
    MATHEWS v. BERRETT et al.
    No. 2279.
    Decided December 30, 1912.
    Rehearing Denied January 23, 1913
    (129 Pac. 419).
    1. Assignments — Irrigation Water — Contract to Exchange— Transfer by Delivery. Where plaintiff’s grantor on conveying the land to her also delivered a contract with defendant B. for an exchange of irrigation water to be used in connection with the land conveyed, the delivery of such contract without formal assignment constituted a sufficient transfer of the interest of plaintiffs grantor in the contract, and entitled complainant to sue to enforce the same. (Page 180.)
    2. Specific Performance — Exchange of Property — Irrigation Water — Findings. In a suit for specific performance of a contract for the exchange of certain irrigation water, evidence held to require findings that complainant had legal title to the water which she contracted to deliver to defendant, and that she was ready, able, and willing to perform all the conditions of the exchange contract to be performed on her part. (Page 181.)
    3. Specific Performance — Exchange of Property — Irrigation Water — Necessity of Exchange — Improvement to Property. Where a water right attached to complainant’s land could not be used thereon, whereupon complainant’s grantor contracted with defendant B. for an exchange of such water right for the right to take water from another stream appurtenant to B.’s land, and complainant and her predecessors had been using the water pursuant to the exchange since 1870 or 1872, and a written contract •therefor was made in 1892, but which failed to specify any length of time the contract was to run, and the complainant made valuable and lasting improvements on her land in reliance on the exchange having no other source from which to obtain water, the contract would be construed as continuing until terminated by consent of both parties, and complainant was therefore entitled to enforce specific performance on B.’s repudiation thereof. (Page 181.)
    Appeal from District Court, Second District; Hon. J. A. Howell, Judge.
    Action by Butb P. Mlatbews against Hiehard T. Berrett and tbe Nice Creek Irrigation Company.
    Judgment for defendants. Plaintiff appeals.
    
      ÜEVERSED AND REMANDED WITH DIRECTIONS.
    
      Richards & Boyd for appellant.
    
      A. G. Horn for respondents.
    appelxanNs points.
    If the particular thing contracted for is desired, or if the party desiring it or the other circumstances of the case, are such that money damages would not be an adequate compensation for its loss, equity will decree its delivery to him. (4 Pomeroy [3 Ed.], sec. 1402; 26 Am. and Eng. Ency. Law 104; Treasurer v. Mining Go., 23 Cal. 391; Sen-ter v. Davis, 38 Cal. 451.)
    Water in Utah is of the character of real property and must be passed by deed except when represented by stock. However, we submit being represented by stock does not change the character of the water. It only changes the character of evidence of ownership^ We have above considered that the contract here is along the line of affecting personal property or mixed. However, we submit that the contract here is essential only for the use and1 possession of real property. Being so, the equitable doctrine is universal that where land or any estate therein is the subject of the agreement, such agreement will be enforced specifically. (4 Pomeroy [3 Ed.], sec. 1402; 36 Cyc. 552, and cases cited.)
    We have not been able to find a case in the decisions like this contract, and involving the use of water. But equitable principles are universal and meet new conditions as they arise. There are cases in the books where courts have enforced agreements to renew or continue leases. (Glarh v. Glarh, 49 Cal. 586.) They have enforced contracts to convey the use of land -for rights of way. (Coy v. Minneapolis Railway, 90 N. W. [Ia.] 344.) They have enforced contracts for the sale of pulp wood from trees growing on land. (St. Regis Gompany v. Santa Clara. Go., 65 N. E. [N. Y.] 967.)
    
