*320ON PETITION FOR REHEARING
Potter, Chief Justice.Defendants in error have filed a petition for a rehearing in this cause, specifying as the only point to be considered that said defendants in error should be permitted to accept a modification of the findings and judgment suggested in this court’s former opinion disposing of the cause upon the original hearing. In specifying that point, the petition refers to the statement in our former opinion that if we could say that the trial court had passed on all the evidence upon the subject of ditch rights, instead of resting its conclusion upon a presumption arising from Section 928, Comp. Stat. 1920, we might then simply modify the decree. (See the opinion as reported in 204 Pac. 345-358.) But it was further said in the opinion in that connection that “-we are not able to so say, and we see no alternative but to reverse the case and remand it for a new trial. ’ ’ And we are not now convinced that the case should be finally disposed of here by the suggested modification, or that a rehearing might result in a change of our view of the matter justifying such a disposition of the cause;
By the third cause of action upon which the case was. finally submitted to the trial court, it was sought to quiet the title of the plaintiff, as administrator, to the alleged two-thirds interest of the decedent Gardner in the Park ditch, as well as the same alleged interest in the water appropriated and carried through the ditch. And it.was alleged in that connection that the plaintiff was unable to agree with the defendant Bamforth upon the amount of the interest in said ditch owned by each, and that the plaintiff desired upon the filing of an affidavit or otherwise, to have the respective interests of the parties in such ditch and waters determined by the court. And the intervening petition of the heirs at law of the decedent Gardner admits and reaffirms each and every allegation of .the plaintiff’s petition, and alleges the absence of any right of the defendant Bamforth to the said two-thirds interest in the ditch, and *321also the water rights for the irrigation of the Gardner lands, and prays that they he adjudged owners in fee simple of said two-thirds interest in the ditch, as well as in two-thirds of the water flowing therein.
The record shows also, by objection to testimony offered by the defendant, that counsel for the plaintiff and the intervening heirs contended that the relative rights of the parties in the ditch and the proportionate ownership thereof was to be determined according to the proportion of their adjudicated water rights through that ditch, and that any direct evidence showing by whom the ditch had been constructed, or other facts that might tend to show ownership aside from the proof of adjudicated water rights was inadmissible. The court, however, admitted, over such objection, some testimony as to the construction of the ditch, and evidence was also admitted as to repairs upon the ditch and the use of water through it by the respective parties. Two petitions signed by Bamforth, one of which was shown to have been filed with the Board of. Control, were introduced in evidence by the parties opposed to Bamforth, containing an admission by Bamforth that he owned a one-third interest in the ditch, and the other parties a two-thirds interest. But the court, aside from a general finding in favor of plaintiff and intervenors upon the issues joined, found specially that the intervenors, collectively, owned an undivided 850/1160ths interest in the Park ditch, and the defendant Bamforth, 310/1160ths interest, “corresponding with the water rights adjudicated and awarded to the said parties respectively, and ta their respective predecessors in interest; ’ ’ clearly showing that such finding was based solely upon the proof of the adjudicated water rights, without considering any of the other evidence upon the subject, except possibly the evidence showing the use of the appropriated water through the ditch. And we remain of the opinion that this court should not dispose of the case by modifying the judgment upon evidence not considered by the trial court, and which would require a finding based upon such unconsidered evidence. (City of Rawlins v. *322Jungquist, 16 Wyo. 403, at pages 435-437, 96 Pac. 144.) Whatever might be considered the effect of the defendant’s admission in the petitions aforesaid, or the other evidence on the subject, the question, one of fact, ought to be passed upon by the trial court.
Nor do we think that the suggested necessity for ending this particular litigation is sufficient to justify our disposition of the cause by a modification of the judgment, or that it should be disposed of to secure the early installation of a division box, to enable the parties to obtain the water in accordance with their adjudicated rights. If the trial court should not be disposed to hold that it has authority to require the installation of such a box pending the action, as prayed for in the petition, or that it is necessary, it would seem that the division of the water might be temporarily provided for under Section 946, Comp. Stat. 1920, authorizing the distribution of water from a ditch jointly owned, where such joint owners are unable to agree relative to such distribution, and authorizing the water commissioner to take exclusive charge of the ditch for that purpose. With the issues in the case much simplified by our decision disposing of the other questions presented upon the original hearing, there ought not to be much difficulty or delay in bringing; the cause to a final disposition upon a new trial; and in any event, we think it necessary that the question of the relative ownership of these parties in the ditch should be determined in the first instance by the trial court upon the proper theory as explained in our former opinion.
