I dissent.
As is seen under the contract, the respondent was to furnish the assignor of the plaintiff sufficient water to irrigate 30.66 particularly described acres of land, not to exceed one cubic foot per second flow for each 80 acres and proportionately for any greater or less number of acres, which waters were to be used by the plaintiff's assignor only on such described lands, and "not elsewhere." The 30.66 acres were a part of a tract of 41.63 acres owned by plaintiff's assignor. During the irrigation season in question, the assignor admittedly used the water furnished him by the respondent to irrigate, not only the 30.66 acres, but also irrigated therewith 8.40 acres in addition.
The plaintiff asserts and the respondent denies, that, notwithstanding the provision in the contract to use the water only on the described 30.66 acres and not elsewhere, nevertheless his assignor had the right to use the water on any land desired by him, if by so doing he cause no additional burden or expense to the respondent, and that any provision in the contract to the contrary was void and unenforceable. As I understand the effect of the prevailing opinion the assignor had no right to use any of the waters supplied him by the respondent on the additional 8.40 acres, and that his so using the waters was in violation of his contract; yet, since the respondent based its claim, its demand for compensation for the use of such waters on such additional land, on the basis of the rental value thereof, and not on the theory of damages sustained by the respondent, and as it was not stipulated nor shown by evidence the amount of damages it so sustained, the respondent was entitled to only nominal damages. Still, the opinion asserts that, if it be or if it had been shown that more water than was necessary to irrigate the described 30.66 acres was used by the assignor, the respondent was entitled to compensation on the basis of the rental value for the excess used on such 8.40 additional acres. In other words, the effect of the holding is that, if an excess of water was used by the assignor, he, on the *Page 228 theory of an implied contract, or of an obligation or a duty, created or imposed by law, was required to pay the reasonable rental value of the use of such excess; but, if the assignor did not use more water in irrigating the described 30.66 acres and the additional 8.40 acres than was necessary to irrigate the 30.66 acres, then the respondent was not entitled to recover, unless upon allegations and proof of special damage or of an additional burden or expense to the respondent, as the direct result of such use. Such a holding as it seems to me does not give sufficient importance nor proper legal effect to the clause of the contract that the waters supplied the assignor by the respondent were to be used exclusively on the described 30.66 acres and not elsewhere, is inconsistent with the stipulation of the parties as to compensation, and in substance, is in line with the contention of the plaintiff that his assignor, notwithstanding the clause referred to in the contract, could use the water partly on the described 30.66 acres and partly on other lands, or the whole or any part thereof on an entirely different tract of land, so long as he did not use more water than was necessary to irrigate the 30.66 acres; and, unless special damages to the respondent, not benefits to the assignor, are shown, such a use, though in violation of the contract, would but be damnum absque injuria.
I think such a holding is in violation of, or not within, the contractual relation between the parties, and is inconsistent with the stipulation entered into between them. The chief contention of the plaintiff is that the contract entered into between the parties is invalid because of inconsistencies of its terms, and that the clause restricting the use of the water to the described 30.66 acres is against public policy and in restraint of alienation, and therefore void. Most of plaintiff's brief is devoted to such question. I think the contract valid and enforceable.
In 3 Farnum, Water and Water Rights, under the heading "Grant For Use on Particular Premises," the author at page 2286 says: *Page 229
"The grantor may limit the right to use the water to a particular parcel of land so that it cannot be applied even to the same use upon other property."
On page 1923 the author further says:
"The consumer obtains only the rights which he has bargained for, and therefore a ditch company can enjoin a customer from using water from the company's ditch to irrigate a tract of land in addition to the one to which such use is limited by contract even though he is not using a larger amount of water than allowed by the contract."
In 3 Kinney on Irrigation and Water Rights (2d Ed.) p. 2727, the author says:
"Where a water company enters into a contract to furnish water to a consumer, the extent of the rights of such consumer is limited by the terms of the contract. The consumer only acquires such rights as he bargained for and no more. The contract with a company to deliver to the consumer so much water as may be necessary to irrigate a certain specified tract of land, is construed to limit the right of the consumer to the amount of water necessary to irrigate such tract. Where the company agrees to furnish water sufficient to irrigate a certain number of acres, the consumer only acquires the right to have so much water furnished and for such lengths of time as the land, in its existing conditions, requires. So, where a consumer admitted that he irrigated another tract of land from the surplus after watering the tract described, he admitted the violation of the contract, even though he was not using more water than the maximum amount provided for in the contract."
