Ricker v. Twin Falls North Side Land & Water Co.

• Decision Date: 08 May 1924
• Citation: 226 P. 167,39 Idaho 93
• Court: Idaho Supreme Court
• Parties: F. K. RICKER, Appellant, v. TWIN FALLS NORTH SIDE LAND & WATER COMPANY, a Corporation, Respondent

226 P. 167

39 Idaho 93

F. K. RICKER, Appellant, v. TWIN FALLS NORTH SIDE LAND & WATER COMPANY, a Corporation, Respondent

Supreme Court of Idaho

May 8, 1924

WATERS AND WATERCOURSES - IRRIGATION-CANAL SYSTEM-CONTRACT FOR WATER - PERFORMANCE - EXTENT OF LIABILITY OF CONSTRUCTION COMPANY-MAKING WATER AVAILABLE-CONVEYING WATER TO LAND.

1. Under a contract for the construction of a gravity irrigation system water is made available, in compliance with a provision that the company would construct the canal system so that water conducted through the same might be available at a point not to exceed one-half mile, measured in a direct line, from each quarter-section of the land to be irrigated when it has been conducted to a sufficiently high point, not to exceed one-half mile from the quarter-section embracing the lands to be supplied with water, and there placed at the disposal of the land owner, that it may be conducted to and upon the lands to be served.

2. Under a provision of a contract for the construction of a gravity irrigation system, making it incumbent upon the construction company to construct the canal system so that water may be available at a point not to exceed one-half mile, measured in a direct line, from each quarter-section of land to be irrigated, the construction company cannot be held for any portion of the expense of conducting the water from such point to the lands to be irrigated.

APPEAL from the District Court of the Fourth Judicial District, for Gooding County. Hon. H. F. Ensign, Judge.

Action for damages for breach of contract to deliver water for irrigation. Judgment for defendant. Affirmed.

Judgment affirmed. Costs to respondent.

James &amp Ryan, for Appellant.

"The court in construing the terms of a contract and the law applicable thereto will take into consideration the conditions and circumstances under which the parties were contracting, and construe their contract in the light thereof." (Schurger v. Moorman, 20 Idaho 98 117 P. 122.)

The contract should be given a reasonable construction. The word "available" in the contract means obtainable in a practical sense. (9 Cyc. 587.)

"Available" means easy of access and usefulness for the purpose intended. Adaptable for the purpose for which intended; having sufficient force or efficacy and effectual for the object intended. (Simpson v. United States, 31 Court of Claims (U.S.), 217; Pittsburgh Co. v. Broderick, 56 Ind.App. 58, 102 N.E. 887.)

Water will not be deemed to be available unless placed at a point not to exceed one-half mile by ditch line from which the water will flow by gravity upon the land irrigated. (Rule 10 of the Idaho State Board of Land Commissioners; Collins v. Twin Falls N. S. L. & W. Co., 28 Idaho 1, 152 P. 200.)

E. A. Walters and R. P. Parry, for Respondent.

The word "available," as used in paragraph 11 of the state contract, means that the defendant company must place the water in a canal within the half-mile limit mentioned, at such a grade that the same will flow by gravity to and upon the lands to be irrigated.

The legal obligation of the defendant company did not extend further than putting the level of the water at a proper grade at or within the half-mile point.

After the water is taken into a service ditch from a main or subordinate lateral by irrigators, the construction company has no further control over it. (Collins v. Twin Falls North Side Land & Water Co., 28 Idaho 1, 152 P. 200.)

WM. E. LEE, J. McCarthy, C. J., and William A. Lee, J., concur.

OPINION

WM. E. LEE, J.

--In 1907, the state of Idaho, through its land board, entered into a contract with respondent providing for the construction of what is known as a Carey Act irrigation system on the north side of the Snake River, in what is now Lincoln and Gooding counties. One of the provisions of that contract, which is the basis of this action, provided:

"The party of the second part (respondent) agrees to construct said canal system so that water conducted through the same may be available at a point not to exceed one-half mile, measured in a direct line, from each quarter section of land herein described and to be irrigated and reclaimed by water conducted through said canals."

The lands here concerned are described as the southwest quarter of section 29, township 7 south, range 15 east of the Boise meridian, the east half of which was owned by one Ward when this action was commenced, while the west half was owned by appellant Ricker. The trial court found that some of the lands are rough and rolling in character, and that flumes dikes, siphons, pipe-lines and other irrigational devices than ordinary open surface irrigation ditches have been constructed and are commonly used by the settlers on the project. A portion of the lands of both Ricker and Ward is capable of irrigation, by ordinary surface ditches, from lateral W-26, which extends through the south forties of both Ricker and Ward. Due to the contour of the ground, however, it was not possible to irrigate approximately 50 acres of the quarter-section, some of which lies in each forty thereof, without the construction of a flume, dike, siphon or some other means of bringing the water to the high point on the 160 acres, across a depression from lateral W-33, which is less than one-half mile from the quarter-section. There is no question, however, that lateral W-33 is sufficiently high for water to flow by gravity therefrom to and upon the highest point on the 160 acres. In order to bring water from lateral W-33 to the highest point on the 160-acre tract, Ricker and Ward constructed an underground siphon and a dike from lateral W-33, through certain lands...