A further objection to disposing of the ease by the suggested modifications, is the inability of this court to make the further findings required by Section 933, and the impropriety of its doing so, in the absence of any finding on the subject by the trial court.
Our view of the statute providing for a record of the ownership of ditches and other irrigation works and prescribing a rule for establishing the same in the absence of a record, so far as it applies to this case, seems to be fully explained in the former opinion. But it is suggested in the *323brief now filed that some of tbe expressions in that opinion with reference to the matter are broader than the case requires or the statute justifies. We are not sure that we understand what is intended by that assertion,1 or the further suggestion that the question be re-examined for the purpose of stating the limitations that may be thought needful in the accurate interpretation of the statute. The statute had our careful consideration at the time of the decision, and there was no intention to go beyond the necessities of the case in explaining our interpretation of it, and we do not now perceive wherein it may be thought that we had done so, unless counsel’s suggestion in that respect refers to the exception stated in the opinion when declaring that Section 928 can have no possible application in an action brought as provided in Section 933, viz; ‘ ‘ except only in case where adverse possession, as defined in that section (928) is relied on, which is not true here.” That statement of the exception was not intended as a denial of the right of either of the parties to claim or assert such adverse possession in support of his or their alleged title in an action under Section 933, but as a recognition of such right, and it was stated that such possession was not relied on here for the reason that it was not urged before this court and we were not advised that the alleged title of either party was based.in whole or in part upon the fact of such adverse possession; and it explained also the omission of further discussion concerning the exception stated, and that in holding Section 928 to be inapplicable we had reference only to the general provisions of the section declaring the rule for establishing relative ownership in the absence of a record made by the owners as provided in the statute or in some other manner.
The statute in question, now Chapter 70 of the Compiled Statutes of 1920, comprising Sections 928 to 933 inclusive, was enacted in 1907 as a part of an act amending and reenacting several sections of the Revised Statutes of 1899, repealing certain other sections, and making new provisions, all relating to water rights and the supervision thereof, under a title containing the words, “prescribing *324a method for recording and quieting the title to property rights 'and interests in irrigation works.” . The original act was approved February 20, 1907, which accounts for the inclusion of that date in Section 928 in place of the words “the date of the passage of this act,” found in the provision of the original act that the relative interests shall be fixed by the issuance of a final certificate of appropriation as the same appears of record in the office of the Board of Control and of the respective county clerks. The first section of the statute in question, (928) contains also a provision not mentioned in the former opinion, which tends to explain the general purpose of the statute, in connection with the other provisions, viz: “ That every conveyance of a ditch, canal or reservoir, or any interest therein, shall hereafter be executed and acknowledged in the same manner as a conveyance of real estate and recorded as herein provided, and any such conveyance which shall not he made in conformity with the provisions of this chapter, 'shall be null and void as against subsequent purchasers thereof in good faith and for. a valuable consideration. ’ ’
That is the concluding provision of the section. The preceding provision that the relative interests shall be established by the ratio between the water right of each water user to the total water rights adjudicated under “such irrigation works” and “shall therefore be fixed by the issuance of the final certificate of appropriation” as the same appears of record is made to depend for its operation upon the failure of the owners to have a record made ‘ ‘ as herein provided” or “in some other manner,” showing the relative ownership of each interested party in “such irrigation works.” The legislature clearly had in mind the possibility that a record might have been or might-be made in some other manner than that provided in the subsequent sections. We need not go further in search of a reason for the thought of such a possibility than to suppose that the relative interests might be shown by recorded deeds or contracts, if sufficient in form and substance to constitute a record. But the statute - provides two methods of making the required *325record, aside from a record to be made “in some other manner.” First, by the next succeeding section it authorizes the filing in the office of the Board of Control and of the county clerk wherein any ditch, reservoir or other irrigation works may be located, of an affidavit by 1 ‘ any person, persons, partnership or association of individuals, or corporation, joined in, signed, and sworn to by all the parties having an interest in such ditch or ditch right, “stating therein the name of the ditch, the ownership of said ditch, the interest each claimant owns therein specifically, the method of securing rights of way or irrigation works and the date of such procedure and referring to the records of the office of the state engineer or Board of Control, or both, relative to dimensions of irrigation works, their location, and adjudicated rights to water conveyed in or stored in such works, and such other information as may be deemed necessary. ’ ’
"Where that is done, the next section (930) provides that the facts stated in the affidavit shall be prima facie evidence of the truth thereof in any court of the United States, and that “no action for the recovery of the title or possession of such irrigation works can be brought after ten years from the time of the recording of such affidavit; provided, that during such ten years the claimant as mentioned in such affidavit, or his successor, in rights” has had continuous, open and undisputed possession of such irrigation works. This is followed by a provision in Section 931 that any transfer to a purchaser in good faith and for a valuable consideration of any such irrigation works after the expiration of ten years from the filing of such affidavit shall vest in such grantee an absolute title in fee simple from the claims of any person whatsoever, to the extent that such works are claimed in said affidavit by the grantor or his predecessor in interest, unless within said ten years any other party ■ claiming an interest in such works has filed with the county clerk wherein his land irrigated by such works is situated an affidavit as mentioned in Section 929.
