Harkness v. Montgomery

BARNARD, P. J. This an action for for breach of an agreement to furnish irrigation water.

The defendant owned a ranch of over 5,000 acres in the Mendota district. The plaintiffs had a large number of grapevine cuttings and were looking for land on which to plant these and raise rootings. On January 3, 1945, the defendant leased 30 acres of this land for one year to the plaintiffs for this purpose, at a rental of $2,000 paid in advance. By a written agreement, reciting this purpose, the defendant agreed to furnish water for irrigation “in ample amounts and at times when our Mr. Stafford deems it necessary for the irrigation to keep said nursery stock growing properly. ’ ’ Stafford, who was in charge for the plaintiffs, was a nurseryman of long experience, and in addition to his salary he was to receive one-third of the net proceeds from the project. Before the contract was signed the defendant showed the plaintiffs two pumping plants, indicating that they would be the source of the water, but did not tell them that he had previously leased 500 acres of the adjoining land to the Friedman Company, with the exclusive right to the use of the two pumps. The defendant was told that the plaintiffs planned to preirrigate the land and agreed to provide water for that purpose.

There is no controversy with respect to 5 acres of the leased land. On the other 25 acres the plaintiffs planted 873,800 cuttings. Planting was begun on April 11 and finished on April 22. They were planted on soil which was very dry and the first water for irrigation of the 25 acres was received on April 19, through the courtesy of the Friedman Company. Practically all of the cuttings died and it is admitted that this was caused by the lack of water at the proper times.

The complaint alleged a failure to furnish water as agreed and the answer admitted an agreement to furnish water in ample amounts to keep said nursery stock growing properly, and further admitted that at various times the plaintiffs had demanded that the defendant furnish them water and, in particular, that such a demand had been made in writing on April 9, 1945. The court found in all respects in favor of the plaintiffs and entered judgment for $9,775.63, from which the defendant has appealed.

It is first contended that the evidence is not sufficient to support the finding that there was a breach of the cove[13]nant to furnish water. It appears, without dispute, that the cuttings which were planted were good healthy cuttings which had been properly “healed in” and had made a good healthy growth. The appellant admits in his brief “There can be no doubt that the rootings died from lack of water, but the only logical explanation of the undisputed facts is that they were dead when the water was applied. The irrigation was delayed too long after the planting.” It is argued that the appellant was under no obligation to furnish water except when it was demanded; that there is no evidence that he refused any such demands; that the respondents knew that the water must come from the Friedman Company, who had a lease on the pumps; that no demand which was made on the Friedman Company was refused; and that considerable water was furnished which would have been sufficient if taken and used at the proper times. He relies largely on the testimony of a foreman for the Friedman Company, who testified that the land of the 25 acres was very dry when the cuttings were planted; that Stafford asked him for water after most of the cuttings had been planted; that he first let Stafford take water for the 25 acres on April 19, and as soon as it was requested; that Stafford was told to take what he wanted; that Stafford took some water and on April 25, he gave him all the water for three days; and that he then told Stafford to take all the water he wanted.