The opinion
On Motion for Rehearing.
Appellant contends that, in this opinion, we are in conflict with Granger v. Kishi, 139 S. W. 1002 . But the two cases are in no way inconsistent. On the contrary, in the Kishi Case the court stated the same doctrine as here announced, but concluded that the appellant had not constructed and was not “operating and maintaining an irrigation plant under the provisions of chapter 2, tit. 60, R. S. 1895.” The court said: “For aught that appears, Kishi is simply the owner of an irrigation canal with a lateral running through and maintained on appellant’s land with appellant’s consent, and that he agreed to furnish. appellant sufficient water to' irrigate his rice crop, but providing, in effect, that if he failed to do so, and damages should accrue to appellant by reason of such failure, the appellee’s liability therefor should not exceed $4 per acre. We think that this contract cannot be distinguished from contracts between individuals where neither of the contracting parties is undertaking the discharge of a public duty.”
[32] Appellant calls our attention to the fact that we did not expressly dispose of its fifty-fifth assignment of error in the original opinion. It is perfectly clear, as contended by appellant, that the statute gives the water company the right to make contracts with water consumers, and that the rights of landowners who have no contract are subordinate to the rights of those who have. The statute recognizes the fact that the water available may be limited, and it does not require of the water company the impossible duty of supplying all applicants without reference to whether adequate water is available. The law even contemplates a scarcity of water and provides for prorating same among contract holders. But all this is immaterial in this case, as it is not contended that appellant’s failure to furnish appellee with water arose from the fact that other consumers holding contracts used the whole supply.
Appellee also has- presented motion for rehearing, but we find no merit in its contention.
.The motions of both the appellant and ap-pellee are overruled.