Abbott v. '76 Land & Water Co.

HAYNES, C. A demurrer to plaintiff’s second amended complaint was sustained without leave to amend, and judgment of dismissal was entered, and the plaintiff appeals.

The complaint is very long, but for the purposes of this opinion the facts alleged may be stated as follows: The defendant is a corporation owning large quantities of land and certain water rights, canals and ditches, by means of which much of its lands, including the six hundred and forty acre tract in controversy, may be irrigated. For several years prior to October 1, 1886, the defendant leased portions of the lands to different persons under cropping contracts, and these contracts contained a clause giving the cropper the right [26]to purchase the land described in the contract, for a price and upon terms therein stated, at any time before the expiration of the lease. The price fixed in these contracts included a water right of forty inches of water for each forty acres. The defendant also advertised that it would,let its lands upon these terms, and also had adopted a resolution to that effect. Joseph Marriott had occupied the land here in question for several years prior to October 1, 1886, under leases or contracts containing the option to purchase above stated; but the lease for the year commencing October 1, 1886, did not contain such option. In May, 1887, the land commenced to increase in value, and by October 1st its value had about doubled. In July, 1887, the defendant announced that it withdrew all its lands from sale under these options. It is further alleged that about September 25, 1897, Marriott elected to purchase the land in question, claiming that under the usages and resolutions of defendant he had the right to purchase, but did not notify or inform the defendant of his election, nor tender or offer to pay the purchase money, but would have done so if he had not believed the statements of defendant withdrawing its land from sale; that he was not aware that his right to purchase could be enforced notwithstanding the withdrawal until a few weeks before this suit was commenced; that he was always able, ready and willing to pay, and now offers to pay, the sum at which said land was scheduled, viz., $17,800; that in July, 1890, defendant sold the water right incident to said land for $64,000, and has had said money on interest at six per cent per annum; that because of said representations he surrendered possession of the land, the annual rents and profits of which were $1,600. The prayer is that defendant be required to convey the land, that it be charged with the $64,000 received for the water right, and interest thereon, and with the rents and profits, from all which he offers to deduct the price of the land, and accept a judgment for “a balance of trust fund amounting to $80,220.” The present plaintiff, having succeeded in some way to Marriott’s rights, was substituted as plaintiff.