Lincoln County times. (Jerome, Idaho) 1911-1919, 1912-03-21
SETTLERS GAIN A POINT.

$4,000 damages for incomplete
Ness Of the canal system on this
tract, came up in Federal court last
week before Judge DIETRICH ON the
demurrer IF the defendant. The
court oyerruled the demurrer and
held that the complaint stated a
cause Of action. This j. tremen-
dou- victory for the Canal company
and consequently for the settlers on
this tract. a. the case will now come
up for trial before a jury on it,
merits, and the plaintiff company
expect To- Recover substantial dam
ages. The decision Of Judge Del
trich in the case j. Of sufficient in
tcre>t and is - clear that We pub
fish it in full:
This action Is brought Ia recov-
cr damages for breach Of contract
entered into between the defendant
and the state Of Idaho, under tine
provisions Of what i popularity
known a the Carey act. and the
laws Of the state Of Idaho, en-
acted for the purpose If giving
effect To that act. After the con-
struction Of the canal system called
Tor 10y the contract, and the sale Of
water rights therein L. settlers upon
the lands supplied with water by
the system. the plaintiff company |
wa- organized n provided by law 4
and pursuant 10 the stipulation, of |
the contract, and the system was
thereupon conveyed To- it, and it
holds the title for the Use and /
benefit Of the several owners Of !
water rights. The theory II the
plaintiff, acquie>ed in 10y the de-
PENDANT, l. that the contract lin
question having leen made for the
benefit Of the several purchasers Of
water rights. il may. A. trustee for
them, maintain an action for the
enforcement of the contract. Both
sides therefore recognize the suit ~
being one based on the contract.
and the defendent contends. and
tie plaintiff comedies, that Ia state
Il cause Of action the complaint
must show a breach thereof. The
complaint clearly shows that in
many particulars the defendant did
not construct the system in accord
ance with the specifications attached
L. and made q part Of the original
contract, but it Is not alleged that
such changes or deviationS were not
authorized or approved 10y the state
engineer, and in the absence OF such
an allegation the defendant contends
that the complaint does not state a
cause OF action, by reason Of two
separate provisions Of the contract.
copy Of which Is attached to and
made part Of the complaint.
These provisions are a follows:
First: Changes may be made
IN these specifications from time TO
time by agreement between the
state engineer and said second par
~ (the defendant here, such
changes, however not to impair the
Of the works for the pur
poses for which they are intended. " =
Second: The plans, specifiica-
tions and details for the construc-
ton Of the dam, canals, headgates.
welrs, etc, - far a. the same are
not covered by the above specifica- e
tons, shall be submitted to the state a
engineer Of Idaho for his approval /
prior To the construction Of any Of :
aid works, with the right of appeal e
~ said second party from his de- ;
'lslon to the state loard Of land |
commissioners, but the work when !,
shall be in accordance Il
With the specifications a. finally de- Il
ermined upon, to the satisfaction
II the state engineer. }
1t Is clear, | think, that the
'ower or authority Of the state en-
'iheer l" modify the express spec r
tications is limited by the clause.
Such changes. however, not To
IMPAIR the efficiency Of the works h.
or the purposes for which they are p
Intended. Bearing in mind such Il
does the complaint dis u
lose breach of the contract? I'm =,
lediately preceding a detailed emu Il
leratlon Of the particulars in which m
lie plaintiff alleges the failure upon IA
ne part Of the defendant TO con !
-ruct the system in accordance va
18th the contract and the specifica- 70
ons attached thereto is this ale IN
alton; Plaintiff alleges that de- ~
ndant, in the construction of said RI
rlgatlon system, failed and neg Id
cted TO comply with or observe r
le provisions Of its said contract -
It'll the state of Idaho wbarab,. r,