The appellant, defendant Swett, has applied for a rehearing in this case. She makes an entirely new objection to the judgment appealed from. We do not ordinarily notice a point made for the first time in a petition for rehearing. We depart from our rule solely because of a hope that an explanation of our view as to the effect of the judgment may prevent controversy between the parties.
The objection is to that part of the judgment which, in awarding to each party "one-half of the natural flow of Chase Creek at said 1890 point," proceeds to state, in connection with the one-half allotted to plaintiff, the number of gallons, varying from ten thousand to fifteen thousand per twenty-four hours during specified months, as constituting one-half, and fixes a minimum of nine thousand gallons per twenty-four hours in the months not specified. The defendant suggests that nature may not produce water enough to make up these quantities and claims that the judgment is so framed that in the event of such shortage the plaintiff is adjudged the number of gallons daily as stated in the judgment, notwithstanding the deficiency, and that, consequently, the defendant will get less than the one-half to which she is in justice entitled.
We do not so understand the judgment. It does not purport to control the forces of nature. In the event that the natural flow does not supply the quantity designated, each party will nevertheless be entitled to the one-half of the quantity which nature furnishes and actually flowing, even *Page 488 if this compels plaintiff to accept less than the quantity estimated in the judgment.
The petition for rehearing is denied.
Shaw, C. J., Lennon, J., Sloane, J., Richards, J., pro tem., Wilbur, J., Shurtleff, J., and Lawlor, J., concurred.
In S. F. No. 9748, on March 31, 1922, the court modified the judgment theretofore rendered as follows: