Simonson v. Moon

On Petition for Rehearing

TAYLOR, J.

In their petition for rehearing plaintiffs urge that the mandate implies a right in defendants to the use of the main ditch from A to B superior to or in conflict with the right of plaintiffs. Such is not the intention. The principal controversy as litigated involves the branch B-E, and the main ditch below B. The record shows the parties have had little if any friction concerning the use of the upper part of the ditch. And the pleadings do not make an issue of the time or manner of its use. So. the decree should leave the manner and time of use.of the part of the ditch above the branch, to be determined by agreement of the parties as they have done in the past.

Rehearing denied.

GIVENS, C. J., PORTER, THOMAS and KEETON, JJ., concur.