57 Colo. 218 | Colo. | 1914
delivered the opinion of the court:
A general demurrer to the amended complaint was sustained. The plaintiff elected to stand upon this complaint and brings the case here for review. The complaint is voluminous. In substance, it sets forth the history of a certain irrigation canal, including its enlargements and extension by the predecessors of the plaintiff, under a contract with certain of the defendants, and the heirs, grantors, etc., of others, who were the former owners of the canal. It is alleged that under this contract the possession and use of the canal in perpetuity was conveyed and turned over to the predecessors of the plaintiff, their assigns, etc., under certain conditions, among which it was provided that there should be at all times left in the canal, for the use of the defendants, their heirs, grantors, etc., during the season when water is carried, etc., at certain places, etc., not less than certain amounts of water. A' copy of the contract is set forth, relying’ thereon, a full compliance with its terms, the expenditure of large amounts, the development and irrigation of a large tract of land, etc., are alleged. It is then alleged that each year thereafter, and since 1880, that the waters carried through the canal were of certain amounts, and with the exception of certain amounts delivered to the defendants or their predecessors, has been used for the irrigation of lands belonging to the predecessors of the plaintiff, and the plaintiff’s stockholders, upon whose behalf the action is also brought, in the aggregate of about six thousand acres. It is alleged that the term “inches of water” at the time of the execution of the contract, was an indefinite phrase popularly used to designate the number of square inches in a cross section of flowing water, without reference to grade, etc., and that the phrases “288” and “2592” used in the contract were selected to indicate twice the number of square inches in a cross section of a square foot of flowing water. Numerous allegations of facts are set forth
The plaintiff has attempted in its pleading to deraign its title by setting forth the contract under which it claims, and alleging the facts and circumstances under which it was executed and the construction given to it by all parties to or interested in it for twenty-nine years following its execution, in order to show what was intended by the language used. If by so doing it has alleged facts which disclose that it has no right or title to that which it claims the demurrer was properly sustained. On the other hand, if there is sufficient material facts alleged to show that it is entitled to any portion of that which it claims, when, considered in connection with the alleged acts of the defendants it was not subject to a general demurrer.
The defendants contend: First, that the contract is unambiguous, and that its plain language discloses that the plaintiff does not own and was not entitled to the use or enjoyment of that which it claims, and inasmuch as it bases its title on the contract, the execution of which it alleges, for this reason the demurrer was properly sustained. Second, that if in disregard of the terms of the contract the plaintiff claims to hold the water by adverse possession account of appropriating
In considering the first question it is not our intention to place a construction upon the contract, or to consider its meaning further than to determine if the „ court was right in holding that it was unambiguous, and that it did not require a consideration of the facts and circumstances under which it was executed or the construction thereafter given it, in order to ascertain what was intended. In considering the meaning to be given a written instrument it is elementary that the entire instrument should be considered, and that effect should be given to the language used in each and every part thereof, if possible to do so. If an apparent conflict be found which, of necessity, would tend to make its meaning ambiguous or if any particular portion is ambiguous, of doubtful meaning, or susceptible of two constructions, the extrinsic circumstances surrounding the parties and attending the execution of the instrument may be looked to in order to ascertain what was intended. — St. L. & D. L. & M. Co. v. Tierney, 5 Colo. 582; McPhee v. Young, 13 Colo. 80, 21 Pac. 1014; Wyatt v. Irrigation Co., 18 Colo. 298, 33 Pac. 144, 36 Am. St. Rep. 280; True v. Rocky Ford Co., 36 Colo. 43, 85 Pac. 842; Fearnley v. Fearnley, 44 Colo. 417, 98 Pac. 819; Burmister & Sons Co. v. Empire G. M. & M. Co., 8 Ariz. 158, 71 Pac. 961. In such cases it is also proper to inquire as to the construction the parties put upon the contract in its performance, up to the time the dispute arose. Stewart v. Austin, 50 Colo, 248, 115 Pac. 516; Wyatt v. Irrigation Co., 18 Colo. 298, 33 Pac. 144, 36 Am. St. Rep. 280; McPhee v. Young, 13 Colo. 80, 21 Pac. 1014; Buckhorn Co.
