Tapper v. Idaho Irrigation Co., Ltd.

• Court: Idaho Supreme Court
• Writing for the Court: DUNN, J.
• Citation: Tapper v. Idaho Irrigation Co., Ltd., 210 P. 591, 36 Idaho 78 (Idaho 1922)
• Decision Date: 01 June 1922
• Parties: W. J. TAPPER and S. B. HOPKINS, Appellants, v. IDAHO IRRIGATION COMPANY, LIMITED, Respondent

210 P. 591

36 Idaho 78

W. J. TAPPER and S. B. HOPKINS, Appellants, v. IDAHO IRRIGATION COMPANY, LIMITED, Respondent

Supreme Court of Idaho

June 1, 1922

CONTRACT - INTENTION OF PARTIES - CAREY ACT COMPANY - WATER SUPPLY.

1. The intention of the parties is to be deduced from the language employed by them, and the terms of the contract, where unambiguous, are conclusive, in the absence of averment and proof of mistake, the question being, not what intention existed in the minds of the parties, but what intention is expressed by the language used. When a written contract is clear and unequivocal, its meaning must be determined by its contents alone; and a meaning cannot be given it other than that expressed. Hence words cannot be read into a contract which import an intent wholly unexpressed when the contract was executed. Where the contract evidences care in its preparation, it will be presumed that its words were employed deliberately and with intention.

2. A Carey Act company will be held to the performance of its contract to deliver to a purchaser the water provided for by the contract, or respond in damages for its default in this regard, unless such performance is shown to have been excused.

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

Action for damages. From judgment for defendant, plaintiffs appeal. Reversed.

Judgment reversed, with costs to appellants.

Harlan D. Heist and Hawley & Hawley, for Appellant.

Under the contracts between the plaintiffs and the defendant the plaintiffs were entitled to receive the amount of water necessary to grow crops up to one-eightieth of a cubic foot per second of time per acre. (State v. Twin Falls Salmon River Land & Water Co., 30 Idaho 41, 166 P. 220; Caldwell v. Twin Falls Salmon River Land & Water Co., 225 F. 584; Twin Falls Salmon River Land &amp Water Co. v. Caldwell, 242 F. 177, 155 C. C. A. 17; State v. Twin Falls etc. Water Co., 30 Idaho 41, 166 P. 220; Childs v. Neitzel, 26 Idaho 116, 141 P. 238; Continental & Com. T. & S. Bank v. McCarty, 188 F 273; Christian v. First Nat. Bank, 155 F. 705; Mt. Vernon Ref. Co. v. Fred W. Wolfe Co., 188 F. 164; 13 C. J. 544; sec. 2948, C. S.)

The fact that there was a drought is no defense to this action. The contracts did not provide the drought would excuse defendant. (The Northern Irr. Co. v. Watkins (Tex. Civ.), 183 S.W. 431; 6 R. C. L. 997, par. 364; Northern Irr. Co. v. Dodd (Tex. Civ.), 162 S.W. 946; Anderson v. Adams, 43 Ore. 621, 74 P. 215; Berg v. Erickson, 234 F. 817, L. R. A. 1917A, 648; Trenton Public Schools v. Bennett, 27 N.J.L. 513, 72 Am. Dec. 373; 13 C. J. 641; Poradine v. Jane, 82 Eng. Reprint, 897; School District v. Dauchy, 25 Conn. 530, 68 Am. Dec. 371; Summers v. Hibbard, 153 Ill. 102, 46 Am. St. 872, 38 N.E. 899; Oakland Electric Co. v. Union Gas & E. Co., 107 Me. 279, 78 A. 288; Middlesex Water Co. v. Knappmann Whiting Co., 64 N.J.L. 240, 81 Am. St. 467, 45 A. 692, 49 L. R. A. 572; Jones v. United States, 96 U.S. 24, 24 L.Ed. 644; Jacksonville M. P. R. Co. v. Hooper, 160 U.S. 514, 16 S.Ct. 379, 40 L.Ed. 515; Meriweather v. Lowndes County, 89 Ala. 362, 7 So. 198; Hoy v. Holt, 91 Pa. 88, 36 Am. Rep. 659.)

The plaintiff in preparing for the planting of crops in 1915 had a right to rely on the statements of the defendant's officers as to the water supply. A written contract can be modified by subsequent verbal agreement. (3 Elliott on Contracts, p. 6, par. 1861.)

It was error to inform the jury that the company was not liable for any statements made by defendant's officers to the plaintiffs because defendant was estopped by the representations of its agent. (Groefsema v. Mountain Home Co-op. Irr. Co., 33 Idaho 86, 190 P. 356; Hanes v. Idaho Irr. Co., 21 Idaho 512, 122 P. 859; 2 Kinney on Irrigation, p. 2033; Arthur Irr. Co. v. Strayer, 50 Colo. 371, 115 P. 724.)

Walters, Hodgin & Bailey and R. P. Parry, for Respondent.

