Concurring. — I concur in the result. I place my concurrence upon the provision contained in the state contract as follows: “While the party of the second part shall retain control of said Big Wood River Reservoir & Canal Company, Limited, water shall be measured and be available for use within one-half mile of the place of intended use and in such quantities and at such times as the condition of the crops and weather may determine.....” By this provision I think respondent agreed to perform a definite service,’ for a breach of which it is liable in damages. I have not been able to reach the conclusion, suggested by the opinion of Justice Dunn, that an action such as the one at bar would lie against respondent, for failure to deliver water, after the control of the operating company passed to the land owners under the system. By the contracts in evidence, the construction company undertook to sell to the entrymen a definite water right. If there has been a breach of that contract, I am inclined to the view that damages therefor must be recovered in a single appropriate action -for that purpose.
McCarthy, J., concurs in the concurring opinion. (November 6, 1922.)