This is an appeal from a decree in favor o'f the defendant in a suit in equity brought by the Twin Falls Land & Water Company to compel the sale of additional water rights in the Twin Falls irrigation project. These corporations* plaintiff and defendant, were formed for the purpose of carrying out a reclamation project in Twin Falls county and Jerome county in the state of Idaho, in which that state and the United States were both interested. The project had for its object the reclamation of public desert land by irrigation from the waters of the Snake river. Most of the land belonged to the government of the United States and 244,025.98-acres of such land in Twin Falls county south of the Snake river were segregated under the Carey Act (43' USCA § 641 et seq.) for reclamation under the project. There was also a large amount of public school land belonging to the state of Idaho susceptible to irrigation under the proposed works. In addition, 32,000 acres of land north of the Snake river in Jerome county were included in the project. These Jerome county lands and the 400 second feet of water that was appropriated for their irrigation have been" transferred to the Twin Falls North Side project and are not involved in this suit.

Appellant appropriated from the waters of the Snake river for this project 3.000 second feet measured at the Cedars, now known as Milner Dam, on the river and entered into a contract with-the state of Idaho for the construction of the dams, canals, and other works necessary for the diversion of such water and its transportation to within one-half mile of each subdivision receiving water. We will hereafter réfer to the appellant as the construction company. The construction company was to be reimbursed for the cost of construction, estimated at $1,500,-000, and was to secure its profit, if any, by the sale of water rights to be evidenced by shares of stock in an operating company, which shares of stock were to be appurtenant to the various parcels of land erjtitled to irrigation from the canal. Two hundred three thousand five hundred sixty-eight and 47/100 shares of stock in the operating company have been sold. The principal question involved in the case at bar is as to the sale of 36,431.53 shares of stock, the unsold balance of shares in the operating company (a total of 240.000 shares), and this question turns in part upon the availability of water to be represented by the shares when sold. The exact amount of water to which the purchaser of stock is entitled is one of the points in dispute. The amount specified in the various applicable agreements is 1 second foot continuous flow for 80 acres, equivalent to % of a miner’s inch per acre. The dispute as to the contract quantity relates only to whether the point of measurement is at Milner Dam, the point of diversion on Snake river, or within. % mile of the settler’s land to be irrigated. The loss due to seepage and evaporation in the canals amounts to about 20 per cent., so that the question stated resolves itself into the question of whether 1 second foot of water at the dam should irrigate 80 acres or 100 acres, in other words, whether the *433 3,000 second feet was to irrigate 240,000 acres or 192,000, or allowing 10 per cent, for roads, buildings, etc., a total of 213,-333lá acres.

The contract between the construction company and the state of Idaho contained the following provisions relating to the water rights to be sold:

The defendant was organized in pursuance of the contract between the state of Idaho and the construction company to take title to the irrigation works and to manage and operate the irrigation system for the settlers and owners of the water rights purchased from the construction company. Each purchaser of laud and water rights was to have 1 share of stock for each acre of land under the system. Thus the appellee represents the purchasers of land and water and operates the system and distributes the water for them. This company will hereafter be referred so as the operating company. The construction company was authorized by its contract with the state of Idaho to sell 1 share of stock in the operating company for each acre of government land under the project at $25 per share and 1 share of stock for each acre of state school land under the "project at $15.50 per share. The total number of shares of the operating company was fixed at 240,000 by the contract between the state of Idáho and the construction company.

The construction company appropriated 3,400 second feet of the natural flow of the Snake river on October 11, 1900. It entered into a construction contract with the state of Idaho on January 2, 1903. The project was completed in 1909 and a majority of the stock had then been sold. In 1910, after the sale of 197,-825.49 shares in the operating company by the construction company, a dispute arose as to the adequacy of the watei supply to irrigate the lands for which water rights had already been sold. The „op erating company claimed that no further water rights should be sold. The construction company desired to immediately dispose of 5,000 shares of the remaining 42,174.51 shares to irrigate land susceptible of irrigation from the system by pumping, called the High Line project. The attempt to settle this dispute finally resulted in a contract of December 31, 1910, by which' the construction -company, in consideration of the consent of the operating company to the sale of the 5,000 shares for the pumping project, transferred the remaining shares (37,174.51) to the operating company. The rights of the parties involved in this suit largely *434 turn upon the interpretation of this contract of December 31, 1910. If the contract had simply provided for the transfer to the operating company of all the unsold stock in the operating company, little difficulty would arise, but the contract, after providing for the transfer of the stock, provided that if additional stock was sold by the operating company, the proceeds should be divided equally between the construction company and the operating company and the share of the proceeds of the construction company should be held in trust by the operating company. The dispute herein largely centers around this provision of the contract, the construction company claiming that the one-half of the unsold stock was held in trust by the operating company for it and the operating company contending that it became the absolute owner of the unsold stock with absolute discretion, in the nature of a power, as to whether or not any stock should be sold at any time, and that only in case of sale had the construction company any interest in the matter and then only in one-half of the proceeds. The construction company claims that the operating company, as trustee, has not acted in good faith in claiming a shortage of water and that by such false claim it has been able to increase the water rights of its stockholders by claiming and distributing all the appropriated water to their land to the exclusion of the other land for which the water was originally appropriated. The operating company contends that water rights were already oversold by the construction company at the time of the settlement and that there was no water then, or since, available for sale and that it has sold none voluntarily since that time. As will be presently stated, some was sold in compliance with a mandate of a court. In view of the importance of the applicable provisions of the contract of December 31, 1910, we set out the entire contract in. the footnote. 1

