ON PETITION FOR REHEARING
(No. 2557; June 16th, 1953; 258 Pae. (2d) 220)
*72OPINION
Riner, Justice:The respondents in this case have filed an extended petition for re-hearing thereof. They undertake to criticize every conclusion reached by this court though the opinion rendered and filed was delivered only after a thorough and careful study of the record, the decree of the district court and the revised contract between the United States of America through the Secretary of the Interior and the Owl Creek Irrigation District which contract the decree aforesaid approved and confirmed.
The members of the court, as then constituted, unanimously agreed that the result reached in this case in this court was not only reasonable, but fair and just, and prevented the landowners in the Owl Creek District from being drawn into and bound by an agreement which we were unable to view in any other light than that it was inequitable, unfair and in serious disregard of the rights of the landowners who were ranch folk and were not learned in the law and who confidently believed that they would be protected in a matter of such importance by the courts of this State.
It was pointed out in the opinion filed herein that the appellants were, by said contract and decree aforesaid, obligated to liquidate an indebtedness which they had no part in incurring and which was designed only to furnish supplemental water to a comparatively small part of the proposed district and at no time was it regarded as being in the least beneficial to that *73part of the district lands which were located in what is generally referred to in the record as the “upper area” as distinguished from the “middle area” and the “Lucerne area.” There was and is no claim made by respondents that the lands in the “upper area” were in any way benefited by the so-called Lucerne pumping unit as established and owned by the 2295 acres of lands in the “Lucerne or lower area.” That acreage has never claimed that the $19,000 indebtedness which is the unpaid portion of the cost of this unit should be exacted proportionately from the “upper area” landowners. Respondents admit that “the lands receiving the water from the Lucerne pumping plant are the only lands now being benefited therefrom.” It is apparent that the authorities cited and relied upon by the respondents in their petition for rehearing as it concerns this phase of the case are not in point. They invariably assume that the annexed territory will be benefited. That situation does not obtain here.
As stated in the original opinion and in respondents’ brief: “1. The lands irrigated in The Owl Creek Valley fall in three areas: (a) The Lucerne or lower area embraced in Commissioner District Number one; (b) the Middle area embraced in Commissioner District Number two; and (c) the South Fork and Middle Fork areas, or Upper area, often referred to as South Fork area, comprising Commissioner District Number three.” The Lucerne or “lower” and the “middle” areas of the district according to the record would derive the most benefit from the proposed irrigation works, the “upper” area of the proposed enlarged district would derive very little if any benefit. The “lower” or Lucerne area as proposed and approved by the district court contains approximately 8175.84 acres. The approved middle area has some*74thing over 16,158.02 acreage less approximately 2300 acres included in the ranch tribal lands of the Shoshoni and Arapahoe Indians which were excluded from the district though within its topographical boundaries as previously fixed by court order. The “upper” area as enlarged for assessment by the final order of the district court contains about 4500 acres. The total acreage of the three areas approved for assessment by the trial court amount to approximately 30,000 acres. The “lower” and “middle” areas can grow what are designated “row” crops such as peas and beans. The “upper area”, due to its elevation and short growing season, is practically confined to growing forage crops and consequently relies on cattle raising mainly as an industry.
The new Owl Creek unit proposed to increase the Lucerne pumping unit to a larger capacity so as to embrace an additional acreage of 4421 instead of the 2235 acres for which the pumping unit was originally designed. It is accordingly urged that the lands in the “upper” area will be thereby benefited because the lands in the Lucerne and “middle” areas will use the additional water thus provided and the “upper” area lands will not need to release any of the water of Owl Creek so that it may flow down to meet the demands of the downstream water users.
Paragraph 19 of the proposed contract aforesaid was drafted evidently with this contention in mind for it states:
“19. The District shall secure the execution of an agreement for the exchange of water appurtenant to lands under the Lucerne and Dempsey ditches for water raised by the Lucerne pump. The form, execution, and filing of such agreement shall be in accordance with Sections 71-268 to 71-270 inclusive, Wyo. Comp. Stats. 1945, as *75amended, and shall be subject to approval of the Secretary.”
but sections 71-268 to 71-270 inclusive W.C.S. 1945 deal only with underground waters with which this litigation is not concerned.
However, Chapter 116 Laws of Wyoming 1947 Sections 1 to 4 inclusive (Sections 71-409 to 71-412 inclusive W.C.S. 1945) does provide for exchange of water between appropriators and it is possible that Article 19 intended to refer to that Session Law. Section 1 thereof reads (Chapter 116) :
“The owners of appropriative rights in and to the use of waters of any natural Wyoming stream, spring, lake or other collection of still water, where either (a) the course of the appropriation is at times insufficient to fully satisfy such appropriation, or (b) a fuller conservation and utilization of the State’s water resources can be resultantly accomplished, may arrange by agreement between themselves for the delivery and use of either storage or direct flow water from another source.”
(Italics supplied.)
It will be observed that this exchange must be made “by agreement”. How that agreement will be obtained by the district under Article 19 supra is not altogether clear when the landowners of the “upper” area are for the most part satisfied with the water rights they now have and feel that they do not need more water as was testified to by several of the appellant objectors. In this connection it may be noted also that under the revised contract aforesaid in Section 7 thereof it is stated that “construction of the Owl Creek Unit shall not, at the option of the United States be commenced until the district has completed the action set forth,” in Article 19 and 20 quoted above and infra. That is to say that! unless the district procures an exchange agreement between water users in *76the Lucerne and middle areas and the appellants and objectors in this proceeding with reference to the water rights involved, the United States need not commence construction of the Owl Creek Unit project at all. It is also to be noted that these exchange agreements are to be “subject to the approval of the Secretary” of the Interior. The State Engineer of this State, the official charged by law, with the administration of the water laws of Wyoming is ignored.
