Genola Town v. Santaquin City

• Decision Date: 06 July 1938
• Docket Number: 5983
• Court: Utah Supreme Court
• Parties: GENOLA TOWN v. SANTAQUIN CITY et al

80 P.2d 930

96 Utah 88

GENOLA TOWN v. SANTAQUIN CITY et al

No. 5983

Supreme Court of Utah

July 6, 1938

For opinion on rehearing see 96 Utah 104, 85 P.2d 790.

Appeal from District Court, Fourth District, Utah County; Dallas H Young, Judge.

Suit by Genola Town against Santaquin City and others, to compel specific performance of contract for delivery of water. From a judgment for plaintiff, defendants appeal.

AFFIRMED.

Irvine Skeen & Thurman, of Salt Lake City, and George S. Ballif, of Provo, for appellants.

Elias Hansen, of Salt Lake City, and R. W. McMullin, of of Payson for respondent.

WOLFE, Justice. FOLLAND, C. J., and HANSON, MOFFAT, and LARSON, JJ., concur.

OPINION

WOLFE, Justice.

Appeal from a judgment requiring Santaquin City specifically to perform a contract to deliver from its water system a certain amount of water to Genola Town for culinary purposes. Defendants contend, among other things, that: (1) The agreement was so indefinite and uncertain as not to permit of specific performance; (2) that it lacked mutuality of obligation; (3) that it is in violation of the express provisions of Art. 11, Sec. 6, of the Constitution of Utah. It is also contended that the complaint failed to allege the fulfillment of a condition precedent necessary to bind the plaintiff.

We believe the problems presented will be more clearly understood if the reader has in mind a picture of the water system of Santaquin City which forms the background of the agreement and the controversy growing out of it.

Summit Creek flows northerly down Santaquin Canyon. Santaquin Canyon extends back about twelve miles from Santaquin. Summit Creek is fed from the watersheds of Santaquin Canyon and from springs which arise in the canyon and from "little tributary canyons" running from the main canyon easterly and westerly. Santaquin City takes its water from tunnels which sap the water from certain springs and from the bed of the stream and conducts such water down to its headhouse which is its only reservoir. It also picks up from the bed of the river water to the extent of .28 second feet which belongs to the Summit Creek Irrigation Company, carries this water to a dividing weir where it spills over and runs back into the creek channel for use by said company. It was testified that during periods of scarcity the Irrigation Company has rented this .28 second feet of culinary water to the City.

We now transfer our attention to the town of Genola. It is a farming community occupying as a town a far larger and less concentrated area than Santaquin. The extreme southern part of Genola is about a mile and a half from the northwestern corner of Santaquin. The citizens of Genola during its entire existence obtained their culinary water from ditches and from wells which were shared by neighbors and by hauling from Santaquin and Payson. Much of its water is somewhat brackish and muddy. The Town of Genola sold $ 19,500 worth of bonds and with about $ 13,200 of this money derived from the said sale, and aided by the Public Works Administration and the Works Progress Administration, built a waterworks system. It first intended to build a pipe line to the weir box where the .28 second feet belonging to the Summit Creek Irrigation Company is measured. Negotiations were pending between Genola and the Irrigation Company for this water when the Mayor and one of the Councilmen from Santaquin approached the Trustees of the Town of Genola with the idea of connecting up with the City mains at the northwestern corner of Santaquin and thus save 8,000 feet of parallel line and paying to Santaquin the amount of money such line would cost.

