ON PETITION POR RE-HEARING
BeaRd, Chief Justice.The proceedings in error in this case were dismissed on motion of the defendant in error, Wyoming Development Company, October 4, 1920, 192 Pac. 680. The plaintiff in error has filed a petition for a rehearing upon that motion. It was held in the former opinion that seventy-three of the one hundred and eighty-eight defendants named in the petitions in error had not been served with summons in error within the time required by law, and that the necessary parties to give this court jurisdiction were not before the court; and for that reason the proceedings were dismissed. It is now contended that we were in error in. dismissing the proceedings for the reason that the defendants not served are not necessary parties, and that the court can and should determine the controversy between the plaintiffs in error and those of the defendants in error who have been served, and that that can be done without effecting, injuriously, the rights of those not served. Counsel has cited authorities sustaining that proposition, and with which we agree. But we differ from him upon the question whether this is the kind of case coming within that rule. It was held in the former opinion, “that all of the .parties *122in the cause bélow are necessary parties to the proceedings in error in a case of this kind, being interested in the judgment.” And we are still of that opinion. In. the motions for a new. trial, the denials of which are assigned as error in the petitions in error, it was alleged and claimed that the district court erred not only in determining the priority of rights, but also that it erred in its award of the quantity of water given to the ■ respective parties. We think it is apparent that if upon a new trial plaintiffs in error, or any of them, should be given an earlier priority than that given by the judgment, it would necessarily injuriously effect the rights of those appropriators who by the judgment as it now stands are given priorities over plaintiffs in error. And if upon a new trial the plaintiffs in error or either of them should be awarded water for a larger quantity of land, it would in like manner effect those adjudged to be entitled to water under later appropriations. We do not think we can more clearly express our views on that question than as stated in the former opinion to which upon reconsideration we adhere. It is argued, however, that the burden rested with the mover in the motion to dismiss the proceedings in error to show by the record that the defendants not served are necessary parties. That might be true if they had not been named in the petitions in error as parties. But in this case they were named in the petitions as parties defendant, the proceedings have not been dismissed by plaintiffs in error as to them, and we think the opposing parties and the court may well assume in that case that they are necessary parties until it is made to appear by the record that they are not such, or that a determination of the case between the parties before the court would not injuriously effect those not served. 'That has not been done, but on the contrary it appears upon the record that each and all of them have water rights in the wmters of the Big Laramie river and its tributaries, the adjudication of which, under the statute, was the matter before' the Board of Control from whose decision the case was appealed to the District *123Court, and from its judgment to this court. The case was given full and careful consideration before the former opinion dismissing the proceedings in error was handed down, and upon consideration of the arguments presented in the brief in support of the petition for a rehearing and the authorities therein cited, we remain of the opinion that we did not err in dismissing the proceedings in error. Therefore, a rehearing is denied.
Rehearing denied.
Potter and Bltdenburgh, JJ., concur.