Wyoming Irrigation Company v. Yarnell

• Decision Date: 06 March 1924
• Docket Number: 1187
• Citation: 223 P. 332,31 Wyo. 120
• Parties: WYOMING IRRIGATION COMPANY v. YARNELL, ET AL
• Court: Wyoming Supreme Court

223 P. 332

31 Wyo. 120

WYOMING IRRIGATION COMPANY v. YARNELL, ET AL

No. 1187

Supreme Court of Wyoming

March 6, 1924

APPEAL from District Court, Big Horn County, PERCY W. METZ, Judge.

Action by Wyoming Irrigation Company, against E. E. Yarnell and others to recover ditch maintenance charges. There was a judgment for plaintiff and defendants appeal.

Affirmed.

Brome &amp Hyde for Appellants.

The Court erred in finding that defendants were chargeable with maintenance after May 1st, 1919, according to their proportionate interests; the court did not find the proportionate shares of defendants; under the contract of March 1909, defendants are not liable for the cost of maintenance at all; nothing in the contract requires them to pay maintenance charges, 13 C. J. 524-525; Phillips v Hamilton, 17 Wyo. 41; the contract is clear in terms and does not require interpretation, Imp. Co. v. Surety Co., 89 N.E. 374; Phila. Co. v. Trimble, 10 Wall. 367; Russell v. Young, 94 F. 45; the rule of construction is elementary and applies here.

R. B West and Edward H. Ellis for Respondent.

Appellants' brief does not touch upon the management of the Shell Canal; the contract places the management of the canal in the parties of the second part; appellants' brief is confined to the second issue, to-wit: the duty of owners of rights through the McDonald ditch; the agreement alleged in the reply wherein respondent prior to May 1st, 1919 entered into an agrement with owners of rights through the Shell Canal, to pay maintenance charges after May 1st, 1919; courts will ascertain if possible the intent of parties to the contract, 13 C. J. 521-23. 542-544; the contract must be construed as a whole, 13 C. J. 525-28; ditches must be maintained, in order to carry water; prior to this contract, maintenance obligations rested upon the owners of land irrigated from the ditch; the object of the contract was to provide for an enlargement of the ditch; as a consideration, party of the second part, agreed to maintain the ditch free of cost to parties of the first part, for ten years; no express provision is made in the contract for maintenance after ten years; in order to impose maintenance obligations upon respondent after the ten year period, it will be necessary to read into the contract covenants that are not there; prior to the contract land owners maintained the McDonald ditch; in the contract providing for its enlargement and change of name to Shell Canal, respondent assumed the maintenance thereof, for ten years; after the ten year period there is an implied covenant to maintain the ditch at joint expense of the parties, 13 C. J. 558; Phillips v. Hamilton, 17 Wyo. 41; Noon v. Minoriski, 108 P. 1069; Cummings v. Nielson, 129 P. 619, 13 C. J. 585; in making a provision that no change can be made for maintenance for a ten year period, the parties intended to agree that such a change should be made after ten years, and that reasonable charges should be fixed; this was in fact agreed upon between the parties at a subsequent meeting; after the McDonald ditch became merged in the Shell Canal it became a partnership ditch, requiring each partner to pay his pro rata share of maintenance, Wyo. Comp. Stats. Chap. 72; the decision of the trial court is sustained by the evidence.

BURGESS, District Judge. POTTER, Ch. J., and KIMBALL, J., concur.

OPINION

BURGESS, District Judge.

This is a case brought here by direct appeal from the District Court of Big Horn County to review a judgment of that Court holding the defendants below, appellants here, liable for their proportionate part of the expense of the maintenance and operation of a ditch known as the McDonald Ditch.

The correctness of the decree below depends upon the construction to be given the following contract (omitting certain formal and immaterial parts):

"THIS AGREEMENT made this 13th day of March, 1909, by and between The McDonald Ditch Company, a co-partnership composed of the following parties, to-wit:

A. H. Earley and Emma Earley, his wife, W. W. Stevens, and Martha Stevens, his wife, Charles L. Owen and Geneva E. Owen, his wife, W. C. Cropsey and Rose H. Cropsey, his wife, H. T. Harris and Cornelia B. Harris, his wife, F. L. Kirkpatrick and Ardena A. Kirkpatrick, his wife, H. K. Sweney and Annie L. Sweney, his wife, W. T. Whaley, F. L. Reeves, Leonard Fliehmann, I. D. Schenck and Flora M. Schenck, his wife, David Flockhart, G. A. Harris and Myrtle M. Harris, his wife, W. A. Cowan and Goldie Cowan, his wife, parties of the first part and the Wyoming Land and Irrigation Company, a corporation duly organized under and by virtue of the laws of the State of Wyoming, party of the second part.

WITNESSETH: That for and in consideration of the covenants hereinafter mentioned and the sum of One Dollar each to the other in hand paid, receipt of which is hereby especially acknowledged, the parties hereto do hereby contract as follows:

1st. The parties of the first part hereto do hereby each one for himself and herself respectively and as co-partners of the McDonald Ditch Company consent to the enlargement of the so called McDonald Ditch from its present size to sixteen (16) feet on the bottom and Twenty-five (25) feet on the top, this enlargement to begin at the head-gate and extend until the canal lines of the party of the second part begin.

2nd. It is hereby agreed between all the parties hereto that the carrying capacity of said ditch shall be sufficient to carry four (4) feet of water in the ditch to where said party's of the second part main canal begins and leaves said McDonald Ditch.

3rd. The parties of the first part do hereby grant and convey without cost or damage to the party of the second part, their successors and assigns, all necessary right of way across their individual land for the enlargement of said McDonald Ditch, hereby waiving all homestead rights and any and all other rights of the respective parties in and to all the real estate necessary for the construction and maintenance of said ditch as herein contemplated and as more fully shown and described on map hereto attached and marked "Exhibit A" and made a part of this agreement and said map shall be approved by writing on said map as follows, the words 'approved this___day of___ A. D. 1908' and signed, P. M. Galligher, engineer for the parties of the first part and F. C. Emerson, engineer for the party of the second part. It being fully understood and agreed between the parties hereto that in consideration of the above covenants on the parties of the first part hereto, the parties of the second part hereby agree to make said enlargement of the first parties' ditch as above described at its own expense; and does further agree to maintain for a period of ten years during, up to and including May first 1919 the said first parties' McDonald ditch after the completion of its enlargement to the point where the canal of said party of the second part begins without charge or cost for repairs or maintenance of the same to the said parties of the first part or either or any of them.

4th. The said party of the second part further agrees to complete said enlargement in a first class substantial manner and during a time so as not to interfere with the irrigation or harvesting of the crops of any of the said parties of the first part, it being contemplated that the building and construction shall commence after the harvesting of the crops in the fall of 1908; And it is further agreed that the said enlargement shall be completed on or before May 1st, 1909. It is hereby further agreed by and between the parties hereto that the said party of the second part shall have entire and exclusive charge of said canal and headgates and shall turn out to the said parties of the first part and each of them the water to which each party or parties respectively may...