ON PETITION FOR REPIEARING.
Potter, Justice.On the former hearing the judgment of the District Court in this cause having been affirmed, plaintiff in error applies for a rehearing; and the chief ground asserted in sup*402port of the application is that a reversal ought to follow from the alleged failure of the jury to accept the instruction of the court to the effect that if the ditch in question had been enlarged, and the ditches of the parties had been consolidated, and water used therein by both parties thereafter; they would be joint owners of the ditch, and the plaintiff could not recover in this action, the statute having provided another remedy. That instruction was given at request of plaintiff in error, and if erroneous, he is in no position to complain of it. In our previous opinion we endeavored to show that it erroneously construed and applied the statutory provisions relating to summary proceedings for the distribution of water in partnership ditches, in case of dispute; and we said that the instruction, being erroneous, it was immaterial that it was disregarded, and that we would not feel justified in reversing the judgment on the ground that it was disregarded by the jury. We referred, however, to another instruction given at the request of defendant in error, construing the contract between the parties as requiring the plaintiff in error, as a condition precedent to his acquirement of any interest in the ditch, to have sufficiently enlarged its capacity so that it would carry enough water to irrigate the entire quantity of land permitted by the contract, in addition to its former capacity. We declined to decide whether that instruction embraced a correct interpretation of the contract, deeming it unnecessary to do so, for the reason that, whatever the interest in the ditch held by plaintiff in error, defendant in error was entitled to the first five cubic feet of water flowing in the ditch, which could not be diverted to his injury by plaintiff in error; and the jury were so instructed.
There was evidence tending to show that defendant in error did not receive the water to which he was clearly entitled under the contract, and that his failure to receive it was caused by its diversion by plaintiff in error. We think it evident that the verdict was not based upon the diversion by plaintiff in error of the water in the ditch over and above *403the first five cubic feet; since the proof on behalf, of defendant in error was to the effect that he received np water ^whatever; and since the instructions were to the effect only that he was entitled to five cubic feet of water, and that if he was deprived of that water by the acts of plaintiff in error, and his crops were damaged in consequence thereof, he was entitled to recover. Moreover, that amount of water was substantially the quantity he-claimed by appropriation.
It seemed to us, therefore, and we adhere to that opinion, that it was immaterial to any issue in the case whether plaintiff in error was entitled to divert any water flowing in the ditch over and above the first five cubic feet. Hence, it was considered unnecessary to consider the correctness of the fourth instruction for defendant in error, interpreting the contract as aforesaid. Conceding: its incorrectness, plaintiff in error was not prejudiced thereby. We referred to it then, however, to show that, in view of its statements, the jury may have found that the ditch had not been enlarged, and that the ditches of the parties had not in fact been consolidated; and that, in the event the jury so found, there may not have been a disregard on the part of the jury, as they understood it, and as we think the court intended it to be understood, of the instruction given at request of plaintiff in error above referred to.
It was not intended in our former opinion to hold that the jury clearly disregarded any of the instructions. But in view of the peculiar character of the instruction under consideration, we expressed the opinion that, conceding it to have.been disregarded, that fact would be' deemed immaterial and not justify a reversal of the judgment. Possibly our language was broader than was necessary and may be construed as holding that a disregard by the jury under any circumstances of an erroneous instruction is immaterial, where the verdict is right upon the law of the case. Manifestly, it was not required that we go to that extent.
There is a direct conflict in the authorities on that prop*404osition. In Iowa, California, Nebraska, South Carolina and Montana it is held that, whether an instruction contain a correct statement of the law or not, it is the duty of the jury to follow it, and that an evident failure to do so by returning a verdict contrary to it will authorize a new trial, and the reversal by the appellate court of a judgment based upon such verdict. (14 Ency. Pl. & Pr., 787, note 3, and cases cited.)
The courts of several other states, on the other hand, announce and apply a contrary-doctrine. (Id. note and cases cited.) And it is maintained by much respectable authority that where a verdict is clearly right upon the evidence, and the whole law of the case, a verdict will not be set aside on the ground that it is in conflict with an erroneous instruction.
