On Rehearing.
In their petition for a rehearing, the defendants in error, while acquiescing in the' decision that, “an appropriator of water may enjoin in equity the use of an appropriation enlarged in time or amount subsequent to the entry of a decree permitting the change of the point of diversion thereof,” contend, nevertheless, that in applying the law so declared, we “overlooked or misapprehended the issues actually made and joined by the pleadings herein.”
As stated in the opinion, both parties are in accord that the only question that was submitted for decision, and it was the only one argued, was whether the second defense of the amended answer constituted a good defense-to the action. In other words, the only question we were called upon to decide was whether such a suit in equity could be maintained. Our attention was not then directed to what is now said by defendants in error to be a failure of the plaintiff in error in its complaint to bring its case within the principle of law laid down. The pleadings are voluminous and unnecessarily prolix. We do not propose at this time to study the complaint to determine if it is defective in other particulars than the one submitted for our decision. The defendants in error must reform-their answer and, in view of what we said in the- opinion, it may be that the plaintiff in error may wish to amend, and we deem it proper to suggest that, for the sake of brevity and clearness, the complaint should be amended. It might well be, and should be, materially shortened before the defendants are called upon to file an amended answer. Either party may attack the pleadings of its adversary, either those now on file, or amended pleadings, if any, upon grounds other than the one already presented and disposed of.
Petition for a rehearing denied.