Moulton Irrigated Lands Co. v. Jones

BURNETT, J.

The action was brought to recover the sum of $1,472.50 for water furnished by plaintiff to defendants for irrigation, and plaintiff had judgment as prayed for, from which the defendants have appealed. The contract, which is the basis of the action, was executed on December 17, 1912, by defendant, Jones, and one Wm. K. Brown, the assignor of plaintiff. By the terms of said contract Jones granted to Brown a right of way throiigh lands of the former in and along a certain slough, known as Drumhiller Slough, for the purpose of constructing and maintaining a canal for irrigation purposes and for storing and conveying water therein over and across said land belonging to Jones, which was specifically described in said

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contract. A right of way was also conveyed for two certain canals connecting with said slough. One of the considerations moving from Brown was the covenant binding him and his successors or assigns to construct and maintain across said Drumhiller Slough upon the land of Jones, as he might thereafter designate, two bridges at least eighteen feet wide, each capable of sustaining a burden of not less than five tons in weight, and also to construct and maintain on each of said canals suitable means of crossing the same and of sufficient strength to safely carry a combined harvester and kindred machinery. It was further convenated and agreed that Jones should have “a free water right for the water necessary for the irrigation of his lands [described in said contract] as long as said proposed irrigation system should be used in any part thereof for such purposes, such water right to be appurtenant to said land.” It was further provided: “For the water actually used by the party of the first part [Jones] for irrigation in and upon said lands aforesaid, he shall pay therefor at the same rate and be subject to the same rules, terms and conditions as all other water users along said proposed system, but shall only be required to pay each year for such water for irrigation purposes as shall apply only to such of his lands as are actually irrigated.” Said contract contains certain other important provisions, but they need not be quoted, as the foregoing involves the only question at issue in the present case. Appellant admits that there is “virtually but one question in this case: Was the defendant, Jones, justified, as a matter of law, in incurring the expense for pumping water from the canal or slough and charging that expense as an offset to the water rates?”