At the threshold of the inquiry as to surplus water lies the question of the contractual rights of those who have pur *435 chased water rights from the construction company. Was the contractual water right 1 second foot to each 80 acres or to each 100 acres? That is to say, was the water to be measured at Milner Dam or within % mile of the land to which it was to be applied? This question was considered by the Supreme Court of Idaho in what is called the West Case (State v. Twin Falls Canal Co., 21 Idaho, 410 , 121 P. 1039 , L. R. A. 1916F, 236) in entertaining a petition for a writ of mandate to compel the operating company and. the construction company, both defendants therein, to sell additional shares of stock to a purchaser of state school land, whose land was within the original segregation of land and within the area covered by the irrigation system. The matter was determined upon demurrer. The court held in its original opinion that under the allegations of the petition there was ample water. It also held that, inasmuch as the project contained 240,000 acres oí irrigable land, and as the appropriation was 3,000 second feet measured at Milner Dam, the right for each tract owner must necessarily be measured at the same place, otherwise there could not be 1 second foot for each 80 acres in the project. Two justices concurred in this conclusion. The third justice dissented on the ground that the express contract was that the watef right of each *436 landowner was to be measured at a point within i/2 mile of his land to which point the operating company agreed to deliver his water. It is contended that this decision of the Supreme Court of Idaho is binding upon us and that consequently we must hold that seepage and evaporation losses must be borne by the individual water user. The operating company contends that on rehearing the Supreme Court of Idaho abandoned its majority opinion, and that in any event the decision has been overruled in later decisions dealing with this particular water right (State v. Twin Falls Canal Co., 27 Idaho, 728 , 151 P. 1013 , known as the Weaver Case; State v. Twin Falls Land & Water Co., 37 Idaho, 73 , 217 P. 252, 257 , known as the Rice Case; Boley v. Twin Falls Canal Co., 37 Idaho, 318 , 217 P. 258 ), and with similar rights (State v. Twin Falls-Salmon River Land & Water Co., 30 Idaho, 41 , 166 P. 220 , known as the Rayl Case; Twin Falls Salmon River Land & Water Co. v. Caldwell (C. C. A.) 242 F. 177 , known as the Caldwell Case; Tapper v. Idaho Irrigation Co., 36 Idaho, 78 , 210 P. 591 ; Vinyard v. North Side Canal Co., 47 Idaho, 272 , 274 P. 1069 ).

In the West Case, supra, a rehearing was granted. The effect of the order granting the rehearing was to set aside the previous opinion. On rehearing the court stated the grounds upon which it proposed to grant the writ of mandamus. ‘ The construction of the contract for a water right' stated in the previous opinion was apparently abandoned, although that is not altogether clear. The ■court on rehearing gave as the grounds for its action that by the contract between the construction company and the state of Idaho a proportionate part of the appropriated water of Snake river was dedicated to state owned lands within the bounds of the segregated area and the purchasers of such land were entitled to 1 share of stock per acre; that it was not shown by the pleadings that there was not sufficient water to supply to all consumers and furnish the petitioner with the amount demanded; and that the operating company was bound to employ the most economical method possible in the distribution of water, and, if necessary, to adopt a system of rotation so as to increase the head of water delivered to the consumer. The syllabus by the court declares, “Under the provisions of said contract, each owner of land is not entitled to a constant flow of one-eightieth of a second-foot of water per acre.” This phrase “constant flow” in the syllabus is evidently used to distinguish between the same amount of water in the aggregate delivered by a system of rotation, instead of by constant flow, such as twice as much for half the time: In any event, however, the landowner was entitled to the equivalent of 1/80 second foot constant flow per acre or as the court holds to his proportionate part of it. The final holding then of the Supreme Court of Idaho in the West Case was that each purchaser of land, at any rate of state land, in the segregated area was entitled to his pro rata of the appropriated water, which by the act of appropriation and by the act of segregation of land was dedicated to the use of the entire tract, and this amount was admitted to be sufficient to properly irrigate such land.

