Bolles v. Pecos Irr. Co.

• Decision Date: 16 August 1917
• Docket Number: No. 1792.,1792.
• Citation: 167 P. 280,23 N.M. 32
• Parties: BOLLESv.PECOS IRR. CO.
• Court: New Mexico Supreme Court

23 N.M. 32

167 P. 280

BOLLES

v.PECOS IRR. CO.

No. 1792.

Supreme Court of New Mexico.

Aug. 16, 1917.

Syllabus by the Court.

Where findings of trial court are made from transcript of evidence contained in report of referee, the same will be reviewed on appeal to determine whether they are supported by a preponderance of the evidence.

The right to perpetually receive water from a certain canal constitutes an easement in the canal.

A covenant by an irrigation company to permanently maintain a canal and the flow of water therein is a covenant running with the land, and not a personal covenant; and, upon a conveyance of the canal to another, the covenantor is released from further liability upon the covenant.

Appeal from District Court, Eddy County; McClure, Judge.

Action by Richard J. Bolles against the Pecos Irrigation Company. Decree for plaintiff, and defendant appeals. Reversed and remanded, with instructions to enter judgment for defendant.

Right to perpetually receive water from irrigation canal constitutes an easement in the canal.

Bujac & Brice, of Carlsbad, for appellant.

James M. Dye and R. C. Reid, both of Roswell, for appellee.

PARKER, J.

This is an action brought in the district court of Eddy county by Richard J. Bolles, appellee, against the appellant, Pecos Irrigation Company, a corporation, to recover $13,200 damages for alleged breach of covenant. From a decree in favor of appellee, the appellant has appealed.

The complaint contained six separate counts, and proceeded upon the theory that the appellant has assumed the performance of certain contracts made and entered into between the predecessors in title of both of the parties to this action. Those contracts provided, in substance, that appellant's predecessor in title, in consideration of the payment to it of $10, plus an annual rental charge, per acre, would furnish and deliver a stated quantity of water from its Southern Canal to the land of appellee's predecessor in title, and would permanently maintain the said canal and the flow of water therein. The complaint alleged that the appellant acquired all the right, title, and interest of the former owner of said canal and the irrigation system of which it was a part; assumed to carry out the terms of said contracts and had performed the obligation thereof until the 2d day of October, 1904, when it failed, neglected, and refused to furnish said water to appellee and his land, and then and there failed and continually since has failed to permanently maintain said canal and the flow of water therein. It also alleged that the failure of the appellant to furnish and deliver water to appellee for the irrigation season of 1905 and 1906 made it necessary for the latter to purchase water rights elsewhere, and then prayed damages equivalent to the sum paid for the so-called water rights by appellee's predecessor in title, which in the aggregate amounted to $13,200.

The appellant filed an answer of some length. It denied the assumption of such contracts by it, but admitted that it furnished water in pursuance thereof; denied any breach of contract on its part; alleged that a flood of unprecedented volume occurred in the Pecos river on October 2, 1904, which destroyed its Avalon dam and otherwise injured the irrigation system to such an extent that it was temporarily unable to furnish water to appellee and other water users under said system. It alleged that the said flood and the damage consequent thereon were unforeseen, and an act of God, which excused it from temporary performance under a provision of the contracts referred to in the answer. It also alleged, with some elaboration, that immediately after said flood and the destruction of its dam and other works, the appellant began to make preparations for the restoration of the irrigation plant and would have repaired the same and then have been in a position to fulfill the terms of said contracts but for the action of appellee in participating in a scheme looking to the sale and transfer of said property to the United States under the Reclamation Act of Congress; that the appellee became a member of the Pecos Water Users' Association, a corporation formed in pursuance of the requirements of the said Reclamation Act, and was instrumental in consummating, with the assistance of other water users and the appellant, a sale to the United States of said irrigation system. Under these and additional facts too numerous to mention in detail here, the appellant claimed that appellee was estopped from asserting that appellant had abandoned its irrigation system and the said Southern Canal and had breached its contracts in that respect.

The cause was referred to a referee with instructions to make “findings of fact and law” and report same to the court. The referee, after trial, made his findings of fact and conclusions of law and reported the same to the court. Among other things, he found that the proximate cause of the damage done to the Avalon dam in 1904 was the flood, without negligence on the part of appellant, and, consequently, under a provision of said contracts, appellant was temporarily excused from performance of the obligation to furnish and deliver water to appellee; that after the destruction of said dam the appellant diligently proceeded to construct a temporary dam so that water might be delivered for the irrigation season of 1905; that this temporary dam was destroyed by a flood on June 2, 1905; that appellant would have furnished and delivered water thereafter from its said irrigation system except for the acts of the appellee and others, which resulted in the sale of the property to the United States. Upon those findings, and others not necessary to mention, the referee concluded, as a matter of law, that appellant had assumed the performance of the covenants contained in the contracts entered into by its and the appellee's predecessors in title; that the flood of October 2, 1904, was an act of God and relieved appellant of temporary performance of the covenants; that the nonperformance of said covenants on the part of appellant was thereafter caused by the acts of the appellee in (1) transferring his property in trust to another, the Pecos Water Users' Association, thereby putting it out of the power of appellant to furnish and deliver said water thereafter to appellee, and (2) in doing the things pleaded in the plea of estoppel.

The trial court, upon exceptions taken by appellee to the findings and conclusions of the referee, set the same aside, as well as the report of the referee, and thereupon entered findings and conclusions favorable to appellee. The trial court concluded that the amended answer of appellant was largely in the nature of confession and avoidance, and stated that its merits depended principally on three things, viz.: (1) Was the appellant negligent in maintaining the dam; (2) was the proximate cause of the destruction of the Avalon dam the act of God or an unforeseen accident; and (3) was the appellee estopped from asserting the claims set forth in the amended complaint. The court stated that it did not agree with the findings and conclusions of the referee after an examination of the pleadings, evidence, and briefs and arguments of counsel, and found that while the flood of 1904 was of unprecedented volume, the dam would have withstood it had it been properly and suitably maintained; that the doctrine of estoppel was not applicable; and that the material allegations of the complaint were sustained by the evidence.

Eighteen errors are assigned by appellant. The argument made under each assignment involves several additional questions of law, but we shall not determine all the questions presented, for the reason that an analysis of the case discloses that a consideration of many such questions is not necessary.

[1] 1. The first question we shall determine is, how far we are bound by the findings of the trial court made under the circumstances in which the findings in this case were made. The court made its findings upon matters of record only. It did not have...