      RESPONDENTS’’ POINTS.
    Tbe terms of a contract are an essential part thereof and specific performance thereof cannot be decreed where the terms thereof for which the same is given are not stated or given. (36 Cyc. 598; Solomon v. Go., 55 S. E. 300; Tho~ emlce v. Feidler, 64 N. W. 1030; Ohristien v. Co., 17 So. 352; Gates v. Gamble, 18 N. W. 631; Gardner v. Watson, 13 Ill. 347; Brehm v. Sperry, 48 Atl. 368.)
    STATEMENT OP PACTS.
    The facts of the case, in substance, are as follows: Appellant, Ruth P. Mathews, is the owner of about forty-five acres of land situated in Weber County, this state. A portion of this land, about three acres, is irrigated' with water from a: spring situated thereon, and for more than forty years next preceding the commencement of this action a portion of the land has been irrigated with water from a stream known as Rice Creek. An orchard has been grown on the land, and during each and every season of the forty years mentioned appellant and her predecessors in interest have planted and grown grain and other valuable crops thereon. Respondent Richard T. Berrett, is and for more than forty years has been, the owner of farming lands under what is known as the Cold Water Canal. These lands are so situated that it has been and is impracticable to supply them with water from Rice Creek, and appellant cannot be supplied with water from the Cold Water Canal. Appellant’s predecessors in interest were owners of a water right in the Cold Water Canal, and Berrett was the owner and entitled1 to the use of water for irrigating purposes from Rice Creek. These parties, Berrett and appellant’s predecessors in interest, in 1872, or prior thereto, exchanged with each other the water represented by their respective interests in the streams mentioned1. Under this arrangement, appellant’s predecessors in interest were, for many years, supplied with water to irrigate the land now owned by appellant, and Ber-rett received water with which to irrigate his land from the Cold Water Canal. In 1892 tbe Bice Creek Irrigation Company, for tbe purpose of regulating and distributing tbe waters of Bice Creek and improving its system, ■ became incorporated. When incorporated, tbe company issued to Ber-rett a certificate of stock for tbe interest represented! by tbe water wbicb be bad exchanged with appellant’s predecessors in interest for water in tbe Cold Water Canal. In tbe same year tbe following written agreement was entered into between Elijah Shaw, Sr., one of appellant’s predecessors in interest and Berrett:
    “Tbe contract, made tbe 7th day of June, A. D. 1892, between Richard T. Berrett of North Ogden, in tbe county of Weber and territory of Utah, tbe party of the first part, and Elijah Shaw, Sr., of Pleasant View, in said County of Weber and territory of Utah, tbe party of tbe second part, witnessetb: That tbe said Richard T. Berrett, in consideration of tbe covenants on tbe part of tbe party of tbe second part, hereinafter contained, doth covenant and agree to and with tbe said party, of tbe second part that be will let him, Elijah Shaw, have and use a ten and three-fourths hours water right in and to the waters flowing in what is known as Rice Creek every five and a half days according to tbe regulation of tbe Rice Creek Irrigation Company. Said Richard T. Berrett owning twenty-six shares in said company, giving him tbe right to fourteen hours and thirty minutes for field use every five and one-half days and reserving from said second party three hours and forty-five minutes. And tbe said Elijah Shaw, Sr., in consideration, of tbe covenants on tbe part of tbe party of tbe first part, doth covenant and agree to and with tbe said Richard T. Berrett that be, Elijah Shaw, Sr., will furnish fifteen hours per week in and of North Ogden Irrigation Company’s canal water to go to Harrisville in exchange for Cold Water Company water and securing eleven and three-fourths (11%) hours of Cold Water Creek water as distributed by said Cold Water Irrigation Company eveiy five and one-half (5%) days to be delivered or turned into tbe South Rice Creek ditch, and further agrees to keep the C'old' Water Ditch in repair and if said Cold Water streams shall fail to be-as large as Nice Creek the shortage to be made up from said Rice Creek if from no other source. In witness whereof, we have hereunto set our hands and seals the day and year-first above written. Richard T. Berrett. Elijah Shaw, Sr. Signed and’ 'delivered in. presence of: Geo. S. Dean. John Hall. (Duly acknowledged by both.)”
    In June, 1904-, appellant purchased the land upon which the Rice Creek water in question has been used, and at the time of the execution of the deed to the land her grantor delivered to her the contract above set forth. Upon the execution of the deed and' the delivery to her of the contract for the exchange of water, appellant went into possession of the land, about twenty-one acres of which had been, and was being cultivated. About eight acres of the land was in orchard. This appellant improved by removing therefrom old fruit trees, and planting young ones in their stead. She cleaned off and1 brought into cultivation about fifteen acres, of the new land; that is, land that had not theretofore been irrigated or farmed. She also made other valuable and permanent improvements on the land. The evidence without conflict shows that the improvements made and erected on the land by appellant’s predecessors in interest were of the value of about $2000, and that appellant during the first five years of her ownership' of the premises has made improvements thereon of the value of $3000, and that during these five years she has used the Rice Creek water in-question to irrigate the orchard and crops grown thereon. No-one during this time disputed or even questioned her right to the use of Rice Creek water. The evidence shows and the court found that appellant’s “lands are arid in character and require the application of water for irrigation for the purpose of producing crops consisting of orchards, grains, grasses, and other farm products growing upon the same,”' and the evidence also shows that without irrigation this land would be unproductive and practically valueless. At the opening of the irrigation season of 1909 Berrett for the first time denied, appellant’s right to the use of the Bice Creek water in question.- and refused to longer abide by the terms of the contract, and demanded of the Bice Creek Irrigation Company that it distribute to him the water which had theretofore for more than forty years been distributed to appellant and her predecessors in interest. Whereupon ■appellant commenced this action to compel the Bice Creek Irrigation Company to distribute to her the water in question in accordance with the rules and regulations of the company for the distribution of its waters, and to compel B'er-rett “to specifically perform his agreement to deliver and permit to be delivered (to appellant) such water at all times and so long as the conditions of said agreement shall or may be performed by plaintiff.”
    The court found, among other things, and the findings are •supported by the evidence (No. 5), “that since the execution of said contract (Exhibit A) the said water has been used according to the terms of said agreement, and the Bice Creek Irrigation Company has distributed the water belonging to the defendant Berrett upon the land described, in the complaint and to the parties in possession thereof; and said defendant Berrett has received and used from the Cold Water Creek during all of said times water which was used upon the land described as belonging to him in the complaint on file herein. . . . No. 6. That the plaintiff and her predecessors in interest have since the execution of Exhibit A not exercised any ownership nor paid .any assessments upon the stock of the Bice Creek Irrigation Company, and have only paid the expenses of cleaning ditches and water master, and that all the other assessments upon the said1 stock have been paid during all of said time by the defendant Berrett, and the defendant Berrett during all of the said times has not paid the taxes or assessments upon the Cold Water Irrigation Company’s stock mentioned in said contract (Exhibit A), but same were paid by the plaintiff and her predecessors in interest.” The court ■also found (No. 4) “that said contract (Exhibit A) has never been assigned or transferred to this plaintiff, and that she is not tbe owner of tbe Nice Creek waters mentioned and described in said contract; and there is. no evidence in this case to show that tbe plaintiff is tbe owner of tbe North Ogden Irrigation Company waters mentioned in tbe said Exhibit A, and that she is not able, ready, or willing to perform or comply with all of tbe conditions of said contract (Exhibit A).”
   McCARTY, J.

