— Appellant is the owner of land and a water right under a Carey Act irrigation system constructed by respondent. His contract provides for the delivery to him of one-eightieth of a cubic foot of water per second per acre. In the summer of 1915 he suffered serious shortage of water and consequent loss of crops, damages for which he seeks to recover in this action.
The case was tried before a jury and a verdict returned for respondent. The appeal is from the judgment.
The errors assigned relate to the instructions and the admission of certain exhibits.
Instructions 5, 6, 7, 9 and 10, of which complaint is made, all relate to the shortage of water and state in substance that if appellant’s failure to receive water was due to' a shortage occasioned by ‘drouth, or by insufficient moisture or snowfall in the watershed supplying the irrigation system respondent would not be liable. These instructions were erroneous. In the Tapper case, in which the issue was the same as in this ease, the majority of this court held that “. . . . the appellants made a ‘prima facie ease 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 drouth, and also that it delivered to appel*120lants their just proportion of the water supply which it liad.” (Tapper v. Idaho Irr. Co., 36 Ida. 78, 210 Pac. 591, 597.)
In the ease at bar appellant brought himself within this rule, but the foregoing instructions of the court exempted the respondent from proving the defense of an extraordinary drouth which was required by the Tapper ease and which respondent had pleaded.
Instruction No. 8 was erroneous in telling the jury that appellant was required to prove that respondent “had a water supply which was available to the defendant for distribution to plaintiff, but that the defendant company failed and neglected to do so to plaintiff’s injury.” No such burden rested upon appellant. (Tapper v. Idaho Irr. Co., supra.)
The admission of exhibits “B,” “C,” “D” and “E” is assigned as error. “C,” “D” and “E” were exhibits purporting to show the water supply in the respondent’s reservoir from 1909 to 1917. “B” was a diagram purporting to show the water discharge of 1915 as compared with other years in the Columbia Basin at The Dalles, Oregon, and in the Snake River at Montgomery’s Ferry, Idaho, and in a number of tributaries of the Snake River. In view of the holding of this court in the Tapper case the admission of these exhibits was not error except as to that part of “B” pertaining to the Columbia Basin, which was too remote.
The judgment is reversed, with costs to appellant.
Budge, C. J., and McCarthy, J., concur. William A. Lee, J., concurs in the conclusion reached.