On Motion for Rehearing.
[103 Pac. 1007.]
Mr. Justice Eakindelivered the opinion of the court.
Counsel, by this motion, urges that the controversy was not over the water which flowed in the main ditch at its intake, but was over the water at the division box; but in this he is in error. The charge in the complaint is “that the defendant has been, during the season of 1907, and now is, wrongfully and unlawfully diverting the water from the main ditch above described,” and this was sustained by the proof. The evidence shows that the water did not reach the division box, but was diverted at the creek. The case cannot be retried, as suggested by counsel, upon the points urged, without new pleadings, and this court is not the forum in which to seek such relief.
The motion is denied.
Modified: Rehearing Denied.