have a prior right to whatever amount of Jackson Lake storage water may be necessary to give them the amount required by their contracts, and, if the latter, what that necessary amount is. These questions should not be decided without making them parties.
It would be useless and idle to enter a judgment to the effect that appellants are entitled to the use of surplus water after the rights of the second and third segregations are satisfied unless it is determined that there is such a *90surplus. There is no finding on this .point. The action was brought with reference to conditions in 1920, but appellants seek a continuing judgment. This makes it necessary to determine not only whether there was a surplus in 1920, but also whether there is a continuing surplus, which resolves itself into the question whether there is a surplus in the average year. There is no finding on these matters.
(March 6, 1924.)We conclude that the contract holders on the second and third segregations are interested in a determination of these questions and should be made parties.
The judgment is reversed and the cause remanded, with directions to permit appellants to join as parties defendant, within such reasonable time as the trial court may allow, the contract holders under the second and third segregations, and for further proceedings in accordance with the views herein expressed. If appellants do not join such additional parties within said time, it is ordered that the action be dismissed. No costs are awarded on this appeal. The original opinion is modified to the extent herein indicated; in all other respects it stands.
Budge, C. J., and William A. Lee, Wm. E. Lee, JJ., and Givens, District Judge, concur. Dunn, J., did not sit nor participate in the decision, on rehearing.