Shoshone journal. [volume] (Shoshone, Idaho) 1884-1931, 1922-06-09
PAGE EIGHT.
supreme Court sustains Taper
continued from page

tract recited that respondent hau
water right of 5000 cubic rect per SCI
o,a from which water was 70 ne ooi'
,,,aa within certain distance %
~ ,,rchasers: land that respohueh
rraad 70 furnish and deliver 10 ths
o,,,,,a,s of shares in the reservoir a'.'
,,'., o.ation system all Of the appropr'
ata water to the extent OF one-e'sl'
,atb ~ a cubic foot OF water per SCI
opd per acre; tina. the certiiica'es ~
.harss of stock in the Big Wooo ny =,
Reservoir and Canal Company shou'u
doana the interest thereby representa-
water right OF one-eightleth Oh
e,,hic foot per second for eacn acl
"a nroportionatc interest IN saiu
.aaarvoir and Irrigation system; Una.
s,,id certificates OF shares as issued
ana delivered to appellants did so pro-
vide and when said contrac, pro''us'
that at certain date, whicn was ~
or TO the time OF the alleged nep, ~
OF respondent, the obligation 10 "a,
nish the full one eightieth OF cuoic
foot per second Of time or water pc
acre shall be In force and erect We
,au 10 see any escape from the con
cluslon that respondent voluntarily
undertook to do each year during '"e
ting season the very thing spec
fled by the contract
we are not without authority IN tho
decisions of this court to sustain tn's
view Of the contract. In state vs.
,r,uir Falls etc. Water Co., 80 iuaho
~ on rehearing. the court was discus
sing similar provision OF the con-
tract between the parties by which
II was provided In language supstan-
tallv Identical with that used In TINS
cass that the purchasers should be en-
s,t,od ~ a water right Of one-hun-
dredth OF a cubic foot per seconu pe'
acre and a proportionate interest IN
the canal and irrigation works, paseu
upon the number OF shares ultimately
sold therein. and speaking OF the con-
tention of the company In tnat Case
which was Identical with that MADE
by respondent In this case, the court
said:
"It would be an unwarranted con-
struction TO hold that by reference W
the contract between the state anu
the Construction Company all that was
intended was to state that the owner
OF tia certificate of stock in the Sal
mon River Canal Company, Ltd.'
should be entitled only to his proper
tomato interest in the canals, water
rights. etc. of the company based up
on tho number of shares finally SOLD
10 settlers. II carried to Its ultimate
by such construction the
settler might be deprived OF any water
right whatever =.
In the case OF Childs vs. Neitzel 70
Idaho 49,, 141. Pac. II, this court
was considering contract substan-
ALLY the same as this one. In that
case the water company had failed
10 complete its water system and sup
DIV water TO settlers according TO us
1t had mortgaged Its en-
tire irrigation and water system to
Neitzel for s150.000 and had also as
signed to him the settlers
upon which there was
still due about 100000. Neitzel was
attempting to collect the balance due
on these contracts and ap-
ply 1t on his mortgage. The settlers
and water users interviewed In said
action and attempted to have applied
on the uncompleted irrigation system
the balance due upon their contracts.
From a judgment in behalf OF the IN
terveners. Neitzsl appealed HIS coun-
sci commended In this court that the
irrigation company was the mere IN
strument or legal means for providing
the lands with water, the cost thereon
TO be paid by the landowners or
Of water under said con-
tract. In discussing this contention
and the duty OF the water company
under its contract with the water pur-
ehasers this court said:
1--WE cannot agree with counsel IN
that contention. The Murphy COM
pany agreed TO complete said irriga-
ton system with It's dams, reservoirs
and canals and turn the same over
10 the purchasers OF water rights with
In a specified time. the price per acre
for such water rights being stipulated
In most or the contracts at $50 per
acre. The Murphy company no doubt
making considerable
profit for itself in the construction OF
said system II was not an eleomos-
ynary corporation or the trustee or
agent OF the water right purchaser
for the construction OF said irrigation
system, but was corporation organ
lied for the purpose OF making a profit
To it's stockholders from the construc-
ton OF said system. IL any profits
had arisen to the company from the
OF said system, the pur-
phasers OF said water rights could not
under said contracts, share In them
with the Murphy company. The
Murphy company had employed
engineers and experts 10 exam
inc said irrigation project as
TO its feasibility. the quantity OF
water that could be obtained for the
irrigation OF said land and the cost
OF the construction OF said system to
make the water available to the land
10 be irrigated. and after that was
done. an estimate WAS made Of the
amount TO be charged Tor each acre
water right that would be necessary
and sufficient TO construct said sys-
tom and pay good profit TO the Muir
ply Company. Under said water con-
tracts II WAC not expected. conter-
plated or necessary Tor the purchasers
OF water rights 10 employ engineers
snd other experts 70 make proper