The case of Minn. Mill. Co. v. Hobart, 26 Minn. 37,1 N.W. 45, is especially in point. There the mill company granted and conveyed to Smith water to be used on specifically described land. He sold a part of the water right to another from whom Hobart leased and used the water on lands other than those described in the deed of conveyance. There it was asserted, as here, that the mill company was not entitled to recover at all, and, secondly, if so, it was entitled to recover, not the value of the use of the water, "but only nominal damages, *Page 230 because no special damages are shown." The court held against both such contentions, and in doing so, among other things, observed:
"The restrictions as to the manner in which, and purposes for which the water should be taken, are not repugnant to, but are descriptive of, the right granted. It follows, that until the water-powers should be withdrawn from the canal as authorized by the deed, they belonged to the plaintiff. Any person taking water from the canal, except as authorized by the plaintiff, would be liable to it in damages to the extent, at least, of the value of the amount taken. The defendant having taken water without authority is so liable."
To that effect is also Wright v. Platte Valley Irr. Co.,27 Colo. 322, 61 P. 603. So, too, in principle are the cases ofMullin v. Pa. R.R. Co., 125 Pa. 189, 17 A. 478, and EasternPa. Power Co. v. Lehigh Coal Nav. Co., 246 Pa. 72, 92 A, 47, Ann.Cas. 1916D, 1000, and cases there noted.
Here under the terms of the contract the assignor acquired the right to the use of respondent's water only to irrigate the 30.66 acres. Any other use made by him of the waters clearly was unauthorized. The so taking and using the water on the 8.40 acres by the assignor was wholly without his contract. The taking may not be justified thereunder, and was as though no contract existed between the parties, and as though the assignor otherwise without right or permission had taken the respondent's water and used it for his own use and benefit. That he in such case became liable to the respondent for at least the reasonable value of the unauthorized use of such waters on the 8.40 acres, in the same manner and to the same extent as would result in any other unauthorized taking and using of water belonging to the respondent, seems clear to me.
And further as to this: What chiefly divided the parties was the question of whether the assignor of the plaintiff had the right, notwithstanding the clause in the contract referred to, to use any of the waters supplied him by the respondent to irrigate lands other than those described. The *Page 231 plaintiff asserted the affirmative and the respondent the negative of the proposition. So, among other things, it was stipulated by the parties that "the lease value of the water so used" on the "8.40 additional acres during the season of 1921 was $67.20," the amount withheld by the respondent. They further stipulated that if the court found and determined that the respondent "was entitled to charge for water used on the additional lands," the 8.40 acres, then the court "shall also find that the amount so deducted and withheld by the Utah-Idaho Sugar Company was rightfully and legally deducted and withheld." Thus by the stipulation it is stipulated that, if the respondent "was entitled to charge for the use of waters" used on the 8.40 acres, then such charge was stipulated to be $67.20, and that such amount "was rightfully and legally deducted and withheld." In view of the stipulation, it thus seems to me that all objections and points made with respect to questions of damage, or that the stipulation or evidence did not show the amount of damages sustained by the respondent, or under what circumstances the respondent was entitled to the reasonable value of the use of the waters used on the additional acres and when not, and the observations made with respect thereto, are inconsistent with, and controlled by, the stipulation. As to all such matters the stipulation reduced the question to the proposition: Was the respondent entitled to make a charge — entitled to compensation — for the use of the waters used on the additional 8.40 acres? If so, then the amount of such charge or compensation was stipulated to be $67.20, and that it was rightfully and legally withheld. Thus under the stipulation and under the authorities I think it clear that, when the plaintiff's assignor made an unauthorized use of the waters supplied him, and used them on land on which he had no right to use them, he became liable to the respondent on an implied contract for, or on an obligation or duty imposed by law to pay, the reasonable value of the use of such waters, stipulated by the parties to be $67.20.
I therefore think the judgment should be affirmed. *Page 232