I cannot concur in the result because the judgment asked for is one construing an agreement. I cannot altogether agree on the construction given the agreement by the CHIEF JUSTICE. I agree, however, with the conclusion that the amendment was properly allowed by the court because it did not set up 1-3 entirely "new and independent" matters unrelated to the "cause of action," which I deem to be the holding of theHartford Accident Indemnity Co. v. Clegg, 103 Utah 414,135 P.2d 919, a broader concept than that stated by the CHIEF JUSTICE and one which I think we should not de-emphasize. I also agree that Piute could not get credit for any of the 13,226 acre feet during the succeeding year because its dam was entirely filled up to its allowable storage capacity at the time the said 13,226 acre feet were stored in the Sevier reservoir, but for reasons hereafter set out as to the 9,379 acre feet made between the dams, I do not think Piute could have taken credit for that against Sevier's allocation in the succeeding year, even if Piute's dam had not been full.
I think by the agreement of October 18, 1938, it was intended to permit waters arrested in the Piute dam which, *Page 95 under the decree of November 30, 1936, could be held until April 15th of each year, to be transmitted to the Sevier dam after January 1st of each year or to permit waters which could be arrested until April 15th under the decree to by-pass the Piute dam for the purpose only of satisfying Sevier's priorities. Piute could not use the Sevier dam to store any of the waters to which it was entitled except waters let down in excess of those actually required to satisfy Sevier's priorities because of a wrong estimate of the probable make of the river between the dams. (Of course, I am not thinking of the case where someone might designingly let more water down than it was expected would be needed to satisfy Sevier's priorities. Such excess might, if fraudulent against Piute, be reclaimed as a credit by it against Sevier's next year's priority in any event regardless of the contract.)
I think section 2(a) of the contract clearly sets out the duty of the river commissioners under the contract and is supported by the parol evidence as to preceding events, and the purposes to be subserved by the contract. Section 2(b) of the contract then took care of mis-estimates. It appears to me that the word "or" in the clause reading "whether from excessive release of water from Piute Reservoir, or from accretions to the river below Piute Reservoir exceeding the amount for which allowance has been made," which seems to give the Chief Justice some difficulty, sets off the two different ways in regard to which a wrong estimate could be made. If the river commissioners after January 1st, when the snows would largely be still unmelted in the hills between Piute and Sevier, had underestimated the make of the river between the two dams as would be later revealed by the actual happening and let more water down than was necessary to satisfy Sevier's priorities that would be one type of wrong estimation. On the other hand an "excessive release of water from Piute Reservoir" might occur because it would be expected that the make of the river above Piute would replace all waters let down. Thus, if it was thought that the make of the river above Piute *Page 96 would supply Piute's share of the Third Allocation as well as replace some of its 40,000 acre feet held on Second Allocation and for that reason the water was released to take care of all or some of Sevier's three-fourths of the Third Allocation, and it was found that the make of the river above Piute did not do that, a case would be presented where there was an excessive release from Piute which did not entail an excess of an amount for which allowance had been made regarding accretions between the dams. Other illustrations might be thought of to illustrate how the parties attempted to use language which would cover every possible situation which might occur within the framework of what they desire to accomplish.
I think the italicized part of the phrase "or from accretions to the river below Piute Reservoir exceeding the amount forwhich allowance had been made" (italics mine) shows that the parties had in mind for this arm of the alternative, a computation which involved an allowance or estimate of the make of the river between dams in determining the amount which was to be let down. However, there is a further potent reason why I do not think the interpretation of the contract given by the CHIEF JUSTICE in respect to the second arm of the alternative is correct. It is concluded by all of us that neither the decree nor the contract gave Piute any right to store waters in Sevier because of the limited capacity of her reservoir. I am accepting the figures set out in the opinion of Mr. Justice WADE that Piute would not be faced with that question until the sixth priority classification had been reached. But if nature had during a year been very bountiful with her snowfalls it might be reached. Also I think, and this appears to be the opinion of Mr. Justice WADE, that neither the decree nor the contract gave or intended to give Piute any storage rights in the Sevier Reservoir except for excess waters released. As far as the contract bears on such intent, I think section 2(a) conclusively governs as to what its intent was, i.e., to anticipate the situation which it was contemplated would transpire by April 15th. It had no other *Page 97 purpose, the motive being to save losses due to late spring transmission of water. If Piute had no right to use Sevier as a storage for waters it follows that she could not use it for the storage of waters to which she might be entitled because of the make of the river between the dams. If the make above Piute was sufficient for her to capture her share of the make between the dams she could take her decreed storage rights of the whole river from what came into her reservoir.
I illustrate by a concrete case: If during a freak year the water commissioner had correctly estimated that the make of the river between the dams would be 100,000 acre feet and therefore no water was let down from Piute and it happened that Piute got only 30,000 acre feet from above her dam, she could not call upon Sevier next year for the extra 10,000 acre feet which Sevier got from the make of the river between the dams. But, if Piute had obtained her 40,000 acre feet from above her dam and say 2,500 acre feet more, Piute could keep the whole of the 2,500 acre feet because she could take into account the extra 10,000 which Sevier got and of which she would be entitled to 25% on the third allocation. In short, Piute would be entitled to 25% of 12,500 acre feet or 3,125 acre feet. But since only 2,500 of that came into her dam, she could get only that because she could not compel Sevier to store the remaining 625 acre feet which she could not capture.
Of course, Piute could not store any of the specific water which arose below its dam. But it appears to me that the decree intended to take the whole river above Sevier and allocate the storage rights according to specific priorities between Piute and Sevier. The river was considered as a unit. I am not familiar with the testimony which led to the decree but I can well conceive that it might have been such as to make it an equitable and practicable method of satisfying the storage rights of both reservoirs to pool the whole river above Sevier, taking account of the make of the river above Piute as a source to recoup its share of the make between the dams and adjusting the priorities so as to take account *Page 98 of all factors. There may have been stipulations to that effect. In any event, the decree in specific language reads:
"As between the owners of the Piute Reservoir and the owners of the Sevier Bridge Reservoir it is hereby ordered, adjudged and decreed that all of the waters of the Sevier River yielded above the Sevier Bridge Dam from all and every source whatever, available for storage or use under their or any of their said water filings between October 1st of any year and October 1st of the succeeding year, the following priorities and allocations of amounts shall govern", etc.
Therefore, I do not think that the inability of Piute to capture specific waters below its dam was a limitation on its storage rights to said water. But the fact that it could not store in the Sevier reservoir its share of said specific water accruing to the river between the dams required it to capture its priorities from waters which flowed into its reservoir. But the pooling principle involving the whole of the river above Sevier could and would apply. The limitations therefore were, first: the capacities of the reservoirs; second: that Piute had no right to store in the Sevier reservoir any of the waters it was entitled to under the decree, whether derived from the make of the river between the dams or above Piute's dam. The contract of October 18, 1938, modified that to the extent that Sevier was to store until the following year waters which were let down in excess of what should have been let down if the parties had waited until after April 15th. Piute could then hold out of first priority of Sevier waters it would capture that following year, the amount of such released excess.
Mr. Justice WADE and I are in agreement as to the interpretation and extent of the contract of October 18, 1938, and I think we are in agreement on the point that Piute could take into account the make of the whole river including that between the two dams in applying the allocations provided by the decree but that its share of the whole river would have to be obtained from that water which came into its dam; that is, from the make of the river above its dam. *Page 99
McDONOUGH, J., concurs with the views expressed in the opinion of Mr. Justice WOLFE.
PRATT, J., not participating.