If this is the theory of the West Case on rehearing, it is clear that it has been utterly abandoned and repudiated by the later decisions of the Supreme Court of Idaho, above cited, under the facts as subsequently brought to the attention of that court. The error in the West Case arose from the’ failure of the parties to present all the facts relevant to the interpretation of the contract as subsequently pointed out by the Supreme Court of Idaho in the Rice Case, supra. The court there said:

As the appellee operating company states:

The Supreme Court of Idaho, for the reason that the factual situation presented to them in the Rice Case, supra, differed from that in the West Case, supra, refused to follow its decision in the West Case and stated:

This decision was followed two months later in the case of Boley v. Twin Falls Canal Co., 37 Idaho, 318 , 217 P. 258, 263 , supra. In that case the construction company, after the contract of December 31, 1910, supra, had contracted to sell some of the alleged surplus water to Boley for use on 80 acres of state land within the segregated area, which was susceptible to irrigation by gravity from the canal system of the project. The court held that the settlers’ contracts for water “were contracts for the sale of a specific water right for each acre of land described,” quoting from Twin Falls Salmon River Land & Water Co. v. Caldwell, supra. It also held on the authority of the Rayl Case, supra, that the theory of a proportionate share of water for each piece of land, announced in the West Case, supra, was inapplicable to the Twin Falls project, where there was insufficient water to furnisdi the maximum amount agreed to be furnished to prior settlers, “that amount being necessary for the successful irrigation of their lands.” The court again held that the contract with the settler was for “the definite, specific quantity mentioned in the granting clause of their contract,” that is, 1 second foot for each 80 acres, and that no further sale should be allowed which would diminish the maximum amount purchased by prior purchasers, “that amount being necessary for the successful irrigation of their lands.” See also, Collins v. Twin Falls North Side Land & Water Co., 28 Idaho, 1 , 152 P. 200 ; Ricker v. Twin Falls North Side Land & Water Co., 39 Idaho, 93 , 226 P. 167 ; Vinyard v. North Side Canal Co., Ltd., 47 Idaho, 272 , 274 P. 1069 .

Without further discussion of the authorities above cited, it is clear that the contract requirement is %o of a second foot per acre measured within % mile of the land of the purchaser. This has been the uniform construction of the contract followed in the furnishing of water. The amount specified in the contract has been measured at a point within a half mile of the premises to be irrigated without diminution for evaporation or seepage. So far as the construction company bases its right to enforce the sale of stock to represent the 20 per cent, of seepage and evaporation, it must fail.

The construction company contends that in the delivery and use of water there has been excessive waste and with a reasonably economical use, such as is required by the doctrine that no appropriator of water can have a right to use water in excess of that put to beneficial use by him, there would be sufficient water to irrigate all of. the land represented by the unsold shares. Much evidence was introduced in the lower court upon the question of the “duty of water,” that is, the amount reasonably required for irrigation. The trial court accepted the evi *438 dence of the actual users of water on the project and held that there was no excess of water over and above that put to beneficial use by the irrigators under the system. It may be conceded that as against the state and others entitled to use the waters of the Snake river the amount of water to which the individual user is entitled cannot exceed the amount which he can beneficially use. The construction company is in no position to claim that the amount of water it contracted to furnish to the individual water user is excessive, or to insist that the wastage be sold to others, to whom it would thus be agreed to furnish the same excessive amount from the excess.

We conclude that the right of the construction company to sell water from its appropriation was exhausted when it had sold all of the water it could deliver within % mile of the users’ property at the rate of 1 second foot for each 80 acres. Its agreed compensation was for this amount and no more. This conclusion, which we think is in accord with the decisions of the Supreme' Court of Idaho, above cited, and with the meaning and purpose of the contracts relating to the construction and use of the irrigation system involved, makes it unnecessary to further consider the many questions relating to the water supply of the operating company, which are so fully and ably presented by the arguments and briefs and by the evidence adduced before the trial court, as all of these matters relate to the claim that the contract amount of water as above fixed is available and excessive.

Decree affirmed.

“This agreement made and entered into this 31 day of Dec. A. D. 1910 by and between Twin Falls Canal Company, an Idaho corporation, first party, and Twin Falls Land & Water Company, a Utah corporation, second party, witnesseth:

“Whereas on even date herewith the said second party has assigned and transferred to the first party forty-two thousand one hundred seventy-four and fifty-one one-hundredths (42,174.51) shares of the capital stock of said Twin Falls' Canal Company, evidenced by certificate No. 1319 in said corporation,

“Now therefore the said parties hereto for and in consideration of the sum of one dollar to each of them in hand paid by the other, receipt whereof is hereby acknowledged, hereby mutually undertake, covenant and agree as follows: