The opinion stands on the three propositions: (1) The contract of April 30, 1913, among other things purporting to transfer water rights, was in effect a transfer of the reservoir of the plaintiff to defendant so the latter could enlarge it to store its water with the obligation to store 7,500 acre feet of plaintiff's water and deliver said water to plaintiff. The part of the contract conveying to defendant plaintiff's water rights and then reserving a prior right to the use of 7,500 acre feet left the plaintiff and defendant in exactly the same position as they were before the contract was made regarding title to the water rights, because plaintiff only could have a use right under the laws of the state, and after it conveyed such right and then took back the prior use right, it had as regards the use right, after the contract, what it had before. (2) The obligation to pay the assessment for the water commissioner's services is against the one having the use of the water and he is primarily liable. (3) Since there was really no change in the status of the parties to the contract as regards the title to use right to the 7,500 acre feet of water, and the plaintiff owns afterward as it did before, title to the use right in this *Page 299 quantity of water it could not have been contemplated by the provision reading that defendant would "keep unincumbered the said seven thousand five hundred acre feet of water" that defendant should pay a charge primarily owing by plaintiff on its own water which might be an incumbrance and thus keep plaintiff's water right unincumbered from incumbrances permitted to rest against it by failure of plaintiff itself to pay charges owing by it.
I agree to these three propositions. I also agree that the motion to dismiss the appeal should be denied because I think there was a final judgment saddling on defendant the duty of paying the water assessments for the water commissioner. That could not be any more final as to that duty. The fact that injunctive relief is refused on conditions may by inference mean that it will be granted on failure to perform the conditions but the decree with its conditions constitutes a final judgment. Because some time in the future the court may try the issue as to whether a condition has been performed, no more prevents the judgment from being final than a decree of divorce involving alimony prevents such decree from being appealable. Although in the future the court may have to try the issue as to whether the alimony has been paid.
I assume that by the language used in the opinion that the "sole test of the right to appeal depends upon whether a judgment is or is not final," it is not meant to foreclose the question as to whether this constitutional provision was meant to preserve to a litigant at all events, free from interference by the Legislature, a right of appeal from final judgments, leaving the Legislature, or perhaps this court by rules, power to give a right of appeal in other cases where the judgment is not final or whether it was meant to restrict at all events the right of appeal only to final judgments. As far as this opinion is concerned, I assume that question to be open and do not concur in any interpretation which would close that question. *Page 300
Language is used in the opinion as follows: "Unlike the stockholders of an irrigation corporation, whose right to theuse of water is derived through the corporation," etc., (italics mine), I am at this time not willing to concur in the idea that the rights of stockholders to an irrigation corporation are derived through the corporation where the stockholders owned water rights previous to the formation of the corporation and conveyed these rights to the corporation purely as a convenient and cooperative means of distribution and management. It may be — I am not prepared to say — that such stockholders' rights are derived from rights more fundamental and deeper than by or through the corporation. I think the statement in the opinion susceptible of two interpretations. By my concurrence I do not wish to be tied to any particular interpretation of this statement.