The Oakley herald. [volume] (Oakley, Idaho) 1908-1961, 1922-06-09
AN INTERESTING DECISION

ueclSlOQ Dy the otdte supreme
Court, handed down last Thursday
in the case of w. T. Taper, ct al,
VS.. the Idaho Irrigation Company,
upholding the right of settlers to
recover damages against Carer
Act construction company for fail
ure to deliver the quantity of water
provided for by the contracts, is of
more than passing interest to the
Oakley settlers, as the contracts are
said to be practically the same on
both projects.
The decision. in part, is as fol-
lows:
1.-The sole question to be deter
mind is whether respondent bound
itself to deliver the specific amount
of water set out in the contracts.
The contention of appellants is
that the contract must be so inter-
preted, while the contention of re-
spondent is that respondent bound
itself only to deliver to appellants
their proportionate part of the wa
ter that could be supplied from its
appropriation in Big Wood river and
Malad river, so that in case of short
age In the supply due to drouth or
to other natural causes, its contract
would be fulfilled If appellants re-
ceived their fair proportion of the
available water supply"
I'VE are of opinion that a fair
construction of the language used
by the parties in these contracts
leads inevitably to the conclusion /
that respondent bound itself to de-
liver the specified amount of water
during each irrigation season.
1t must be borne in mind that the
purpose of the state and federal
government in authorizing such an
enterprise as was undertaken by re- /
Spondent was to reclaim the desert /
No contract could be entered into
with respondent until it had given I
assurance that it had a supply
water sufficient to reclaim the land /
covered by the project The I
language used in the contracts
leaves no doubt that the respondent I
was attempting to assure the pur-
chaser that he would receive the |
amount of water specified, nor can
there be any doubt that the purchas-
er was justified in such belief. T 2.
adopt the view advanced by respon-
dent that the purchasers contract
was fulfilled when he received his
proportion of whatever water supply
was provided by respondent puts
the purchaser in the position of hay-
ing purchased bare chance of wa
ter supply rather than a right to a
definite amount of water as express
sed in the contract. Such meaning
is not to be found in the language of
the contracts"
we fail to see any escape
from theconclusion that respondent
undertook to do each
year during the irrigating season
the very thing specified by the con-
tract
Where there is positive con-
tract to do thing, not in itself un-
lawful, the contractor must perform
it or pay damages for not doing 1t,
although in consequence of unfor-
seen accidents the performance Of
his contract has become unexpected
y burdensome, or even impossible.
We understand to be the rule appli-
,able to such contracts as are invol-
Ted in the case at bar. ="
''The drouth of 1915 did not ex
:use respondent from it's obligation
o supply appellants with the con-
ract amount of water nor relieve it
rom liability to pay damages for
is default in this respect"
1.-The shortage of water for the
rear 1915 is admitted, and if the Z
ase is tried again there remains
for the court and jury to do
tut to hear evidence as to the dam
ges suffered and fix the amount
hereof"