Ashley v. Sutter Butte Canal Co.

BURNETT, J.

The action was for damages for the failure of defendant to furnish sufficient water for the irrigation of a rice crop on 450 acres of land belonging to plaintiff, Ashley. The claim was for $30,000 and a jury awarded to plaintiffs the sum of $1,800. Only one point is made by appellant, namely, that the evidence is insufficient to support the verdict. The contention is based upon the claim of the insufficiency of the evidence to establish a contract, between the parties, but more particularly, as we understand the contention, that in the asserted contract which is the basis of this action respondents waived any claim for damages. As appellant states: “In the spring of 1918 P. N. Ashley owned some land and was about to purchase and afterward did purchase for cropping to rice during that season other lands which he and certain tenants and associates afterward during that year sought to crop to rice. Of course, water was necessary for the enterprise. No irri

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gation ditches had as yet been constructed to any of these lands and Mr. Ashley along about April, 1918, took up with appellant a proposition whereby it was to construct ditches and canals to these lands in order that they might receive water for irrigation.” It is not disputed that a contract in writing was formulated and signed by Mr. Ashley, but afterward it was abandoned by mutual consent because it was found impracticable to irrigate by the method therein provided and it was superseded by an oral contract. As to the terms of this oral contract there is a conflict, but, obviously, we must accept the version of the respondents. The following substantially covers Mr. Ashley’s testimony in reference to it: “Q. Now, when you did ascertain between yourself and Mr. Tulloeh that the water could not get on the 606-acre tract of land by gravity and then what was agreed to or done by you and him? A. I met Mr. Tulloeh and I said to Mr. Tulloeh: ‘I understand that we cannot flow the water from the west part of the Crocker tract from that ditch’ and he said ‘that was true but he would put pumps in there and pump that water for me over that tract from Dry Creek. ’ Q. Did you have any different contract or agreement for the pumping of the water on there than you had for the furnishing of water to the rest of your land? A. The conversation was brief. I told him ‘all right that that was all right, ’ and it ended there. Q. Did you understand that you would be served with water for that tract of land in all respects practically on the saflie terms that you were being served on your other tracts excepting that it was to be pumped on there for you? A. Yes, sir. Q. And in all other respects the contracts were practically the same. A. I repeated the conversation—I told you just the conversation. Q. Your understanding? A. I understood that the contract was to be carried out excepting as to the pumping. Q. That it would be in effect just the same as if exhibit ‘B’ had been signed or number one, rather—except that you were to get the water by being pumped instead of coming by gravity? A. Yes, sir.” He further testified that Mr. Tulloeh told him that he would turn the water into said Dry Slough from the ditch above and would install two pumps; that after these pumps were in operation he “notified Mr. Tulloeh that the pumps were not carrying their rated capacity, that they should carry a great deal