In Hammill Fire Escape Co. v. Davis, 64 Ill. App., it was said that a part of the verdict seemed to have been contrary to the instruction of the court as to the sufficiency of proof, but if the court, on motion for a new trial, was convinced that the jury took a more correct view, the motion for hew trial was properly denied. In Georgia, where the trial court had erroneously instructed the jury on the subject of the bar of the statute of limitations, the Supreme Court, after stating the correct rule, said: “And the charge of the court to the contrary was, itself, wrong; and, if wrong, it was no error in the jury not to follow it. Their finding contrary to this charge, then, is not a ground for a new trial. On the motion for the new trial the court, itself, became conscious of its error, and admitted it.” (Brock v. Garrett, 16 Ga., 487.)
In Missouri it is held that if, upon the pleadings and undisputed facts, the judgment is for the right party, there can be no reversal, no matter what errors intervened upon the trial, and the court in one case said: “Then, upon the same principle, if the judgment is for the right party upon the undisputed or admitted facts in the trial court, that court should not disturb the verdict and judgment thereon, *405notwithstanding error in instructions made by it.” (Homuth v. Metropolitan St. Ry. Co., 129 Mo., 629. See also Howard v. Miner, 20 Me., 325; French v. Stanley, 21 Me., 512.)
A very full and able discussion of the matter by a court holding that, whether an instruction be right or wrong, a verdict that disregards it should'be vacated, is to be found in Murray v. Heinze, 17 Mont., 353. In that case it is stated that the instructions under consideration affected the vital issues of fact in the case; and as it was the law of the case, as far as the jury were concerned, they had no right to disregard it, and their verdict contrary thereto was “against law,” notwithstanding that the instruction may have been erroneous; and the action of the trial court in settjng aside the verdict was held to have been justified.
There can be no doubt but that-the jury is bound to take the law from the court; and that they have no right to determine the law for themselves adversely to the instructions of the court. This may be conceded to the fullest extent, yet should it necessarily follow that in all cases, and under all circumstances, a new trial ought fo be granted where the duty of the jury in that respect may seem to have been violated.? We are not prepared to say, nor do we conceive it necessary in the present instance to decide, that cases may not arise where a judgment shoitld be reversed on the sole ground that it is based upon a verdict rendered contrary to the instructions of the court, even though such instructions may have been erroneous.
An examination of the authorities will disclose that they are to be distinguished from the case at bar. In Nebraska, where a judgment was reversed because the verdict clearly violated the positive instruction of the court, the instruction was that there could be no recovery in the case, upon the evidence, for more than nominal damages; but a verdict was returned for $35 damages. (Aultman v. Reams, 9 Neb., 487.)
In the case of the Charles Baumback Co. v. Gessler, 79 *406Wis., 567, the Supreme Court of Wisconsin said that the fact that the verdict was^ against the instructions of the court was sufficient ground for setting it aside. But in that case the court held the instruction to contain a clear and correct statement of the law, and entitled defendant to a verdict, and the testimony tended strongly tp sustain the defense, and it is evident that the point relied on by the defense, if sustained, was a good defense in law.
In the leading California case, it was contended that the jury, in rendering a verdict for only $600, utterly disregarded the instructions of the court, as applied to the facts admitted by the pleadings and the evidence in the case. (Emerson v. County of Santa Clara, 40 Cal., 543.)
The leading case in Iowa, and possibly on this subject, is Savery v. Busick, 11 Ia., 487. In that case the trial court charged the jury, practically, that they should find for the defendant. Notwithstanding such instruction, a verdict was returned for the plaintiff; and a new trial was granted by the trial court. The order granting the new trial was appealed from. The court refused to review the case until triad upon the law as expounded by the court, and said: “Whatever may be our view of the law of this case, it is impossible for us to express it, or consider the questions presented, without going behind the action of the jury in trampling upon the authority of the court, and thereby giving some countenance to their assumption. This we are unwilling to do, even by the slightest implication.” It is to be observed that the instruction in the case held that, under the law, there was no liability on the part of the defendant. In Scott v. Morse, 54 Ia., 732, however, it was held that, on the ground that the verdict is opposed to the evidence and instructions, the appellate court will not reverse an order denying a motion for new trial, where the evidence and instructions are not pertinent to any issue made in the case.
Now, in the case at bar, the instruction did not affect the liability of plaintiff in error for the injury complained of *407in some form of action, but its effect is that, although the jury may find that there had been an unwarranted diversion of the water to which defendant in error was entitled under the contract, and that the latter had been injured thereby, if the facts therein stated were found by the jury to have been established, then there can be no recovery in this action, because another remedy is provided by statute.
