On Rehearing
KEETON, Justice.After filing the opinion in this matter, a rehearing was granted, supplemental briefs were submitted, and the case was reargued.
Respondents contend that if the evidence were insufficient to sustain a finding that the McCammon Ditch Company owned the laterals, it was likewise insufficient to sustain a judgment that the respondents owned them.
The complaint specifically alleged “that the defendant corporation (appellant) is the owner of the main canal and laterals whereby the water decreed as above set forth is diverted from the Portneuf River *491and is conducted to and upon the lands of its stockholders. * * *”
The answer admitted the ownership of the main canal and the diversion •rights, but denied ownership of the laterals. Hence, the issue presented was the ownership of the laterals by which the water was distributed to the lands of the stockholders. The burden of proof was upon respondents to prove ownership. The whole crux of this lawsuit is that respondents did not prove this allegation with sufficient competent evidence.
Respondents further urge that the original opinion overlooked and did not take into consideration Plaintiffs’ Exhibit' R, a quitclaim deed dated June 28, 1901, by which the original appropriators conveyed their water rights “and particularly any and all rights in and to ditches constructed by the above named grantors while associatéd together as a partnership and used for the diversion and distribution of the water claimed in the notice of appropriation” to appellant McCammon Ditch Company.
The deed by its terms conveyed: “* * * all rights in'and to ditches constructed by the above named grantors while associated together as a partnership and used for the diversion and distribution of the waters claimed * *
The difficulty with respondents’ contention is that there is absolutely no evidence showing what ditches had been constructed and had been used when the landowners operated as an association and, as pointed out in the original opinion, many of the laterals and canals were constructed by the landowners subsequent to the time the corporation acquired the irrigation system.
It is contended that a new trial should be ordered, so that this proof could be submitted. What the new evidence would be, if any, is not suggested and no new evidence is alleged. This Court has on numerous occasions ruled adversely to respondents’ contention, the rule being that where a party is entitled to have a verdict directed in his favor at the close of the evidence and the case is reversed, a new trial will not he ordered. See Exchange State Bank v. Taber, 26 Idaho 723, 145 P. 1090; County of Ada v. Clark, 43 Idaho 489, 253 P. 847; Cooper v. Oregon Short Line R. R. Co., 45 Idaho 313, 262 P. 873.
Respondents having introduced all of their evidence to prove ownership, they are not as a matter of right entitled to a new trial, particularly where there is no showing of what the new evidence, if any, would consist.
Further, the plaintiffs’ complaint does not sufficiently describe the laterals. The two main laterals described as running generally north and west from the terminal of the main canal are indefinite and there is no attempt to describe the other lateral at all. It is apparent that respondents would have to change their theory of their original action and amend the pleading to *492particularly describe the laterals which they now claim are owned by appellant. Further, it should be noted that only a small part of the stockholders of the corporation are parties here, and the radical change contended for by respondents pertaining to the manner for the upkeep of the irrigation system would adversely affect many shareholders not bef ore this Court.
The question in the final analysis presents the proposition of who should pay for the upkeep of the laterals. The opinion simply effectuates the manner and method pursued by the shareholders themselves for many, many years.
The burden of proof being upon respondents to prove the allegations of their complaint, that appellant should be responsible for the maintenance and upkeep of laterals owned by it, there was no evidence sufficient to prove ownership of the laterals in the appellant, hence no judgment could be entered for the respondents.
As pointed out in the original opinion, statutes which cover the rights of landowners in an irrigation district or water users coming under the provisions of the Carey Land Act are not in point on the question presented for decision.
Respondents again refer to Sec. 42-905, I.C. The opinion originally filed is in accordance with and follows this section.
By the provision of Secs. 42-907, 42-908, and 42-909, I.C., the right of lateral water users to provide for the management of the laterals, upkeep, and distribution of the water therefrom is specifically recognized. It seems to us that this is exactly what the water users attempted to do by the unilateral agreement set forth in the original opinion. Sec. 42-1301, I.C., among other things, provides: “Where three or more parties take water from same canal or reservoir at the same point to be conveyed to their respective premises for any distance through a lateral or distributing ditch or laterals or distributing ditches such parties shall constitute a water users’ association known as ‘Water Users’ Association of Lateral or Laterals.’ ”
The above cited and quoted provisions contemplate the water users may organize, and this is what was done, or attempted to be done, by the agreement signed by a large majority of the shareholders. (See original opinion.)
Respondents further complain of allowance of costs to appellant on appeal.
Chief Justice GIVENS, Justices TAYLOR and THOMAS hold each party shall pay his own costs. Justices PORTER and KEETON hold costs should be awarded to appellant.Except as to costs on appeal, all the Justices concur, and adhere to the conclusion readied in the opinion filed November 15, 1951.