*326Section 932 is confined to penal provisions and is immaterial here. Section 933 reads as follows:
“Where the ownership of any irrigation works is disputed, or jointly claimed by any person, partnership or corporation, and the several owners cannot agree upon the amount of interest owned by each, and one or more claimants of such right desire the filing of the affidavit as here-inbefore mentioned, while the other or others do not desire' to join therein, one or more such claimants may bring an action in equity in the district court of any county wherein the land or parts of the land affected by such ditch or ditch right'is located, and said court shall determine the right of the several claimants to such ditch or ditch right, and determine all the facts necessary in the affidavit hereinbe-fore prescribed, and such decree shall, after being filed and recorded in the office of the county clerk of the proper county as hereinbefore prescribed, have the same force and effect as the affidvait hereinbefore prescribed; provided, that the provisions of this chapter shall not be construed to relate to water rights, or in any way to conflict with the laws governing the same.”
By another provision of the statutes previously enacted it is provided that a certified copy of a judgment or a district court affecting the title to any water right or water-system of any kind shall be forwarded upon rendition to the Board of Control by the clerk of such court. (Comp. Stat. 1920, Sec. 918.) And thus a record is provided for-by that provision of the statute and by the provision off Section 933 for filing and recording the decree in the county clerk’s office, in both of the offices wherein Section 929' requires that the affidavit mentioned therein shall be filed. We-think it clear that the provision of 933 for bringing an action in equity prescribes one of the methods for making- or having a record made referred to in Section 928 by the-words “make a record as herein provided.” The action is authorized where the ownership is disputed, or where the-irrigation works are jointly claimed and the owners cannoff agree upon the amount of the interest owned by each, while.*327the right to file the affidavit provided for by Section 929 is not limited to eases where the title is in dispute or there is a disagreement as to the extent of a joint owner’s interest, but seems to be intended to apply generally where there is no dispute about such matters or no known dispute, since it provides for an affidavit to be joined in, signed and sworn to by all of the parties having an interest in the ditch or ditch right. But the statute, in Section 931, seems also to recognize the right of any other party claiming an interest in the irrigation works to file an affidavit stating his interest within ten years after the filing of the affidavit relating to such works in which he did not join, and evidently to protect a party whose claimed interest in a ditch or other works has not been mentioned or recognized m an affidavit filed under Section 929, relating thereto.
Hence Section 933 covers a situation not specifically, at least, provided for in Section 929, without which, or some other adequate provision covering such a situation, the statute would apparently fail to fully accomplish its declared purpose to prescribe a method for recording and quieting the title to property rights and interests in irrigation works. And without that section construed as above, in connection with the other provisions of the statute, the making of any record of the relative ownership of the parties interested in a jointly owned ditch or other irrigation works might be prevented through the refusal of a joint owner to file or join in the making and filing of the authorized affidavit.
The fact that additional or incidental relief may be asked for and granted in the action, as, for example, in this case, directing the construction of a permanent division box, does not, in our opinion, defeat or affect the character of the action as an authorized method under the statute for having a record made of the relative ownership of each interested party in the irrigation works.
The petition for rehearing will be denied.
• Rehearing denied.
Kimball and Blume, JJ., concur.