On Motion for Rehearing.
Mr. Justice Wolvertondelivered the opinion.
A petition and supplementary petition for rehearing have been filed herein. To these an answer has been interposed, and a reply made to the answer. By these documents, which are voluminous and searching, the case has been ably and exhaustively presented by both sides upon the questions as to which a rehearing is sought. The main contention centers about the pleadings, and is whether the court, in its opinion, has transcended their scope, and decided the cause upon issues not contained therein.
*2045. First, as it respects Hutchinson Slough, it is insisted that plaintiff’s entire claim to the waters thereof was by right of a prior appropriation, and that no claim was made thereto in the complaint by virtue of the contract of 1888. It is true that plaintiffs set up that they were entitled to the waters of Hutchinson Slough by right of prior appropriation. But this is not all. In the same cause of suit— for the complaint purports to contain but one—they set up the agreement of 1888, and allege that with the consent and agreement of the defendant Kelsey, they extended the ditch across Hutchinson Slough, and continued on and intersected the Warm Spring Branch. And, again, “that by mutual consent and agreement, and at the request and with the consent of the said defendant Kelsey, the plaintiffs have since the year 1888 used the said Dalton, Smith, and Kelsey ditch in common from the place where the same crosses the said Hutchinson Slough to carry and convey the waters of said slough on down to the said point where the same is emptied into said Warm Spring Branch.” Without further detail, we are firmly impressed that the findings of the court are within the scope of the complaint, in view of the manner in which it is drafted and these allegations.
6. It is next insisted that under the complaint the plaintiffs claim the water from North Powder River entirely by virtue of the contract with defendant of 1888, and not by prior appropriation. But, as we read the complaint, the very gist of it respecting these waters is that plaintiffs acquired such as they claim by prior appropriation. After reciting that plaintiffs and their predecessors entered into the contract of 1888, they allege that “said plaintiffs and their predecessors and said defendant by means of said ditch,took out and appropriated for irrigation and beneficial purposes 1,600 inches of water, miners’ measure, under six-inch pressure,” and then it is shown how much *205each of the respective parties appropriated. Now, as we said in the main opinion, there was a new appropriation made, not in the minds of the contracting parties when the agreement was entered into. The diversion from North Powder River, however, was made through the ditch in which all these parties had a joint interest, acquired by reason of the agreement. Under these conditions, the several parties made their respective appropriations for the irrigation of the second and third crops of alfalfa. The agreement made it possible for such appropriations to follow, and we think the complaint covers the issue. True, the answer sets up a very different agreement from the one alleged in the complaint, but the evidence does not support the defendant’s contention in that regard.
7. The further idea is advanced that defendant’s riparian rights are being invaded. But this cannot avail him when the diversion is the result of an express agreement upon his part.
The petition for rehearing will be denied.
Rehearing Denied.