The contract was evidently intended as a mutual benefit to all parties. It sets forth in substance that the first parties owned the Brantner ditch six miles long, and privileges belonging thereto; that second parties are associated to procure water for themselves and others and desire to use the ditch, and its right of way, to carry water through same to its present terminus, and thence to other lands, by extension to be hereafter constructed. First parties grant to second parties and assigns the right of way to conduct water through said Brantner ditch for irrigation, domestic, and other purposes, to such extent, and in such amount as may become practical, within capacity of said ditch when enlarged, after leaving in it at all times for use of persons constituting first party, not less than two hundred eighty-eight inches of water for each undivided ninth interest measured under five-inch pressure, so that each of said persons and assigns, etc., during irrigation season when water is flowing through said ditch, can by means of lateral ditches, at proper places, take therefrom at any and all times, not less than two hundred eighty-eight inches of water, so measured, for each ninth interest, and in like ratio for whatever interest any such first party or assigns may control. This transfer is made‘on certain, conditions mentioned in the contract to be faithfully kept, etc. In consideration of the grant and conveyance the second parties covenant, prior to April 15th, 1880, to repair and clean out the ditch from its head to present terminus, and have same in good condition for use during the irrigation season of 1880, also before May 15th, 1880, to enlarge the ditch from head to present terminus to not less than twenty feet wide and three
The plaintiff claims that under the terms of the contract, considered as a whole, and construed in the light of the surrounding circumstances, at the time of its execution, and the interpretation thereafter placed upon it by all parties thereto, and successors, for twenty-nine years, that it, the plaintiff, was to have the use of all waters to be carried through the canal and extension, or in any wise appertaining thereto, except the amount required by the defendants, and their predecessors, for the irrigation of certain lands, and domestic purposes, and when needed only for these purposes, and then not at any time to exceed the aggregate of eighteen cubic feet of water per second of time, and that it, the plaintiff, is entitled to this eighteen second feet or any
It is unnecessary to attempt an analysis of the contract. It is sufficient to say that when considered in its entirety without evidence, aliunde, it is doubtful and uncertain as to what the words “two hundred eighty-eight inches” or “two thousand five hundred ninety-two inches” were intended to mean, for which reason, in order to ascertain what was intended, it is proper to take into consideration the extrinsic circumstances surrounding the parties attending its execution, as well as the construction the parties to it placed upon it; for these reasons the demurrer should have been overruled.
In Stewart v. Austin, 50 Colo. 249, 115 Pac. 516, this court recognized the ambiguity of the word “inches” in reference to any amount of water in the following language. “The expression, in inches, of the claims of the several owners is indefinite as to what was really intended. In fact, the use of the term ‘inches’ creates confusion. The whole volume of the appropriation, or the full capacity of the ditch, was computed, at the time, to be 864 inches, whatever that may mean.”
