Gard v. Thompson

• Decision Date: 18 March 1912
• Citation: Gard v. Thompson, 21 Idaho 485, 123 P. 497 (Idaho 1912)
• Parties: H. R. GARD, Respondent, v. G. W. THOMPSON et al., Appellants
• Court: Idaho Supreme Court

123 P. 497

21 Idaho 485

H. R. GARD, Respondent, v. G. W. THOMPSON et al., Appellants

Supreme Court of Idaho

March 18, 1912

WATER RIGHTS-OPTION TO PURCHASE-DEMURRERS-SUFFICIENCY OF EVIDENCE - PERMITS-STATE ENGINEER - IRRIGATION PROJECT-PRACTICABILITY-RIGHT TO DETERMINE-INSTRUCTIONS.

(Syllabus by the court.)

1. Held, that the court did not err in overruling the demurrers to the amended complaint.

2. Where G. entered into an agreement with T. B. & P., whereby he gave an option to purchase certain water rights, and it was provided that T. B. & P. should investigate the water supply and the practicability of such project, and if they should find such project practicable they would pay to G $5,000 in cash and a paid-up water right for eighty acres of land, held, that said contract was an option and T. B. & P had the absolute right to determine the sufficiency of the water supply and the practicability of the project, and that they did determine that said project was not practicable and so notified G. and thus terminated said option agreement.

3. Held, that the evidence is not sufficient to show that by engaging in another irrigation project T. B. & P. did thereby conclude that the G. project was practicable and became liable for the purchase price of said water rights.

4. The state engineer, by granting a subsequent water permit, cannot interfere in any manner with vested rights of former permit-holders.

5. A water right is real estate and must be conveyed as real estate, and where one has a valid water permit issued to him by the state engineer, he cannot convey the water right secured thereby by simply handing the permit to a would-be purchaser.

6. The evidence held not sufficient to support the verdict.

7. The giving of certain instructions held error.

8. Under said option agreement, in case T. B. & P. failed to comply with their part of the agreement a forfeiture is provided for, and this action was brought to enforce said forfeiture, and, in case a forfeiture could not be adjudged to recover damages that the plaintiff alleged he had sustained, and not to recover the purchase price of the water rights of plaintiff.

9. Under the provisions of said option agreement, in case T. B & P. found said project practicable and accepted said option, they agreed to pay the respondent $5,000 in cash and to deliver to him a paid-up water right for eighty acres of land. Such water right was not due, had said parties accepted the option, until the proposed irrigation system had been constructed, and as such system had not been constructed at the date of the trial, the plaintiff was not entitled, under the pleadings, to judgment for its value.

APPEAL from the District Court of the Fourth Judicial District for Elmore County. Hon. C. O. Stockslager, Judge.

Action to enforce a forfeiture and in case a forfeiture could not be had, to recover damages. Judgment for plaintiff. Reversed.

B. S. Crow, and J. H. Peterson, for Appellants.

An option is a unilateral agreement binding one party but not binding the other until its terms are accepted and the other party signifies his intention to be bound thereunder. ( Sizer v. Clark, 116 Wis. 534, 93 N.W. 539; Hopwood v. McCausland, 120 Iowa 218, 94 N.W. 469, 470; Hanly v. Watterson, 39 W.Va. 214, 19 S.E. 536; Litz v. Goosling, 93 Ky. 185, 19 S.W. 527, 21 L. R. A. 127; Ide v. Leiser, 10 Mont. 5, 24 Am. St. 17, 24 P. 695; Wescott v. Mitchell, 95 Me. 377, 50 A. 21.)

There is at least as much to indicate that it is an option as to indicate that it is a contract of purchase and sale. Such being the case, the contract is so indefinite that its terms cannot be enforced. It contains a patent ambiguity and is void for intrinsic indefiniteness. (4 Wigmore on Evidence, pars. 2404, 1 b, 2407.)

Under the decisions of this court a written conveyance would have been necessary to transfer the title of Gard's water rights. (McGinness v. Stanfield, 6 Idaho 372, 55 P. 1020.)

No man should be permitted to recover the purchase price for land unless he has either conveyed such land or offered to convey at the time of trial. (2 Sutherland on Damages, 3d ed., c. 13, secs. 567-577.)

Karl Paine, E. M. Wolfe, and L. B. Green, for Respondent.

Gard was not required to tender appellants a deed when he demanded payment of the amount due him in money under Exhibit "A." The appellants could not have demanded a deed until they were ready, able and willing to perform by paying the whole of the purchase price. (Donovan v. Hanauer, 32 Utah 317, 90 P. 569.)

