268 F. 823 | 8th Cir. | 1920
An appeal by the plaintiff below presents the question whether the decree of the court in favor of the de
The only contention made by appellant is that Buller’s deed to -him did not comply with his contract to convey the water right, and that this breach of the contract entitles appellant to rescind the contract, tender a reconveyance of the land, and recover the amount paid on the purchase price.
A water right is usually founded upon a grant, express or implied, by which the vendee acquires the privilege of using a certain amount of water. In some seasons an owner of irrigated land may have the use of mudi more water than that to which he is entitled, when the supply is ample and the company furnishing the water does not choose to enforce careful measurement; but such tolerance does not measure the legal rights of the owner under his grant. When Buller contracted to convey the water right used with this land, he did not covenant a supply of any specific quantity of water, but only contracted to convey
The conclusions which have been stated make it unnecessary to consider the legal effect of the representation, if it had been made as claimed.
The decree will be affirmed.