Wyoming Central Irrigation Company v. Burroughs

Decision Date09 May 1911
Docket Number645
Citation115 P. 434,19 Wyo. 176
PartiesWYOMING CENTRAL IRRIGATION COMPANY v. BURROUGHS
CourtWyoming Supreme Court

ERROR to the District Court, Fremont County; HON. CHARLES E CARPENTER, Judge.

The material facts are stated in the opinion.

Affirmed.

E. H Fourt, for plaintiff in error.

The provision of the contract requiring the lessee to irrigate the crops would require him to do so at his own hazard, risk and expense, so that a failure to do so would be cause for forfeiture, except for the proviso that the lessee shall at all times during the term of the lease when necessary have and divert from the ditches two cubic feet of water per second of time. These provisions are found in paragraphs which are separate and distinct; each paragraph setting forth covenants on the part of the lessee. The leased land was allotted Indian land which had been leased by the allottee to the irrigation company. The appurtenances to the land are not specified and there is no showing that water or water right was an appurtenance. In fact there could be no such appurtenance unless the Indian had applied for and received a permit for the use of the water, and there is no evidence that he had done so. Both lessee and lessor were equally interested in having a crop produced, and the lessor had no power to grant a water right, but if the lessee used the laterals in the manner provided in paragraph 5 of the lease it would protect him against forfeiture. If he did not have the water with which to irrigate the land it was not to work a forfeiture. We maintain that this proviso should have been construed to read in effect that the lessee should irrigate the land and crops, and would be relieved from forfeiture if he did not have sufficient water. In other words, if the lessee have the quantity of water mentioned, viz: two cubic feet per second of time, he was required to use it properly to irrigate the crops, and under that condition subject to the penalty and forfeiture.

There is neither allegation nor proof in the case that there was any water right or permit for the use of water secured for the irrigation of the land in question, or that defendant company had any power or control over the water supply for such land. The interpretation of the contract was and is a function of the court. It was error for the court to fail to construe it and submit its construction to the jury. (Dennis v. Bank, 80 P. 764; Warner v. Thompson, 10 P. 110; Bell v. Keeper, 14 P. 542; Drew v. Towle, 30 N.H. 351; Scanlan v. Hodges, 52 F. 354; Bell v. Bruen, 1 How. U.S. 169.) The words "shall have" as used in the contract, have only a prospective application. (In re Scheidel's Est., 57 P. 297; Beard v. Bowman, 9 Peters, 301.) The instructions assume that there was an agreement on the part of the company to supply water, and the jury might have been misled by that assumption into an erroneous construction of the contract. And this is true although the court does not say anything positively about what the real terms of the contract are, nor whether it binds the defendants to anything specifically. The instructions were not only erroneous for the failure of the court to construe the contract, and construe it correctly, but they were prejudicial in that they tended to give the jury an erroneous conception of the contract.

John Dillon, for defendant in error.

The evidence shows that the defendant irrigation company was the owner of an irrigation system and also the lessee of certain Indian lands under their main ditch; that they sub-leased certain of said lands to the plaintiff by a written lease which is a part of the record. By this lease the defendant company agreed to furnish water to the defendant from its ditch with which to irrigate the land, and plaintiff agreed to plant and harvest the crop from said land. The question of the interpretation of this contract by the court seems to us to be immaterial, for it will at once be perceived that the case was tried on the part of the defendant company on the theory that there was an agreement to furnish the water to the plaintiff, and that the question in the case was whether any water at all between certain dates had been furnished to the plaintiff. Evidence was introduced upon this question and by the verdict the jury found that no water was furnished during the period involved. The finding of the jury in that respect must be taken as conclusive for there was abundant evidence to support it. All through the trial the fact that there was an agreement to furnish water was assumed. The defendant company, plaintiff in error here, is estopped, therefore, to complain of the failure of the court to give an instruction construing the lease. It is not a case where the construction of the contract is the basis of the suit. On the contrary the plaintiff in error claimed throughout that it furnished sufficient water to irrigate the land, and that the crop failure was caused by the negligence of the defendant in error in taking advantage of the water that was furnished.

BEARD, CHIEF JUSTICE. SCOTT, J., and POTTER, J., concur.

OPINION

BEARD, CHIEF JUSTICE.

This action was brought by the defendant in error, William N. Burroughs, against the plaintiff in error, Wyoming Central Irrigation Company, to recover damages for an alleged failure of the company to furnish water for the irrigation of certain lands. The cause was tried to a jury which returned a verdict in favor of plaintiff below for $ 286.76, for which sum judgment was rendered in favor of said plaintiff and against said company. The company brings error.

The plaintiff alleged in substance, in his petition, in the District Court, that about March 1, 1908, he leased from the defendant about one hundred acres of land in Fremont County, for the term of one year. That by the terms of the lease defendant was to furnish plaintiff from ditches owned and operated by defendant two cubic feet of water per second of time with which to water said lands when necessary to irrigate...

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3 cases
  • Wolbol v. Steinhoff
    • United States
    • Wyoming Supreme Court
    • November 1, 1917
    ... ... STEINHOFF, ET AL No. 897 Supreme Court of Wyoming November 1, 1917 ... Rehearing Denied 25 ... v. Jensen, ... 20 Wyo. 323; Wyo. Irr. Co. v. Burroughs, 19 Wyo ... 176; C. B. & Q. R. R. Co. v. McPhillamey, ... irrigation work must have been done before that date, and ... most of ... ...
  • Hall Oil Company v. Barquin
    • United States
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    • June 2, 1925
    ... ... v. BARQUIN, ET AL. [ * ] No. 1041 Supreme Court of Wyoming June 2, 1925 ... [237 P. 256] ... Rehearing denied ... 5 Wyo. 153, 38 P. 681; Wyo. Cent. Irr. Co. v ... Burroughs, 19 Wyo. 176, 115 [33 Wyo. 120] P. 434. The ... statute (C. S. 1920, § ... ...
  • Raymond v. National Life Ins. Co.
    • United States
    • Wyoming Supreme Court
    • January 17, 1929
    ... ... CO. [ * ] No. 1524 Supreme Court of Wyoming January 17, 1929 ... Rehearing denied ... Raymond against the National Life Insurance ... Company. There was a judgment for defendant and plaintiff ... decedent's estate. Central Trust Company was without ... authority to accept it, that ... Wyoming Central Irrigation Co. v. Burroughs, (Wyo.) ... 115 P. 435. The question of ... ...

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