In Mills’ Irrigation Manual at page 133, referring to the measurement of water, it is said: “The term inch is often confounded with other kinds of inches. It is sometimes used to refer to a square inch of water flowing over a weir, or in an open channel, without reference to the velocity, and hence without reference ito quantity. Thus, a channel having a cross-section of one square foot would be spoken of as 144 inches without regard to whether the velocity is one foot per second, two feet per second, or any other number of second feet. ’ ’ An example of decrees founded upon the uncertainty of cross section area is furnished in Broadmoor Co. v. Brookside Co., 24 Colo. 541, 52 Pac. 792. In Long on Irrigation, section 97, it is said, “"Where the decree states the quantity of water awarded in inches, it 'must show further what kind of an inch is intended, for the term ‘inch’ is itself indefinite.” This fact is recog
A consideration of previous cases will disclose that in this jurisdiction we have many expressions or terms used in connection with the word “inches”, when applied to the measurement of water for irrigation purposes, such as farmers inches, miners inches, customary inches, statutory inches, square inches, cubic inches, etc. An examination of the reports of our state engineers will disclose that many methods have been given designations and followed in the attempted measurement of
Counsel for appellees rely on Grand Valley Irrigation Co. v. Lesher, 28 Colo. 273, 65 Pac. 44, where the words “each water right contains one hundred fifty inches ’ ’ were taken to mean statutory inches, for the reason as stated. “The reasonable interpretation of this certificate, then, is that the company acknowledges that O. is entitled to 150 inches of water, to be delivered to him in some manner, and at some place. How and where, the certificate does not say. The use of the word ‘inches’ in the certificate must be taken to mean statutory ‘inches,’ as applied to water.” It will be observed that there was nothing in the certificate to contradict this conclusion. It was also evidence of the sale of a water right, and contained nothing which showed that anything to the contrary was intended. Such is not the case' here. Other portions of the contract might properly be construed to mean that a different amount was intended, for instance, it conveys the right of way to conduct, etc., to such an extent and in such amount as may become practicable within the capacity of the ditch when enlarged, etc. This calls for the total carriage of a practical amount in a ditch of a certain size; it provides that the size of the ditch when enlarged shall be not less than twenty feet in width, and three feet in depth, or fifteen feet in width and four feet deep. It then reads “So that said ditch will have a capacity of carrying sixty feet of water.' That is, so that the volume of water, at any part, measured by multiplying the width by the depth shall equal sixty feet.” It will thus be observed that in the contract there is used the term “practical” in connection with “capacity”, also a capacity of sixty feet of of water to be measured by multiplying the width by the
Counsel for appellees concede that the decrees for this ditch are not in harmony with their construction of the contract which gives to them 65.5 or 67.5 second feet, but they say this is of no significance because they have always expressed their intention to accept the result of these adjudications, and to not claim more than 47.88 second feet awarded to the priorities owned by them and their grantors prior to 1880, and that the only subject upon which there could be the slightest doubt is as to whether the quantity of water reserved by them should be 65.5 second feet or 47.88 second feet determined by court to belong to certain priorities for this ditch, and whether the contract should be regarded as modified by operation of law through the decree subsequently entered adjudicating those priorities. This argument discloses an element of uncertainty pertaining to what are
We agree with counsel that a law in force when a contract is made is as much a part of the contract as though incorporated in it; but we cannot agree that section 7026 B. S., 1908, is controlling unless it was so intended by the parties to the contract. The question is, what amount of water, what kind of measurement was intended, if the amount and measurement provided by section 7026 was intended, it should prevail; if the parties contracted otherwise, then their intention should control. It should be borne in mind that this is not a sale or rental of water by the plaintiff to the defendants; to the contrary, the defendants and their predecessors were the owners of the ditch and certain amounts of water, and the question is what was intended to be reserved under the contract, under which they turned the use of most of the ditch, and the waters to be secured therefrom, over to the predecessors of plaintiff; the contract does not state statutory inches. ’Tis true, it provides a measurement under a five-inch pressure the same as prescribed by statute, but the other matters prescribed by the statute are not referred to or adopted unless by implication. This is another reason why we think the other alleged matters should be taken into consideration in order to ascertain what was intended.
It is unnecessary to determine whether the plaintiff’s possession and control of the ditch is in the nature of a trust estate as trustee or otherwise, or the effect which might follow such conditions. We do not understand that the plaintiff has attempted to predicate its cause of action alone upon its possession and use of the canal. Its counsel disclaim that such was intended. As we understand the complaint, the rights of the plaintiff are predicated upon the contract, and the allegations pertaining to use and enjoyment are plead for the purpose of disclosing what was intended by the language qsed.
There was a motion to strike parts of the complaint. The general demurrer was to the balance. The motion to strike was sustained. In considering the complaint tested by the demurrer, we have taken into consideration all material facts well pleaded, whether included in the portion stricken or that remaining. From the conclusion reached, it follows that the greater part of that stricken was material as an aid in determining what was' intended by the parties to the contract, all such should be reinstated. It is unnecessary to go into it in detail. The reasons given why the demurrer should be overruled are sufficient for this purpose. The judgment is reversed and the cause remanded for further proceedings in harmony with the views herein expressed.
Reversed.
Decision en banc.