126 Wash. 604 | Wash. | 1923
— On September 9, 1913, the Icicle Canal Company, then a corporation organized under the laws of the state of Washington, and being then the owner of certain water rights and a system of canals for delivering water situated in the Wenatchee Irrigating District, contracted to sell to I. A.' Baker and Emma S. Baker, for irrigating purposes, 2,228-10,000 of one cubic foot of water per second of time, agreeing to deliver the water from its canal system. The purchase price agreed upon was a lump
After it became apparent that the Nevada corporation would be unable to comply with the water contracts entered into by its predecessor, the holders of the contracts formed a public irrigation district under the name of Icicle Irrigation District, pursuant to the provisions of the statute authorizing the organization of such districts. (Bern. Comp. Stat., §7417 et seq.) [P. C. § 3197.] On July 31, 1918, the Nevada corporation, with the consent of the court in which the receivership proceeding was pending, conveyed, by title absolute, to the Icicle Irrigation District, all of its irrigation system and works, reserving, however, the right to seven and one-half cubic feet of water per one second of time,' to be delivered at such places on the irrigation system as it should select. Following this conveyance, the receiver was discharged and the receivership action dismissed. The contract of sale in no manner obligated the irrigation district to perform the contracts entered into by the predecessor of the
The contract of the Icicle Canal Company with the Bakers not only provided that the contract should constitute a lien for the amount of the purchase price upon the water right agreed to be conveyed, but also upon the land of the owner which was described in the contract, and gave to the grantor or its assigns, in case of the non-payment of the purchase price, an election either to cancel the contract or to foreclose it as a lien. The present action is brought by C. A. Black, as assignee of the contract, against Harry A. Baker, the successor in interest of I. A. Baker and Emma S. Baker, electing to pursue the remedy of foreclosure. Baker defended on the grounds of non-performance on the part of the grantor named in the contract and inability to perform. The cause was tried by the court sitting without a jury, and resulted in a judgment in favor of Baker to the effect that the plaintiff take nothing by his action. The appeal is from the judgment so entered.
The appellant’s learned counsel have made an able and ingenious argument in favor of their client, but
But it is said that the appellant’s assignor had remaining after its conveyance to the irrigation district some form of equitable interest in the water which the respondent has acquired, and that it is no more than just that he should pay for this interest. But there is nothing in the record that justifies the conclusion that anything was reserved in the deed of conveyance other than what was expressly stated therein. The thing reserved was in itself valuable, and it was by no means the sole value the grantor received. It relieved itself of its obligation to keep up the supply of water at the agreed maintenance charge. This charge was below the actual cost of the service, and to continue to supply the water at the fixed charge could lead to no other result than the ultimate insolvency of the grantor. Nor did the respondent obtain the water he now enjoys through any right he had under the contract with the appellant’s assignor. He derives his right through the public corporation to which the grantor conveyed, and 'its continued supply depends upon the performance of his agreements with that corporation. Nor
There was included in the complaint a claim for maintenance charges during the last year the appellant’s predecessor operated the plant. The respondent concedes this was not paid, but sets up an offset, averring that his land is planted to an apple orchard, that, during the year mentioned, the entire supply of water which was agreed to be furnish him was necessary to the maturity of the fruit grown thereon, that the agreed quantity of water was not furnished him, and as a result he lost a great part of his crop, in value many times what he agreed to pay for the water. His evidence supported his allegations, and, as there was nothing to the contrary, we see no reason for reversing the conclusion of the trial court thereon.
The judgment is affirmed.
Main, C. J., Parker, Tolman, and Pemberton, JJ., concur.