110 P. 251 | Idaho | 1910
This case was beard once before on appeal, and tbe opinion of tbe court is reported in 16 Ida. 430, 101 Pac. 814. After tbe case was remanded it was again tried in the district court and an appeal was taken from the second judgment, and that appeal was beard at tbe January, 1910, term of this court. Subsequently a petition for a rehearing was filed and granted by tbe court.
Tbe principal facts of tbe case are set out at some length in tbe original opinion and we will not therefore restate them here. This action is based on a contract for a water right dated March 22, 1895, and it was held in tbe former opinion of this court that tbe contract was a valid and subsisting contract between tbe parties and that the parties and their successors in interest were bound thereby. That contract contained a provision to tbe effect that in ease of unforeseen or unavoidable accident which might result in diminishing the supply of water, or if the volume of water should prove insufficient from drought or any other cause beyond the control of the company, the second party to the contract should have her pro rata share of the water which the company might have for distribution, and that the company should not be liable for the shortage or deficiency, but should have a right to distribute such water as it might have through its canals to the holders of such water right contracts, pro rata, provided that such contracts placed the holders thereof upon an equality, and conferred on no one of such persons a prior or superior right over any other person holding a like contract. The court there held that the terms of the contract negatived the idea of a priority as between those holding such contracts, and that said contracts specifically limited the respondent’s right to a pro rata share in ease of a shortage or scarcity of water, and that the trial court erred in its prior decision wherein it held that the plaintiff had a prior right to the use' of the waters from said reservoir.
The case was sent back for the trial court to determine two questions and to enter judgment accordingly. The trial court was directed to determine, first, the number of inches necessary for the proper irrigation of plaintiff’s land de
“Inasmuch as a new trial must be granted in this case, it will be necessary for the trial court to ascertain the number of acres covered by similar contracts not exceeding the 8,400 acres for which it was intended to supply water and to give plaintiff her pro rata share thereof. If, however, a less number of acres has been covered by such contracts, then whatever the total of such acreage may appear to be, when proof is taken, the plaintiff should have her pro rata share of such water, and upon this question and the question as to the quantity of water necessary for plaintiff, proof should be taken by the trial court and judgment thereupon entered in accordance with this opinion. ’ ’
After the case was remanded to the lower court the plaintiff amended paragraph 9 of her complaint, and after alleging the execution and delivery of the contract and the nature thereof the amendment reads as follows:
‘1 That because the water supply proved insufficient as aforesaid, some of said purchasers of water rights never used any of the waters of said reservoir in the irrigation of their lands or otherwise applied it to a beneficial use, and all the other purchasers of said water rights, except plaintiff, ceased to irrigáte their said lands or to otherwise apply any of the waters of 'the said reservoir to a beneficial use, and ceased to use it at all after the year 1901, and all of said purchasers of said water rights, except plaintiff, wholly abandoned their said contracts and the right to use any of the waters of the said reservoir prior to the commencement of this action, and wholly abandoned their said lands, and permitted the same to be sold for taxes and tax deeds to be issued therefor to Ada county; that the defendant never claimed to own any right to use any of the waters of said reservoir by virtue of any contract delivered by the Orchard Irrigation Company of Idaho, or by virtue of any other contract or agreement, and it never owned and does not now own or hold said contracts*517 or any of them, as assignee or otherwise, or any other contract or agreement granting to it the right to use the waters of said reservoir, or any part thereof, and it is not now and never was the owner of any water right in or to said reservoir or ditch or the waters therein by virtue of any contract or agreement whatever; that for more than five years next preceding the commencement of this action the plaintiff was the sole and exclusive user of the waters of said reservoir, and is the owner of a first and prior right to the water of said reservoir and ditch in an amount to properly irrigate her said eighty-acre tract.”
After the proofs were submitted the trial court made a finding in substantially the same language as this amendment and found every fact as alleged by the amendment. He found that all the water users and consumers, who held contracts similar to the one held by the plaintiff, had abandoned their rights and ceased to use any water from the reservoir ever since 1901. He also found that the appellant never owned any contract for the use of water under this canal, and that in purchasing the reservoir and canal system and lands it never secured any of these water rights. He further found that the plaintiff had for more than, five years been the sole and exclusive user of water from this reservoir and canal system.
The trial court entered judgment in favor of the plaintiff for a prior right of fifty inches for the irrigation of her land, on the evident theory that there was no other outstanding contract similar to hers, and therefore no other holder of a similar contract entitled to pro-rate with her. The appellant irrigation company contends, however, that this holding of the court was erroneous, for the reason that it is the successor in interest both of the original reservoir and canal company and also of the original land owners who purchased these contracts. The appellant insists that since' it has purchased the land, to which these water contracts were appurtenant, that it owns the land with all of its appurtenances, including the water rights purchased for the benefit of such land.
In view of the facts and circumstances surrounding this ease, we think substantial justice has been done by the decree •of the trial court, and it will therefore be affirmed. Since we have reached a different conclusion on this rehearing from what we reached in the original opinion at the January term, that opinion will not be reported and this will serve as the ■only opinion in the case.
Judgment affirmed, with costs in favor of the respondent.