73 Wash. 363 | Wash. | 1913
In this action the plaintiff seeks to foreclose a lien upon certain lands of the defendant for annual water charges for the year 1911, claimed to be due under a contract and a water-right deed made in pursuance thereof. On June 26, 1909, the defendant, as party of the first part, and the plaintiff, as party of the second part, made a contract in duplicate, wherein the plaintiff agreed to construct an irrigation system in the vicinity of the defendant’s land sufficient to perpetually supply water between April 1st and October 1st of each year to the extent of 1% acre feet a year, and to convey to the defendant a water right to serve one-half of his land described in the contract. In consideration of this agreement, the defendant agreed to convey the other half of his land to the Pasco Fruit Lands Company, a subsidiary corporation of the plaintiff, and party of the third part to the contract. The contract, among other things, provided that the first party should pay to the second party an annual charge for the water of $5 an acre, and that the second party should have a lien upon the land for which water-rights were to be furnished for this annual charge; and further declared “that when the party of the second part . . . shall be able to deliver the water to a point within one mile of said land . . . and to such elevation as will permit the water to be carried to the highest point upon said land by gravity flow, it shall be deemed to have completed said system as herein provided for.”
On February 28, 1911, the manager of the Reclamation Company, stating that it had complied with the terms of the agreement, demanded and received from the defendant a deed to the Pasco Fruit Lands Company, conveying to it the land which by the contract was to be so conveyed on completion of the system, and at the same time delivered to the
“(2) Said water shall be delivered at a point not greater than one mile distant from the lands herein described, and at such elevation as will permit such water to be conveyed to the highest point on said lands by means of gravity flow. The works and conduits necessary to conduct said water to said lands from such point or points of delivery shall be constructed and maintained by the water user. . . .
“(6) The water user shall, on or before the 1st day of March, each year, file with the company a notice in writing specifying the quantity of said water which he wishes to use during the ensuing irrigation season, and upon filing such notice he shall be entitled to the use of such specified quantity only during such season.
“(7) The water user shall pay to the company at its office at Pasco, Washington, for the use of said water, annual charges as follows: Five Dollars ($5) per acre for each and every acre of the lands herein described, which payment shall entitle said water user to the use of eighteen (18) acre-inches of water per acre, or so much thereof as may be necessary, for the irrigation of said lands; and for all water used in excess of 18 acre-inches per acre he shall pay Thirty-five (35) cents per acre-inch or fraction thereof, for each and every acre of said lands.
“(8) Beginning with the year 1911, the charges mentioned in the foregoing paragraph shall be due and payable: One-half on or before March 15th and the balance on or before Jume 15th, in each year.
“(9) The company shall have a lien upon the lands hereinbefore described for the annual charges mentioned in paragraph seven (7) thereof. ...”
The cause was tried to the court, findings were made in favor of the plaintiff, a judgment for $45 and interest from June 15, 1911, was rendered against the defendant, and a
There are many assignments of error, but they are all argued under two heads and may be so considered.
(1) The appellant contends that the contract and water-right deed created no obligation on his part to pay any annual charges until he should begin to use the water. The argument is that paragraph 6 of the water-right deed, requiring the “Water-User” on or before March 1st of each year to give notice specifying the quantity of water he wishes to use during the ensuing irrigation season, and paragraph 7, providing that he shall pay “for the use of said water” the annual charges thereinafter designated, evidences an intention that the charges are for the actual use of water, and not for the right to use it, and that the right to use the water in perpetuity had already been paid for by the conveyance of half of the appellant’s land. This last contention may be disposed of at once. It is obviously unsound, since to give the conveyance that force would make it a perfect defense to a claim for payment for any amount of water actually used up to the 24 acre-inches an acre specified in the water-right deed, and would render all remaining provisions in that deed as to payments absolutely meaningless, though express conditions of the grant. The respondent contends that the provision for the payment of the annual charge of $5 an acre was intended as a maintenance charge entitling appellant to use 18 acre-inches of water an acre, and that this payment was not dependent upon actual use, but was for the privilege to use that amount of water whether the privilege was actually exercised or not.
The question presented is one of intention to be determined, not by isolated phrases in the water-right deed alone, but by all pertinent recitals, both in the deed and in the initial contract referred to in, and made a part of, the deed. The initial contract provided “that said first parties . . . shall pay to the said party of the second part ... an an
In Fresno Canal & Irr. Co. v. Dunbar, 80 Cal. 530, 22 Pac. 275, the contract was in some respects analogous to the contract here. By the contract the water company sold to the water user for a money consideration a water-right for his land, and the water user agreed to pay an annual charge “after the water shall first be brought to the land.” The contract also provided for a lien on the land to secure the annual payments. The court held that the defendant could not avoid the lien by a failure to take the water.
In Purser v. Baker, 129 Cal. 607, 62 Pac. 190, relied upon by appellant, the contract provided that the defendant should pay “annually the sum of $2 per acre for the use of water on the above described land . . . said water shall be used by the party of the second part for no other purpose than for the irrigation of said land and for domestic purposes on said land during the irrigation thereof .. . nor shall the party of the second part be re
It would be a bootless task to further review the authorities cited. They merely emphasize the fact, shown by the two we have noticed, that each contract must be construed according to its terms. The contracts in the other cases cited are so widely variant as to be of little illustrative aid.
(2) It is next contended that the water was not delivered or tendered at any point within one mile from which it could be carried to the highest point of the appellant’s land by gravity flow. The evidence, is conclusive that the respondent has constructed its irrigation system; that its main pipe line runs to within much less than a mile of appellant’s land. It is conceded that at a point within 2,290 feet of the appellant’s land, the ground elevation of the pipe line is 412 feet, while the ground elevation of the highest point of the appellant’s land is 426 feet. It was proved without contradiction that the pressure in the pipe line at the point mentioned will raise water to an elevation of 440 feet, and that a pipe line connected with the respondent’s main pipe line at this point would therefore carry the water to the highest point of the appellant’s land. It was also proved without contradiction that, by the installation of a standpipe, sixteen feet high on the respondent’s pipe line at the point in question, water could be carried by means of a flume to the highest point of the appellant’s land.
The evidence showed that the appellant and others, on March 10, 1911, entered into an agreement with the respondent authorizing the respondent to construct a lateral pipe line running within 687 feet of the appellant’s land, at which
A flow of water through a pipe line, without other aid than the hydraulic pressure furnished by gravity, in the absence of other qualifying words, such as “without confinement in pipes,” or “without the aid of pressure,” or “by means of open ditches or flumes,” would be included in the term “gravity flow.” By the two agreements of March 10th and March
The judgment is affirmed.
Crow, C. J., Main, Fullerton, and Moréis, JJ., concur.