Table Mountain & San Andreas Water Co. v. Chavanne

Ross, J. On the thirteenth day of October, 1879, the plaintiff, being engaged in the business of selling water for mining and other useful purposes, and the defendant, being the owner of a certain mine and quartz-mill, entered into an agreement in writing, by which the [615]plaintiff agreed and bound itself to furnish the defendant certain water, which the defendant agreed and bound himself to take and use in running the mill. Among other provisions, the agreement contained the following:—

“ It is further understood that the said party of the second part [defendant] may make any alteration in the driving power of his mill, and may put up amalgamators, concentrators, or arastras and machinery at and near his mill without any further or extra charge for the water, but shall not put up another mill and use the same water again for a separate driving power.

“And the said A. Chavanne, the party hereto of the second party, agrees to pay to said party of the first part the sum of one hundred dollars per month for the use of said water, payable quarterly.

“It is further understood that should said party of the second part erect another mill and use the same water to run said other mill, he shall pay to said party of the first part fifty dollars ($50) per month additional, but no extra charge for water shall be made for putting up more stamps in the present mill. This agreement is to continue and be in force between the parties and their successors, administrators, representatives, and assigns for the term of ten years from this date, for which term the same shall be binding upon the parties to this agreement and their successors in interest as aforesaid.

“ It is further understood that if the party of the second part should sell his mines, his successors in interest in the mines shall be bound by this agreement.”

A subsequent addition was made to the agreement, which does not affect the question to be decided.

The parties to the contract at once entered upon its performance, and each duly complied with its requirements until the defendant, on the 14th of May, 1880, sold and conveyed his mill and mining property mentioned in the agreement to a corporation called the Amelia [616]