(after stating the facts as above).

Tbe contention first made by appellant on this appeal is that tbe court’s fourth finding of fact is not only unsupported’ by, but is contrary to, tbe evidence. This assignment of error involves tbe following propositions: (1) "Was tbe contract in question assigned or transferred to appellant ? (2) Has appellant tbe legal title to a sufficient amount of water in North Ogden Irrigation Company to enable her to perform and comply with tbe terms and' conditions of tbe contract? (3) Is she able, ready, and willing to perform all of tbe conditions of tbe contract to be performed on her part ?

We think that all of these propositions must be answered in tbe affirmative. N. P. Mathews testified, and bis evidence is not disputed, that at tbe time of tbe conveyance to appellant of tbe land on which the Rice Creek water in question has been used tbe contract was delivered to him as agent for appellant by her grantors; that during tbe intervening five years between tbe time of tbe conveyance of tbe land and tbe commencement of this action be was in charge of, farmed, and improved tbe premises for appellant; and that during this time tbe land was supplied with “exchange water” covered by tbe contract.

Tbe law is well settled that tbe delivery of an instrument such as tbe contract in question when supported by a valuable consideration is sufficient to pass whatever interest tbe transferror may have in or to tbe instrument. In 4 Cyc. 44, tbe rule as declared by practically all of tbe authorities is stated as follows:

“When supported by a valuable consideration, no writing is necessary to tbe assignment of written instruments, and tbe delivery of tbe ebose in action, or tbe written evidence of tbe right, debt, or title, will be sufficient to pass tbe beneficial interest therein”—

Citing many cases.