As this was not a correct statement of the law, for the reason that another remedy had not been provided by statute, and as the jury upon what we have deemed sufficient evidence found the facts favorable to defendant in error that entitled him to recover, it is not clear to us that the judgment ought to be reversed upon the ground that the instruction may have been disregarded.
It must be understood, however, that we did not intend to base our conclusion in the case upon the principle that the verdict would not be disturbed for violating the instruction which we deemed to be erroneous. Indeed, it is not clear that it was disregarded. There was some evidence to the effect that the capacity of the ditch was not increased at all by the work done on it by plaintiff in error. We stated in the former opinion that the evidence seems to us to show a consolidation of the ditches of the parties, but we also referred to the presence of testimony denying the enlargement of the capacity of the ditch, independent of' the fourth instruction. There was a conflict on this matter, and if ¿t all material, it was for the jury to determine. Assuredly it will not be contended that the ditch had been enlarged if it would not carry any greater quantity of water than before.
In the instruction now being considered, one of the facts mentioned as necessary to a finding that the parties were joint owners was that the ditch had been enlarged. In view of the conflict in the evidence as to the practical result of the work done on the ditch by plaintiff in error, it may be that the jury found upon the fact of enlargement against the claims of plaintiff in error, and in that view of the case *408it cannot be said that the verdict in any way violated the instruction.
Counsel seem to think that this court admitted an incon-sistencjr in the instructions in this respect. But an examination of óur opinion will show that we merely stated that it may be possible that plaintiff’s fourth instruction was inconsistent with a portion of the defendant’s instruction referred to. We said that, if so, the inconsistency was not material, in view of the sole issues in the case; and that seems to us to be a correct view of the matter. Counsel, and possibly our language in ¿the former opinion may have warranted it, lose sight of that part of the instruction requested by plaintiff in error, which made the fact of enlargement a condition of joint ownership; and of the evidence that was given upon the theory that the ditch in some places was not made larger, and for that reason it would not carry any more water than b.efore the alleged enlargement. We express no opinion as to the weight to be given that testimony, since that is a matter that was properly-left to the jury to determine. We are inclined to regard it as immaterial, but allowing it to be considered did not injure plaintiff in-error, since his case was presented on the theory that he had enlarged the ditch, and thereby had become an owner in the ditch; and that such' fact constituted a sufficient defense.
It is stated by counsel that the court evidently adopted as true the testimony of the irrigator employed by plaintiff in'error; and that under his testimony it appeared that enough water was allowed to pass the premises of plaintiff in error to furnish defendant in error all that he was entitled to. This court did not accept as true or disregard as" false the testimony of any witness. The testimony was conflicting, and it was the province of the jury to consider and weigh it. We merely held that there was sufficient evidence to sustain the verdict of the jury.
We do not think a rehearing can subserve any useful purpose, and it will be denied.
*409To avoid a possible misunderstanding of our former opinion upon one point not touched upon in the present opinion, we deem it proper at this time to offer a word of explanation. We held that the instructions to the jury in civil cases, when they are in writing, numbered, signed by the judge, and so marked or indorsed as to show which were given, refused or modified, and filed as the law prescribes, were constituted by statute part of the record without being embodied in the bill of exceptions. But the decision was intended to go no further than the facts of the case warranted. The instructions considered in discussing the question were not those which had been excepted to; but were the instructions given at request of the plaintiff in error, and to which, therefore, he had not objected. The question was whether we could examine them to ascertain the entire charge of the court, or whether they were out of the record. The question was not involved whether the bill should show the exceptions to instructions where error was assigned thereon, and whether to bring such exceptions into the record it is necessary to embody in the bill the instructions excepted to. That procedure was adopted in this case, and hence nothing that we said was intended to hold that procedure to be unnecessary, nor, indeed, was the point in any way decided. It seems to be held in Ohio that to authorize a review of exceptions to instructions, or to a refusal to instruct, the charge as given or refused, with the exception to it, must be embraced in a bill of exceptions. (Lockhart v. Brown, 31 O. St., 431; Fleischman v. Shoemaker, 2 O. Cir. C., 152.) Rehearing denied.
Corn, C. J., and Knight, J., concur.