ON Rehearing.
[Note — The decision on rehearing of this case, which here follows, was rendered on March 30,1907, at which time Talbot, J., by operation of law, had become Chief Justice.]
By the Court, Talbot, C. J.:After the rendition of the decision in this case, and within the time thereby allowed, respondents filed their written consent to the modification of the judgment as suggested by. this court. Later one of the appellants, Theodore Winters, died, and upon the rehearing the attorney for the appellants moved to have Mrs. Nettie M. Gregory, Lewis W. Winters, Archie C. Winters, Mrs. Theodora Longabaugh, and Nevada Winters substituted as defendants and appellants in place of the deceased, upon the suggestion of his death and upon a deed from him to the parties named. The death and execution of the deed are not denied, but it is said that there may be an heir of the deceased other than the persons named, who may have some interest in the property, and objection is made that, under rule 9 of this court, only the representative of the deceased, and not his successors in interest, may be substituted. The opposing parties desired to argue the ease on the rehearing, and proceeded accordingly.
The direction in this rule that,"upon the death or disability of a party pending an appeal, his representative shall be substituted in the suit by suggestion in writing to the court on the part of such representative, or any party on the record,” does not necessarily conflict with the statute (section 3111, Comp. Laws), which provides: "An action shall not abate by the death, or other disability, of a party, or by the transfer of any interest therein, if the cause of action survive or continue. In case of the death or disability of a party, the court, on motion, may allow the action to be continued by or against his representative or successor in interest. *108In case of any other transfer of interest, the action may be continued in the name of the original party, or the court may allow the person to whom the transfer is made to be substituted in the action.” The two may be construed together. They agree in allowing the substitution of the representative of a deceased litigant. The statute goes' further than the rule, when it directs that, in case of the death of a party, the court, on motion, may allow the action to be continued by or against his successor in interest, and that,- in the case of any other transfer, the court may allow the person to whom the transfer is made to be substituted.
If there were any conflict between the statute and the rule, the former would control. It would seem that ordinarily, where litigants convey their interest in actions where there is no counter claim, the grantee or successor may properly be substituted, whether the original litigant be living or not, and, if he be dead, that it would be proper to substitute the grantee rather than the representative of the deceased, who is without interest in the action. It is an old principle that one or more tenants in common may maintain an action on behalf of all, and on this theory it would seem that this ease could proceed without substituting all the owners. The change of parties is not so important, as the case was fully determined in the district court and on the appeal before the death of Theodore Winters, and we have concluded not to vary our judgment as previously rendered. This leaves the rights of the parties as adjudicated before his death. It has often been held that litigants are not entitled to a rehearing as a matter of right. In Phelan v. Tyler, 64 Cal. 82, 28 Pac. 115, it was said: "There is nothing in the code which would justify the inference that the death of a party pending an appeal ousts the jurisdiction of the supreme court and renders its judgment void, unless before the rendition thereof a representative of said deceased party be substituted in his stead.”
Regarding other points argued on the rehearing, we see no good reason for changing our decision, which directs the lower court to modify the judgment, subject to the consent of the respondents, which has already been given, and we *109shall consider here only one of the contentions further urged by appellants on the rehearing. It is still claimed with considerable assurance that the testimony of the engineer that the capacity of the remaining piece of old, abandoned square flume below the more recently built V flume on the upper Twaddle ditch is only one hundred and fifty inches, is uncon-tradicted, and necessarily limits the prior appropriation to that amount, or thirty-four inches less than the judgment awards. No convincing argument is presented to show that plaintiffs are not entitled to this excess by reason of their use of at least that much through their lower ditch adversely for more than thirty years, and for periods far beyond the statute of limitation, without interruption; but, if it were conceded that the plaintiffs are entitled to no water by reason of their appropriation or use through their lower ditch, there is other evidence to support the judgment for one hundred and eighty-four inches. True, the record does, not show that any witness stated that he measured this piece of old flume and found that its capacity was different or more than the estimate made by the engineer,'but there is much testimony in a general way to the effect that plaintiffs’ ranch required, and that as prior appropriators they used in its irrigation through their upper ditch, as much water, estimated by the capacity of the flume back of Bowers’ Mansion, as they have been allowed by the judgment.
Also, the testimony of farmers living in the vicinity, regarding the quantity of water required for the irrigation of the crops raised by plaintiffs, and the relative capacities of the square flume back of the mansion and the V flume being shown by actual flow of water to be different from the measurements of the engineer, may be considered as standing against his estimate and as supporting the judgment of the district court. Under the law and the specific terms of the decree as it has been directed to be modified, the allowance of a prior right to plaintiffs for one hundred and eighty-four inches is limited to such tiines as that quantity, by reasonable and economical use, is necessary for the irrigation of their lands, and when they do not need it they are not privileged to waste -water to the detriment of the defend*110ants, wbo may then use any water in excess of plaintiffs < necessities.
It is ordered that Mrs. Nettie M. Gregory, Lewis W. Winters, Archie C. Winters, Mrs. Theodora Longabaugh, and Nevada Winters be substituted as defendants in place of Theodore Winters, deceased, and, if any other person or persons are interested in the judgment or property, they may be added as parties by the district court upon proper showing.
The judgment of this court as heretofore rendered will stand affirmed, and, the plaintiffs having already filed their consent, the district court will modify its judgment as we have directed.
Norcross, J.: I concur. This case was submitted on rehearing before Sweeney, J., became a member of the court.