Mr. Glen E. Davis, a Trustee of Genola Town, testified that their Trustees were told by the Councilmen of Santaquin that if Genola gained possession of the .28 second feet belonging to the Irrigation Company, Genola might have as much as or more water than Santaquin during extreme drouth. This was because during drouths Santaquin rented this primary water from the Irrigation Company. They were further told that Santaquin would fight them on any attempt to get that water. In consequence it was agreed between the Town of Genola and the City of Santaquin that the former would pay to the latter $ 2500, and $ 30 a year as part of the maintenance costs of the Santaquin lines, together with sixty shares of stock of the Summit Creek Irrigation and Canal Company, and that Santaquin would deliver to Genola at a point on the line of the former 100 gallons of water per minute so long as the supply in Summit Creek exceeds six second feet, and when it falls below that figure, an amount equal to 1/36 of the flow of Summit Creek. By this means it was intended to prevent a line which Genola would have built to parallel that of Santaquin for about 8,000 feet and instead of getting the .28 second feet from the Irrigation Company to give Santaquin 60 shares of the Irrigation Company stock so that the latter might obtain that .28 second feet, and at the same time Santaquin was to get the $ 2500 with which it could repair its lines and prevent waste of culinary water. One "fly in the ointment" seems to be the doubt whether the Irrigation Company can be made to deliver to Santaquin, through the 60 shares the latter was to receive, a continuous flow of the .28 second feet. This for the reason that the .28 second feet goes back into the Irrigation Company's ditch and becomes part of its total waters which are rotated among its stockholders. This doubt is reflected in the last paragraph of the agreement which we shall hereafter quote. The contract was executed on August 18th, 1936. Genola started work on September 17, 1936. In the latter part of September, 1936, there was a mass meeting in Santaquin at which objections were made by certain citizens. Many of the citizens of Santaquin were stockholders and users of the irrigation water of the Summit Creek Irrigation Company. There is some evidence that the Irrigation Company has not sufficient water now to serve all-its water users. At all events, Summit Creek Irrigation Company advised that they would not deliver any water continuously, but Genola went ahead with the project. It spent $ 45,000 in construction of the pipe line and reservoir and will be compelled to expend further sums before the waterworks is completed.

On June 11, 1937, Genola tendered Santaquin $ 2500 and 60 shares of stock in the Summit Creek Irrigation and Canal Company (for which stock it had paid $ 3050 from the proceeds of the $ 19,500 bonds sold) and demanded from Santaquin that the water provided for in the contract be turned into the waterworks system of Genola. On June 14th, Genola received a letter stating that the Council of Santaquin refused to accept the water stock and the $ 2500 and refused to deliver the water specified in the contract. On June 28, 1937, a complaint was filed to compel Santaquin specifically to perform its contract. Santaquin demurred, which was overruled, and such ruling is assigned as error.

The demurrer was on the several grounds, first, that the agreement sought to be enforced was indefinite and uncertain. It is unnecessary to set out the agreement in full. The agreement is not indefinite and uncertain. It states very definitely that the Summit Creek Irrigation Company has a .28 second feet in the Santaquin pipe line system. There is no doubt cast on the present ownership of that water. Moreover the obligation of Santaquin under the contract to deliver water to Genola does not depend on whether it or the company owns the .28 second feet, nor on whether, if the company owns it, Santaquin acquires ownership of such water, nor whether it may compel the company to give it a continuous flow of that amount. The obligation of Santaquin is not conditional, but absolute. As to whether the agreement is indefinite in that it is doubtful whether it provides for a sale or exchange of water, such will be considered when we take up the main question of the constitutionality of this agreement. It is very definite that water must be delivered by Santaquin to Genola; no indefiniteness as to whether Santaquin or the Irrigation Company must deliver it. We find no indefiniteness regarding whether the agreement contemplates a lease of the waters or waterworks system to the Town of Genola. It is clearly not a lease of the waterworks system. Santaquin is carrying her own water and delivering it to Genola. The $ 30 per year which Genola is to contribute toward the maintenance of the Santaquin System is part of the consideration for receiving the water. We must not be caught in the mesh of words or terms. The evidence shows that for this water delivered to Genola, it was willing to pay $ 2500 in one lump sum and $ 30 per year to Santaquin, together with the 60 shares of stock in the Irrigation Company. If Genola had built its line to the measuring weir and obtained the .28 second feet from the Irrigation Company, it would have had to spend about $ 2500 and would have had to maintain that pipe line. It was willing to give 60 shares of stock to Santaquin by which it was hoped to provide Santaquin with a continuous flow from this .28 second feet for the latter's system and provide the latter with $ 2500 to repair its pipe line and $ 30 toward annual maintenance. As far as Genola was concerned it would have made little difference if it spent $ 2500 to build a parallel line to that of Santaquin to procure the Irrigation Company's water or whether it put in Santaquin's possession some means (the stock) whereby that city could obtain that same water and then have Santaquin deliver to Genola from the pipe line of the former approximately the water it would have received had it built to the weir and purchased the water...