ON REHEARING.
RICE, C. J.There can be no doubt that an aetion for damages to crops, because of failure to deliver water during the years in which the construction company retained control of the operating company, will lie, since during those years the construction company bound itself to deliver water in such quantity as the condition of the crops and the weather might determine. (Hanes v. Idaho Irr. Co., 21 Ida. 512, 122 Pac. 859.) I think, however, that the principle that the performance of the contract was based upon the continued existence of the subject matter is at least partially applicable. (Dow v. Bryant, 28 Wyo. 508, 206 Pac. 1061; Hanes v. Idaho Irr. Co., supra.)
An examination of all the contracts can leave no doubt that the construction company absolutely guaranteed an adequate water supply during ordinary or average seasons; but a diminution of the water supply on account of an extraordinary drought should be held to be a legitimate defense. The fact that the canals were taken from a reservoir constructed in and about the bed of the river which constantly flowed into it does not affect the validity of this defense. Under such circumstances the reservoir could not be held to be a private receptacle so as to make the *99water impounded therein a mere matter of merchandise. Neither was it contemplated or agreed that respondent should hold in its reservoir at the close of any year water to supply a shortage for a succeeding year.
With such issues presented, the appellants made a prima facie case by proving the contract and failure to deliver water in accordance with its terms and consequent damages to their crops together with the amount thereof. It was incumbent upon respondent to prove the failure of the water supply on account of an extraordinary drought, and also that it delivered to appellants their just proportion of the water supply which it had. The determination of the issues in this case does not require the presence of additional parties. Any judgment rendered is binding only between the parties to the suit.
The court instructed the jury that before the plaintiffs can recover a judgment against the defendant it is incumbent upon them to prove that the defendant company had a water supply which was available to the defendant for distribution to plaintiffs, and that the defendant failed and neglected so to distribute to the plaintiffs’ injury. This instruction was error,- it shifted the burden of proof. For this error the judgment should be reversed.
I adhere to the views expressed in my former concurring opinion, that an action for damages to crops will not lie against respondent after it ceased to retain control of the operating company. Judgment is reversed. Costs to appellant.
McCarthy, J., concurs. Budge, J., concurs in the conclusion reached. DUNN, J.I adhere to the views expressed in the original opinion. The rule that “where the performance of a contract depends upon.the continued existence of a person or thing which is assumed as the basis of the agreement, the death of the person, or the destruction of the thing terminates the obligation,” has no application where the thing *100destroyed is the thing which one of the parties has expressly contracted to produce and deliver. (Logan v. Consolidated Gas Co., 107 App. Div. 384, 95 N. Y. Supp. 163; Vogt v. Hecker, 118 Wis. 306, 95 N. W. 90; John Soley & Sons v. Jones, 208 Mass. 561, 95 N. E. 84; 13 C. J., p. 644, sec. 718.)
Dow v. Bryant, 28 Wyo. 508, 206 Pac. 1061, I think is not in point in this case. There a lease of certain land for one year was made together with sufficient water from the Lewis extension of the R. Bahr canal to irrigate the same, and on the trial the lessee, who claimed damages for failure to furnish sufficient water, testified that he had known the land for eighteen years or more and the source from which the water for its irrigation was obtained; that water could not be obtained elsewhere, and that he had told the lessor before the lease was signed that he thought there would be a shortage of water. It was also shown that the lessor had received $650 for the lease of the land from another party and she testified that on account of the prohahle shortage of water and in consideration of the lessee’s doing certain ditch work she reduced the price to $500.
In this ease there is an entire absence of anything to indicate that the purchaser was aware of any condition that might make it impossible for the construction company to furnish in any year the full amount of water specified in the contract. If, as respondent now claims, it knew there would be occasional seasons of extraordinary drought in which it could not supply the amount of water required by its contract, it should have written therein an exemption from liability for damages from such cause. Not having done so, it should be held to the contract as written.