94 P. 164 | Idaho | 1908
This action was commenced by the appellant corporation to recover from tbe respondent water rents for the year 1906. Judgment was entered for the defendant and plaintiff appealed. The appeal involves the construction of two separate contracts. On January 2, 1903, the appellant corporation entered into a contract with the state of Idaho whereby it agreed to construct a system of irrigating canals for the irrigation and reclamation of arid lands under the Carey act, and in that contract there is contained the following paragraph:
“It is hereby agreed that every purchaser of shares in said canal, or holder of stock in said Twin Falls Canal Company, Limited, shall be entitled to have delivered for the irrigation of his land his full amount of water as herein provided, and it is hereby stipulated and agreed that while it retains possession and control of said canal system the parly of the second part may make a charge for the delivery of said water for irrigation, to the purchaser of said shares, on the following basis and in the following manner: All of the water dedicated to his land shall be delivered free of all charges during the first irrigating season that water is delivered to said purchaser, and thereafter an annual charge not to exceed eighty cents per acre may be made for each and every acre irrigated.”
After the appellant company had entered upon the construction of the canals and ditches and. the lands had been opened to entry and settlement, the respondent herein, in contemplation of entering and filing upon a tract of land under the canal system, entered into a contract with the land and water company, which contract, among other things, contains the following paragraph:
*350 “The company agrees that so long as it retains possession of said canal system it will keep and maintain the dams, main laterals and canals in good order and condition, and in case of accident to same will repair any injury thereto as soon as practicable.and expedient.
“For the purpose of defraying the expense of delivery of water for irrigation and expense of maintaining and keeping in repair the canal system, the Company have the right to levy against the purchaser an assessment or annual charge sufficient to raise equally and ratably from all users and takers of water a sufficient sum therefor, provided, however, that no such charge or assessment shall be levied or assessed against the purchaser during the first irrigating season after water is delivered under this contract, and thereafter an annual charge or assessment not exceeding eighty cents per acre may be made for such purpose for each and every acre irrigated.”
The respondent settled on his land under the appellant’* canal in March, 1905, and notice was thereafter given Tiim that water would be ready for delivery to him on or about June 26, 1905. He actually received the water on July 6, 1905. He used the water during the balance of the season and cultivated about twenty-two acres of alfalfa, though made no crop, and by reason of having water oñ the land, made final proof during the fall of that year, and thereby became entitled .to his patent to the land. He declined to pay water rent for the following year 1906, on the ground that the latter year was the “first irrigating season” that he had received the water and that under the contract he was entitled to have the water free for that season. He contended that since he did not receive the water during the whole of the irrigating season of 1905, he could not be charged anything for that year, and that he was entitled to one full irrigating season free of charge. The trial court agreed with his contention and declined to give the canal company judgment for any sum whatever for the use of water during the year 1906. Although the respondent settled on the land in March, 1905, he was under no obligation to do so until water was