The respondent in its capacity as controller of the operating company, during 1915, owed appellants as shareholders therein no other duty than to deliver to them their proportionate share of the available water, without negligence. (Gerber v. Nampa & Meridian Irr. Dist., 16 Idaho 1, 100 P. 80; Berg v. Yakima Val. Can. Co., 83 Wash. 451, 145 P. 619; Young v. Extension Ditch Co., 28 Idaho 775, 156 P. 917; Jackson v. Indian Creek etc. Co., 16 Idaho 430, 101 P. 814; Stuart v. Davis, 25 Colo. App. 568, 139 P. 577; McNair v. Imperial Water Co. No. 8, 155 Cal. 373, 103 P. 207; Booth v. Chapman, 59 Cal. 149; San Joaquin & K. etc. Co. v. Stanislaus, 191 F. 875; Imperial Water Co. No. 5 v. Holabird, 197 F. 4; O'Connor v. North Truckee Ditch Co., 17 Nev. 245, 30 P. 882; Rocky Ford Can. etc. Co. v. Simpson, 5 Colo. App. 30, 36 P. 638; Mountain Supply Ditch Co. v. Lindekugel, 24 Colo. App. 100, 131 P. 789; Lassen Irr. Co. v. Long, 157 Cal. 94, 106 P. 409; sec. 5654, C. S.; Twin Falls, Oakley etc. Co. v. Martens, 271 F. 428; Twin Falls Salmon etc. Co. v. Caldwell, 225 F. 593.)

Appellants' contract rights could not be altered or enlarged by the casual conversation between one of the appellants and respondent's general manager. (6 R. C. L. 914, 916, cases cited; W. T. Rawleigh v. Van Duyn, 32 Idaho 767, 188 P. 945.)

The failure of the water supply occasioned solely by a drought on the watershed of the streams supplying respondent's project is a complete defense to this action. (6 R. C. L. 1005, and cases cited; 9 Cyc. 361; Taylor v. Caldwell, 3 Best & S. 826; 122 Eng. Reprint, 309; 6 Eng. Rul. Cas. 603; 12 A. L. R. 1275, 1276; The Tornado (Ellis v. Atlantic Mutual Ins. Co.), 108 U.S. 342, 2 S.Ct. 746, 27 L.Ed. 747; The Claveresk, 264 F. 276; J. S. Potts Drug Co. v. Benedict, 156 Cal. 322, 104 P. 432; Ontario etc. Growers' Assn. v. Cutting Fruit Packing Co., 134 Cal. 21, 66 P. 28; Ward v. Vance, 93 Pa. 499; Elliott on Contracts, sec. 1910, Siegel, Cooper & Co. v. Eaton & Prince Co., 165 Ill. 550, 46 N.E. 449; Bruce v. Indiana Gas Co., 46 Ind.App. 193, 92 N.E. 189; Pengra v. Wheeler, 24 Ore. 532, 34 P. 354, 21 L. R. A. 726; Hunter Canal Co. v. Robertson, 113 La. 833, 37 So. 771.)

W. G. Bissell, Amicus Curiae.

DUNN, J. Budge, J., McCarthy, J., concurring. RICE, C. J., concurring in the result.

OPINION

DUNN, J.

This action was brought by appellants for damages for failure of respondent to furnish water during the season of 1915 for irrigating certain lands, owned by appellants, according to contracts existing between the parties to this action. Respondent is a corporation organized for the purpose of constructing an irrigation system and providing water for the reclamation of lands in Blaine and Lincoln counties under what is commonly known as the Carey Act, and appellants are holders of four contracts entered into between the respondent on the one hand and appellants and their predecessors in interest on the other. The case was tried before a jury and a verdict returned in favor of respondents. From the judgment entered upon said verdict this appeal was taken. Numerous errors are assigned by appellants but we think the case may be disposed of in this court by a determination of one question, or possibly two.

Five segregations of land have been made under the contract between the respondent and the state of Idaho numbered respectively 9, 10, 11, 12 and 22. The land contracts involved in this action were made under what is known as the first segregation, list No. 9; but it is conceded by both parties that the contracts entered into between respondent and the state of Idaho as to lists 9, 10, 11 and 12 and the individual contracts involved herein are to be considered and construed as one contract. Subsequent to the making of the contracts covering the lands embraced in lists 9, 10, 11 and 12 respondent entered into what is called a supplemental contract with regard to lands embraced in list No. 22. It is urged by appellants that the right of the respondent to distribute water to settlers on the lands embraced in list 22 on an equal footing with those upon lands embraced in the other four lists can be and ought to be adjudicated in this action. This question cannot be determined in this action for the reason that this issue is not presented by the pleadings herein, and for the further reason that if such issue were presented by the pleadings, not all of the parties necessary to a full determination of this question are before the court.

The sole question to be determined is whether respondent bound itself to deliver the specific amount of water set out in the contracts, viz., one-eightieth of a cubic foot of water per second per acre during the irrigating season, so that in case of its default in this regard it can be held to respond in damages. The contention of appellants is that the contracts must be so interpreted, while the contention of respondent is that respondent bound itself only to deliver to appellants their proportionate part of the water that could be supplied from its appropriation in Big Wood River and Malad River, so that in case of shortage in the supply due to drought or to other natural causes its contract would be fulfilled if appellants received their fair proportion of the available water supply.

Respondent further contends that during the year 1919, when the alleged damage occurred, it was acting simply in the place of the holding and operating company, The Big Wood River Reservoir and Canal Company, and that it had no responsibility with regard to the water supply except to equitably distribute it among the land owners. The contract between the respondent and the state of Idaho, entered into on the 8th day of May, 1907, which covered the lands embraced in list No. 9, contained the following provisions:

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