Shoshone journal. [volume] (Shoshone, Idaho) 1884-1931, 1922-06-09


Carey Act contract. The statement
made by this court in the Neitzel cas-
laptly described the situation in th'
case at bar. Undoubtedly responder
before entering into the contracts b,
which 1t sold water rights to appel
lants and other settlers made thor.
OUCH Investigation into the water sup
plv upon which 1t was to rely in full
filing its contract Undoubtedly II
made such an exhaustive Investigation
as to feel warranted in representing
that IL had a water supply OF three
thousand cubic feet per second. Sucr
an investigation was utterly impossl-
BILE for the Individual purchasers and
they had a right to rely upon the repre-
sentatlon Of respondent that it had
such a water supply and would de-
| liver to them annually the amount OF
water specified in their contracts.
In discussing a similar Carey Act
contract Judge Dietrich in the case
OF Caldwell ct al, VS.. Twin Falls
Salmon River Land e. Water Company
| 225 Fed. sol, saiG:
"The import of the instrument,
standing alone, as it would be under
stood by an intelligent layman with no
preconceived notions of its meaning,
Is not open to debate. 1t is a con-
tract for the sale OF a specific water
right OF ne-hundredth OF a second
foot per acre for each acre Of land
described, and as an incident thereto
prcrortionate interest in the irri-
CATION system. The holder CT certi-
ficate OF stock. so the contract reads,
is entitled TO receive one-hundredth
OF cubic foot Of water per acre and
a proportionate interest in the dam,
canal water rights. etc The defend
ants contention wholly ignores the
first OF these CO. coordinate clauses and
limits the right granted precisely to
the second, but the clauses are neither
inconsistent with each other nor ident-
ical In meaning and no reason is APP
parent why they should not both be
given effect"
This view was approved by the Cir
cult Court OF Appeals Of the Ninth
Circuit In the same case. Twin Falls
Salmon River Land & Water Com
pany VS.. Caldwell 242 Fed. lit, 1913.
Among the several defenses pleaded
by respondent was an extraordinary
drouth during the year 1915. Nowhere
in the contract mentioned Is any ex-
emption from liability claimed by re-
spondent In case Of drouth. 1t Is an
unqualified undertaking to furnish the
definite amount of water mentioned,
and the right Of the purchaser to re-
ceive 1t is conditioned only upon his
complying with his contract Such
contracts sometimes contain such an
exemption, as In the case of Groefsema
vs. Mountain Home Cooperative Irri-
cation Company, SO Idaho 80. 100 Pac.
1856. In that contract the irrigation
company had this saving provision:
I'm case OF shortage of water in the
Comany's reservoir or canal system
through an accident. drought, or scare
ity in any natural stream supplying
said canal or by reason OF improper
diversion of water by any person, OF
from any cause beyond its control the |
company shall not be liable for such |
shortage. nor for any damage caused |
thereby nor shall there be, by reason
thereof. any deduction from any sum
agreed TO be paid to the company by
the purchaser"
The fact that no such exemption
from liability was placed in the con-
tract by respondent when 1t might
easily have done so would lead fairly
to the conclusion that respondent, with
the water supply that it claimed, was
willing to take the chances involved |
in making an unqualified contract to
deliver the specified amount of water
mentioned each year. In the leading
case of Taylor VS.. Caldwell, 3 B. G. S.
S26, S33, cited by respondent, Black
burn. j., said:
s'Where there Is a positive contract
to do a thing. not in itself unlawful
the contractor must perform it or pay
damages for not doing it, although in
consequence OF unforeseen accidents
the performance OF his contract has
become unexpectedly burdensome, or
even impossible
We understand this to be the rule
applicable to such contracts as are in
volved in the case at bar. 1t is sup
ported by many authorities, among
which are: Rowe, ct AL VS.. Inhabi-
tants OF Peabody. 207 Mass. 226; Berg
VS.. Erickson, PA Fed. SIT; The Har-
riman VS.. limerick 10. LED. 500; Jones
VS.. U. s., "a LED. 644; Jacksonville
etc. Ry Co. vs.. Roper. ct al, 40 LED.
olb, n. +. Ivy. GO. VS.. American trad
ing Co. 40 LED. 26s; Middlesex Water
Co. vs. Knappman Whiting Co.. GA
n. ]. l.. 240; 1S c. ]. GAL; 6 r. G. L.
1854. The drouth OF 1915 did not ex-
cuse respondent from it's obligation
to supply appellants with the contract
amount of water nor relieve it from
liability to pay damages for its de-
fault in this respect
We are of opinion that the conversa-
ton pleaded by appellants with re-
spondent's manager. Nj. r. Kays. IL
considered In connection with the writ
ten contract. adds nothing to the force
thereof. II IL be considered as an at
tempt 10 show an independent con-
tract binding on respondent, it Is in
sufficient Tor the reason that no con-
sideration therefor is shown.
Respondent attempts TO bring itself
within the rule applicable 10 con-
tract which shows upon its face that
the parties had IN contemplation that
the fuliilment Of the contract should
depend upon the existence OF a par
ticular person or thing at the time
fixed Tor fuilhllnent This contention