Regarding tbe second and third propositions, tbe evidence shows conclusively that she has tbe legal title to tbe Cold Water Creek water which Berrett for seventeen years has used, under tbe contract, in exchange for tbe Rice Creek water used by appellant and her predecessors in interest ; that she has tbe legal title to a sufficient amount of tbe capital stock of tbe North Ogden Irrigation Company to enable her to continue to furnish to Berrett tbe Cold Water Creek water as provided in tbe contract, and that she is not only able and willing, but anxious, to perform all of tbe conditions of tbe contract required of her by its terms. Bindings of fact No. 4 are, therefore, not only unsupported by evidence, but are contrary to evidence of tbe most positive and conclusive character.

In its seventh finding of fact tbe court found:

“That, while tbe plaintiff .has continued to improve the real estate of which she was in tbe possession and described in tbe complaint, such improvements or expenditures were not made or incurred by reason of any act or conduct of any kind on tbe part of tbe defendant Berrett.”

Tbe court also found (No. 8) :

“That there is no evidence in this ease that tbe plaintiff cannot secure other Rice Creek water or water from other sources to properly irrigate tbe lands in question and described in tbe complaint.”

These findings are assailed on tbe ground that they are-not sustained by tbe evidence. Tbe testimony of N. P. Mathews, who was tbe agent of tbe appellant, and who for five years next preceding tbe commencement of this action, as such agent, was in charge of tbe premises and land upon-which tbe Rice Creek water in dispute has been used, shows that be made improvements on tbe land of the value of $8000, and that these improvements were, made in reliance upon tbe right of, appellant to use the so-called “exchange water” on the lands. And the undisputed evidence shows that B'errett acquiesced in the use of the water by appellant and her predecessors in interest for seventeen years under the contract, including the five years during which the improvements last mentioned were made. And the evidence also shows that there is no water available for the irrigation of appellant’s land other than the exchange water” from Bice Creek heretofore used thereon. N. Montgomery, on this point, testified as follows:

“The only water source this property has known during all these years (thirty-five or forty) has been the waters of Bice Creek. . . . These lands have no other source than Bice Creek after the flood waters.”

These flood waters disappear from the 1st to the 15th of July each and every year. N. P. Mathews testified, in part, as follows:

“There has been no other source for irrigating the land than Bice Creek. ... I have no other water that can be diverted for that purpose; and it is necessary to irrigate these lands during the months of July and August and late in the season of each year.”

E.. B. Shaw, another witness for appellant, testified that:

“The Mathews (appellant) land would be worthless so far as the orchard or anything like that is concerned, if the water of Bice creek were shut off.”

We think this evidence, which is not denied, precludes any inference that there is any water available for the irrigation of appellant’s land other than the Bice Creek water. And we think that the evidence shows that during the irrigation season there is no surplus or unclaimed water in Bice Creek. In fact, the record shows that occasionally there is a “shortage” of water in Bice Creek. In the face of this evidence which is not disputed, the court’s findings of fact Nos. 7 and 8 cannot be upheld.

Counsel for respondent Berrett contends that the contract on its face shows “it was only contemplated between the parties to be a temporary affair, .or, in other words, it was not to be permanent, and was to exist only during tbe pleasure of tbe parties.” In bis discussion of tbis question counsel says:

“Tbe very language of tbis contract wherein Berrett agrees to let Sbaw bave water precludes tbe idea of a permanent trade. It is true no limit of time is stated in tbe contract,' and it is equally true that tbe certificates of stock representing tbe water in question were never transferred by Ber-rett, wbo always paid tbe taxes levied against tbe stock.”

Of course, tbis contract can be terminated by tbe mutual consent of all tbe parties wbo bave a beneficial interest therein, but that is not tbe question here involved. Tbe question here presented is, May Berrett, under tbe undisputed facts of tbis case which show that appellant has performed every duty required' of her by tbe terms of tbe contract, and wbo is ready, able, and willing to continue to discharge every obligation imposed upon her by tbe instrument, terminate it against tbe wishes of appellant and without her consent, and thereby cause her great and irreparable damage? In construing contracts, tbe rule is elementary that, where tbe meaning of tbe parties is not clear regarding some essential part or feature of it, courts will, in determining what tbe intention of tbe parties was, consider not only tbe nature of tbe instrument, but will take into consideration tbe circumstances and conditions surrounding tbe parties executing it and tbe objects they bad in view and which prompted them to make tbe contract, as shown by tbe evidence.

In 2 Page on Contracts, see. 1123, tbe author says:

“It is a recognized rule of construction tliat the court will place itself in the position of the parties who made the contract as nearly as can he done by admitting evidence of the surrounding facts and circumstances, the nature of the subject-matter, the relation of the parties to the contract, and the objects sought to he accomplished by the contract.”