It is contended that this court erred in considering “the so-called Indian” ranch lands of the Shoshoni and Arapahoe tribes to be public lands of the United States. We do not seem to find in the original opinion any such statement relative to our considering these lands to be anything other than what they are, viz: lands occupied by Indian claimants and wards of the Government — the title of which lands remains in the United States.
Complaint is made that the court pointed out that even after the district has paid the Secretary of the Interior nearly one and a half million dollars the landowners are not to have title to the proposed Anchor Dam and other irrigation works. Yet it is significant that the district nevertheless is obligated by the revised contract aforesaid to act in a decidedly different manner. Article 20 referred to above enjoins that:
“20. (a) The District shall convey to the United States, free of all lien and encumbrance except the lien of that certain mortgage and other in-dicia of obligation, as described below in paragraph 21, all right, title and interest to (a) the site of the present Lucerne pumping plant constructed by the District; (b) the discharge pipeline and right-of-way therefor leading from such pumping plant to the Lucerne ditch; (c) the Lucerne ditch and right-of-way therefor leading from the discharge end of the pipe-line to the *77point where it enters a natural drainage to the Big Horn River; and (d) the wasteway and right-of-way therefor leading from such pumping plant to the Big Horn River; all as shown on the plat hereto attached as Exhibit ‘B’ and by this reference made a part hereof. The District shall have the right to remove from the site of the present Lucerne pumping plant constructed by the District and to salvage the pumping facilities heretofore constructed thereon by the District.
“b) The District shall further convey and quitclaim to the United States all its right, title and interest in the diversion dam in the Big Horn River which is presently used for diverting water to the present pumping plant constructed by the District. The District shall also convey and quitclaim to the United States all its right, title and interest in the Lucerne pumping ditch subject to the District’s right and easement to use, operate, and maintain said ditch for the conveyance of water to District lands for so long as this contract shall remain in effect.
“(c) The District shall make and record without cost to the United States the conveyances above described in (a) and (b) within sixty (60) days after the execution of this contract by the United States. The District shall procure and have recorded without cost to the United States all assurances of title and affidavits which the District may be advised by the United States are necessary and proper to show in the District complete fee simple unencumbered title to said property described above in (a) ”.
and here it should again be recalled that by Article 7 quoted supra the United States is not required to take one step looking to the construction of the Owl Creek Unit until the district obeys the mandate of the contract laid upon it by said Article 20. In brief the United States is not required to transfer title to the district to any irrigation works it may construct and *78receive pay for to the extent of one and a half million dollars but the district within sixty (60) days of the execution of this revised contract by the United States and before anything- is done by the party last mentioned must convey to it all the irrigation works the district owns by deed at its own cost and expense. It is not easy to believe that the Wyoming Legislature intended to put the stamp of its approval upon such transactions. At least there is no hint of it in our statutory law.
The constitution of this State asserts an immortal truism, it may be here appropriately remembered. Its Section 7 of Article I declares that:
“Absolute, arbitrary power over the lives, liberty and property of freemen exists nowhere in a republic, not even in the largest majority.”
It cannot be disguised that arbitrary power over the property of the landowners of the district is attempted to be established and vested in the Secretary of the Interior by certain provisions of this revised contract which we have had occasion to discuss herein and in the original opinion on file in this case.
It should not be overlooked either that Article 25 of the revised contract vests additional power in the hands of the Secretary thus:
“25. The Secretary reserves the right, so far as the purport thereof may be consistent with the provisions of this contract, to make rules and regulations and directives and to add to and modify them as may be deemed proper and necessary to carry out the true intent and meaning of the law and of this contract. Such rules and regulations may provide for operating procedures and practices, accounting procedures and practices, and the maintenance of reserve funds and depreciation funds, and the District agrees to observe such rules, regulations and directives.”
*79What those “rules, regulations and directives” shall be can be found only in the mind of the Secretary of the Interior. The only limit imposed appears to be they should be “consistent with the provisions of this contract” and tq “carry out the true intent and meaning of the law and of this contract.” It would seem that these provisions of Article 25 undertake to surrender to the Secretary of the Interior the right to construe and interpret the revised contract, a function vested only in the courts of this State. By Article 25 aforesaid it would appear also that the advantage of having a definite written contract indicating just what each party can rightfully exact from the other has been altogether swept away.
The respondents express alarm that the reclamation of the arid lands of our State will be hindered or prevented by the decision of this court. We must decline to agree. Contracts of the nature hereinabove discussed can certainly be framed without incorporating the inequities and arbitrary provisions, which we have discussed, and which are embodied in the agreement at bar. That contract was revised no less than seven (7) times before the District was persuaded to execute it. No reason is perceived why additional conscientious efforts on the part of those who drew it may not have produced a much more satisfactory instrument.
No useful purpose would be served by extending this opinion further. We have found that over a period of more than a quarter of century petitions for re-hearing after decisions of this court have been handed down have, for the most part, simply re-argued and repeated views which were fully considered by the court before the original opinion was filed, and after such consideration, rejected. The instant petition for *80re-hearing is no exception. We must decline to re-traverse paths already travelled.
We may here appropriately mention that while Mr. Justice Ilsley, who sat on the argument of this case, participated in the many conferences which preceded its disposition, and concurred in the opinion filed, was prevented by his sudden passing from expressing formally his approval of what has above been said, yet, we have little doubt from what we remember of his views on this matter, that he would emphatically have agreed to what hereinabove has been set forth. The people of this State have long known his ability as a lawyer, his honest and practical approach to all questions involving the irrigation law and contracts.
Without more we are obliged to rule that the petition for re-hearing should be denied.
Denied.
Blume, C. J., concurs.