Concurring. — I concur in the conclusion 'reached but I do not think that the rule of law laid down in the second subdivision of the syllabus has any application to this case, for the reason that this case is not based upon the water deed referred to in said syllabus as the written contract. From the allegations of the complaint it clearly appears that the action is not based entirely upon a water right deed, but upon the contract of the Great Western Co., to the effect that when it had sold the water rights to the extent of the appropriation and capacity of its system and the system was completed and paid for, it should become the property of those who had purchased such water rights, the giving of the water deed being only a part performance of the contract and not the contract itself, but only a part of it. Hence the action was not based upon the deed for the water right. The prospectus was only a part of the evidence offered in support of the allegations of the complaint, as numerous agents of the Great Western Co. who sold water rights for it *11testified that the sales were made upon the condition that when the water rights were all sold, the purchasers of such rights should become the absolute owners of the reservoir and water system.