On Motion for Rehearing. Plaintiff's petition for a rehearing asserts that this court erred in stating in our opinion that "We find no evidence that water from the concealed ditch ever actually did flow into the well," and that other evidence tending to establish the falsity of the representations made by defendant were overlooked.
Petitioner first directs attention to the testimony of the witness Daniels. That witness did not testify that he ever saw any *Page 273 water in the concealed ditch or flowing through it into the well. The fact that the witness said he saw a hole in the ground which "had every bit of the appearance of having been made by water running through it and down into the ground" and that the concealed ditch could carry sufficient water to make such a hole, is a far cry from saying that he saw water flowing in the ditch. Whether the dampness in the bottom of the concealed ditch came from subirrigation, whether the ditch had been used to irrigate the land lying to the west, or whether if water would get into the hole at the outside of the well it could have gone into the inside of the well instead of going down the concrete lining to the bottom of the well, all were matters of conjecture.
Petitioner further says that the defendant himself admitted on cross-examination that the hole in the ground at the side of the well "was made by irrigation water from the concealed ditch." To the question, "Do you want the court to understand that the hole at the side of the well which you observed when you came back was made by water coming from the concealed ditch?" witness replied, "I presume so, from the high water running over this concealed ditch and coming down here to this cement, naturally it stands there and backs up." Waiving the fact that the statement, "I presume so," has slight evidentiary value, the language quoted above should be read in the light of appellant's total testimony on that point.
Baldwin's testimony was reviewed at considerable length and need not be repeated. Our opinion quoted his testimony that the "little ditch pointed right to the well" and "ends right at the well." This witness however "could not say whether the bottom of the ditch was damp or dry" but said that the ditch showed water had been in it recently. Baldwin's further testimony as quoted in our opinion was that in his judgment if water were permitted to flow in the concealed ditch it would "run to the cement and go to the bottom of the well on the outside of the well." It is true our opinion did not quote Whitesitt's testimony to the effect that in the year 1946 before he left the property he made use of the concealed ditch "two or three *Page 274 times," the last time being "around the 4th of July." His testimony was that in the spring of 1946 he used the concealed ditch two or three times "to the extent of running a little trickle of water not over an inch for three or four hours to let it soak west on the yard under the clothesline." There was of course nothing in this testimony to indicate that Whitesitt constructed the concealed ditch in order to fill the well with water from the irrigation system, nor did it tend to prove that on those brief occasions of using the concealed ditch for irrigation, water flowed or was conducted through the concealed ditch into defendant's well. Hence our failure to quote it in the opinion.
We see no occasion for again reviewing the testimony of the witness Clure. Our opinion points out that he qualified his testimony that water flowing in the concealed ditch "would have to go in the well. It couldn't go no place else," by stating that in his opinion, "a lot of the water would go down the outside of the well."
The petition for rehearing also complains that we did not quote all the testimony of the witness Schroeder relative to water reaching the well. This witness did testify that in mid-winter of 1945-1946, Whitesitt was watering three head of stock out of a water trough which was supplied with water from his well. This watering trough or tank was located in the immediate vicinity of a ditch, not the concealed ditch, but one which ran nearly north and south a little distance from the concealed ditch and which conveyed water out of the west ditch over to the area where the watering trough was located. Witness testified that on one occasion when he was crossing the Whitesitt property he observed that water coming down this ditch had "made a large puddle around that stock tank" and "from there was a small ditch [not the concealed ditch] which went directly to the well" and through it water went into the well. It is to be noted that the ditch through which water was conducted from the "puddle" to defendant's well was not the concealed ditch at all but was, according to the testimony, another ditch which ran almost parallel to the concealed ditch. *Page 275
However, and whether it came through the concealed ditch or any other ditch, no reasonable minded person could construe the above evidence to support the theory that because a large puddle of water caused by watering stock in mid-winter had formed near defendant's water tank and from thence had run into another ditch which led to defendant's well, tends to support plaintiff's contention that defendant constructed the concealed ditch in order to fill the well with water from the irrigation system.
In our opinion the petition for rehearing has no substantial merit and none of the omissions which petitioner asserts were made by this court in reviewing the testimony warrants any different disposal of the case on the merits.
The petition for rehearing is denied.
Mr. Chief Justice Adair and Associate Justices Gibson, Angstman and Metcalf concur.
Rehearing denied May 10, 1948.