Purser v. Baker

COOPER, C.

Appeal from judgment on the judgment-roll. The action was brought to recover of defendants the amount due for water furnished by plaintiff to defendants under certain written contracts, and to have the amount declared to be a lien upon the lands of defendants. The plaintiff recovered judgment and the amount was declared to be a lien upon the lands of defendants, but plaintiff claims that the judgment is not for the amount due according to the contracts, and hence this appeal. Plaintiff contends that his contract was to furnish water for all defendants’ lands—one hundred and sixty aeres—at one dollar per year per acre, while defendants contend that they, were to pay only one dollar per acre for the number of acres irrigated and upon which water was used by them. This presents the only question in the case. The findings show that Clinton 0. Hutchinson and Benjamin Leavitt, on the twenty-fourth day of September, 1891, entered into three contracts (which were intended to cover the same matter, and which may for the purposes of this case be treated as one) with Elisa A. Bogle, who was then the owner of the land now owned by defendants, by the terms of which they were to furnish said Bogle “so much of the surplus waters of Susan river as is or may be stored within the Hutchinson and Leavitt irrigation system .... as may be necessary for the reclamation of, and permanent irrigation for, the annual production of crops on the tract of land described .... and to be used only for the reclamation and permanent irrigation of said land aforesaid.....That the party of the second part hereby agrees to receive water annually from the party of the first part for

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the irrigation of the above-described land .... and to pay therefor .... annually on the first day of December the sum of two dollars per acre for the use of water on the above-described land.....Said water shall be used by the party of the second part for no other purpose than for the irrigation of said land and for domestic purposes on said land during the irrigation thereof, .... nor shall the party of the second part be required to pay any sum for the use of water for the year or years of crop failure by reason of an insufficient supply of water.” On the same day and as a part of the same contract the said Hutchinson and Leavitt, by. a separate instrument in writing, set aside and granted to said Bogle the right to one-half the water rent to become due under the said contract.'