
    Argued at Pendleton November 1;
    modified December 13, 1932;
    rehearing denied January 24;
    mandate recalled and former opinion modified May 9, 1933.
    See 141 Or. 426.
    SIMPSON v. BANKOFIER et al.
    (21 P. (2d) 1077)
    
      William E. Lees, of Ontario (Bobert E. Lees, of Ontario, on the brief), for appellant.
    
      M. A. Biggs, of Ontario, and Charles E. Foley, of Burns, for respondent.
   KELLY, J.

Defendants interposed a motion to recall the mandate and for a rehearing- herein. Pursuant thereto, the mandate was recalled; and, upon consideration of said motion for rehearing, we are of the opinion that defendants’ criticism of the order of January 24, 1933, is tenable and justifiable.

Ten Mile creek is a seasonal stream and from the testimony it appears that the water is used whenever available. The run-off or flood period of said stream varies from year to year, consequently the date fixed for the beginning of the irrigation season should be sufficiently early to allow the use of the water, when available and to permit its use as long as it can be beneficially used. During an exceptionally wet season, the testimony indicates that the flow of the stream continues late in the summer, although ordinarily it ceases from the first to the fifteenth of May. In view of the foregoing, the water users herein awarded a water right may use the water any time to the extent herein allowed and in accordance with their respective priorities during the irrigation season which is hereby fixed to be from March 1 to September 1 of each year.

In order that the time of use and the manner of distribution of the water from Ten Mile creek may be made to conform with the conditions found on such creek, it is ordered that the former opinions be modified as hereinabove indicated and as follows:

That the water rights as determined and awarded shall be distributed in accordance with the following schedule:

M Date of Quantity Description of Land .in ame Priority of Water or Place of Use

1. Joe Bankofier 1873 80 min. in. NW% NE%,

Section 29, S% SE14;

NE14 SE14,

Section 20;

Tp. 40 S., it 43

E., W. M.

2. Lulu M. Simpson 1880 550 min. in. NE% SW14

sy2 swy4,

Section 23;

SEy4 SE%,

Section 22 ;

wy>,

Section 26;

NE% NE%,

SE% SEi/4,

Section 27;

SWy4 SEy4;

E% SE14,

Section 33;

sy2NWy4;

ni/2 swy4;

Date of Quantity Description of Land Priority of water or Place of Use

2. Lulu Simpson — Continued NEy;

N% SEy;

SEy swy;

Section 34;

W%;

swy NEy;

NWy SEy;

Section 35,

Tp. 40 S., R. 42

E., W. M.;

All of Section 3;

Nwy,

Section 2,

All in Tp. 41 S.,

R. 42 E., W.M.

3. JoeBankofier 1884 Undeter- SWy SWy,

mined Section 29 ;

SEy SEy,

Section 30;

NEy NEy,

Section 31 ;

Nwy Nwy,

Section 32;

Tp. 40 S., R. 43

E., W. M.,

SEy NWy;

Ny swy;

swy NEy,

Section 29,

Tp. 40 S., R.

43 E., W. M.

The water master or official in charge of the distribution of water may order the water users to install proper headgates and measuring devices to insure an equitable division of the waters between the users as herein determined and the expense of such installation. shall be paid by the individual so ordered. The quantity of water herein allowed to each user shall be measured at the point of diversion for the lands of each water user.

Except as herein modified the former opinions shall govern the rights of the parties hereto.

Defendants’ motion for rehearing is overruled.

Rand, C. J., did not participate in this decision.  