The following opinion on motion for rehearing was filed -October 18, 1918. Rehearing denied.
Sedgwick, J.,The brief on the motion for rehearing suggests that the quotation in the opinion, ante p. 451, from the finding of the district court, “finds the district has not committed any negligence,” is misleading because it does not quote the remainder of the finding, “but in so far as it made the river its agent to make the excavation and thereby excavated- 350 feet in width, it was either negligence or the equivalent of negligence.” It seems to us that the positive finding is that the district was not guilty of negligence, but making the river its agent, and so .forth, was in law equivalent to negligence; that is, the law will hold the district liable the same as it would if it had been guilty of negligence. This conclusion of law by the trial court we think is not justifiable under the circumstances.
“In crossing the plaintiff’s land the channel of the river was very crooked.” It would therefore naturally. appear “to both parties very desirable to have its course straightened.” No evidence that it so appeared is required.
The contract between the parties was made in view of the plans on file for the construction of this ditch, which plainly contemplated “that this excavation would not be made of sufficient width to carry the’whole flow of the river; that the then existing course of the river *455should not be interfered with; and ■ that reliance was to be placed upon the probability that the water of the river finding a more direct channel through this ditch would, by erosion, enlarge the ditch, and perhaps finally furnish a sufficient channel for the whole stream. ’ ’ Thus it was agreed that the river should be made “the agent to make the excavation,” not of one party, but the agent of both parties.' It was not supposed that in so doing the river would overflow the plaintiff’s land not included in the purchase, and the contract contained no. agreement that either party should guarantee the other that the river would not overflow its banks. If more of plaintiff’s'lands were covered with water by such overflow than was or might be released by reclaiming the- land covered hy the former crooked course of the river, the pláintiflf may have lost instead of gaining by his venture.
There is no contention that the contract was fraudulent or in any wise unfair, nor even that the plaintiff will not, on the whole, recover more land than he will lose.
The defendant has not appealed from the judgment of $300, and it is, therefore, not necessary to determine whether it was erroneous.
The motion for rehearing is Overruled.