See, also, 9 Cyc. 587. Applying tbis rule of construction to tbe contract in question, we find that tbe exchange of tbe Rice Creek water in controversy was made by Berrett with appellant’s predecessors in interest for Cold Water Creek water about 1870 or 1872, and' this exchange continued without interruption' until just before the commencement of this action. As hereinbefore stated, the written contract was executed in 1892. In the meantime valuable and permanent improvements were made on the land upon which this Nice Creek water was being used. N'ot only these improvements, but the land itself, would be rendered practically valueless without this. Nice Creek water.

The evidence shows that Berrett, when he entered into the written contract, could not use the water of Bice Creek on his lands. On this point J. B. Bailey, a witness for appellant, testified as follows:

“I have been acquainted with the cultivation of the Mathews (appellant’s) lands for the past twenty-one years. During that time these lands have never used any water from what is known as Cold Water Creek. They cannot do so.” The witness further testified, and his testimony is not denied:
“I know Mr. Berrett, and where his lands are. They are below what is known as the Cold Water Ditch.”

Taking into consideration the valuable property interests of Berrett and of plaintiff’s predecessors in interest that had been acquired and created by them through this exchange of water, in connection with all the other facts and circumstances leading up' to and surrounding the execution of the contract, we think it may be fairly inferred that the parties to the contract executed the same for the purpose of protecting and perpetuating these property interests, and that it was their intention that the contract should continue in force until terminated by the mutual consent of all parties owning a beneficial interest therein. The contract was executed June 7, 1892. Now let us suppose, for the sake of illustration, that in July or August of that same year, when the use of the Bice Creek water was indispensable to the saving of the orchard and the growing of the crops on the lands mentioned, Berrett had refused to further comply with the terms of the contract, and had attempted to take tbe Bice Creek water from tbe land and terminate tbe contract, is it not plain tbat appellant’s predecessor in interest, Elijah Sbaw, could bave gone into a court of equity and compelled Berrett to specifically perform bis part of tbe contract? Undoubtedly be, Sbaw, under sucb circumstances, would bave been entitled to equitable relief. Berrett having acquiesced in tbe use of tbe Bice Creek water on tbe land referred to for seventeen years, during which time valuable and permanent improvements bave been placed upou tbe land in reliance on tbe use of tbe water in dispute, all of which improvements as well as tbe land would be practically valueless without tbe water, we think a¡ much stronger reason exists for equitable relief than in tbe hypothetical case above stated.

We are clearly of tbe opinion tbat appellant is entitled to tbe relief prayed for in her complaint. This case differs materially from tbe ease of Montgomery v. Berrett, 40 Utah, 385, 121 Pac. 569, recently decided by this court. In tbat case there was a sharp conflict in tbe evidence regarding tbe terms of tbe alleged parol agreement for tbe exchange of water, and tbe court there found, among other things, “tbat tbe proofs in tbe case are not olear and satisfactory or sufficient to warrant tbe court to order a specific performance of the said alleged contract.” Whereas, in tbe case at bar, there is no substantial conflict in tbe evidence on any material issue in tbe case.

Tbe cause is remanded, with directions to tbe lower court to set aside its findings Nos. 4, 7, and 8, heretofore made and filed in tbe case, and to vacate tbe judgment rendered tbei’eon, and to make findings and render judgment in accordance with tbe views expressed herein, appellant to recover her taxable costs in this and in tbe lower court.

ENEC'K, C. J.

(concurring).

I concur. Under tbe contract in question, tbe exchange of tbe water was made for a special purpose. Sucb exchange was without limit and unconditional. Neither party to tbe agreement reserved tbe right to terminate tbe agreement without the 'consent of the other, although it must have been contemplated by both that the use of the water when used as contemplated would result in valuable improvements which would be materially affected, if not destroyed, in case the agreement should be terminated, as is now attempted by respondent. We must assume that it was for this reason that the right to terminate the agreement by one without the consent of the other was withheld. I think the agreement, in view of the subject-matter, is of that character which a court of equity should specifically enforce, especially when it is made to appear, as in this case, that one of the parties would suffer irreparable injury if it were terminated, gnd the other can suffer no injury in case of its enforcement.

STRAUP, J., concurs in both.  