Concurring. — As I view this case, the real question presented is, have school lands a superior claim to water rights over other lands embraced within the project? If such a preference exists it must be found in the contract, a copy of which is attached to the complaint as exhibit “C,” and which is referred to in the foregoing opinion as having been entered into between the state and the Construction Company.
A very careful examination of that document fails to disclose any expression from which it may be inferred that it *73was the intention of the contracting parties to reserve from Carey Act and other lands, in the event there was not enough for all, sufficient water to irrigate school lands or that they should be preferred over others in the distribution. Upon the other hand, the language employed indicates that water rights should be sold to qualified entrymen or purchasers without preference or partiality. At the time the contract was entered into all parties to it believed there was a water supply ample to reclaim and properly irrigate the 150,000 acres of land embraced within the original project; no preference was believed to be necessary and none was provided for, but it was expressly-agreed: “The sale of water rights to the purchasers shall be a dedication of the water to the lands to which the same is applied.”
The contention that the water supply shall be divided up and distributed over all the land now within, the project, regardless of how small an amount would thereby be available for any portion of it, cannot be supported.
The purpose of the Carey Act of Congress and of our legislative enactments accepting for Idaho its benefits is the reclamation and irrigation of desert lands in a manner and to an extent that will make them productive and valuable for agricultural purposes.
In conformity to these laws and pursuant to its agreement with the state, contracts were entered into between the Construction Company and settlers, the form of which was approved by the state, wherein it was agreed that certificates of shares of the capital stock of the canal company, thereafter to be formed, should be issued to purchasers of land and water rights, in each of which was to be recited: “This certificate entitles the owner thereof to receive one-hundredth of a cubic-foot of water per acre per second of time for the following described land: [here occurs a blank for the description] in accordance with the terms of the contract between the State of Idaho and the Twin Falls-Salmon River Land & Water Company.....”
It. appears from the record in this ease that prior to the application for a water right by plaintiff, Rayl, more than *74enough of the°e settlers ’ contracts had been sold and were outstanding to consume the entire water supply available. It follows that to require- the defendant, Construction Company, to issue to him the shares of stock which he demands would be a vain and useless proceeding, for it would amount to an order that it issue to him a contract obligating itself and its successor to do the impossible, viz.: Supply him with water which has heretofore been dedicated and become appurtenant to the lands of others.
For the foregoing reasons I concur in the conclusion that the relief prayed for should be denied.
I am not in accord with that portion of the opinion which is to the effect that the state, in dealing with a Carey Act project, does so in its capacity as a private owner. As I understand the Carey Act, its purpose is to procure the reclamation, settlement and cultivation of desert lands, and, with that end in view, provides that such lands may be patented to the state wherein they are located with the ultimate object that they find their way into the hands of settlers. If this is a correct interpretation of the law, the state takes title by virtue of its sovereignty, not as an owner, but in trust for the use and benefit of the settler.
Entertaining these views, I cannot agree that the doctrine of estoppel has any application here.
I am unable to concur in the portion of the opinion which is to the effect that the approval by the Secretary of the Interior' of the plan for reclamation of the land embraced within this project, and his finding that the water supply was adequate before the contract for construction was entered into, is conclusive upon the United States. This is a question which must address itself to the officials of the Department of the Interior and, possibly, to the federal courts, but is one not within our jurisdiction to decide.
(July 3, 1917.) Mandate — Mutual Mistake of Fact — Caret Act Project. 1. A writ of mandate will not issue from this court to compel a Carey Act construction company to issue shares of stock to a purchaser of state sehool land where the shares of stock already sold are far in excess of the available water supply and the contract entered into between the construction company and the state of Idaho was entered into under a mutual mistake of a material fact. 2. Where a purchaser of sehool lands under a Carey Act project could not possibly obtain the amount of water his contract would entitle him to receive, and the issuance of shares of stock to the said purchaser would in effeet defeat the rights of prior settlers to the water to which they are entitled under their contracts, a writ of mandate will not issue to compel the construction and canal company to sell shares of stock to said purchaser of school land. 3. The state of Idaho in dealing with a Carey Act project acts by virtue of its sovereignty and not in the capacity of a private owner. 4. The doctrine of estoppel cannot be invoked against a sovereign state.