on petition for rehearing.
Beard, Justice.The defendant in error has filed a petition for a rehearing in this case, in which it is urged that the court errec! in reversing the judgment of the District Court in toto, and that the effect of our decision is to deprive him of a water right. Such was not our intention; but we confess the language used in the opinion is subject to that construction. Counsel for plaintiffs in error did not contend, either in *124his brief or oral argument, that defendant in error was not entitled to an appropriation of water, but that the Board of Control and the District Court erred in refusing certificates of appropriation of water to plaintiffs in error for their respective portions of the Nina V. White tract of land and in determining that defendant in error was entitled to the rise of the ditch in question. We were of the opinion that on the record presented the plaintiffs in error were entitled to certificates of appropriation for sufficient water to irrigate their lands with date of priority as stated in the opinión and that the Board of Control was without authority to determine the ownership or' right to the use of the ditch between the parties, and that on those questions — the only ones urged in this court — the board erred and the District Court erred in affirming the decision of the board, and to that extent the judgment should be reversed. The writer of that opinion, and of this, inadvertently failed to clearly state the conclusions reached by the court. The last paragraph of the opinion is withdrawn and the following substituted therefor:
The judgment of the District Court is reversed in so far as it attempts to determine the ownership or right to the use of the ditch in question and in so far as it denies to plaintiffs in error appropriations of water; and the cause is remanded to the District Court with instructions to vacate and set aside to that extent the judgment heretofore entered and to enter judgment establishing the respective rights of Sylvester Collett, T. K. Collett and Bred Roberts to the use of sufficient water to irrigate their respective parts of' the Nina V. White tract of land, not exceeding one cubic foot of water per second of time for seventy acres. Said rights to have priority as of date July 18th, 1888, the date of the filing of the Nina V. White claim therefor. The rights of the parties in the ditch in question, whether as owners or otherwise, being a question which the Board of Control could not settle in this proceeding is not determined, but is left to be settled by the agreement of the parties or *125in a proper proceeding in a court of competent jurisdiction. Plaintiffs in error will recover their costs in this court.
The opinion being thus modified, a rehearing is denied.
Former opinion modified and rehearing denied.
Scott, C. J., and Potter, J., concur.