63 Wash. 10 | Wash. | 1911
Plaintiff took an assignment of a contract for the purchase of a tract of land, which contract had been executed by appellant White Bluffs Land & Irrigation Company. A payment was made on the purchase price, and annual payments were to be made thereafter until the full purchase price had been paid. The contract also called for the payment of an annual water rent. Respondent attempted to cultivate his land in 1908 and in 1909, but contends that his crops withered and died for the want of sufficient water to sustain them. He did not pay his water rents or meet his payments for the years mentioned, and as it is alleged, defendants have threatened to cancel his contract. This action was brought, asking for such remedy as would protect plaintiff in his rights as .a contract holder, for the appointment of a receiver, that his damages for the years 1908 and 1909 be measured, that the amount thereof be credited upon his contract, and for such other relief as the equities of the case might show that he is entitled to. After a trial on the merits, a decree was entered, assessing plaintiff’s damages in the sum of $50, which was ordered applied as a credit upon his contract, but denying his application for a receiver.
A somewhat voluminous record is presented, but we take it that the facts are not very material to the real inquiry. If so, we are inclined to follow the judgment of the trial judge,
“The water company may at its option place and maintain at the point of delivery suitable measuring boxes or gates ; the time and mannér of delivering, measuring and regulating the supply to the purchaser shall be prescribed by the water company and shall be under its control and subject to such rules and regulations as it may from time to time adopt. The water company may shut off water in its pipes or canals at any time that it may deem necessary to do so for the purpose of repairs ; and the purchaser for himself and his heirs and assigns agrees to waive and hereby does waive any and all claims for damages resulting either from an insufficient or excessive supply of water, or from break, leakage or overflow.”
Under this clause appellants claimed the right to furnish water under what is known as the alternating plan; that is, to maintain a flow for three days, and to shut it off for three days. They accordingly divided the consumers into two groups, and delivered water to one group for three days and then to the other for three days. The plant’was not operated on Sunday. There is testimony tending to show that, while the water was furnished, the daily flow was nearly double the amount specified in the contract; so that respondent received approximately the same amount that he would have received under a continuous flow. Respondent maintains that he is entitled to a continuous flow, and is not to be compelled to accept his water in the manner in which it was delivered. He also offered testimony to show that the pumping facilities were inadequate. The trial court found that delivery was not made
It is conceded that appellants have the right, under the terms of the contract, to create rules and regulations, but it is contended that such rules must be reasonable and do no violence to the letter or spirit of the contract. The obligations of a private company organized for the purpose of selling arid lands and furnishing water for their irrigation are quasi public, and no arbitrary action under the guise of rules or regulations is to be tolerated. But when rights in such an important element as water is in the arid regions are to be measured by the courts, we cannot lay down a rule that would give to the user an arbitrary right to use water at will. His rights are to be measured by his necessities (provided, of course, he receives the amount agreed to be delivered), and not by any fanciful notion of his own. In construing this class of contracts, courts must bear in mind — for the fact is obvious— that the policy of the nation to convert its deserts into fruitful fields can only be accomplished by conserving that element which alone can give it life. It is upon this principle that the right of common users of water for irrigation to make rules and regulations rests; and it is equally potent to prevent a judicial construction of a private contract which might give an advantage to the landowner, or permit a practice on his part which might lead to a waste of the conserving element.
To confirm our conclusion that such questions cannot be determined as questions of law, it is necessary only to' suggest that the theory of irrigation is but imperfectly outlined, and its practice depends on conditions so varied that a fixed rule— the one here contended for — might, in another case work in
“With the gradual development of the country and the bringing of more and more land under ditches, the need for water increases, and equity demands that no irrigator shall*15 take more than he can put to beneficial use. Flowing water must be considered as a common fund, subject to beneficial use by individuals according to orderly rules, each man taking only the amount he can employ to advantage. Under any other theory full development of arid regions is impossible.”
In his instructive work on irrigation, F. H. King, professor of agricultural physics of the University of Wisconsin, on page 234 et seq., indicates that intermittent irrigation is the better if not the proper plan; and Newell, page 180, says:
“It is so much easier to' open the ditches and let the water flow freely than it is to guard and guide each tiny rill, that for economy of time and labor, if not from actual indolence, the irrigator is apt to let the water go its way.”
And again, at page 215:
“The farmers, being accustomed to the use of large quantities of water, often find it exceedingly difficult to get along with less and continue to use excessive amounts, often to their own disadvantage. They are actuated in part by the consideration that, having paid for the use of the water, they are entitled to a certain quantity, and fear that if they do not take all of this their claim to it may be disputed. Some of them actually waste water to their own detriment from the mistaken belief that in so doing they are establishing a perpetual right to certain quantities.”
These general observations may seem irrelevant. They are not put forth as legal propositions, but to illustrate our theory that we cannot declare, as a matter of law, that a regulation or rule of a water company, which provides for an intermittent flow rather than a constant flow, is unreasonable or unjust. Each case must be grounded on its own facts. To further illustrate, it may be that in the next case the character of the soil and other natural conditions would demand that the water be furnished by intermittent flow. In other words, what respondent now insists shall be declared as a fixed rule of law, if applied in another case would work injury to the landowner. Hewitt v. San Jacinto & P. V. Irr. Dist., 124 Cal. 186, 56 Pac. 893, is a case bearing some relation to this one.
“That is a system somewhat similar to this one. My report to them was this: That in the beginning of the operation of their plant, it would be necessary to give a continuous flow, but after the crops had gotten started, and any way sufficiently rooted, then a rotation system would be advisable.”
But, if it be conceded that a custom was shown, it would not govern a contract permitting the company to adopt reasonable rules and regulations, for custom can fix the manner of use of water for irrigation only when it is founded on necessity ; or, to put it in the language of all the cases, an irrigator is.entitled to use only so much as he can put to a beneficial use, for the public policy of the people of the United States will not tolerate waste of water in the arid regions.
Aside from all this, we think the evidence of custom in this
As we said in the beginning, there is testimony to sustain the trial judge in his finding that there was not enough water so furnished, and for that reason we sustain him in his finding of damages, and allow the amount to be credited on the contract. No cases have been cited, and we find none, strictly in line with this one. Whether this be so because of the lack of zeal on the part of counsel or the court, or whether there is in fact no such cas we find no hesitation in holding on principle that water contracts must be held to be mutual, and when disputed they will be construed in the light of the necessities of the parties, leather than with reference to the arbitrary desire of either party. We, therefore, refuse to hold, as it is earnestly insisted that we should, that under the terms of the contract, respondent is entitled to a continuous flow of water.
This case will be reversed, and remanded with instructions to the lower court to modify its decree to conform to this opinion.
Crow and Morris, JJ., concur.