After the appellants had repudiated the agreement, it was useless to tender a deed, and the law did not require plaintiff to do a useless thing. (Palmer v. Clark, 52 Wash. 345, 100 P. 749; 9 Cyc. 641, 724.)

It was useless to demand a water right because the appellants had repudiated the agreement; also because that portion of the purchase price was not due. (Blair v. Wilkerson Coal & Coke Co., 54 Wash. 334, 103 P. 18.)

Since it was impossible to say when a delivery of the water right for plaintiff's land would be due, it was necessary to fix the damages as of the date of the breach of the contract; that is, as of the date of the renunciation and repudiation of the contract, which was in February, 1910. (Kadish v. Young, 108 Ill. 170, 43 Am. Rep. 584.)

Under the agreement, the pleadings and the evidence, it was clearly the duty of Peterson to transfer to Gard all water rights acquired in his name and the agreement could not have been terminated in any other way. (Caldwell v. Ruddy, 2 Idaho 7 (1), 1 P. 339; Bowman v. Ayres, 2 Idaho 470 (431), 21 P. 405.)

SULLIVAN, J. Stewart, C. J., and Ailshie, J., concur.

OPINION

SULLIVAN, J.

This action was commenced against defendants G. W. Thompson, L. G. Bradley, J. H. Peterson, Charles H. Hammett, King's Hill Extension Irrigation Company, Limited, a corporation, and Medbury Water Company, a corporation, on a written option given by the respondent Gard to the defendants Thompson, Bradley and Peterson, to purchase all of the water rights and water claims represented by two permits, each including twenty second-feet per minute of time of the waters of certain creeks in Elmore county, which the respondent had procured from the state engineer.

Demurrers were filed to the amended complaint, on which this action was tried, which will be referred to hereafter as the complaint, and overruled by the court. The issues as made by the pleadings were tried by the court with a jury. However, during the trial the action was dismissed as to Hammett, the King's Hill Extension Irrigation Co. and the Medbury Water Co., and at the close of the trial the jury brought in the following verdict:

"We, the jury in the above-entitled cause find for the plaintiff and against the defendants, Thompson, Bradley and Peterson, and assess plaintiff's damages as follows:

Value of water right

$ 5,200.00

Balance due plaintiff

4,782.50

Total

$ 9,982.50

With interest at 7 per cent

873.47

$ 10,855.97

"L. J. WEAVER,

"Foreman."

A judgment was entered in accordance with the verdict and motion for a new trial was denied. The appeal is from the judgment and order denying the new trial.

The option contract on which this action is based is as follows:

"EXHIBIT A.

"This agreement made and entered into this eighth day of February 1909, between H. R. Gard of Boise, party of the first part, and G. W. Thompson, L. G. Bradley and J. H. Peterson, parties of the second part:

"WITNESSETH, That for and in consideration of the sum of one dollar, in hand paid, the receipt whereof is hereby acknowledged, and for other good and valuable considerations and for the efforts of the above-named second parties to organize and put into operation an irrigation system in Elmore county, Idaho, in which said Gard is an interested party, the said party of the first part hereby give and grant to the said second parties an option for the period of six months on all the water rights and water claims of every nature whatsoever, which the said first party may at this time own or hold in the following creeks in Elmore county, Idaho, to wit: Bennett Creek, Cold Springs Creek, Alkali Creek, Little Canyon Creek, and Dry Creek.

"It is understood and agreed by and between the parties hereto that this option may be extended beyond the period above named, for such time as will enable said second parties to thoroughly investigate the lands under the above described creeks; and the advisability of the water supply, and to determine and secure a reservoir site, if such plan is deemed advisable.

"If at the expiration of the said six months or at the expiration of such further time as may be needed as above specified, to thoroughly investigate said project, not to exceed 12 months in all, the above second parties find the project practicable, they agree to pay to the said first party, or his heirs or assigns, the sum of five thousand dollars ($ 5,000), and a paid up water right for eighty acres of land, described as follows; to wit, S.E. one-fourth of S.W. one-fourth of Sec. 29, and N.E. one-fourth of N. W. one-fourth, of Sec. 32, Tp. 5, S., R. 9., E. B. M.

"The said sum to be paid on or before twelve months from the date hereof, and said water right conveyed to the first party as soon as water can be delivered to and on said land from the proposed system, or any part thereof.

"It is further agreed that if at the expiration of the said six months period or such further time as may be necessary to investigate the said project as above set out, the parties of the second part deem the project impracticable and desire to abandon the same, they may terminate this option by giving notice thereof to said first party or his heirs or assigns and at the expiration...