This action was brought, by the defendant in error, William N. Burroughs, against the plaintiff in error, Wyoming Central Irrigation Company, to recover damages for an alleged failure- of the company to furnish water for the irrigation of certain lands. The cause was tried to a jury which returned a verdict in favor of plaintiff below for $286.76, for which sum judgment was rendered in favor of said plaintiff and against said company. The company brings error.
*180The plaintiff alleged in substance, in his petition, in the District Court, that ¿bout March 1, 1908, he leased from the defendant about one hundred acres of land in Eremont County, for the term of one year. That by the terms of the lease defendant was to furnish plaintiff from ditches owned and operated by defendant two cubic feet of water per second of time with which to'water said lands when necessary to irrigate the same. That he sowed said lands with oats in a proper and husbandlike manner in the spring of 1908. That through negligence and carelessness and contrary to the terms of the lease, defendant cut off the supply of water of plaintiff and neglected to furnish water to plaintiff in the amount called for in said lease, or any water, thereby causing said crop to dry up and be damaged in the sum of $4,000. By its answer the defendant admitted that it leased the land to plaintiff and another, and denied the other allegations of the petition.
The only grounds for reversal stated in the brief of counsel for plaintiff in error are, alleged, errors of the court in giving certain instructions to the jury, and in refusing to give certain instructions requested by plaintiff in error, and that the verdict is not sustained by* the evidence.
The lease is in writing, and by its terms Burroughs was to properly plow and level the land and seed the same with oats, to irrigate the crop, harvest the same and deliver to the company one half of the crop so raised. The part of the contract providing for water for such irrigation is as follows: “The said parties of the second part further agree to use the lateral ditches now constructed through and upon said land and to divert the necessary water therefrom for the irrigation of the above described land in such way and manner as not to interfere with the necessary and proper flow of water through said lateral ditches for the irrigation of - other lands held and controlled by the said party of the first part in sections 33, 34 and 35, Tp. 1 N., R. 4 E., W. R. M., and section 2, Tp. 1 S., R. 4, W, R. M.; provided, always, that they shall at all times during-the *181term of this lease, when the same is necessary, have and divert from said lateral ditches two cubic feet of water per second of time.”' The defendant below requested the court to instruct the jury as follows: “No. 14. The court instructs the j ury that under the terms of the written agreement of lease entered into between the plaintiff, William N. Burroughs, and the Wyoming Central Irrigation Company, defendant, that the defendant does not agree to supply water to the plaintiff in any quantity, nor under any conditions, and your verdict should be for the defendant.”
“No 15. The court instructs the jury that under the evidence in the case, there is only an implied agreement on the part of the defendant to furnish and supply water to the plaintiff for the irrigation of his crops, and that under the circumstances, the defendant is only bound, to use reasonable care, caution and diligence to supply such water, and if the failure to supply water was caused by an act which could not reasonably be foreseen, and that the defendant was using such care and caution as a man of ordinary prudence would use in the management of his own affairs to protect the irrigating canal and to supply water to the plaintiff, then you are instructed that the plaintiff cannot recover and that your verdict must be for the defendant.” The court refused to so instruct, but instructed the jury on that point, that “it devolved upon the plaintiff to prove by a preponderance of the evidence in the case; * * * that by the terms of said lease he was to have a sufficient quantity of water to irrigate said lands and make the same available for crops; not to exceed two cubic feet per second.” The refusal to instruct as requested and the giving of 'the latter instruction are assigned as error. There was no error in refusing to give these instructions, neither' of them correctly construing the lease., We think the lease required the company to furnish in the ditches at all times when the same was necessary for irrigation of said crop, the water • necessary therefor, not to exceed two cubic feet'per second. He was to use the ditches of the company then on the land and was *182to divert the necessary water therefrom to irrigate the same, in such manner as not to interfere with the flow of water through the ditches for the irrigation of other lands ; provided, that he should have and divert at all times when necessary two cubic feet of water per second. That is, he was to have the water necessary to irrigate the land up to that amount, whether or not it interfered with the flow of water to irrigate such other lands. Any other construction of the lease would render that proviso meaningless. This was an express and not an implied agreement. The other part of instruction No. 15 was covered by another instruction, wherein the court told the jury “that under the issues joined in this case, the plaintiff alleges that the defendant' company agreed to furnish water to the plaintiff and that by reason of the negligence and carelessness the defendant shut off the supply of water and neglected to furnish water to the plaintiff, and the jury are instructed that it is incumbent upon the plaintiff to prove to the satisfaction of the jury by a preponderance of the evidence that the damage to his crops was caused by the negligence and carelessness of the defendant in failing to supply water for the irrigation of them.” The rule is well settled that a party is not prejudiced by the refusal to give an instruction when the same matter is covered in an instruction given. It is argued that the court should have construed the contract, and that it was error to leave its construction to the jury. The contract being in writing, no doubt it was the province of the court to construe it. But in this case the defendant was not prejudiced by the failure of the court to give an instruction correctly construing the lease. For, in order to find as it did, the jury must have concluded, as we conclude, that it was the duty of the defendant under the contract to furnish the necessary water in the ditches to irrigate the land; and, under the instructions given, it must have further found that the company failed to do so, and that such failure was the result of negligence on its part. ’The foregoing are all of- the objections to the instructions urged in the brief of counsel for plaintiff in *183error. An examination of the entire record satisfies us that there was no prejudicial error in that respect.
It is also urged that the verdict is not sustained by the evidence. As is usually the case, when a disputed Cjuestion of fact is submitted to a court or jury for determination, there is a conflict in the evidence. The jury has passed upon the evidence and,the District Court has declined to set the verdict aside; and, as has so often been said, under such circumstances this court should not do so for the insufficiency of the evidence when it is conflicting, and where there is competent evidence to sustain the verdict. We find no prejudicial error in the record, and the judgment of the District Court, therefore, is affirmed.
Affirmed.
Scott, J.; and Pottsr, J., concur.